Coercing a Divorce

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A religious court is only allowed to force a man against his will to divorce his wife in specific situations. The exact parameters carry tremendous weight, because an improper stringency will trap women in potentially extortionary situations and an improper leniency will invalidate the divorce and render any future children illegitimate. In this essay from Kol HaRav (link), R. David Bigman (bio) argues on halakhic grounds that current standards are overly strict.

Over the opposition of women’s organizations, the Committee for the Appointment of Rabbinic Judges recently selected Rabbi Nahum Prover to serve on the Supreme Rabbinical Court. According to these women’s organizations, Rabbi Prover uses a strict religious approach that is consistently against women. While I cannot speak to this general characterization of R. Prover’s approach, in the following lines I want to analyze the main halakhic source on which he and many other judges in the rabbinic courts base themselves when they refrain from forcing recalcitrant husbands to proffer a get.


I am speaking of a responsum penned by the 16th century sage, Rabbi Shmuel ben Moshe de Medina ( Responsa Maharshdam, Even HaEzer 41). In this responsum, the Maharshdam addresses an extraordinary story involving the details of the laws of divorce and levirate marriage. Unfortunately, this source is misapplied by many contemporary rabbinic court judges who fail to appreciate a number of central issues in this responsum.



The Case:


The question that came to the door of the Maharshdam describes a complex and fascinating family situation and a moving human story. At the center of this story is a girl who was betrothed to a boy her age who died unexpectedly. Because the two had not married, the girl of course was left with no children. Therefore, the boy’s brother (the yavam), an older man with a wife and children, became obligated either to marry this girl through the mitzvah of yibum or to perform the rite of chalitzah and thereby permit her to marry another man.

Continued here: link

About Gil Student

Rabbi Gil Student is the Editor of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student has served two terms on the Executive Committee of the Rabbinical Council of America and currently serves as the Director of the Halacha Commission of the Rabbinical Alliance of America. He serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

41 comments

  1. According to din Torah the bet-din can flog the recalcitrant husband until he says “I will”(grant the get).But doesn’t this negate the halachic principle that the husband must grant the get of his own free will? In Chassidut we say that the inner will of every Jew is to do the right thing according to the Torah as decided by the bet din. The lashes break down the klipot gashmiut (levels of corporeality)of the husband so that the real inner will of the Jew will appear and he will agree to the ruling of the bet-din and grant the get.
    IMHO corporal punishment according to din Torah should be re-instituted. This would greatly lessen the number of agunot.

  2. DT: Why bring in Chassidut? The Rambam says the same thing (with less/different jargon)

  3. R’DT and R’ Shlomo,
    Agree(as we who are both rationalists and kabbalists would say- nothing that a swift kick in the … wouldn’t cure :-))- but pray very hard that “hashiva shofteinu” because this is a power that can easily be abused.
    KT

  4. The last paragraph suggests that Maharshdam’s answer was so tightly coupled to the specific situation as to be essentially worthless as precedent. If Maharshdam felt that way, why did he publish it (assuming he prepared his tshuvot for publication, which might not be the case)?

  5. Joseph Kaplan

    “The lashes break down the klipot gashmiut (levels of corporeality)of the husband so that the real inner will of the Jew will appear and he will agree to the ruling of the bet-din and grant the get.”

    What if the husband, after being beaten by bet din for a while, says: “Alright, I can’t take this pain any longer so even though I still don’t want to give the get, I’ll give it not of my own free will but simply to stop the physical pain.” Would such a get be valid?

  6. Joseph Kaplan

    One more question: If the lashes allow the “real inner will of the Jew” to appear, why won’t other forms of coercion do the same thing?

  7. Larry Lennhoff

    IMO Joesph Kaplan has hit upon the key question. Why is beit din sanctioned violence permissible, but not a beit din imposed fine?

  8. Rabbotai,
    Thank you and yi’yasher kochakhem for your excellent insights.
    A Beth Din can only coerce the husband to divorce his wife – be it through incarceration or a monetary fine – in the specific cases enumerated by Shulchan Arukh Even Ha’ezer no. 154.

  9. Why is Joseph Kaplan’s question the “key question?” I thought the main point of contention was when is a beis din authorized to apply coercion, not what forms of coercion can be used where coercion is authorized. Is there anyone who holds that where malkus is permitted a monetary fine or other coercion (e.g. cherem) is not? I have never heard of such a view.

