Rabbi Dovid E. Eidensohn
A Critique of ORA and
Rabbi Moshe Heinemann
6/14/2018
Contents
Critique of ORA and Rabbi Moshe Heinemann
Our critique of ORA and
Rabbi Moshe Heinemann is because ORA, as related in the statement by Rabbi
Heinemann below, “has freed over one
hundred and fifty women which is a tremendous achievement…I strongly encourage
the support of this important endevour. Moshe Heinemann.” As one who has
studied intensely under the Geonim Reb Aharon Kotler, Reb Moshe Feinstein, Reb
Yaacov Kaminetsky, Reb Yosef Shalom Elyashev and others all zt”l, I feel that
ORA and Rabbi Heinemann are wrong to free women from husbands the way they do.
To prove my point, I must say what ORA does to force the husbands to divorce
their wives, and then I must bring the halacha sources to support my criticism.
I wish to offer Rabbi Heinemann the opportunity to refute my criticism, to
reply on my blog that criticizes him, and if I am wrong, I will concede, and if
he is wrong, I will continue to oppose him.
We present here the
letter from Rabbi Heinemann below encouraging everyone to support ORA, and the
letter from the Gaon Rav Gestetner and the Rabbinical Court of SHAR HAMISHPOT
17 Mosier Court Monsey NY 10952 which strongly condemns ORA for forcing
husbands to divorce their wives in ways that the women are trapped with the
demands of ORA and end up Agunose for years or forever, or else, maybe give up
Yiddishkeit. (The letter is found in the Desktop of Ora and Heinemann but would not paste on the blog, same with letter from a prominent posek attacking ORA that is found on the desktop but not on the blog here. I also emailed to my fifty people who follow my email blasts and there the above letters are pasted.)
We then discuss the
machlokess of Rambam and Rashbam who permit forcing the husband with Rabbeinu
Tam and the Ri who forbid doing this. We also bring the Ramo who quotes a posek
that the Rambam permits forcing a GET only when the wife is a moredess and has
no relations with the husband and he is the תובע
and she does not demand a GET. But if she demands a GET we suspect that she
wants another husband and is lying about her husband and she does not get a
GET. See also the תשובות חכמי פרובינציא page 297 and “88 there that the gemora does
not permit forcing a GET when the wife claims her husband is disgusting to her,
but there were times when the rabbis permitted it against the Talmud. Those
were days when women who wanted a GET went to goyim and were freed from their
husbands. This led to forcing husbands to give a GET so the wives don’t go to
goyim.
The problem so far is
that Rabbi Heinemann and the Beis Din in their letters do not bring the sources
in the Shulchan Aruch and the Poskim to prove their point. This is our job
here.
May a Woman Force a GET from Her Husband?
The Mishneh in Nedorim
90b states that originally women were believed to make a claim against their
husband and Beth Din believed her and forced the husband to divorce her. Later,
the Beth Din realized that women were taking advantage to find a different
husband, even though the story she told about the husband was not true. From
that point to the present, women are not believed to say stories about their
husbands to force a GET. Of course, the Beth Din can look into the situation
and if it realizes that the husband is doing what she says, and the Beth Din
feels that such a behavior entitles the wife to have a GET, they will force the
husband to divorce her and the Get will be kosher. The husband, however, must
tell the Beth Din that he gives the Get willingly even if it was forced with a
beating, as Rambam explains in the beginning of Gittin.
This Mishneh is quoted
in Kesubose 63b d”h אבל אמרה by Rabbeinu Tam who
says that we don’t give a woman a GET when she makes a claim against her
husband, because we fear that she is lying because she is looking for another
husband. Thus, the Mishneh makes it clear that a woman cannot force a GET on
her husband. ORA that forces a GET on the husband therefore is making an
invalid GET and the children from an invalid GET are not kosher children, maybe
mamzerim.
Let us now turn to the
sources in the great Rishonim to prove that a GET may not be forced from the
husband by the wife, nor may it be forced by anyone, unless a Beth Din finds
that the husband is one of the very rare people who qualifies for a forced GET,
but again, this is quite rare. Some say that even a Mumar who denies the Torah
cannot be forced to give his wife a GET. See Shulchan Aruch 154 and the poskim
with their comments there, such as the Ramo in teshuvose 36 and 96.
Rambam begins his work
on Gittin with the ten rules of the Torah to make a GET. The first rule is,
“the husband may not divorce unless he does this willingly…as it is said, ‘And
it will be if his wife does not find favor in the husband’s eyes…and he will
write for her a document of separation, and he will put it in her hand and send
her out of his house. ‘If his wife does not find favor in the husband’s eyes’
means to teach us that the husband cannot divorce his wife unless he does it
willingly. And if he divorced her with a GET unwillingly she is not divorced.”
