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

1998/5759

Introduction

            This week we will discuss an Israeli angle on the Aguna problem.  In Israel, Batei Din have sole jurisdiction over the divorce proceedings of the Jewish residents of the State of Israel.  Thus, the Beit Din can order a husband to give a Get and can order the husband imprisoned if he fails to do so.  This, of course, would only apply in a case where halacha permits coercion of the husband to give a Get.  As we discussed last week, the precise definition of what constitutes coercion is controversial.  We will examine an interesting case, which occurred in Israel approximately twenty years ago, which helps shed light on the halachic definition of coercion.  Our discussion will be based on an article published in the first volume of Techumin written by one of the "Dayanim" who presided over the case, Rav Shlomo Dichovsky.

 

 

The Case

            After a year of marriage, the wife sued for a Get on the grounds that her husband was sentenced to jail for four years for theft and drug charges.  The Beit Din ruled that the husband "must" ("Chayav") give a Get.  In such a case "Harchakot D'Rabbeinu Tam" (see last week's discussion) can be imposed on the husband, but he cannot be coerced to give a Get.  When the husband heard this rule he cursed and spat at the Dayanim and was promptly returned to jail.

            The Beit Din was faced with the following halachic issue.  The policy in Israeli jails is that a third of a prisoner's sentence is removed if he engages in good behavior during his term in prison.  The halachic question was: did the Beit Din have halachic permission to recommend to the parole board that the prisoner should be denied early release due to his misbehavior in Beit Din, unless he gives his wife a Get.  If he will give a Get, the Beit Din would recommend early release.  Since halacha doesn't permit coercing this man to give a Get, the question is whether making such a recommendation constitutes coercion of the husband to give a Get.  The question, therefore, is whether such a recommendation should be seen as a threat to the husband, namely, that if he fails to give his wife a Get he will be imprisoned or if the recommendation may be seen as the Beit Din willing to forgive the husband for his misbehavior if he gives his wife a Get.  It should be noted that sending a husband to prison for failure to give Get is considered coercive (see Igrot Moshe E.H.4:106, but see Rav Herzog T'Chuka L'Yisrael Al Pi HaTorah 3:209).

 

Rishonim - the Rashba and Maharik

            Rishonim debate whether the following situation is considered coercive.  A man agreed to give his wife a Get and agreed to pay a monetary penalty if he failed to give a Get.  Subsequently, the husband changed his mind and did not want to give a Get.  Nonetheless, he gave a Get for fear of losing a considerable amount of money.  The Beit Yosef (to E.H.134) cites differing approaches to this problem.  On one hand, the Maharik rules that the husband is viewed as giving the Get of his own free will because he voluntarily entered into the agreement to pay this monetary penalty.  The Rashba, on the other hand, asserts that the husband is to be seen as being coerced to give a Get.  The Rama (E.H. 134:5) cites, as a normative compromise approach, that initially (L'chatchila) the penalty should be eliminated before the husband gives the Get.  However, if the husband had already given a Get to his wife because of fear of monetary penalty, the Get is considered acceptable after the fact ("B'dieved").  See Taz (134:6) and Gra (134:14) who endorse the Rama's decision and see Pitchei Teshuva (134:10) for a critique of this ruling from Teshuvot Mishkenot Yaakov.

 

The Rivash - Tashbetz and Ranach

            The Rivash (responsum no.127), though, rules that if the coercive element is not directly linked to the Get, the Get is unquestionably kosher.  Thus, if a man was imprisoned for abandoning his wife and to secure his release from prison he gave his wife a Get, the Get is undoubtedly kosher, since he was imprisoned to motivate him to return to his wife and not to give a Get.  Similarly, in responsum no. 132 the Rivash rules that if a man was imprisoned for violating a communal edict forbidding one to marry a women unless ten men are present at the ceremony, and then gave a Get to secure his release from prison, the Get is unquestionably valid.

            However, the Tashbetz (1:1) and Ranach (responsa no.63) disagree whether the Revash's ruling applies even if the coercive element was imposed unjustly.  The Tashbetz rules that it is questionable if the Get is kosher and the Ranach rules that the Get is undoubtedly valid.

            The question whether to rule in accordance with the Tashbetz or the Ranach is unresolved.  The Aruch Hashulchan (E.H.4:106) rules in accordance with the Tashbetz and Rav Moshe Feinstein (Igrot Moshe E.H.134:11) seems to rule in accordance with Ranach.  For an in depth discussion of this issue see Pitchei Teshuva (E.H.134:11).

            Accordingly, in the Israeli case where the husband was imprisoned due to considerations that had nothing to do with the Get, his securing his release by giving a Get is certainly not coercive according to the Ranach.  According to the Tashbetz, the question remains whether halacha permits imprisoning someone for theft and drug charges (Rav Dichovsky does not address this question).

 

Rav Dichovsky's Conclusion

            Rav Dichovsky rules that the Beit Din can make this recommendation due to two considerations.  First, the Beit Din is not in the position to imprison the husband.  It can merely recommend withholding a favor, parole, from the husband.  The Maharik (responsum no.133) rules (citing Rabbeinu Tam) that withholding a favor does not constitute coercion.

            Furthermore, the Chelkat Yoav (Dinei Oness, section five) rules that if one must ("Chayav") give a Get, his complete free will is not required for the Get to be kosher.  Even if the husband has a minimal definition of free will, the Get is acceptable since he must give it.

            Thus, since in this case the husband was obligated ("Chayav") to give a Get, it is acceptable for him to give a Get even if it is done because of pressure to secure his early release from prison.  For further discussion of this issue, see Rabbi J. David Bleich, Contemporary Halachic Problems II:93-100 and Piskei Din Rabbaniyim 11:300-308.

 

Addenda To Last Week's Essay

            1.  The Va'ad Harabbanim of Riverdale imposed Harchakot D'Rabbeinu Tam on a "reluctant husband" but did not put him in "Cherem."  The Rama emphasizes that Harchakot D'Rabbeinu Tam is not Cherem.  Harchakot D'Rabbeinu Tam is far less severe than Cherem.

            2.  Considerable efforts have indeed been made to modify the controversial 1992 New York State Get Law so that it should unambiguously conform to Rav Moshe Feinstein's ruling.  However, it has been difficult to manage to do so because the law appears to formally link the monetary obligation with the giving of a Get (the language of the law which refers to cooperating in a Get procedure is, "removing barriers to remarriage").

Unaccepted Proposals to Solve the Aguna Problem - Part I by Rabbi Howard Jachter

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