Viable Solutions to the Aguna Problem - Part II by Rabbi Chaim Jachter


            This week we will continue with our discussion of viable solutions to the Aguna problem.  We will, God willing and Bli Neder, later write about what the Orthodox Rabbinate considers to be improper solutions such as the court operated by Rabbi Emanuel Rackman and Rabbi Morgenstern.  This week we will discuss the issues of imposing communal sanctions, the possibility of discovering certain marriages to be invalid, and the 1983 New York State Get Law.


Communal Sanctions

            Last week, we spoke about the importance of every couple signing a valid prenuptial agreement.  This would allow for the rulings of a rabbinic court to be upheld in civil court.  Thus, if a rabbinic court rules that a husband must give a Get, the civil court most likely will enforce that ruling.  However, the halacha restricts the situations in which a husband can be coerced (see Shulchan Aruch, Even Haezer 154). 

            Nonetheless, the Rama rules (ibid 154:21) that:

Any situation in which the halacha does not permit the husband to be coerced to give a Get, the husband may not be excommunicated.  Nevertheless, [the Beit Din] can issue a decree that all Jews must withhold any favors from the recalcitrant spouse, refrain from engaging in business with him, from circumcising his sons, burying his deceased relatives, and any other stringency short of excommunication.

            These sanctions were initiated by Rabbeinu Tam and are known as "Harchakot D'Rabbeinu Tam."  The halachic basis for these sanctions is that a man cannot be coerced to give a Get.  Withdrawing favors from an individual pressures him to give a Get but does not coerce him to give a Get.  Coercion refers specifically to a situation when a husband is threatened to be physically harmed or threatened that his property will be taken away from him.

            Not all authorities agree with Rabbeinu Tam and the Rama.  The Shach (Gevurot Anashim 72, cited by Pitchei Teshuva E.H. 154:30) believes that these sanctions are coercive.  The Chazon Ish (E.H. 108:12) rules in accordance with the strict view.

            The Aruch Hashulchan (E.H. 154:63) along with other important authorities rule in accordance with Rabbeinu Tam and the Rama that these sanctions do not constitute coercion.  The other authorities who rule leniently include Rav Bezalel Ashkenazi (Teshuvot 6 and 19), the Maharam Lublin (Teshuvot no.1 and no.39) and Eliyahu Rabba (no.13), and Rav Yitzchak Herzog (Techuka L'Yisrael Al-Pee Hatorah III:202 and 209.)

            Moreover, it appears that even the Shach's strict ruling may not apply today.  A student of this author argued that the Shach's argument that in his time (Seventeenth Century Poland) imposing Harchakot D'Rabbeinu Tam was as severe as excommunication, does not apply today.  In the Shach's times, Jews depended on each other for earning a livelihood.  Furthermore, sanctions in our communities certainly have less impact than excommunication, due to the lack of communal unity.  Thus, it is likely that even the Shach would find the imposition of Harchakot D'Rabbeinu Tam in our communities unobjectionable (though perhaps in a cohesive chassidic community, such as the one located in the Williamsburg section of Brooklyn, they would be considered coercive according to the Shach).

            In practice, though, a compromise approach is taken by many Batei Din.  Harchakot D'Rabbeinu Tam is imposed only when the wife unilaterally decides to end the marriage ("To'enet Ma'us A'lai)  and provides a reasonable basis ("Amatla Mevoreret") for her actions (see Be'urim B'Hilchot Ha-Raayah p. 243).  In such a case many Poskim permit full coercion of a husband to give a Get (see Rav Ovadia Yosef, Teshuvot Yabia Omer 3:18).  Thus, a double doubt ("Sfek S'feika") exists because many authorities deem "Harchakot d'Rabbeinu Tam" not to be coercive.  The second doubt is that perhaps when a woman has an "Amatla M'voreret" for her claim of "Ma'us A'lai," coercion is permitted by the halacha.

            Accordingly, a Beit Din may impose strict sanctions on many recalcitrant spouses.  An example of these sanctions being imposed is recorded in Rav Ovadia Yosef's Teshuvot Yabia Omer (7:E.H:23).  Rav Yosef presents a decision of the Supreme Rabbinic Court of the State of Israel in which Rav Yosef along with two other eminent authorities, Rav Eliezer Waldenburg and Rav Yitzchak Kulitz (chief Ashkenzic Rabbi of Jerusalem), imposed Harchakot D'Rabbeinu Tam on a recalcitrant husband.  The husband yielded shortly afterwards and gave his wife a Get.

            It should also be noted that if a husband was summoned to Beit Din and he failed to respond, the Beit Din will issue a "Seiruv" against the spouse, which states that the spouse is in contempt of Beit Din.  In such a situation all agree that the spouse can be excommunicated (see Shulchan Aruch Yoreh Deah 334:43), and banned from entering a synagogue.  Such sanctions have been imposed by the Va'ad Harabbanim of Riverdale and have proven successful in prodding the recalcitrant spouse to participate in a Get ceremony.

