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?

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.