Thus, any husband who gives a GET not because he does not want his wife but
because of pressure, has given her an invalid GET, which is worthless. If she
remarries with this worthless GET and has a child, the child is a mamzer, as is
the law of a married woman who leaves her husband and sleeps with another man
and has a child, that the child is a mamzer. ORA specializes in forcing the
husband to give a GET precisely in the case where the husband does not want to
give a GET, and it is necessary to force him. ORA was inspired to do this by
the Rosh Yeshiva in Yeshiva University, Herschel Schechter, who is recorded
calling for serious pressures on the husbands including a beating and perhaps
worse. Thus, the forced Gittin done by Herschel Schechter and ORA are mamzerim.[1]
The Rashbo in Teshuvose VII:414
writes, “We never force the husband to divorce. Rather, if he wants to divorce,
he divorces. If he doesn’t want to divorce, he doesn’t divorce.” And even
though the Rambam did not write this, this is the halacha when the woman
demands a GET by saying ‘my husband disgusts me.’”
We mentioned previously
the Mishneh in Nedarim 90b that a woman who claims that she cannot relate to
her husband with a variety of claims, originally we believed her and forced the
husband to divorce her. But later, we suspected that she said claims just to
force a GET and then find another husband. If so, how could the Rambam say that
a woman who denies her husband marital relations that we force the husband to
divorce her? What do we do with the Mishne that we don’t believe the woman
because perhaps she lied just to find another husband? If so, maybe her claim
that her husband is disgusting to her is a lie to find another husband?
Therefore, the Ramo in
teshuvose 36 and 96 goes into this kind of a problem and looks carefully at the
words we just quoted.
Let us look closely at
the words of the Rambam. See Ishuse 14,8: “A woman who denies her husband
marital relations is called a moredes {rebel}. And we ask her why she rebelled.
If she says “I am disgusted with him and I cannot tolerate having marital
relations with him,’ we force him to divorce her to his hour because she is not
a slave to sleep with somebody she hates.’ She then must leave him with no
Kesubo at all…”
Note the extra words
here. The Rambam does not say what the Rashbo quotes him saying that whenever a
woman claims that her husband is disgusting to her that we force him to divorce
her. What he should have said, if the Rashbo is correct, is “A woman who says
my husband is disgusting to me we force him to divorce because a woman is not a
slave to sleep with somebody she hates.” But Rambam never said this. He added
words, and the Rambam never says an extra word. Therefore, the Ramo brings an
opinion that the Rambam deliberately did not write what we just thought he had to write
if the Rashbo was right. He added a critical phrase, and began his entire
discussion of this issue with a woman who did not say anything but simply
refused to have marital relations with her husband. The woman maybe said
nothing but just locked the door and kept the husband away, with no explanation.
The husband then complains to Beth Din and they investigate and ask her why she
denies her husband marital relations. She responds, “He disgusts me and I
cannot tolerate having relations with him.”That is all that she said. She did
not go around saying he is disgusting to her. It all began when she refused
relations with him. When the Beth Din inquired about this, the wife answered
the truth, “I cannot tolerate sleeping with him because I despise him and
cannot have marital relations with him.” Rambam says that she is not a slave to
sleep with people she hates so we force the husband to divorce her. But pay
close attention: Again, the Rambam adds a word that seems to be unnecessary.
The husband must divorce her in his time.” What does “in his time” mean? And
why, if the Rashbo is right, does the Rambam write these words, if he maintains
that a woman who claims to despise her husband automatically gets a GET from
her husband?
These are questions that
everyone must ask, and the Ramo quotes the great scholars who delve into the
Rambam, and come up with an entirely new interpretation of the Rambam. No, the
Rashbo is wrong, they say. The Rambam never said, “A woman who claims her
husband is disgusting may force her husband to give her a GET.” The Rambam adds
two things. One, that all of this began with her denying her husband marital
intimacy, but she said not one word to anyone that her husband is disgusting.
Beth Din asked her why she denied her husband intimacy, and she answered them,
as she must, “I despise him and I cannot have marital relations with him and
tolerate it.” Now we see the entire structure of the woman is totally different
from the Rashbo. The only reason she mentioned that her husband is disgusting
was to answer the demands of the Beth Din which she had to do. And her answer
also had an extra word “I cannot have marital relations LDAATI which means
intentionally or perhaps and tolerate it. Now this is exactly what the Mishneh
was talking about that a woman tells her husband or Beth Din that she cannot
for a variety of reasons maintain a marriage with her husband with marital
relations. And we suspect her of lying because she just wants a different
husband, but she really could sleep with him without the impossible suffering
that she claims.
However, the poskim say
that sometimes we don’t always suspect that what the woman says is a lie unless
it smells like a lie. That is, if she comes to Beth Din and says, “I am in a
state where it is a sin to sleep with me,” she is saying that her state
precludes by itself any marital relations. If so, it is a sin for the husband
to have marital relations with her. Thus, if a woman is married to a Cohen and
somebody has relations with her who is not her husband, she is forbidden to be
with the Cohen anymore. If so, there must be a GET, because a marriage that is
pure sin is forbidden and a GET must be given.
Thus, if the woman says
something that if true means that there must be a GET, it is the same as if she
said clearly that she wants a GET, and then we don’t believe her, less she
wants very much to marry different
husband, so we don’t believe her.