  10. BTW, just as an aside (and since this fact scenario was mentioned on another thread), I once heard in shiur from R. Aharon Soloveichik that since a get can only be coerced by a beis din, a beis din means a court which operates openly and within the laws of the land. A beis din that has to sneak around to avoid detection by the authorites to enforce its will is not a beis din.

    It follows, said R. Aharon, that if a “beis din” in America orders a husband to give a get, and after he refuses, they send the goon squad (my words, not his) to beat up said husband, the coercion is illegitimate, not an act of a “beis din,” and hence the get is invalid. This is because such beatings are clearly unlawful under American law and the persons acting on behalf of the “beis din” would be arrested if detected by the police.

    (Presumably, R. Aharon would not exclude lawful forms of coercion — e.g. shunning the person, denying him aliyos or other honors, not counting him for a minyan, etc. This last parenthetical is my observation, not something I heard.)

  11. Permit me, with your kind permission, to elaborate on the case that R. Bigman correctly cites from Shu”t Yabi’a Omer III, Even Ha’ezer no. 20.

    A Yemenite lady was threatened with physical punishment if she wouldn’t accept kiddushin money from a certain gentleman. Thus, the entire marriage was a charade in the first place (for it was foisted upon the lady without her consent), and this itself is a significant legal consideration, which – when combined with the facts that

    (a) the “groom” and “bride” are Yemenites (who traditionally follow Rambam, and Rambam holds that if a lady is disgusted with her husband, the husband may be compelled to divorce his wife), such that the lady clearly has logical justification to be presently disgusted with her husband (since she never wanted to marry him), and

    (b) the husband has no children from this lady (for she fled from him soon after the “wedding”) and so the husband will surely be better and happier marrying an actual wife in the future who will actually live with him in harmony and be able create a family with him

    …justifies the decision of the Beth Din to decide to compel him to grant a sefer keritut by incarcerating him.

  12. R’ Tal Benschar,
    Thank you for the beautiful analysis. I would say that R’ Joseph Kaplan indeed presented the key question, and you indeed presented the accurate answer. I tip my hat to both of you.

  13. So do I understand correctly that it’s not a question of the “real inner will” of the husband (or as I heard it explained many times when I was younger, the pinteleh yid), but that it’s an issue of the power of the bet din; that is, a bet din has the power to coerce a get even though the husband eventually gives it truly against his will, but that no one else (individuals, secular courts etc.) has the power to so coerce.

  14. Yi’yasher kochakha, R’ Joseph Kaplan, for formulating the important chakirah. It sounds from the gemara in Gittin 88b like there is a combination of both factors you identify. First, we need a beit din (-or, nowadays, that we don’t have any official beit din, Jews are the agents of the batei din of the talmudic era) to announce the situation as “kofin legaresh”. Then, once it is announced that it is “kofin legaresh”, as you say the Pintele Yid wants to act correctly and listen to the beit din, and thus any external coercion is an illusion and is merely deflecting the evil inclination that has commandeered the husband’s heart. I found a summary of this topic at http://www.dafyomi.co.il/gitin/halachah/gi-hl-049.htm

  15. Shachar Ha'amim

    R’ Spira – thank you
    I once heard in the name of a big talmid chacham who said that if the State batei din in Israel appointed only Yemenite dayanim all the “problems” with coercive gittin would be solved.

  16. Thank you, R’ Shachar Ha’amim. Yes, if the bride and groom are both Yemenites, then the Rambam is an important snif lehakel.

  17. That said, I do believe all questions of coercion in gittin can be avoided in the future by wholesale adoption of R. Bleich’s pre-nuptial agreement in Benetivot Hahalakhah I, pp. 3-31. Essentially, his agreement awards an unusually extravagant ketubah to the lady (like Rivkah’s ketubah which consisted of two goats daily). This pre-nuptial agreement will avoid all future “get me’useh” questions (in the absence of government legislation that could be construed as compelling the delivery of a sefer keritut). According to R. Bleich, R. Yaakov Kamenetzky encouraged him to implement such an agreement, for the benefit of the righteous ladies of Israel.

