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“The books, the compositions, and the commentaries are our teachers, and all is according to the understanding of the intellect and reason.” R. Sh’muel ben Moshe di Modina

Sunday, June 2, 2013

A Sarvan Get and Sanctions - Would a Prenup Help this Case?

The batei din must have a PR department, among the goals of which is to publicize the tough actions they take to help agunot.  So the case that I'm going to write about today was written about in the Israeli press (and maybe made it to the Jewish media abroad).

I'll summarize the case and pesak din, and then add my two cents.

Case 835157/7  (7/5/2013)
The husband was ordered by the beit din to give his wife (now 31 years old) a get on September 7, 2011.  But he has not done so; he has gone to the US and lives in New Jersey (he already left Israel in March, 2011).  Apparently, the beit din's order to give the get missed the boat.  Even though the husband is abroad, the beit din insists that because both spouses are citizens of Israel, the beit din has the authority to impose sanctions, which they did on February 8, 2012.

These sanctions included denial of Israeli consular services to the husband.  Of course, if he does not need to renew his Israeli passport, why would he need consular services?  How much of a sanction is this?  So, it didn't work, and later in 2012 (July), the wife requested of the beit din to impose additional sanctions on him.

Among the decisions reached by the beit din on 17 July, 2012 (and signed on 31/7/13) are the following:
ג.      הואיל והבעל מסרב לציית לפסק הדין, מותר לקרותו עבריין, ודינו מבואר בשולחן ערוך יורה דעה סימן שלד.
ד.      מצוה על כל מי שיכול לסייע להתיר את האשה מעגינותה, לפיכך יש להימנע מלעשות טובה לבעל ו/או לדבר עמו ו/או לצרף אותו למנין ו/או לישא וליתן עמו ו/או לקברו. כמבואר ברמ"א.

ה.       בית הדין נעתר לבקשת האשה ועל כן בית הדין מתיר לפרסם את שמו ופרטיו ותמונתו של הבעל [פלוני] בקהילה ב[...] ו/או בכל מקום שהוא ללא הגבלה, בצירוף הודעה כי כל היודע על מקום הימצאו ויש בידו לסייע להוציא מהבעל גט, הרי הוא מצווה ועומד לכך, ואילו כל המסייע לו להמשיך ולעגן את האשה, הרי הוא מסייע לדבר עבירה.
ו.      בית הדין מעביר העתק החלטה זו לידי הרב [...] – רב הקהילה לפי הכתובת הבאה: [...]
ז.      בית הדין מעביר החלטה זו למחלקת העגונות בהנהלת בתי הדין, לפעול באמצעים העומדים לרשותם לביצוע תוכן החלטה זו ובית הדין מורה לאגף עגונות בהנהלת בתי הדין לפנות לכל גורם רבני או אחר שיש בידיו להשפיע על הבעל לתת גט, לעשות זאת.
3) Considering that the husband refuses to abide by the ruling of the beit din, it is permissible to call him a transgressor, and the law regarding such a person is detailed in the Shulhan Arukh, Yo-re De'a 334.
4) It is incumbent upon anyone who can help to release this woman from her iggun. Therefore, one should refrain from doing any favors for the husband, and/or from talking with him, and/or to include him in a minyan, and/or to do business with him, and/or to bury him, as specified in the Rm"a. [Rabbi Moshe Isserles, glosses on the Shulhan Arukh]
5) The beit din grants the woman's request, and therefore permits publicizing the name, details, and photo of the husband so-and-so [but then why not publicize it here, in the pesak din?!!] in community such-and-such and/or in any place, without restriction, together with a notice that anyone who knows of his location and has the ability to help retrieve a get from the husband is hereby ordered to do so, while anyone who assists him to continue to chain his wife is aiding and abetting a crime.
6) The beit din is forwarding a copy of this decision to Rabbi so-and-so [actually inadvertently named later in the pesak], rabbi of the congregation according to such-and-such address.
7) The beit din is forwarding this decision to the division for agunot under the authority of the batei din, so that they will request of any rabbinic body or anyone else who can influence the husband to give the get, to do so.