But this only applies
when the woman claims something that true must result in a GET. Then the woman
is not believed even if she doesn’t ask for a GET, because she is claiming a
situation where there must be a GET from the husband.
But if the wife never
asked for a GET, and never claimed to be in a situation which must produce a
GET, we then have no reason to suspect her of lying. And without a suspicion
she is lying, the Rambam holds that we don’t suspect her of lying. Therefore we
have no choice but to force the husband to divorce her.
See the Ramo in his
teshuvo #96 in the name of Rav Eliezar Ashkenazi, that a husband can be forced
to divorce for various reasons. That is, basically if the husband treats his
wife well but personally is not religious, even if he is a sinner even a mumar,
we don’t force him to divorce according to some major poskim, unless his evil
deeds hurt the woman. But if his evil deeds impact upon the woman in a severe
way, we can contemplate forcing a divorce.
In the case of the Ramo,
the wife complained about the husband things that people knew were true. One
that he stole and was dishonest and corrupt. He had a terrible reputation and
was unable to live in cities where he committed serious crimes. This caused
great anguish to the wife whose family were respectable people, and how she has
a husband who is the opposite. For this alone there is a factor to force him to
divorce her.
Also, the husband had a
son from her but no daughter. He thus has not fulfilled the mitsvah of pru
urevu which requires a son and a daughter. And as he runs around stealing and
finding corruption, it is unlikely that things will change. This itself is a
factor in the mitsvah to force a husband to keep the Torah to have a son and a
daughter. One who ignores this obligation can be forced to give a GET.
The final opinion is to
force the husband to divorce his wife for four reasons: One is that the Rosh
wrote that a man of corruption and evil who marries a woman who is the
opposite, and thus causes her great shame and pain constantly, we may force him
to divorce her. As we mentioned earlier, if the husband does something that a
normal woman would find intolerable, he must be forced to divorce her.
Second of all, the wife
says that they agreed to live in Prag where her husband lived. But he went to
Prag and was arrested and he cannot return there, and she is not willing to
leave and follow him around the world. And also she utterly despises him for
disgracing her and her family. For this alone, that a husband must travel to
escape the police and the wife has no obligation to follow him around and leave
her home and community, for this we force him to give a GET. This is the opinion of the Tur. Also, the
husband has not fulfilled pru urvu and the wife doesn’t want relations with him
a wicked thief. If he remains married to her and is unable to marry another
woman he will never have a daughter. This requires us to force him to divorce
his wife. This was written by Rav Eliezar Ashkenazi and quoted by the Ramo in
the teshuvose 96. The main conclusion is at the end of the teshuva we just
quoted.
Rabbeinu Tam
and the Shach – Forcing a GET with Passive Coercion
Years ago, I called
Rabbi Heinemann and asked him how he could encourage people to support ORA and
its forcing husbands to divorce their wives. He responded that he recalls that
he once came across Rabbeinu Tam who permitted such things. First, Rabbeinu Tam
only permits passive coercion, meaning that people don’t talk to the husband or
don’t do business with him, but the style of a mob of people coming to
somebody’s house or place or work and screaming “give a GET” or such things, is
not permitted by Rabbeinu Tam. There is even a Shita Mikubetses in Kesubose
that Rabbeinu Tam opposed telling a husband that it would be a nice thing to
give a GET.
See Shita Mekubetses
written by Rav Betsalal Ashkenazi, who was
rebbe of the Ari z”l, on Kesubose 1190: “Rabbeinu Yona wrote: ‘When a
woman claims that her husband disgusts her, we don’t force him to divorce her.
This applies to beating him with sticks, this we don’t do. But Beth Din
notifies him that it is a mitsvah upon him to divorce her, and they advise him
to divorce her. And if he refuses to divorce her, we say to him, one who
violates a command of the rabbis, it is a mitsvah to call him a wicked person.
And Rabbeinu Tam would say, that even this we don’t say to him. But if he comes
to us and asks if he should divorce her and not give her a Kesubo, Beth Din
advises him to divorce her immediately. The above was written by the disciples
of Rabbeinu Yona.”
Second of all, the
Shach, one of the very greatest poskim, says clearly in Gevuras Anoshim,
quoting a posek, that nobody ever heard of doing what Rabbeinu Tam permits,
even passive coercion.
Let us now turn to the
Shulchan Aruch Even Hoezer 154 at the end. It begins with a machlokess. One
opinion is that when the gemora says that such a person must divorce his wife
that we force him to divorce even with a beating. And another opinion holds
that we may not beat a husband unless it says clearly in the Talmud “we force
him to divorce”. We can only tell him orally that he is obligated by the rabbis
to give a GET, and if he refuses, people may call him wicked. The Ramo then
says that since it is an argument if such a person can be forced with a beating
to divorce, and one opinion forbids any physical pressure but only permits
telling him that the rabbis consider him a sinner and he may be called a wicked
person, we should not get involved with forcing but only to tell the husband
that because he is sinning he may be called a wicked person.
Thus, unless the gemora
clearly establishes that for such a wicked person we beat him to give a GET, we
don’t do anything other than to tell him that he is wicked and that therefore
people may call him a wicked person.
