Challenges in Torah Marriage

A great part of the Torah Family and Marriage is marriage with Kiddushin and a Kesubo. Kiddushin is from the word "sacred" and involves a marriage that sanctifies husband and wife. But there is a price to for that sanctification. For the husband or wife to leave the marriage made by Kiddushin is a difficult process. The woman has a much greater problem as she cannot leave the marriage unless the husband dies or gives her a GET divorce paper willingly. If he is not willing and is forced to give it, the GET is invalid, and children from the next marriage are probably mamzerim.

In earlier generations women usually did not have independent sources of money so they had to stay with the husband no matter what. But today women work and don't need support. This leads to much conflict, and the husband may not give her a GET willingly so she is stuck, maybe forever. We have explained elsewhere that today this creates two situations unlike earlier generations. One is that a woman who is not religious enough to maintain Kiddushin no matter what may not marry with Kiddushin. Two, when certain rabbis want to "help" women in this difficulty by offering them invalid and forced GETS, if the woman accepts, she is a sinner, and her children by the next husband are usually mamzerim.

On the other hand a woman or even a man with biological needs not being met in marriage will likely find some sinning to do, which is a terrible thing. Therefore, a husband and wife must marry, but to marry with Kiddushin and not honor it is a terrible sin. What can be done?

I therefore have suggested a solution that is perfectly legal by the Torah. The husband and wife can marry without Kiddushin by accepting the level of Pilegesh, meaning they are married, and their children are perfectly acceptable like other children of Kiddushin, but with Pilegesh the husband and wife live together as long as they are both satisfied with the arrangement. When one wants to leave it is permitted and there is no hassle or sin. However, to have a proper Pilegesh marriage a rabbi should be involved who will instruct how to behave so that everything is completely kosher.

If somebody is so religious that they will maintain their religiosity with Kiddushin no matter what, perhaps they don't have to think about Pilegesh, but today, this is getting more and more rare, as so many rabbis and married people are forcing a GET from the husband.

In very early generations, such as the time of the Geonim who were many generations before Rashi and the authors of the Tosfose in the gemora, around the time of Islam's arrival, the rabbis permitted women to force a GET. Nobody knows what connection there is between this permission and Islam, but it happened. There were other periods when people felt that the rabbis had addressed a crisis by permitting a forced GET. Those days are gone.

The Talmud finally decided that the earlier power of women to declare they despised their husbands and could leave are gone The reason is based upon an ancient Mishneh that although in earlier times women were believed when they claimed they deserved a GET and sometimes it was forced upon the men, this changed in latter generations when we suspected women of lying so that they can find another husband that they wanted instead of their present husband. This is called "we fear that the woman has put her eye on another man" and wants to leave her husband by lying about her relations with him. This is the rule today. We no longer allow women to just walk out of a marriage despite her claims that the husband is awful, etc.

Rabbeinu Tam and the RI, the greatest rabbis of their time a bit after Rashi, maintain with proof, that the Talmud did not allow a woman to force her husband to give her a divorce based upon her claims against him. This is brought in Kesubose 63b in Tosofose beginning "But if she says MOUE OLEI". There Rabbeinu Tam says clearly that we fear that she will lie and find another husband that she prefers over her old husband.

Rabbeinu Tam proves this from the gemora there where the law of a woman who claims her husband is disgusting to her is discussed. The gemora wants to know if the woman is forced to remain with the husband, because as time goes on, perhaps things in the marriage will straighten out. Rabbeinu Tam asks, "If, as some believe, a woman can claim that her husband is disgusting to her and this causes the rabbis to force the husband to give a divorce, why is this ignored by the gemora? The gemora only asks if we force the wife who complains that the husband disgusts her to remain with him, but there is no discussion at all anywhere in the gemora that we should force the husband to give a GET. Perhaps at some time in history the great rabbis had to provide such a ruling, which is possible when all of the rabbis agreed to it, but the Talmud completely ignores is. In fact, the gemora states clearly that we fear that a woman will lie in order to free herself from her husband and find another husband "her eyes are upon another man." If so, it is obvious that no woman can force her freedom from a husband with a claim that he is disgusting to her. Only if a proper Beth Din determines that they personally know that certain bad actions have actually happened in the house do we then talk of a forced divorce by the husband. But this cannot be done just because the woman says that her husband is disgusting to her.

If somebody wants to discuss these matters with me I can be reached at 845-578-1917.
Dovid Eidensohn - Talmid of Geonim Reb Aharon Kotler, Reb Moshe Feinstein, and Rav Yosef Shalom Elyashev, all of them zt"l.