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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 30, 2013

What's Good for the Goose is Not Good Enough for the Gander

About a month ago my post was about an aguna whose husband was in New Jersey, and the beit din imposed sanctions on him.  We won't know the result of the sanctions - all published piskei din have the names deleted - unless we see a pesak din with the exact same details and some additional development, so that we can reasonably assume it is the same case.

We'll now consider a similar case (7874/4 from 23/4/13).  In fact, it appears to be worse, as it is dragging on for more time.  And, more severe, because the couple's child was snatched and taken by one of the spouses to the United States, on the pretense that the trip was to visit parents.  The other spouse filed a complaint according to the Hague convention.

But the important difference between the cases is that here the get-refuser is a woman who refuses to accept her get (we don't learn why) and the refused is her husband.  He tried to arrange a get by messenger, but she was not compliant.  They already had an agreement worked out in the US (though we don't know from when).  It turns out that the wife will have custody of the child and the husband will have visitation and twice-weekly phone calls (so I guess the wife was not found guilty under the Hague convention).

Trust me, I tried to write a brief summary of the details that we learn in the pesak, but I gave up. Some of them contradict one another - they don't know where she lives, they found out where she lives, her parents (by the way, her father is a rabbi) don't know where she is and have lost connection, her mother has taken her for psychiatric treatment because she is paranoid, etc., etc.  And, the details are dry.  Oh, except maybe for the husband's claim that the wife's former brother-in-law reported that she is now married to a gentile.

We learn in the course of the presentation of the details that presently the husband has another woman with whom he lives and that he wants permission to marry her because they will be undergoing fertility treatments together. That's how it is with a mesurav get!  Just imagine the situation if it were a mesurevet get who wants to have another child!  As a matter of fact, these upcoming fertility treatments seem to be the stimulus for the urgency of the husband's request, because at some point we are told that he abandoned his request for a while, but has now renewed it.

The main point in the pesak is that the dayyanim determine that the husband, who is of Ashkenazi descent (and therefore subject to the Herem of Rabbenu Gershom), should be permitted to take a second wife, for the following reasons:
1) The Rm"a (Rabbi Moshe Isserles) in his gloss on the Shulhan Arukh Even HaEzer 82:2 ruled that if a man wants to divorce a rebellious wife, she must be forced to accept the get, or he is permitted to marry another woman, because a woman does not have the power to keep him chained forever.  Numerous other sources are provided, and they note that there are latter decisors who don't even require the agreement of one hundred rabbis.

The second reason is something that I didn't know before.  Live and learn.
2) If the couple has a civil divorce, the Herem of Rabbenu Gershom does not apply.   For this reason, too, there lots of citations.

They bring two more reasons that do not really enlighten us much - they just strengthen their case.  They also discuss whether the 100 signatures are required, and take the stringent view that they are.
They conclude (unanimous decision):
1) The man is permitted to marry another woman.
2) The man has provided a divorce for his wife, but that doesn't mean she can remarry (presumably until she would come to the beit din and accept it, or accept it by messenger).
3) This ruling requires the approval of the Chief Sephardi Rabbi, Rabbi Amar, who is the head of the highest rabbinic court.
4) The permission to take another wife is final when Rabbi Amar and 100 rabbis agree.

Before writing the conclusion, they also state that if there is a hearing in the future about the woman's ketuba, she would be denied her ketuba.

To sum up, the woman has a get - she just needs to take it.  She has no ketuba.  He has a new woman in his life, he can have kids that are not mamzerim.  Again, just switch the roles.  A mesurevet get and a recalcitrant husband.   צדק צדק תרדוף.  Justice, justice shall you pursue! (Deuteronomy 16:20)

You'll find a bit more detail in my Hebrew blog.

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