We see from this that
the entire discussion about forcing the husband with either a beating or
calling him wicked refers only to a person who has a defect that the rabbis
considers a cause for him to divorce his wife. But if a person has no such
defect, it is forbidden to call him a wicked person or to pressure him.
Now, to return to the
above Shulchan Aruch that deals only with a person who is definitely a sinner
and who may be called a wicked person according to all opinions, it is there,
and only there, that we find the passive coercion of Rabbeinu Tam. But passive
coercion is not permitted in a husband who is not clearly wicked. And the vast
majority of husbands are not clearly wicked. Thus, ORA and Rabbi Heinemann who
backs them to the hilt to gather at the home of people who don’t give a GET and
say threatening things, have no source in Rabbeinu Tam, who only is applied in
Shulchan Aruch for a husband who is clearly labelled by the Talmud as a wicked
person, not the vast majority of men.
And even if we do have a
husband who is wicked but the Talmud did not declare that he deserves physical
force, the Shach at the end of Gevuras Anoshim brings opinions that today passive
pressure is such a sensitive and painful thing that we never heard of anybody
doing it and it should preferably not be done. And as I mentioned, the Shulchan
Aruch only applies the passive coercion idea to a husband who clearly is
labelled by the Talmud a wicked person for not giving a GET. Meaning, the
rabbis demand from him to divorce his wife but they did not specify to beat him
physically. But he is surely violating the Talmud for not giving a GET. But
most husbands are not violators of the Talmud for not divorcing their wives.
Nor is that all. See the
Gro in Shulchan Aruch there 154:67 that tells us that when the Shulchan Aruch
there permits passive coercion for a person who is labelled by the Talmud a
wicked person, not all wicked people may be pressured with passive coercion,
but only one who can find a city to escape those who would call him “wicked.”
If, today, with modern communications, word travels quickly where the wicked
man is staying, and people can find him and call him “wicked,” even this is
forbidden according to the Gro. The Gro states clearly there that we only call
him “wicked” because he sinned against the command of the rabbis of the Talmud.
But plain husbands, who are not labelled by the Talmud as sinners, cannot be
pursued even with passive coercion. Especially when the Shach paskens that
nobody ever heard of doing this because today passive coercion is considered a
very severe pressure that is no longer appropriate, all passive coercion is
suspect. ORA is a program of active coercion to force husbands to divorce their
wives who are not sinners and who have no obligation to give a GET in the
Shulchan Aruch. The children created by
the inventions of Moshe Heinemann may surely be mamzerim.
Indeed, throughout
America, prominent rabbis invent the Shulchan Aruch or ignore it, and a woman
who marries with their ridiculous inventions and has a child has somebody who
is quite possible a mamzer.
The passive coercion of
Rabbeinu Tam is mentioned in his work Sefer HaYoshor liRabbeinu Tam number 599[2].
This is the correct text taken from Levush 134:10 See footnote below.
“A woman claims that her
husband disgusts her, and Beis Din feels that their marriage is a problem, and
the husband is not a person who is obligated to give his wife a GET, nonetheless,
Beth Din may make a Cherem upon every
Jewish man and woman to decree upon them a severe oath that nobody may speak to
the husband, or to do business with him to give him profit, or to give him food
or drink, or to [walk with him or lend him money?[3]],
or to visit him when he is sick, and other strict rules as they desire upon all people, if the husband does not
divorce his wife and free her with a kosher GET. Because this does not force
him to divorce, because he can refuse to divorce his wife and go find a place
where nobody will stay away from him. And this curse does not affect him
physically because it has no reason to affect him. Because it was not directed
at him but at us, the people, if we refuse to stay away from him. And no GET
was forced from him. And see Moharik 102.”
We see from the words of
Rabbeinu Tam in Sefre HaYosher liRabbeinu Tam, and from the Moharik and the
Levush, that the curse on the community does not apply only to people who have
clearly sinned against the rabbis in the Talmud. But the Shulchan Aruch, as we
explained earlier, clearly states that any community obligation to avoid the
husband with the passive coercion of Rabbeinu Tam is only about a husband who
sins a rabbinical sin and is therefore punished with this loneliness, to force
him to give his wife a GET. But this is clearly different than the texts of
this decree in Rabbeinu Tam who created the program of passive coercion, the
Moharik and Levush, who all agree that it applies to all men who refuse to give
their wives a GET. The issue becomes even more confusing when we realize that
the Shach asks us to refuse to practice at all the passive coercion of Rabbeinu
Tam.
If the Vilna Gaon says
on the Shulchan Aruch that the only reason we may practice passive coercion is
because the husband is clearly a sinner against the rabbis of the Talmud, it
would surely not apply to most people. Furthermore, the Shulchan Aruch surely
teaches the same, that the passive coercion is only directed at a sinner who by
some opinions should be beaten to force him to give a GET. But ordinary husbands must not be punished with passive
coercion.
