By Rabbi Dovid Eidensohn
The Rashbo tells us about two wives who demanded a GET because they were fed up with their husbands. One husband was unable to have children, and the wife wanted a child. The other husband was a regular husband perhaps having children, but the wife didn’t like him at all. The Rashbo says that there are three rulings. First of all, neither of the wives can force a GET from the husband. Rarely, such as when a husband marries somebody forbidden to marry him, the Beth Din can force him to divorce her. This force can be physical. But such is rare.
Second of all, the husband who cannot have children is obligated by the gemora to give his wife a GET. This obligation is not a Torah power, but a lesser rabbinic power. Furthermore, we are limited in the pressures we may make on him. It is forbidden to put him in Nidui, to humiliate him, or to use physical force to force a GET on the husband. We can, however, tell him that the gemora must be obeyed and if he refuses to give his wife a GET he is considered wicked. This is based on the teaching of the gemora in Shabbos 40A that one who violates a rabbinic law may be called a wicked person.
Thirdly of all, the Rashbo says that a husband whose wife complains that she wants a GET has no obligation to obey her. “If he wants to, he gives a GET. And if he doesn’t want to, he doesn’t give a GET.” This ruling is quoted heavily in the Shulchan Aruch Even Hoezer Laws of Kesubos chapter 77. In paragraph 3 in the Ramo we find it. In paragraph 2 in the Shulchan Aruch the Beis Yosef, the mechaber, quotes the Rashbo. The Vilna Gaon writes there that the majority of Rishonim forbid coercing a GET from a husband. He then states that today everybody agrees that a husband generally cannot be forced to give a GET.
The Beis Shmuel, considered the outstanding commentator on Shulchan Aruch by the Maharsham, also quotes the Rashbo: “If the husband wants to divorce, fine but he is not to be pressured.” The Chelkas Mechokake there goes further and says, “If a man is pressured or forced to give a GET and his wife remarries after her husband was forced to divorce her, we force her to divorce the new husband.” Thus not one commentator disagrees with the Rashbo that a husband cannot be forced or pressured to divorce his wife, unless there are extreme circumstances such as the husband marrying somebody who is forbidden for him to marry. Rabbeinu Tam quoted by the Shita Mekubetses in Kesubose 64A says that Beth Din should not even suggest that a divorce would be a good thing.
The Chazon Ish states that when a person is not from the small minority of men who may be forced to divorce their wives, and he goes to a Beth Din that mistakenly tells him that he is obligated by the Torah to divorce his wife, then the GET he makes is invalid for two reasons: One, it was a GET given by force as the Beth Din’s instruction are ONESS or force. Two, since the rabbis made a mistake to order the GET, it is a GET given by mistake. These two reasons make the GET invalid by the strong level of the Torah, not merely a rabbinical level.
The great problem is that our wives marry with Kiddushin, and cannot leave the marriage without the husband’s approval. This has made some women irreligious, and many women bitter. Therefore, some rabbis will encourage the woman to force the husband to give a GET. This is wrong and results usually in the GET being forced and invalid. If the woman remarries with an invalid GET and has a child, the child is a mamzer, at least most of the time. This problem of women becoming Agunose is growing worse with time, especially when so many rabbis violate the Torah and encourage the forcing of the husband to divorce. As time goes on, more and more rabbis encourage invalid and forced Gittin. More and more women refuse the suffering of an Agunah. When will it end?
The idea that a woman comes to the Chupah and takes Kiddushin, in an era where so many women regret their marriage, is frightening. What can be done in an age where divorces are growing and everyone marries with Kiddushin? But should the woman marry without Kiddushin?
A woman who marries with the understanding that she cannot leave her husband unless he dies or gives her a GET, is a candidate for Kiddushin. But how long can the resolution last until she finally collapses and goes to a rabbi who will force her husband to give a GET? That number is growing constantly.
I therefore say as follows. If a woman is ready to give up her happiness forever with a husband she does not like, let her take Kiddushin. But if she is not sure (and who is sure about this), she may not want to take Kiddushin. But to live alone is wrong. Therefore, the only solution for the large number of women who are not ready to be Agunose their whole lives, is something else. It is called marrying with Pilegesh. Pilegesh simply means that a real marriage exists. But there are not in Pilegesh the chains that bind Agunose. Anyone husband or wife can leave anytime.
But is Pilegesh permitted? Pilegesh is discussed in the very beginning of the laws of Kiddushin in the Shulchan Aruch 26:1. The Vilna Gaon there quotes a gemora in Sanhedrin 21A that a Pilegesh has no Kiddushin and no Kesubo. But it is obvious that Pilegesh is accepted by the gemora. There are those who disagree with the gemora, but that is the halacha. But even if there are those who forbid Pilegesh, since there are many who permit it, such as Ramban and Yayvets, who are strongly for Pilegesh, and the gemora permits it, it surely is appropriate for anyone who fears becoming an Agunah. Because this fear can turn a woman into a forcer of her husband to give a GET and the making of mamzerim. Therefore, anyone who is not sure about living the life of an Agunah, should marry with Pilegesh. If anyone wants me to deal with their marriage as Pilegesh, call me at 845-578-1917 or write me at firstname.lastname@example.org.