Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshat VaYeira

15 Cheshvan 5768

October 27, 2007

Vol.17 No.7

Wartime Gittin - Part 1

by Rabbi Chaim Jachter

Introduction

Since the time of Matan Torah, Rabbanim have exerted great efforts to avoid Agunot, Jewish women who are chained to a non-functioning marriage. A classic example, recorded in Shabbat 56b and Ketubot 9b, is that anyone who went to war with King David's army wrote a Get to his wife to avoid her becoming an Agunah in case he went missing in battle. Rashi (Ketubot 9b s.v. Get Keritut) believes these Gittin were conducted conditionally, whereas Rabbeinu Tam (cited in Tosafot Ketubot 9b s.v. Kol HaYotzei) argues that such Gittin were conducted unconditionally. The Rambam (Teshuvot number 439 in the Blau edition) notes that the expression "King David's army" refers to any army that is led by a righteous, God-fearing Jew and not specifically to the army led by King David.

In this series, five variations on how such Gittin were produced during the wars of the twentieth century, beginning with the Russo-Japanese War (1905), continuing with World War One (1914-1918) and World War Two (1939-1945), and concluding with the Israeli War of Independence (1948), the Six Day War (1967), and the Vietnam War (1964-1973) will be discussed. The advantages and disadvantages of each of the five approaches will be noted. Possible applications of the outlined methodologies to current, non-war situations will also be discussed.

A Conventional Get - Rabbeinu Tam and Rabbeinu Yechiel of Paris

Rav Yosef Eliyahu Henkin (Teshuvot Ivra number 80) and Rav Yosef Zevin (LeOr HaHalacha p. 67) note that the preferred method to avoid wartime Agunot is for a married soldier to divorce his wife with a conventional Get before he leaves for war. The advantage of solving the problem in this manner is that it is a straightforward and (unfortunately) common procedure and is free from Halachic pitfalls. Indeed, Rabbeinu Yechiel of Paris (cited in the Mordechai Gittin 423) instituted that if a Get is administered when a childless husband is deathly ill in order for the wife to avoid Chalitzah (Get Shechiv Mera; see the article on this topic available at www.koltorah.org), the Get should not be conducted on condition that the husband not recover, so that the couple will remain married if he recovers. Instead, the partners should conduct a standard Get and solemnly promise that they will remarry should the husband recover.

The Rama (Even.HaEzer. 155:9) rules in accordance with Rabbeinu Yechiel of Paris. The Aruch HaShulchan (E.H. Seder HaGet HaTemidi 1) likewise notes that we do not administer conditional Gittin in our times and that a Rav should refuse to administer the Get if the husband insists on issuing a condition. In fact, while observing the Jerusalem Rabbinical Court in 1993 in the course of training to become a Get administrator, I saw a husband (who happened to be a rabbi) stubbornly insist that the Get between himself and his wife be conducted conditionally. He argued that the Talmud was replete with discussions of Gittin conducted conditionally. One of the Dayanim, the great Rav Zalman Nechemia Goldberg, said to the man, "You are a Talmid Chacham (Torah scholar). You have heard of Rabbeinu Yechiel of Paris, yes?" The husband replied that he had. Rav Goldberg continued, "Rabbeinu Yechiel of Paris decreed that we do not conduct conditional Gittin," which ended that discussion.

Rabbeinu Yechiel's primary concern was the many Halachic complications in properly executing a conditional Get. An error could easily creep into the process, resulting in an invalid Get. Unconditional Gittin avoid many of these complexities and therefore result much less frequently in disastrous mistakes. Indeed, the Maharsha (end of his commentary to tractate Gittin) cites the aforementioned view of Rabbeinu Tam that wartime Gittin are conducted unconditionally in support of Rabbeinu Yechiel. For this reason, this remains the preferred Halachic option for conducting wartime Gittin. In fact, I recall a case in 1994 where a husband was undergoing very risky surgery and wished to give his wife a Get so that she would not remain an Agunah if the surgery rendered him incapacitated and incompetent. Rav Peretz Steinberg, a noted Dayan from Queens, New York, conducted a conventional Get, and the couple remarried after the surgery was successful.

There are some obvious disadvantages to conducting Gittin in such a manner. First, many couples may find it too discomforting. Moreover, there is no guarantee of remarriage, since violation of the solemn promise to remarry does not invalidate the Get according to most authorities (see Aruch HaShulchan E.H. 145:30). Furthermore, it might demoralize soldiers at a time when courage is needed most. Finally, and perhaps most importantly, this approach is unsuitable for a Kohen, since a Kohen is forbidden to marry a divorcee, even his former wife. Thus, conditional Gittin were often conducted in wartime.

Conditional Gittin - Teshuvot Divrei Malkiel and Rav Chaim Ozer Grodzinsky

Many soldiers insisted that the wartime Gittin given to their wives take effect only if they are classified as missing in action. The condition was often formulated as stating that the Get takes effect retroactively if he does not return within two years of the Get's execution. The disadvantage of conducting a Get in this manner is that it involves the risk of improper execution, such as improperly formulating the conditions. Moreover, the Shulchan Aruch (E.H. 147:1) rules in accordance with the view of the Rambam (Hilchot Geirushin 8:3) that conditions may not be mentioned during the writing of the Get. A condition should be mentioned only at the time the Get is delivered.

In wartime situations, the scribe and witnesses are very busy with soldiers executing conditional Gittin and are very much aware that a condition will be mentioned at the time the Get is delivered from husband to wife. Many Poskim consider this a very serious problem and therefore seek to convince husbands to execute the Get without conditions. The Maharsham (Teshuvot Maharsham 3:7) and other Poskim assert that Gittin were valid in such circumstances even if the Get was executed conditionally.