I present the problem,
and I greatly fear the Shach a very senior posek, and of course I am afraid of
the Gro, and the Shulchan Aruch, who permit passive coercion only if the
husband is a clear sinner against the rabbis of the Talmud. I personally feel
that the Shulchan Aruch, with not one comment against it among its major
commentators, and the Shach who urges us to refuse to make passive coercion,
and the Gro, should lead us to refuse to practice passive coercion.
Of course, all of this
leads us to have a great shock that a person who is a major Torah authority in
Baltimore, who has a major kashruse center used by many people, urges people to
support ORA, an organization that regularly publicly tortures people to force
them to divorce their wives. A child born from these “saved” women are probably
mamzerim. I feel I have proven that point without any doubt. But if Moshe
Heinemann has an answer, let him tell me what it is, or he can say it publicly
and feature his response, “why David Eidensohn was wrong to criticize me about
ORA.” I, of course, am awaiting this, but if I disagree with his ideas, I will
say so.
Mishne in Nedarim and Rambam in MOUS OLEI
The Mishneh in Nedarim 90b tells us about
women who say things that indicate that they are forbidden to their husbands
and he must divorce them. At one time such women were believed and Beth Din
forced the husband to divorce her. But subsequently, when women had a lower
level of honesty and were suspected of pritsuse, we didn’t believe the women to
force a GET from the husband.
The women there say one of three things.
One is that “I am profaned from being with you.” This means she was married to
a Cohen and claims that somebody not her husband slept with her. If so, she is
now forbidden to ever sleep with her husband the Cohen even if she was forced
by her rapist. When the woman says that she is completely forbidden to go near
her husband we fear she is lying in order to remarry. The second thing a woman
could say is, “The heaven is between you and me” meaning, her husband is unable
to have children and only HaShem or heaven know his condition that he cannot
produce the seed that creates children. If so, she will never have children and
will have nobody to take care of her when she gets old. This is a condition
which requires a GET. But we don’t believe her less she lied to find a new
husband. The third thing a woman could say is “I am removed from Jews.” This
means she will never sleep with a Jew. If so, she may not be married to any
Jew. For such an extreme statement we suspect that it is only said to find a
new husband, but if she said such a thing, she could never marry anyway. But
Tosfose explains that if she said this as a lie, it is only because marital
relations caused her intense pain and she wanted no more of it from anybody.
But it could also be a lie and therefore she is not believed.
This brings us to the Rambam and his
statement about MOUS OLEI.
The Rashbo we will soon quote writes that
a woman cannot force a GET by saying that her husband disgusts her, but it
would seem that Rambam permits it. However, the Ramo in teshuva 96 brings the
teshuva from Rav Eliezar Ashkenazi that the Rambam did not permit this, as we
will explain.
Rambam in MOUS
OLEI
The Rambam in ISHUSE 14:8 says, “A woman
who denies her husband marital relations with her is a MOREDES. We ask her why
she rebelled. If she says that she despises him and I cannot tolerate relations
with him, we force him to divorce her according to his schedule, because she is
not a slave to sleep with somebody she loathes.”
The problem is that the Mishneh in
Nedarim clearly denies the woman the right to demand a GET, so what does the
Rambam do with this Mishneh? And indeed the Rashbo when he says that a woman
cannot force a GET from her husband by saying he is disgusting to her claims
that the Rambam is wrong.
However, the Ramo in teshuva 96 brings a
lengthy teshuva from Rav Eliezar Ashkenazi to answer the Rambam. To understand
why, let us look at the exact term of the Rambam. We return to what we
mentioned before the exact term of the Rambam.
The Rambam in ISHUSE 14:8 says, “A woman
who denies her husband marital relations with her is a MOREDES. We ask her why
she rebelled. If she says that she despises him and I cannot tolerate relations
with him, we force him to divorce her according to his schedule, because she is
not a slave to sleep with somebody she loathes.”
Note that the Rambam does not say “a
woman who claims that her husband is disgusting to her we force him to divorce
her.” If he had said this, it would clearly violate the Mishneh in Nedarim 90b
we mentioned above. So let’s see the exact wording of the Rambam, what he says,
and what he didn’t say.
The Rambam in ISHUSE 14:8 says, “A woman
who denies her husband marital relations with her is a MOREDES. We ask her why
she rebelled. If she says that she despises him and I cannot tolerate relations
with him, we force him to divorce her according to his schedule, because she is
not a slave to sleep with somebody she loathes.”
Note that in all of this the women made
no oral demands, she said nothing about her husband, only to him, she refused
intimacy. Then the husband went to Beth Din to complain that his wife is a
MOREDES, a rebel, and he wanted the Beth Din to require her to have relations
with him, her husband. Of course, the wife never mentioned the word GET or any
word that is a request for such. She did not exercise her right to leave the
husband’s house, which indicates that she was not interested in breaking the
marriage, but merely refused to suffer from intimacy with him. Yes, she is a
MOREDES, but has not asked for a GET and has not left the house, which is her
right in such circumstances.
Rambam then says, “If she says that she
despises him and I cannot tolerate relations with him, we force him to divorce
her according to his schedule, because she is not a slave to sleep with
somebody she loathes.” What does “we force him to divorce her according to his
schedule” mean? But when the wife told the Beth Din that she cannot tolerate
relations with him, the Beth Din sat with the husband to get him to improve his
relations with his wife. He surely agreed and tried his best for a few weeks.