            In Israel, laws have been enacted to permit State Rabbinic Courts to take away the driver's liscence and checking accounts of recalcitrant spouses.  This is a modern application of Harchakot D'Rabbeinu Tam. 


Invalid Marriages

            Last year, we discussed at some length the possibility that many civil and non-Orthodox marriages may not be halachically valid.  Thus, an Aguna would be permitted to remarry if a leading recognized rabbi issued a ruling stating that the original marriage was not conducted in a halachically valid manner.  It should be emphasized that this issue is no simple matter and every effort should be made to try to procure a Get even if the marriage was conducted by a non-Orthodox rabbi or even if the couple was married in a civil ceremony.  There are two reasons for this.  First, some reform and conservative weddings may be valid if two observant men witnessed the delivery of the ring from groom to bride.  Second, some halachic authorities believe that almost all non-Orthodox and civil weddings are halachically recognized marriages.  In fact, the leading proponent of this strict approach, Rav Yosef Eliyahu Henkin, writes (Kitvei HaRav Henkin 2:225) that any rabbinic ruling which states that a marriage conducted by a reform rabbi is invalid and permits a women to remarry without a Get, is "sinful."  Thus, it is of utmost importance to stress that only a recognized leading rabbi should be consulted to declare that a marriage ceremony was invalid, if all other efforts fail to procure a Get.


1983 New York State Get Law

            A very helpful tool in procuring a Get from a difficult spouse is the 1983 New York State Get Law.  This law calls for the judge in a civil court to withhold granting a civil divorce until the party who filed for divorce removes all barriers to remarriage, i.e., gives a Get.  Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 4:106) rules that this law is not considered coercion of the husband to give a Get.  Rather, the husband gives a Get in exchange for a civil divorce.  Rav J. David Bleich has explained that according to civil law one does not have a "right" to civil divorce.  It is a privilege bestowed by the court on behalf of a citizen.  The State enjoys the right to withhold this privilege from someone until he gives a Get.  This "Get Law" enacted by the New York State Legislature has proven effective in motivating many recalcitrant spouses to give a Get.  This law exists in other jurisdictions such as Australia.  Rabbi Asher Ehrentreu of the Administration of the State of Israel Rabbinic Courts related to this author that he persuaded a judge in one of the Asiastic republics of the Commonwealth of Nations to withhold a civil divorce until the husband gave his wife a get.  If this feat can be accomplished in the former Soviet Union, we should make every effort to pass such legislation in all jurisdictions where Jews live. 


The Controversial 1992 New York State Get Law

            Rav Moshe Feinstein further clarifies precisely what constitutes coercion.  He explains that if the judge fines a husband to give a Get, it constitutes illicit coercion which invalidates a Get.  If, however, the civil judge issued the husband a high maintenance order, that he would have to pay her a great deal of money to support her ("D'mei Mezonot"), and the husband gives a Get to avoid his having to pay this large some of money, the Get is undoubtedly kosher in Rav Feinstein's opinion.  Since there is no formal link between the maintenance order and the giving of the Get, the judge's order is not considered coercive (see Pitchei Teshuva E.H.134:11 and 154:2).  However, a Get issued on the heels of a fine imposed by a judge for failure to give a Get is invalid, since the judge's issuance of the penalty is formally linked to the giving of the Get (this is how Rav Zalman Nechemia Goldberg of the Jerusalem Beit Din explained this responsum to this author).

            This issue is the crux of the debate concerning the halachic validity of the 1992 New York State Law.  The law can          be read as a penalty imposed on the husband for his refusal to give a Get or it can be understood not as a penalty but as a

provision for a recalcitrant husband to provide his wife with monetary support.  Indeed, Rabbi Kenneth Auman of the Young Israel of Flatbush told this author that he asked two judges how they interpreted this law.  The two judges responded by offering judges two varying interpretations of the law.  Rabbi Zvi Gartner also notes this problem in a letter that appears in the Spring 1998 issue of Tradition. (see p.93)

            Accordingly, Rav Zalman Nechemia Goldberg told this author that the solution to this problem is simple.  The solution is to simply amend the law so that it should unambiguously  be understood and implemented as a support provision, making the law halachically valid in accordance with Rav Feinstein's ruling.

            Unfortunately, although Rav Goldberg made this suggestion in 1993, this simple suggestion has not been implemented.  This is profoundly tragic, since this law has the potential to be a potent tool to resolve Igun problems.  As long as the law is mired in controversy, it cannot be used as an effective tool against recalcitrant spouses.  A Beit Din cannot supervise a Get whose halachic acceptability is mired in doubt.

            Next week, God willing and Bli Neder, we will continue our discussion of solutions to the Igun situation

Viable Solutions to the Aguna Problem - Part III by Rabbi Chaim Jachter

Viable Solutions to the Aguna Problem - Part I by Rabbi Chaim Jachter