Before continuing with the summary, I'd like to relate to the citation from the Shulhan Arukh (SA) and the Rm"a.  The chapter referred to contains the laws relating to those who are shunned or excommunicated.  Though this summary of points from the pesak din of July, 2012 does not use the word nidui or herem (shunning or excommunication - the latter being a stronger level, but I will not go into that detail here), that is actually what the decision entails.  In paragraph 43 of the cited chapter, the SA lists the twenty-four reasons that a person is shunned.  Reason number 6 is:
(ו) מי שלא קבל עליו את הדין, מנדין אותו עד שיתן 
One who doesn't accept [and carry out] the judgment of the beit din is shunned until he complies.
In item 4 above, the pesak refers to several sanctions that everyone is asked to impose on the husband:
a) not to do any favors - for the excommunicated (more severe than shunning), in paragraph 2 the SA states that:
וכן אסור להנותו יותר מכדי חייו  
Similarly, it is forbidden to grant any benefit to him, beyond what is necessary for him to live.
b) not to speak with him - again, in paragraph 2 it states that:
ומותר לדבר עם המנודה ועם המוחרם, אלא אם כן החמירו עליו בית דין בפירוש. הגה: ומ"מ לא ירבה עמו בדברים, ולא ידבר עמו אלא לצורך, כמו שמדבר עם האבל 
It is permitted to speak with the shunned and the excommunicated, unless the beit din specified to be more stringent with him.  The Rm"a adds in his gloss: But in any event, one should not converse much with him, and should only speak with him when necessary, as one who speaks with a mourner.
c) not to include him in a minyan (I don't know, these dayyanim never count me in a minyan - am I being shunned?) - again, in paragraph 2 regarding one who is shunned (and therefore even  more so one who is excommunicated):
ואין כוללין אותו לכל דבר שצריך עשרה. הגה: אבל אם לא נדוהו בפירוש, אף על גב שהוא עבריין ..., מצרפין אותו למנין י' להתפלל עמו. ואפילו מנודה ממש שאין מצרפין אותו למנין, מ"מ מותר להתפלל בעודו בב"ה.
And he is not included in any matter that requires ten (i.e., a minyan).  The Rm"a adds in his gloss: but if they (the beit din) did not specify clearly that he is shunned, even though he is a transgressor, he is included in a minyan, to pray with him. But even one who is truly shunned, who is  not included in a minyan, in any event it is permitted to pray while he is still in the synagogue.  (That would mean that he is not kept out of the synagogue.)
d) not to do business with him - this one is interesting, because in paragraph 2, it states that it is forbidden to hire one who is excommunicated, or to be hired by him, but it does not say anything about a prohibition to do business.  The ruling in the SA there is very similar to Maimonides, Laws of the Study of Torah (Hilkhot Talmud Torah) 7:5, where it states that it is forbidden to hire the excommunicated, or to be hired by him, and it is forbidden to do business with him.  The SA clearly omitted this last prohibition, nor does the Rm"a add it in his gloss.  The beit din, in the case under discussion here, decided to include Maimonides' additional restriction.
e) not to bury him (a Jewish burial) - in paragraph 6 it states:
אם רצו בית דין למעט הנידוי מל' יום, או להוסיף, הרשות בידם. הגה: ויש רשות לבית דין להחמיר עליו שלא ימולו בניו, ושלא יקבר אם ימות, ולגרש את בניו מבית הספר ואשתו מבית הכנסת, עד שיקבל עליו הדין. 
If the beit din so wishes, they can reduce his shunning to less than 30 days, or add [days] - it is their prerogative.  The Rm"a adds in his gloss:  And the beit din has the option to be more stringent [and rule] that one should not circumcise his sons, nor bury him if he dies; his sons should be expelled from school, and his wife from the synagogue, until he complies with the judgement.

I went through this exercise for several reasons:  it is valuable to see the basis for the rulings of the beit din, by looking at these halakhot, we can see how the beit din attempted to be quite harsh on this get-refuser, and it never hurts to learn a little halakha just for the edification.

Let us return to the case.  These sanctions, as stated, were imposed back in July 2012.  In the latest iteration this past month, the husband protests (actually his lawyer does, on his behalf) these sanctions, claiming that these sanctions are not within the options available to batei din to impose, as specified in the Israeli law.  Further, the beit din has  no authority to restrict the husband outside of Israel.  These sanctions attack the sovereignty of the United States, because they are addressed to people (those who are supposed to shun him) who are not citizens of Israel.   And, lastly, the sanction to prohibit his burial is not valid, because after he dies, his wife is a widow and she no longer needs a get.  (Did he say "over my dead body"?)  Other claims along these lines were made by the husband's attorney.