If she accepted him, end of story. But if she continues to despise him and
refuse marital relations, Rambam says we force the husband to divorce her. What
is meant by “divorce her according to his schedule”? It means that the schedule
the husband specified perhaps to Beth Din how long it would take to convince
the woman to return to him ends, and he must give a GET. Before then he does
not.
Again, when the woman said nothing about
the husband other than he was so disgusting to her that she cannot tolerate
with him marital relations, but if he improved himself maybe she would accept
him, we give the husband time to improve and impress her and she will take him
back but if not, that means that she really means it and she will never take
him back. If so, the husband must divorce her rather than have a wife who
simply tempts him with her beauty and he has no way to maintain his holiness as
she rejects intimacy with him. If so, it is a sin to live in the same house
with her and he must give a GET. In this case it is possible that as she has
not asked for a GET she is only asking for relief from the marital intimacy and
we believe her and demand a GET for her as she has not asked for a GET before
so we don’t suspect her of lying.
In the Rambam’s
terminology she said nothing about being in a state where she would sin if she
decided to sleep with her husband. She can say that her husband is disgusting,
and she can say that sleeping with him in intolerble for her, but if she does
it, it is not a sin similar to what she said in the Mishneh that considered her
a liar. If she claims that sleeping with her husband would be a sin, we don’t
believe her. But if she claims she cannot relate to him in marriage but does
not claim that to sleep with him is a sin, we are not in the mood to claim that
she really wants a GET, because the husband like other husbands has the ability
to learn how to behave with his wife until she forgives him and enjoys being
with him. This is what the Rambam means when he adds the words “the husband
will give her a divorce “IN ACCORD WITH HIS SCHEDULE.” What does “IN ACCORD
WITH HIS SCHEDULE” mean? It means that the husband and the Beth Din accept that
the woman is not lying. The husband obviously knows what it is that angered the
woman, and if he is not an imbecile he will get to work to repair the damage.
It will take a while. But it can be done. Let us say he did the best he can for
five weeks, and she hasn’t budge from hating him. If Beth Din and especially if
the husband realized it, and surely if he gave up trying to change her mind
about him, it is time for a GET. All of this, of course, is much different from
what the Rashbo says, but the Ramo quotes others who reject the path of the
Rashbo in Teshuvos of the Ramo 96. This interpretation answers strong questions
on the Rambam who seems to defy a clear Mishneh in Nedarim 90B, but now all is
clear as day.
This does not mean,
however, that all poskim accept what the Ramo and his scholars say about the
true meaning of the Rambam. Rather, this does not mean that all poskim accept
that what the Rambam says about forcing the husband is true. Maybe most poskim
disagree even with this new interpretation of the Rambam and feel that no
woman, even who acted as the Rambam writes with the extra words, can force a
GET. And when we study Shulchan Aruch Even Hoezer 77 paragraphs 2 and 3, we
will study the Gro and others, who don’t seem to have such a positive attitude
towards the Rambam, and perhaps at least some of them feel that to force a GET
with the Rambam’s words could still be forbidden.
Various Opinions and Customs with MOUS OLEI
In our work here we have
various objectives. One, we want to know what the halacha is about forcing a
husband to give a GET when he doesn’t want to give it. Two, we want to know, as
we saw in the Mishneh in Nedarim 90b, that even in the Mishneh there were
periods when women could force a GET from their husband with certain claims
against him that were believed, and that this was eventually revoked, because
“maybe she says it just to find another husband but is lying.”
After the Mishneh we
also find an incredible thing, that there were periods when women could force a
GET, but as time went on, the opinons of Rabbeinu Tam and the RE dominated that
a woman could not force a GET with her claims against her husband. The Poskim
do, however, bring gedolei harishonim who
accepted the claim of a woman that her husband was objectional or
disgusting to her. These were Rambam and Rashbam. The Ramo, however, discusses
whether the Rambam permits forcing her husband to divorce her just for her
claim that he disgusts her, or there must be a stronger issue involved besides
her verbal complaint. The Ramo in Teshuvoso 96 brings the Rav Eliezar
Ashkenazi, that the Rambam only permits forcing a GET on the husband when the
wife claims her husband is disgusting to her, does not demand a GET, but rebels
against him not to have relations with him. Then the husband, not the wife, is
the Tovayah, as she does not function as his wife. But if she demands a GET the
Rambam does not permit the GET as we fear that she lies to get another husband.
This interpretation is a new one in the Rambam, as generally we assume that the
Rambam and the Rashbam permit forcing a GET when the wife claims her husband is
disgusting to her. But if so, we have a problem that the Mishneh in Nedarim 90b
says clearly that if a woman claims a GET we don’t believe her because “her
eyes are to find another husband.” Thus, this strengthens the opinion brought
in Ramo from Rav Eliezar Ashkenazi, that the Rambam himself only permits her to
force a GET when she does not ask for a GET but only refuses to be with the
husband. She is a Moredess and since she does not ask for a GET we don’t assume
that she is rebelling because she wants a different husband, and if so, we
believe her that she finds her husband disgusting and that causes us to force
him to give a GET.