In fact, most of the methodologies advocated by the Teshuvot Divrei Malkiel (4:156) for use by soldiers who fought during the Russo-Japanese War of 1905 involved the husband appointing a Sofer to write a Get, witnesses to sign the Get, and an agent to deliver the Get to his wife. The husband then authorized the agent to stipulate a condition at the time of delivery, thereby postponing the stipulation of conditions until after the writing of the Get. The stipulated condition would be that the Get takes effect retroactively only if the husband does not return from war. Indeed, Rav Chaim Ozer Grodzinsky, in a letter to Ashkenazic Chief Rabbi Rav Yitzchak Herzog (printed in Rav Herzog's Teshuvot Heichal Yitzchak E.H. 2:36), notes that the standard procedure used by the rabbis of Vilna for soldiers going to fight in the very early stages of World War Two was the conditional Get. Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 4:111) also advocates use of a conditional Get as the preferred method. He does add an additional step, as will be discussed in our next essay.

A problem that arose with conditional wartime Gittin was the situations when a Kohen husband was not able to return before the stipulated time. In one such case that was posed to the Netziv (Teshuvot Meishiv Davar 3:51), a Kohen soldier stipulated that the Get take effect if he did not return to a specific town within two years. Hostilities had ceased by then, but the army did not permit him to travel to that town within the two years. The husband was desperately seeking to return home to avoid the Get taking effect and his wife being rendered forbidden to him forever. Fortunately, Netziv ruled that the Get was rendered invalid by a combination of the husband cancelling the Get and the wife's waiving of the stipulation. To avoid such scenarios, the Divrei Malkiel formulated the stipulation as stating that the Get would take effect only after the wife presented the Dayan at the rabbinic court with a minimal amount of money. In this manner, the Get would not take effect when the wife or the Dayan did not want it to.

Writing the Get after the War - Rav David Singer of Pilzno, Galicia

In the fall of 1914, as World War One commenced and Jewish young men were being drafted into the army, Rav David Singer of Pilzno, Galicia suggested an alternative to soldiers giving their wives a conditional Get. He wrote that soldiers could appear before a competent rabbinic court and appoint a scribe to write a Get, witnesses to sign a Get, and an agent to deliver a Get. The Beit Din would record this event and write and deliver a Get only if the husband did not return from war and his death could not be ascertained. The wife is then permitted to remarry since either the husband is dead, obviating the need for a Get, or he is alive, and the Get is valid.

The advantage of conducting a Get in this manner, explains Rav Singer in a poster circulated to soldiers leaving for service during World War One, is that it is simpler to execute than a conditional Get. It is easier on the couple, as it avoids the discomfort of the husband handing a Get to his beloved wife. This, in turn, motivates soldiers, who might otherwise not do so, to give wartime Gittin to their wives in order to avoid a potential Agunah situation. Moreover, it facilitates conducting large numbers of wartime Gittin for the thousands of soldiers who are being rushed to battle. Appointments of scribe, witnesses, and agent take a fraction of the time that it takes to execute a full Get. Furthermore, it eases the toll on morale, as there is a more remote connection between the soldier and the Get, which would otherwise be performed in contemplation of the disturbing possibility of becoming missing in action. Finally, this method is in harmony with Rabbeinu Yechiel of Paris's edict to avoid conditional Gittin as much as possible. Note that the husband does not stipulate any conditions with regard to the Get. It is simply understood that the Beit Din would not allow the scribe, witnesses, or agent to execute the Get until it is appropriate to do so. (This is not considered to be a conditional Get; see Baeir Heitev E.H. 156:1.)

Rav Singer's proposal was endorsed by two renowned Poskim of the time, Rav Meir Arik and Rav Yosef Engel, as recorded by the Munkaczer Rav (Teshuvot Minchat Elazar 3:68).

(Rav David Singer is my great uncle, and his son, Rav Yosef Singer, gave me a copy of the poster that Rav David produced to publicize the need to conduct such Gittin. The poster hangs in my office as inspiration for my work as a Get administrator.)

This proposal, however, is not without its disadvantages. It does not address the problem of Chalitzah. In case the husband dies without children, the wife is not permitted to remarry until she receives Chalitzah from her husband's brother. Accordingly, if the husband dies or goes missing, the Get appointments would not avoid the Chalitzah requirement. Unlike the first two options that we outlined, this solution does not take effect immediately, but rather only after the husband is no longer assumed to be alive (i.e. he has no Chezkat Chaim), at which point the Get does not avert the need for Chalitzah. (see Pitchei Teshuvah E.H. 141:70).

In addition, since it does not operate retroactively, it is not effective in case of the husband losing his mental faculties in war. A Get cannot be executed in such a situation since Halacha requires that the husband be of sound mind both at the time of appointing the scribe, witnesses, and agent and at the time of the delivery of the Get (Shulchan Aruch E.H. chapter 121). The Minchat Elazar (ad. loc.) addresses the question of how we can write a Get on behalf of the husband and not be concerned with the possibility that he became mentally incompetent and unable to have a Get executed on his behalf.

Finally, Rav Singer does not address the possibility of the scribe, witnesses, or agent moving overseas or dying. Subsequent variations of Rav Singer's proposal, such as that of Rav Herzog (Teshuvot Heichal Yitzchak E.H. 2:41), offer the option of appointing alternate scribes, witnesses, and agents in case any of the people appointed to execute the Get are unavailable to do so.

Next week, we shall discuss the execution of wartime Gittin during World War Two, the Israeli War of Independence, and the Six Day War.