The Quiet and Terrible Crisis of Orthodox Women and Mamzerim

By Rabbi Dovid E. Eidensohn

What is the Quiet and Terrible Crisis of Orthodox Women all about? If it is a terrible crisis, why is it quiet? And if it is quiet, how can it be terrible and nobody talks about it?

For those who read regularly my blog at torahhalacha.blogspot.com, the quiet and terrible crisis is not so quiet. Indeed, recently when I talk to people, they increasingly interrupt our conversation to talk about Pilegesh. And although the idea is new, they are usually brought around to my claims that Pilegesh alone can solve the quiet and terrible crisis of Orthodox women. But what is the quiet and terrible crisis in the first place?

Let us talk about a couple getting married in an Orthodox marriage ceremony. Everyone is happy. Perhaps the happiest one there is the new wife. She is the target of my post here. Because if her marriage sours, what can she do? She will ask her husband for a divorce. If he refuses, and she realizes that he has no intention to ever give her an Orthodox GET, her life is over with. She is referred to by many as an “Agunah”. 

An Orthodox woman who is in such a predicament may stop being religious. As more and more women fall into this category, more and more women are either ending their religious affiliation, or ignoring part of it. Therefore, some rabbis have taken to counsel them to force a GET from their husbands. In Jewish Law, a forced GET is invalid, and if the woman remarries with a forced GET that is invalid, she produces children that are usually mamzerim. When these children grow older and realize the terrible term associated with them, we have a problem. We want to know who encouraged the mothers to make mamzerim? This will lead to a war of rabbis. I refer to rabbis who force Gittin to “help” woman, as “mamzer makers.” When the mamzer grows up and confronts that rabbi…

The Orthodox rabbis rabbis who counsel women to get forced GETS, do this because very few people in America know well the laws of Gittin. I once asked a prominent rabbi who is a big name in Gittin, “Where are the laws about not forcing a GET on a husband?” He didn’t know. Why? Because he learned the laws of Gittin and made Gittin, but he did not learn the laws of Kesubose. In the laws of Kesubose, Even Hoezer 77 paragraphs 2 and 3, all of the major commentators agree that it is forbidden to force a GET on a husband simply because the wife demands a GET. If a Beth Din clarifies that the husband is one of the rare individuals who deserve a forced GET, that is something else. But just because the wife is upset with the husband is not adequate grounds to force him to divorce. Technical material on this is in some of the posts of my blog torahhalacha.blogspot.com. The major source of material on this is a lengthy response of one of the most senior Rishonim, the Rashbo in his teshuvo in volume VII:414. There he says that even a husband who is unable to have children for medical reasons and is commanded by the Talmud to give a GET, may not be put in Nidui, humiliated or physically forced. Such a husband may be told that he is wicked for not obeying the rabbinical decree mentioned in the Talmud, but unless he does something very terrible such as marrying a woman who is forbidden in marriage to him, there cannot be a forced GET.

The great rabbis of Israel have published a book recently describing the terrible sin of making a forced GET. Some women even go to secular court where some Orthodox people and even some rabbis have convinced the government to allow civil courts to force husbands to give a GET. This produces mamzerim, and one secular court has declared, {Marsi vs Marsi), that a secular court’s forcing of the husband to give a GET is unconstitutional. But other courts go full blast and force the GET. And from these GETS come remarriages with an invalid GET that produces mamzerim.

A prominent rabbi once told me that a man came to him to remarry. The rabbi asked him who made his Get and he said “Rabbi Gedaliah Schwartz said that I don’t need a GET.” The prominent rabbi wanted me to find out what this was all about and I called Gedaliah Schwartz and asked him about it. He openly told me that the couple came to him for a GET, but he told them that they did not need a GET. I asked him why this Orthodox couple who had an Orthodox Chupah and marriage could just leave without a GET. He replied there was no Biah. Now anyone who studies the laws of Kiddushin or marriage in the Shulchan Aruch turns to Even Hoezer chapter 26 paragraph 4. It says there that a woman can be Mekushes Married in three ways: If she receives something of monetary value like a ring she is married. If she accepts a document of marriage she is married. If she has marital relations (Biah) she is married.

Thus, marriage is consummated immediately when the husband gives the wife a ring and says “You are mekudeshes [married] to me.” Gedaliah Schwartz told a man and woman who had come for GET, that it was unnecessary, because there was no Biah (marital relations). But the ring itself without Biah created a complete state of marriage. So Schwartz is obviously ignorant of the most basic things a rabbi should know. And he is the head rabbi of the RCA Beth Din. Unfortunately, there are other ones, and they are listed in my blog on several posts at torahhalacha.blogspot.com.

What then is the solution? To marry with Kiddushin at a time when so many marriages spoil, is very dangerous. The woman may be ruined for ever as one who cannot remarry. Not to marry at all is unacceptable. What can an Orthodox woman do? There is only one solution. Pilegesh. In the Shulchan Aruch Even Hoezer laws of Kiddushin chapter 26:1 we find a discussion about Pilegesh. One who studies the paragraph and the commentaries there find that Pilegesh can be acceptable and can be forbidden. The acceptable side is based on what the Vilna Gaon there in his commentaries says is an open gemora Sanhedrin 21A that “A Pilegesh has no Kiddushin and no Kesubo.” Otherwise, a Pilegesh is acceptable in marriage. And “no Kiddushin” means that the husband and wife can leave anytime with no pressure, punishment or worries.

 There is, however, a problem with Pilegesh that causes some to forbid it. In a community where everybody else gets regular Kiddushin, and almost nobody gets Pilegesh, people may assume that Pilegesh is either somebody like others who has Kiddushin, and if the marriage ends by the woman walking out of the house and declaring that she is out of the marriage, people who don’t know this or don’t know the laws of Piligesh may assume she is a sinner and that her children when she remarries without a GET are mamzerim. Another problem is that people married with Pilegesh may be refused use of the Mikveh, because they may mistakenly believe that Pilegesh is forbidden. The solution of this is that somebody who wants to do Pilegesh contact a rabbi who accepts Piligesh people in a positive way. The rabbi can try to get the Mikva approved for his Pilegesh people, and failing that, can attempt to put together the funds to make a separate Mikvah. There are often in a community men with private Mikvas because they go every day and have no time to run to the local Mikvah for men and spend the money there. Sometimes, a rabbi can determine if a private Mikvah is good for ladies and if it can be used once in a while.

At any rate, anyone interested in Pilegesh marriage can contact me at 845-578-19147. Anyone who makes a Pilegesh marriage with me being responsible will have a regular marriage with the exception that anyone can leave whenever they want with no penalties. Technically, there are in Pilegesh certain rules that I will not get involved with. I want a regular marriage with all of the proper things that go with that. I would prefer making a Beth Din that would insure that the couple was not married previously or was married and then divorced properly. It would also discover if the couple is appropriate for Pilegesh as some people may insult them. It is a new thing. But being a mamzer is an old thing. That is the choice for those who live today in the Quiet but Terrible Crisis of Orthodox marriage.

I conclude that the crisis is here but quiet, but just wait till the children created from invalid Gittin grow up, and are found to be of questionable parentage. That will not be a quiet crisis. Meanwhile, I do what I can. I have semicha from the Gaon Rav Moshe Feinstein zt”l on my halacha work that “I know Rabbi Eidensohn for many years as one who delves deeply into complex halacha.” The Gaon Rav Yosef Shalom Elyashev zt”l stated orally that I may run a Gittin Beth Din under his name. Earlier, I studied intensely under the Gaon Rav Aharon Kotler zt”l to understand his Derech.