And
see the sefer תשובות חכמי פרובינציא near the end of
chapter 73 and then the beginning of chapter 74. One place it says that we
don’t force the husband to divorce and we don’t ask him for a divorce, and the
other place says that we don’t force the divorce but we do ask him to divorce.
The Chazon Ish says that if a Beth Din forces the husband to divorce and he is
not obligated to do so the GET is nothing by the Torah because it was forced by
the Beth Din and because if the husband would have known that it was a mistake
he would not have given it. But asking for a GET could be different. However,
the Shita MiKubetsess on Kesubose says that Rabbeinu Tam forbade suggesting
that a GET would be a good thing. This could probably mean that the Beth Din
suggests this, which is very close to forcing a GET but if plain people or
relatives of the wife who want for her a divorce suggest it it is clear if this
is a problem. It is not clear what Rabbeinu Tam said other than the brief
comment of the Shita.
How to Make Kiddushin Easier on the Wife with Kesubo
About two years ago in
Israel, I attended the wedding of my grandson, and since I was the grandfather,
I sat next to the Rov who made the Kesubo. I saw him working on the Kesubo and
had an idea. I introduced myself as not only a zeideh but as one who studied
intensively under the Geonim Reb Aharon Kotler, Reb Moshe Feinstein, Rav Yosef
Shalom Elyashev, all zt”l. I then offered advice how to make a Kesubo that
would strengthen the woman in her marriage.
He accepted my thoughts,
and when he left the wedding, I went over to him and reminded him that he
agreed to my idea and asked if he remains interested in it. He assured me that
he was interested in my idea. I was greatly encouraged, because this Rov who was
the senior Rov of Beis Shemesh in Israel was a direct descendent of the Gaon
Rav Yosef Chaim Sonnenfeld zt”l.
So I don’t mind
presenting my idea.
But before I do, I have
been reading a book about the Gaon Rav Yaacov Kaminetsky recently, time and
again, and every page just takes my brain and shakes it up. Reb Aharon and Reb
Ruderman would not make sensitive decisions without talking to Reb Yaacov, who
was considered to be the Pikayach of the generation. Not only could he give
incredible advise to all kinds of people in seconds, but he was a master of
physics and medicine, who mastered a thick medical book in one night and a
doctor spoke to him at length about a case and was sure that he was talking to
a doctor. The doctor was not Jewish, but when he found out that Reb Yaacov was
not a doctor, he moved out of his city and came to live in the small town where
Reb Yaacov was the Rov. A Yeshiva graduate who ended up helping Einstein with
the math of the Theory of Relativity came to Slobodka Yeshiva and asked the
Rosh Yeshiva if he could talk to a student who knew physics. The Rosh Yeshiva
suggested Reb Yaacov. They had a good talk and then the visitor went back to
the Rosh Yeshiva and said, “Reb Yaacov knows physics, and he has a quick
response.”
Back to my thoughts how
to write a Kesubo, let us talk about Reb Yaacov. He had a constant flow of
visitors to his house, because he was able to speak to everyone on their level.
It was very hard for his wife because Reb Yaacov used to tell the peole who
came to talk to him, “The berocho is from the Rov and the cookies are from the
rebbetsin.” The wife worked hard to make him the best meals, and with all of
the people waiting to talk to him, it was not easy. But Reb Yaacov would accept
his meal from his wife and finish with the visitors and tell them, “I wrote a
Kesubo so I must please my wife.”
Now let us return to my
ideas how to improve the wife with a stronger Kesubo.
We know that the Kesubo
is written for those with Kiddushin. The gemora in Sanhedrin 21 presents that two legal ways of marriage.
One is Kiddushin and the other is Pilegesh. Kiddushin requires Kiddushin and
Kesubo and Pilegesh does not. Most women are married with Kiddushin. Thus, they
must have a Kesubo. But a Kesubo considers the wife under the direction of the
husband, and this entails a kosher GET written with the will of the husband to
free her from the marriage. With Pilegesh a husband or wife can just leave with
no penalty or problem. However, it is advisable for a Pilegesh especially today
to marry and leave her marriage only with the guidance of a Rov who is an
expert in the laws of marriage.
Thus, a woman married
with Kiddushin who is unhappy with her husband is stuck for ever unless the
husband dies or changes his mind about giving her a GET willingly. Some modern
people want to create a prenup that forces all Kiddushin husbands to give a GET
whenever the wife demands it. But this is strongly criticized by senior rabbis,
and openly conflicts with a Mishneh Nedarim 90b that states that a woman cannot
force a GET from her husband because we fear that she is lying with her claims
about the husband only because she wants a different husband. If so, prenups
which force the husband to give a GET immediately whenever the wife demands it
are wrong.
What we must do,
however, is to somehow level the playing field between husband and wife in
Kiddushin if possible. What can be done?
