Showing posts with label Mistakes rabbis make to coerce a GET. Show all posts
Showing posts with label Mistakes rabbis make to coerce a GET. Show all posts

Thursday, February 19, 2015

Mistakes in Gittin by Rabbis: What and Why?

In a previous post we attacked a  rabbi for supporting the organization ORA that specializes in humiliating husbands and coercing them to give a GET, something forbidden by the Shulchan Aruch and the major poskim. We quoted in that post the Shulchan Aruch and the Gro who ways that nobody permits coercing a GET just because the wife demands freedom. We also mentioned also that the great rabbis of Israel today not only feared that coercion could invalidate a GET, but also they ruled that any rabbis who forms a Beth Din and coerces a GET, that Beth Din has lost its license as a Gittin Beth Din. Any woman who had a GET from such a Beth Din may not remarry, say these great Israeli rabbis, until she goes to a respectable Beth Din that does not coerce Gittin and gets a new GET.

In the coming generation, large numbers of children born from a woman who remarried using a GET that was coerced by certain Beth Dins, will be considered problems of mamzeruth. Here we want to show  a mistake made by a rabbi  who stumbled in the laws of Gittin.

One rabbi who strongly supports ORA and its coercion of husbands told me the following reason he permits it. He says that he recalled that the Shulchan Aruch says that when it is necessary, the community may force a GET by refusing to have anything to do with the husband who will not give a GET. This sounds like a very solid proof. But if so, what do we do with my proofs that it is forbidden to coerce a GET based upon the claim of the wife that she cannot tolerate living with her husband? My proofs quoted in prevous posts were the Shulchan Aruch 77 paragraphs 2 and 3.

Let us look into the Shulchan Aruch Even Hoezer 164 paragraph 21. The Shulchan Aruch section is "Laws of Gittin." The Shulchan Aruch discusses what to do with a husband who has been clearly obligated by the Talmud to divorce his wife. For instance, the Talmud tells us that a husband with such a problem must divorce his wife. Since the Talmud requires a divorce, and the husband refuses, it would seem that we may force the GET, even with a beating or other serious coercions. But the Shulchan Aruch rejects this. It seems that there is an argument among the sages what the Talmud means when it says "he must divorce his wife." Does it mean that we force him to divorce even with a beating? Or does it mean only a minor coercion, such as telling him that he is wicked for not obeying the Talmud? The Shulchan Aruch quotes the Ramo, the authority of Ashkenazim, that if we do coerce such a GET for somebody required to divorce his wife, and the Talmud does not clearly say to beat him, we may not make a serious coercion. It would seem from the Shulchan Aruch there that we may tell him that we will call him "wicked" for defying the Talmud, but nothing serious like beatings or being put in Nidui.

The Ramo there states that since we have two opinions one permitting and one forbidden serious coercion, we do not make serious coercion such as a beating, even when the Talmud demands a GET. We fear that  to coerce the GET in a serious manner, even when the Talmud demands a GET may produce an invalid GET.

What then can be done? The Ramo says that we can coerce the husband by decreeing on everyone in his community not to have dealings with him until he divorces his wife. That is, "not to do the husband a favor, not to do business with him, or to circumcize his sons or bury them, until he gives a divorce GET." The Vilna Gaon adds a condition mentioned in some sources for this law, that this public coercion is only permitted if the husband can escape his locality and live elsewhere without people treating him this way. Thus, the Ramo mentions only that we coerce in a passive not direct manner. We don't talk to him; we don't do business with him. But we don't do anything positive to pressure him. Furthermore, the Vilna Gaon adds that the pressure can only be made in a locality where the husband can flee and live elsewhere without the pressure. And the Shach in Gevuras Anoshim agrees.

It would seem according to this that it is forbidden to do what ORA does for many reasons. One, the Ramo only permits passive coercion, not active humiliations. Two, the Vilna Gaon maintains a text of this law taught by Rabbeinu Tam that permits such public coercion only when the husband can escape the coercion by going to a different town. ORA pursues the husband to the next town as well, so its coercion is forbidden.

A third reason ORA is wrong is that very senior authorities disagree with the Ramo and forbid forcing a GET based upon public passive cordination. One is the Shach, a mighty authority who in general overrides the Ramo. He writes in Gevuras Anoshim two things about this passive coercion. One, as the Vilna Gaon says, that it is only permitted when the husband can go to another place and be safe from the coercion. And two, the Shach says that there are those who feel that today the pain and pressure from the public refusing to deal with the husband is considered not a minor coercion but a major coercion. He therefore concludes that it is better not to do passive coercion. It would seem that the Chazon Ish in the Laws of Gittin agrees with the Shach see 108:12 that we should not do passive coercion because today it is considered a serious coercion more than in the time of Rabbeinu Tam. If so, that it is better not to do passive coercion even for somebody commanded by the Talmud to divorce, surely what ORA does to coerce with public and active humiliations is forbidden and produces an invalid GET. If the woman remarries with a GET from ORA her new children are possible mamzerim.

 Passive coercion is only mentioned in the Laws of Gittin where the Torah demands a GET and the husband refuses. In such a case a passive coercion is permitted by  Ramo. But in EH laws of Kesubose 77 paragraph 2 and 3 we deal with a husband who has no obligation to divorce his wife. And the fact that his wife demands a GET does not permit people to coerce him.The Laws of Gittin are about people who must divorce their wives. And the laws of Kesubose are about keeping a marriage going. In the Laws of Kesubose the Ramo does not permit any kind of coercion, not even passive coercion. It would seem from the language of the Shulchan Aruch and the major poskim on the Shulchan Aruch EH 77 par 2 and 3 that there is no obligation at all upon the husband to give a GET when his wife demands one. And that is the opinion of Posek HaDor Rav Yosef Shalom Elyashev zt"l. The authoriities quote a Rashbo in teshuva VII:414 that in an ordinary demand of divorce because "my husband is repulsive to me" "if the husband wants to divorce, he can divorce. If he does not want to divorce, he doesn't divorce." It would seem there is no obligation to divorce and surely not coercion of any kind is permitted. Rabbeinu Tam mentioned in Shita Kesubose says that we do not even tell the husband it would be nice or a mitsvah to give a GET. The Chazon Ish Gittin 99 says that if a Beth Din tells a husband he is obligated to give a GET and this was wrong, the GET is invalid from the Torah.

The vast majority of divorces today deal with a woman's refusal to be with her husband, something that is not recognized by the rabbis as an excuse to coerce a GET. The Ramo is talking about a husband who cannot be a man or other problems that the Talmud clearly states must give a GET. But the Talmud does not say we should hit the husband, so we don't do serious coercions, only, according to Ramo, passive coercion. And the Gro and Shach,  major latter authorities both say that only if the husband can flee from his town and find peace is it permitted to coerce  him passively. Thus, ORA would be forbidden even according to Ramo. And as we mentioned, the Shach and Ramo maintain that today we don't do even passive coercion when the husband can flee, because it is considered today a major coercion.