  18. R’ Israel Fathers Rights Advocacy Council,
    Thank you for your kind and scholarly response. Precisely in anticipation of your valuable and correct rejoinder, I parenthetically added the words “in the absence of government legislation that could be construed as compelling the delivery of a sefer keritut”. R. Bleich fully sympathizes with your concern that government legislation could be interpreted as grounds for coercing a husband to write a sefer keritut, as he writes in Benetivot Hahalakhah I, pp. 32-55. Now that we have joyously celebrated Zeman Matan Torateinu, I am sure everyone will be inspired to follow the norms of Halakhah on matters of hilkhot gittin, precisely as you advocate.

  19. “Thank you for your kind and scholarly response.”

    Scholarly?!? Exactly where was the scholarship? Lots of charges and allegations but no scholarship that I could see. Perhaps the “Israel Fathers Advocacy Rights Council” can point us to some actual scholarship supporting the unsupported charges. Also, if there really is a “council” and the name is not simply an individual’s “blog” name to hide behind, perhaps we can be told who the leaders of this “council” are.

  20. Joseph — Google yields 6 pages of hits, but they all have one name associated with this “organization” (including his Linkedin profile).

    Reminds me of a story — which I have never authenticated — that one of the newspaper publishers in Israel was named Carlebach; and when he was going through a bitter divorce, his name would appear on the masthead as Kar-Li-Bach.

  21. MiMedinat HaYam

    to shalom spira:

    your comment of both bride and groom being taimanim is actually wrong.

    i know of a case where the (ex) wife (who refused to accept a get) was sfardic (syrian, actually), and the (ex) husband, at instructions of a sfardic bet din, forced the wife to accept a get against her will (permissible for sfardim, not for ashkenazim).

    in the end, the decision was that she is divorced, and pernitted to remarry, but he is not divorced, forbidden to remarry (without a heter , which was not indicated in this case, for other reasons.)

  22. R’ MiMedinat HaYam,
    Thank you for your important rejoinder. But I don’t think we are necessarily arguing with one another. I believe there is a major difference between coercing the husband and coercing the wife. Coercing a husband biblically disqualifies the sefer keritut, barring the special circumstances of Shulchan Arukh EH 154. ROY appears to be saying that – when the groom and bride are both Yemenites – we can use as a snif lehakel (-not the sole factor, but as a snif lehakel) the fact that Rambam authorizes coercion in a case of “ma’eese alai”. [This will presumably not work if the husband is not a Yemenite. This is how understand Shu”t Yabi’a Omer V, Even Ha’ezer no. 14, where ROY says that a Beth Din may not even charge a husband to pay mezonot in a case of “ma’eese alai”.] Coercing the wife to receive the divorce neither biblically nor rabbinically disqualifies the sefer keritut; rather, it disqualifies the sefer keritut because of a minhag to observe Cherem DiRabbeinu Gershom after the year 5000. When we are dealing with a minhag, there is much more latitude for leniency, even when the bride and groom are not Yemenites. [Vilna Ga’on is even orally quoted by ROY in Yabi’a Omer IX, Orach Chaim no. 85, sub-section no. 21, as holding that the minhag is fungible. That’s not the accepted Halakhah, but it does indicate there is room for leniency, even for non-Yemenites.]

  23. MiMedinat HaYam

    we’re not arguing. i’m just pointing out that the husband can (apparently) be forced to give a get in such a case, if he is taimani. and the wife will / will not be divorced, if she is / is not also a teimaniah.

    as for the vilna gaon (havent seen ROY’s citation of him, but have seen the gaon’s quote) but the gaon regrets two things — one, that he couldnt reinstitute birkhat cohanim every day, and two, that he couldnt get rid of cherem de’reabbenu gershon vis a vis taking a second wife (not other asoects of cherem derabbenu gershon).

    3. one caveat in such forced measures (particularly in various hafka’at kiddushin cases, not just r rackman cases, but the other (respecteable rabbi cases) but also in forced get cases) — once the word gets out of why / how the wife got divorced, her remarriage prospects are minimal. and i’m not just talking about charedi cases. even MO (or similar) cases.

  24. Thank you, R’ MiMedinat HaYam.
    In summary, then, this is R. Bleich’s prescription for the ideal scenario how to best benefit the righteous ladies of Israel and prevent them from becoming agunot (confirmed in personal consultation with this student):

    1. The New York Legislature should replace the 1992 New York Get Law with a bill that states “No spouse shall be permitted to seek a civil divorce until all barriers to a religious divorce have been removed to the best of his or her ability. At the same time, in recognition of the sensitivity of religious divorce to the imperative that coercion be avoided, the failure of a spouse to remove all barriers to a religious divorce shall under no circumstances be grounds to take away money from that spouse. The spouse may only be deprived of the ability to apply for a civil divorce, but nothing more. This way, the decision of whether or not to consent to a religious divorce shall remain exclusively a choice of conscience for each spouse, with no external financial coercion.”