The laws of Kiddushin,
described by Rambam as three Torah rules and ten rabbinical rules, have various intreprations. For instance, the
first three Torah rules are SHARE, KESUSE, VIONAH. KESUSE means buying the wife
clothes, because KESUSE means “clothes.” VIONAH means “and marital relations.”
But what does SHARE mean? Rambam says it means giving the wife food. But the
Shulchan Aruch says that it means that intimacy is with husband and wife
together with no clothes between them, only perhaps above or beneath both of them
but not in between them. Because a Torah rule is much stricter than a rabbical
rule, it is important to define if each rule is a Torah rule, which would force
the husband to obey it strictly, or a rabbinical law, which is less severe.
Furthermore, with a doubt of a Torah rule we take the stringent side, but a
doubt of the rabbis could be decided in a lenient way, at least most of the
time.
A plain kesubo does not
talk about this. So the husband is free to be lenient with certain rules which
may mean a lot to the woman. If we add a phrase to the Kesubo that in arguments
about if a rule is a Torah rule or a rabbinical rule, that the husband pledges
to be stringent, we give the woman power in the Kesubo that would ordinarily be
lacking.
To take it further, if
the husband adds that he accepts upon himself the obligation to treat an
argument about rabbinical laws as if it was a Torah rule, that would force him
to be even more strict about keeping the rules of the Kesubo, although it is
also possible that another phrase should be added that “this applies only if
the wife agrees to be stringent” because she is not looking for rules making
life harder for her but better for her. Again, when we change rules in the
Kesubo to improve the happiness of the woman, we have to be sure that there is
no part of the change that makes things harder for her. In that case, we can
add a clal that those stringencies added by the husband only apply if the wife
truly wants the change, and the husband may not pressure her to take off his
acceptance of the stringencies.The fact that the husband accepts stringencies
but the wife is free to disregard the stringencies accepted by the husband for
himself should be written in the Kesubo and signed by both husband and wife or
at least their legal representatives. That is, the signature of the wife should
contain her statement only about the husband’s acceptance of stringencies, and
should not be written in a way that anyone could make a mistake that it is
about other aspects of the Kesubo.
I wish to mention here
that for a variety of reasons some women marry when they are no longer
Besulose. Everyone comes to the Chasuna and listens to the person reciting the
Kesubo and if the woman is not a Besula if they call her a Besula that is a lie
and if they call her something else they are making a major disgrace. Many
non-besulose are not guilty of any evil but it happened that they are no longer
Besulose. Is it permitted to announce to the world a terrible disgrace on her
wedding day? What kind of wedding is that?
We are talking about
improving a Kesubo. A Kesubo that is pure disgrace and humiliation is surely a
terror. I suggest therefore that the Kesubo be written in English with no
mention of the status of the lady, without using terms for Dinar, but dollars,
and a large enough amount that will surely reach the level of two hundred
dinar. Of course, if the only one who gets an English Kesubo is the lady who is
afraid of her disgrace, that would make things worse. I am therefore suggesting
that many or all people make an English Kesubo, or another language without
talking about sensitive matters.
But since Kesubose are
usuallly written in Hebrew, all of this would seem strange. Therefore, I would
suggest that we write a Kesubo in Hebrew but instead of describing the lady as
a Besula or otherwise, we would establish a financial amount and state that it
includes the sum needed for both an almono 100 Dinar and Besula 200 Dinar or
say 350 DINAR in silver coin or dollars, because we want to be sure. We have
mentioned the words Besula and almona without making problems. I found no
source to force a public statement that a woman is a Besula or otherwise.
Some may want to let
people know that the woman may or may not marry a Cohen. But an almono may
marry a Cohen, usually. So that is not a real reason. The women forbidden to a
Cohen are not things that can be put into one word or even words that should be
recited in public. So, let us stick with my idea, to mention the basics, the
value in coin of the Kesubo of Besula 200 DINAR and almono 100 DINAR combined =
300, but whereas we are really not perfectly clear on the value of a DINAR let
us add some more until we no longer have any doubt. We may write this way 300
DINAR paid in American dollars. If the suggested amount is X dollars, let’s add
to that enough to be positive that everything is correct.
Another thing to keep in
mind is that there are various customs in various communities about describing
the monies promised by the husband or wife to each other, or promised by family
member to this or that one. Some say that the terms used are for complimentary
purposes but not accurate. For instance, a person can promise a thousand
dollars in a community that exaggerates that but people know that really it is
meant to mean only two hundred dollars. If everybody in that family does these
things people know what it means.
[1] See
also Rambam in Laws of Divorce II:20 regarding the mitsvah of obeying the
rabbis who command the husband to give a GET in the event that it is not done
willingly but only with the force of the Beth Din. It is willingly given out of
respect for the rabbis of the Beth Din who require him to give the GET. But
this holds only if the law of the Shulchan Aruch agrees that the husband must
give his wife a GET which is very rare. If the Beth Din requires a GET when the
Torah does not require a GET the Chazon Ish says that the GET is invalid by the
laws of the Torah.
[2] There
are two 599 paragraphs and this is on the first 599. The text there is somewhat
a problem but the correct text is found in the Moharik 102 and the Levush 134:10.
