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
[4]
Ishuse 14:8
