One may not Force
a GET
Dovid Eidensohn
This is the opinion of the
Shulchan Aruch Even Hoezer 77.2 quoting the Rashbo in VII.414 “It is forbidden
to force a GET. If the husband wants to, he divorces her. If he doesn’t want
to, he doesn”t.
All of the commentators there forbid forcing a
GET. However, the Gro there brings that those who forbid forcing a GET are the
Rosh, the Rashbo, the Ran,S and the Ritva. He says further that although Rambam
and Rashbam disagree with this, this is this halocho that forcing a GET is
wrong. Rambam in the very beginning of laws of Divorce says that the Torah
requires a willing GET given by the husband or the GET is worthless. If so,
those who forbid forcing a GET mean that the child born from a woman who is divorced
by a forced GET, are mamzerim.
Note that the Gro says that
Rashbam and Rambam disagree and would allow a husband to be forced to divorce
his wife. But the Rambam on that subject does not say this. He says rather that
if a woman does not ask for a GET but stays in the house and takes care of the
children doing basic housework, but denies the husband marital intimacy, we
force a GET, on the condition that Beth Din gives the husband time to straighten
out his marriage. If he fails after the stipulated time to do this, we force a
GET. But if she demands a GET, there is an open Mishneh in Nedorim 90b that we
do not trust a woman these days to force a GET, they were trusted in earlier
times, but today women learned to lie about their husbands to get a GET so
today we don’t believe them anymore. The Vilna Gaon brings this from a Tosfose
in Kesubose 63b a lengthy Tosfose where Rabbeinu Tam forbids forcing a GET but
some other such as Rashbam permitted it. The question it:
What does Rashbam do with the
Mishneh which is not contradicted anywhere? The same question can be asked of
the Modern Orthodox who created an obligation on all husbands to pay their
wives $150 a day for each day after he denied he a GET. What do they do with
the Mishneh that today and for hundreds of years since the Mishneh in Nedarim,
we don’t allow a woman to force a GET?
Perhaps Rashbam holds like the
Rambam, that we can force a GET if the women is against her husband having
marital relations with her but stays in the house and takes care of the children.
If she doesn’t mention asking for a GET the Mishneh does not apply, at least
according to the Rambam. Rashbam could agree. But if she asks for a GET Rambam
could also agree with the Mishneh that she has no right to force a GET.
Be advised also that a mamzer is
a terrible thing. But worse than a mamzer is a doubtful mamzer. A mamzer may
marry a mamzeres. But a doubtful mamzer may not marry a mamzeres and may not
marry a Jewish woman.
A doubtful mamzer is discussed
in Shulchan Aruch Even Hoezer 4:24. A
doubtful mamzer is described as a man who marries a woman who is possibly
married to another man. If she is really married to him and he has a baby from
her, the baby is a mamzer. But if there is a doubt if she is married to that
other man, a child born from her is a doubtful mamzer.
I had a question as follows: A
husband is being forced terribly to divorce his wife so that he just can’t take
it any more. So he gives the GET with bitterness as he is absolutely opposed to
being forced. But when he comes to give the GET he realizes that if the GET is
worthless, his wife cannot remarry, but, he also cannot remarry, because he
never divorced his wife. If so, and if he thinks this way, and has a doubt if
he really wants to divorce his wife, and especially if he revealed his thoughts
to people so that somebody would marry him with no fear, the GET is probably
good. Because a forced GET when we know the husband accepts it is probably
kosher. But what if we don’t have two witnesses to this, maybe one witness, or
maybe people spoke to the husband and know that he was afraid of not being able
to remarry and may have decided to make a kosher GET maybe not. Does that make
the child a doubtful mamzer that he cannot marry a mamzeres or a Jewish woman?
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