    2. Canada’s legislature should replace the 1990 Canada Get Law with a bill that states the identical as point 1 above.

    3. Any husband who has signed the Rabbinical Council of America pre-nuptial agreement should ask his wife to sign a notarized forgiveness to release him from that agreement.

    4. At all future weddings, R. Bleich’s pre-nuptial agreement should be implemented.

    [Obviously, those who drafted the New York Get Law, Canada Get Law, and RCA pre-nuptial agreement are tzaddikim gemurim, who a noble effort to rescue the righteous ladies of Israel. At the same time, R. Bleich holds that those instruments actually prevent the possibility of kosher gittin (each for a different reason, as described in the referenced pages of Benetivot Hahalakhah). Thus, in R. Bleich’s opinion, the ideal solution is the four-step plan as indicated above.]

  25. The incomplete phrase in the last paragraph should read, “who rendered a noble effort to rescue the righteous ladies of Israel”. Thank you.

  26. “1. The New York Legislature should replace the 1992 New York Get Law with a bill that states “No spouse shall be permitted to seek a civil divorce until all barriers to a religious divorce have been removed to the best of his or her ability. At the same time, in recognition of the sensitivity of religious divorce to the imperative that coercion be avoided, the failure of a spouse to remove all barriers to a religious divorce shall under no circumstances be grounds to take away money from that spouse. The spouse may only be deprived of the ability to apply for a civil divorce, but nothing more. This way, the decision of whether or not to consent to a religious divorce shall remain exclusively a choice of conscience for each spouse, with no external financial coercion.””

    Great idea! But guess what. That WAS the law before it was amended and of course RJDB and Agudah supported that law; it didn’t help anybody had almost NO impact whatsoever on agunot. But by supporting that law they could say: “see, we’re working hard to help agunot.” But when NY passed a law which was actually getting some results, then, of course, the RW came out with their guns blazing. Luckily, they lost.

    I would paraphrase this proposal as follows: “Let’s go back to the way the law used to be so we can say we’re helping agunot although we know we won’t be.” So much for your pap about “how to best benefit the righteous ladies of Israel and prevent them from becoming agunot.”

  27. R’ Joseph Kaplan,
    Thank you for your kind response. You are 100% correct. And thus the question becomes whether the gittin written today in New York state are safrut-training instruments or whether they are instruments to permit the ladies who receive them to remarry.

    R’ Israel Fathers Rights Advocacy Council,
    Thank you for your important rejoinder. The issue you raise is significant – can a Jew be paid to study Torah, or does the fact that he is paid a salary disqualify all the piskei halakhah he ever issues? Rambam felt strongly that a Jew should study Torah altruistically pro bono (-ergo, no salaries for talmidei chakhamim, who will have to work on the side in order to survive); Tashbetz thought one could be paid to study Torah. R. Ovadiah Yosef has a sweeping survey of this dispute in Shu”t Yabi’a Omer VII, YD 17. [His conclusion is that it is a mitzvah to pay talmidei chakhamim. However, one cannot deny that there have always been sincere talmidei chakhamim who have been stringent and did not accept any pay, like for instance the Chazon Ish.]

  28. So that brings me back to my original point. The righteous ladies of Israel need to be empowered, precisely as R’ Joseph Kaplan correctly prescribes, and so it seems the best way to do so is through awarding each lady a large ketubah at her wedding (i.e. R. Bleich’s pre-nuptial agreement). Ultimately, there is a certain degree of emunat chakhamim here, because what R. Bleich is ordaining is a remarkable sociological change in the institution of Jewish marriage. He is a generating a situation in which every lady will be entitled to an instant sefer ketitut upon demand. But, indeed, emunat chakhamim is one of the 48 dimensions of Torah acquisition, and so I have emunah in R. Bleich that he is on the right track (just as I have emunah in R’ Joseph Kaplan).

  29. “thus the question becomes whether the gittin written today in New York state are safrut-training instruments or whether they are instruments to permit the ladies who receive them to remarry.”