The beit din rejects all of these claims, but one of them - the non-burial clause - is disputed among the dayyanim.  I wish to be brief regarding the rejections - I want to get to my "two cents".  The beit din claims that since it is a legal body in Israel, under the authority of the state, they certainly have every right to give an order any Israeli citizen (e.g., the husband).  As far as telling non-Israeli citizens how to behave - they have the authority to do that, as a religious beit din, enabling them to direct any Jew, anywhere, as to what they must do. They cite precedent to prove that they have a right to impose social sanctions (excommunication), even if it is not spelled out in so many words in the Israeli law.

On the other hand, the non-burial clause is problematic, according to the minority opinion:
יחד עם האמור, נראה שבהשתלשלות הדורות מנעו פוסקי ההלכה שימוש בהרחקה שלא למול בניו או שלא לקברו בנוגע לעבריין המנודה, היות שהאפקטיביות שלהן להשגת היעד המבוקש התבררה כלקויה, ואדרבה הן עלולות להרחיק את היעד הנכסף בשל תגובת הלוואי מהמורחק בדורות החופש והדרור. וכן נראה שעלולה היא להתנגש באופן כללי עם הוראות החוק המקומי. ועיין ספרים שונים, כמו יביע אומר וכדו' שהגבילו את השימוש בצעדים שבזמננו עומדים ביחס הפוך לתקווה המצופה מהם.
Along with what was stated, we see that in the course of the generations, adjudicators have refrained from using the sanctions not to circumcise his sons or not to bury the transgressor who is shunned, since their effectiveness in achieving the desired goal is defective.  On the contrary, they are likely to even delay the longed-for result, because of the accompanying reaction of the shunned in times of freedom and liberty.  It also is likely to conflict in a general manner with the local law.  Look in various books, such as Yabia Omer [one of R. Ovadya Yosef's collections of responsa] and the like, that have limited the application of these steps, that in our times bring the reverse of what we hope to achieve from them.

Several interesting citations along these lines are quoted, and if I were giving a set of shiurim on the subject, they would be a fascinating example of how halakha changes.  The minority opinion is that all the sanctions, except the non-burial remain in place.

However, the other two dayyanim disagree.  The citations brought by the lone dissenter are not in cases of a man who holds his wive captive, but, for example, someone who does not keep Shabbat.  They cannot be compared. In the case at hand, the law should have required that the man be beaten with a whip so that he will agree to comply with the ruling, but since today that is not done, the beit din must be stringent with him so that he will release his wife.  Thus, the husband lost his appeal, and the sanctions are in place.  

Will he give the get?  We don't know.  He could decide to refuse until he is on his deathbed, and then he'll give it so that he will be buried properly.  Why, he could even give it now, effective at a future time: this is your divorce, effective the day before I die.  That is halakhic, too. 

Now for my thoughts on this.  Some people might say "bravo" to the beit din for being so tough.  Given the situation, they did just about as much as they can do, except for hafqa'at qiddushin - annulment - which batei din in Israel won't do (nor will Orthodox batei din anywhere else).  Indeed, given the mindset of the beit din, and the four cubits of halakha within which they work, they were tough.  But rather than to criticize the beit din, it is those four cubits of halakha that are unsatisfactory.  A woman's right to be freed of a marriage should not depend upon sanctions and how stubborn her husband will be.  She should have the right to say "I want out" and then be able to be a free woman.

Perhaps some of you are wondering:  would a prenuptial agreement have helped such a situation?  Or, perhaps some of you are thinking: "it wouldn't happen to me - we've signed a prenup".

As I imagine most of my readers know, in the US, the RCA (Rabbinical Council of America) declared that its member rabbis should not officiate at a wedding unless the couple signs a prenuptial agreement, as a method to prevent problems of get-refusal.  I don't know to what extent this is enforced, but it is considered by many to be a valuable step that was taken to prevent the problem of agunot.  If you are not familiar with this prenup and how it works, just Google "RCA prenuptial" and you'll find loads of  relevant links.

There has been a similar attempt in Israel to promote use of a prenuptial agreement, the most popular one being the heskem l'khavod hadadi - the agreement for mutual respect.  You can look at material on the website of either The Center for Women's Justice   (there is a link to the Hebrew site, too) or of Kolech (the link provided is to the English site - the Hebrew one is here) to find information about the prenups in Israel.  So far, their use in Israel is not widespread, but several organizations have been campaigning to increase awareness (and signing) of these agreements.

I certainly urge anyone who marries within the Orthodox framework to sign such an agreement.  It is better than nothing, and might even be effective enough to avoid many cases that would otherwise result in get-refusal.  You are not signing it for yourself - you've got the perfect relationship.  You are signing it so that it will become the norm, just as the ketuba is.

