Profile Rabbi Dovid E. Eidensohn

Tuesday, July 31, 2018

How to Make a GET, and how Not to Make It


Making a GET
By Rabbi Dovid E. Eidensohn
The laws of making a GET are taught in the Shulchan Aruch Even Hoezer. But as with the general structure of the Shulchan Aruch and even the gemora, many are the considerations of those opinions. So we have to go carefully and find out the final judgement of the great rabbis. In the Shulchan Aruch the great rabbis are Rav Yosef Caro the Beis Yosef, Reb Moshe Isserles the Ramo, the Vilna Gaon[1], the Beis Shmuel,[2] the Chelkas Mechokake and a few more printed opinions. In Even Hoezer page 77 par. 2 and 3 we find these great rabbis declaring that one may not force a husband to give her a GET. The exception is if a prominent Beth Din finds that it has clarified that what the lady claims her husband did to her is true, then we may possibly find that the husband is forced to give a GET, even if we have to beat him.
The Rambam[3] writes the basic ten Torah rulings about how to write a GET. The first is “The man should not divorce his wife unless he wants to do it.” “And if he divorces against his will she is not divorced.” Thus, a woman who forced her husband to divorce her and remarries somebody not her husband, the child born from that person is a mamzer.
Rashbo in teshuva 414 volume VII says when a woman demands a GET that “if the husband wants to divorce he divorces her, if he doesn’t want to divorce her he doesn’t divorce her.” Meaning, we don’t force a husband to divorce even if the wife complains bitterly about him. If the Beth Din knows that the wife is right and that the husband is doing bad things to her that require Beth Din to force him to divorce her, that is Beth Din’s prerogative, but the wife alone has no power to force a GET.
The Rambam[4] writes, “A woman who denies her husband marital intimacy is called a MOREDESS, a rebel. And we ask her why she rebelled. If she says ‘I despise him, and cannot tolerate sleeping with him willingly’, we force him to divorce her by a certain time, because she is not a slave to sleep with somebody she hates.”
In general people assume that the Rambam gives a woman the power to force a husband to divorce her if she claims he disgusts her. However, the Ramo in teshuva 96 quotes a lengthy teshuva from Rav Eliezar Ashkenazi that the Rambam never said that a woman has the power to force her husband to divorce her. In fact, there is an open Mishneh in Nedarim 90b that no woman can force her husband to give her a GET because we fear that she simply wants a nicer husband not that her story about this husband is true. In earlier times when women did not lie, we believed women who had sad stories about husbands, but not in later generations. If so, obviously the Mishneh blocks us from assigning to the Rambam the position that a woman may simply demand a GET from her husband because he disgusts her. Furthermore, the Rambam never said that the woman demanded a divorce. It says that she demands privacy from intimacy, but remains in the house, does the dishes and takes care of the children. But she refuses marital intimacy. Such a woman is believed and precisely because she did not mention the word “GET,” we believe her story about her husband, and force the husband to give a GET. But if she demands a GET we don’t force the husband to give her a GET because “maybe she just wants another husband.”
However, the Rambam adds the words “we force him to divorce her by a certain time.” This means that we believe her that the husband is indeed disgusting to her. But we give the husband a period of time to learn how to behave, and the Beth Din probably is involved in this. If by the end of this period the wife has changed her mind and accepts him for intimacy, he does not have to divorce. But if that period comes and she still despises him, he must give her a GET.
One of the hottest disagreements today is about the ruling of the Beth Din of America that all members must have husbands sign a paper that whenever the wife demands a GET he must give it to her immediately, or pay a large sum of money regularly. This created great controversy because it argued clearly with the above mentioned Mishneh in Nedarim 90B that no woman is believed to force her husband to give her a GET, because we fear she is lying about the husband simply because she wants another man for her husband. If so, how can the wife be able to force her husband to pay a fortune of money every year for not giving a GET immediately after she demanded it? A prominent Israeli rabbi said that whoever ruled this way is not an Orthodox Jew, and Rabbi Bleich from Yeshiva University reportedly savagely attacked it.
This teshuva of the Ramo #96 is very rich at the end of the lengthy study there to locate various reasons where senior rabbis have the right to demand a GET from the husband. They are 1) If the husband acts in a way to shame the woman and her family, such as if he is a public thief, the Rosh rules that we may force him to divorce his wife because he is shaming the wife and her family. 2) Since the husband the thief cannot return to their home in the city where he committed robberies, because they will seize him and maybe kill him, this prevents him from returning there, and this itself that he must stay away from his wife who is not obligated to follow him to another city means that we must order him to divorce so that she can have another husband and that he can have relations with a woman and not live in sin. (Tur) 3) Since the husband has only one child and has not fulfilled the command of Pru urvu, we force him to give a GET so he can remarry and have children. The Ramo (mentioning Rav Eliezar Ashkenazi) concludes that the above mentioned gedolei oilom of the Rishonim have permitted us to force the husband to give his wife a GET. But the final decision must be in the hands of “two experts on Torah Law” who alone will determine if we should force him to give a GET.
We will stop here, having provided basic ideas in these matters of forcing a GET, but we were careful not to overload with the large number of opinions that most people won’t want to struggle with. But on a basic level, those who clearly force a GET from the husband or tell a wife ridiculous reasons why she was never married in the first place, have surely put themselves in a very sad halacha situation, and children they have from these


[1] The Vilna Gaon is a Rishon despite being born in a latter generation, and the others are Acharonim.
[2] Beis Shmuel is considered by Maharsham the greatest of the latter Acharonim to rule on halacha. (Maharsham teshuvose IV:73 page 40
[3] Gerushin  I:1 and 1:2
[4] Ishuse 14:8

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