However, these agreements have not been used for a long-enough time nor are they widespread enough to be able to determine, yet, how effective they really are.  It might be a self-selected population who signs them - the type of people who in any event would not be so obstinate if their spouse said that s/he no longer loves him/her.  And, though I will not expand upon this thought right now, I will just state here that the prenup does not do anything to address the inherent paternalistic model of traditional Jewish marriage, whereby a man acquires his wife with a qinyan (an act of acquisition), and all that goes with that model (some of which I mentioned in an earlier post).

But in this case, would a prenup help?  The prenup states - in a nutshell -  that if either party wants "out", after a set period of attempted reconciliation with marital counseling, the reluctant party must pay a monthly support payment of $1500 or 50% of that person's income, whichever is larger (this is the amount in Israel; check the RCA version for the US) until the get is granted/accepted (whichever is relevant).  This monthly payment is intended to be enough to "encourage" the reluctant party without forcing him/her, which would invalidate the divorce.  There are several clear situations in which it won't work:  if the reluctant party is so poor that they wouldn't be able to pay, anyway; if the reluctant party is so rich that it won't bother him/her to keep paying in spite; if the reluctant party is so stubborn that s/he would rather sit in prison (which might happen in Israel); or the reluctant party is overseas, in which case there is no way to enforce the monthly payments (as a case in point, the husband in the case we saw was not paying the mezonot that he must pay his wife until he divorces her).  One last situation: it won't work if either party is no longer mentally competent.

So what would be better?  If you insist on a halakhic marriage, do qiddushin al tenai - conditional betrothal (for all intents and purposes, conditional marriage).  No, the rabbinate won't agree to it, but if one of the conditions is that if you are not longer living together, say, for a year, then the marriage is null and void, and you are set free - you were never married to the rat to begin with.

There have been some attempts to revisit the idea of a conditional marriage. (As one example, view this paper - and yes, I am aware of the scandal that surrounded the author of it, but we can learn from all sources of knowledge. For the truly serious, read Eliezer Berkovitz's book תנאי בנישואין ובגט.)  And a handful of renegade young couples in Israel are doing just that - a conditional marriage that is not registered with the rabbinate.  May there be more like them!  


  1. I don't understand why one would prefer to get married al-tnai than to not get married at all.
    If you are so afraid of what getting married (in the orthodox manner) means - why get married in the first place?

    No one in this time and day would be willing to live with anything that is done Al-Tnai for a long period of time. You wouldn't buy/sell a car or house al-tnai (even if the condition is very far fetched). I can't understand how someone intelegent can consider getting married al tnai.

    1. The people I know who did it are extremely intelligent, and very educated in Talmud, Jewish law, etc. They happen also to feel committed to halakha, which is why they seek a halakhic solution. So far, those who opt for that method could be considered among the elite. I have written and said publicly that I think the best option is to not get married at all, and to have whatever meaningful creative ceremony one likes in order to declare a commitment to one another in public, and to sign financial and other obligatory agreements for living together. People do seem to have a desire to publicly declare their commitment and love to each other: the demand for gay marriage and its legalization in a growing number of countries is proof of that. But, why qiddushin al tenai as a suggested option? The fact is that many couples like the appearance of the Jewish ceremony, or they want to please family. They want to hold on to some sense of connection to the Jewish custom. They think that some of the sheva brakhot are meaningful (though birkat ha-erusin is absurd - it is only talking to the men, isn't it?). And, yes, they want to be halakhic. The reason I suggested qiddushin al tenai in this post is because I've suggested Reform weddings, or other non-Orthodox weddings other times, and wanted to throw out this option (and, I just happened to get email regarding a couple who will be having qiddushin al tenai in two weeks).. In any event, I suggest not to register in the Ministry of the Interior (Misrad haPnim), even if you get married in Cyprus, because then if either party wants to dissolve the marriage, they still have to go through the beit din.
      But your questions "if you are so afraid ...why get married" is quite strange. Loads of people in the world choose to get married. And most of those marriages are not like Orthodox marriages. In every modern state, there is a way to get out of it that is much more sensible and equitable. In Moslem law there is the equivalent of hafqa'at qiddushin. Orthodox marriage is very backward. It should not be a choice of "Orthodox marriage or don't bother getting married".
      And, by the way, lots of people in Jerusalem buy apartments on condition - the land belongs to the Greek Orthodox church, and they are taking a chance that the church won't be willing to renew the lease. People hope for the best.


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