    (a) Does the BDA allow gittin after a NYS divorce? (b) How many RCA refuse to maofficiate at a wedding of a woman who freceived a get after a NYS divorce? I don’t know for a fact the answer to these questions but my guess is that the answer would support your second possible answer to your question.

  30. R’ Joseph Kaplan and R’ Israel Fathers Rights Advocacy Council,
    Thank you for your valuable responses.

    Regarding recreating the wheel: R. Bleich told me that – when he consulted R. Eliashiv about his pre-nuptial agreemen – that R. Eliashiv responded (evidently in Yiddish but this is the Bleichian translation to English I was given) “In Eretz Yisra’el we don’t need such an agreement, but it is kosher”. What R. Eliashiv evidently means is that – as you say – when civil law and halakhah are properly enforced (as is the case in the State of Israel, where the theocratic nature of divorce law allows batei din police powers), the welfare of the righteous ladies of Israel is championed appropriately. By contradistinction, in the Diaspora, batei din have no police powers. Diaspora Jews listen to batei din as a matter of conscience. It is therefore the case that R. Eliashiv recognized the value of R. Bleich’s agreement for the Diaspora (as did R. Shlomo Zalman Auerbach, who was also consulted by R. Bleich, and – as mentioned – R. Yaakov Kamenetzky).

    Regarding the position of the Beth Din of America: To his credit, when I approached R. Michael Broyde about R. Bleich’s 4-point-plan above, he suggested I contact R. Feivel Cohen (author of Badei Hashulchan), whom he identified as R. Eliashiv’s principal disciple on the North America continent, to verify that R. Eliashiv indeed agrees with R. Bleich. Thus, R. Broyde is open to hearing R. Bleich’s side. I am currently awaiting R. Feivel Cohen’s response. [R. Mordechai Willig also told me it would be helpful to hear R. Eliashiv’s opinion on this matter.]

  31. RSS: I would prefer that instead of thanking me you answer my questions or say you don’t know the answer.

  32. R’ Joseph Kaplan,
    Thank you. My apologies for my earlier evasion of your important questions. As you correctly discern, I don’t know the answer, and am not in a position to speak for the Beth Din of America or the RCA. I can only present the position of R. Bleich.

    R’ Israel Fathers Rights Advocacy Council,
    I appreciate the important arguments you raise. At the same time, I am sure you will agree with me that the Av Beit Din of the BDA is a tzaddik gammur who transcends all conflict of interest. I see that R. Aharon Kotler gave him a glowing approbation. http://www.hebrewbooks.org/pdfpager.aspx?req=40820&st=&pgnum=3 R. Kotler says explicitly that R. Schwarts will “succeed in all his activities to strengthen the Torah and Judaism”. The sole issue at hand is the well formulated countervailing position of R. Bleich (who also strengthens Torah and Judaism).

  33. That said, R’ Israel Fathers Rights Advocacy Council, yi’yasher kochakha, and R. Bleich definitely sympathizes with the concerns you express. He writes (Benetivot Hahalakhah I, p. 20, my translation to English):

    “The main claim of those oppose this suggestion [of the Bleichian pre-nuptial agreement] is that thanks to this agreement the authorization is in the hand of the lady to demand a bill of divorce at any time, and whenever the lady ‘places her eyes in another’ she can remove herself from under her husband by a demand to fulfill her due obligation for increased sustenance. This claim is correct, as I wrote earlier. Before us are very weighty challenges, the challenges of agunot and mamzerut; the solution to these challenges is accompanied by the creation of a scenario in which every lady will be able to demand a bill of divorce for any reason, including the reason that she places her eyes in another, or no reason whatsoever. The question is which of the two situations should be preferred, and which one is to accept the lesser of two challenges.”

  34. Rabbi Spira: could you pelase describe for us the mechanics of R. Bleich’s pre nup. Thanks.

  35. Thank you, R’ Joseph Kaplan, for the excellent question.
    This prenuptial agreement essentially obligates the husband, as part of the ketubah, to pay his wife a fantastic sum of extra mezonot (sustenance) every day, similar to the two goats Yitzchak Avinu was obligated to pay Rivka Imeinu every day (as per Rashi to Genesis 27:9). It must be emphasized that the extra mezonot have nothing whatsoever to do with divorce. Divorce is not mentioned in the contract and is not desired. Rather, as R. Bleich explained in a telephone conversation with this student (Feb. 19, 2008), the purpose of such extra mezonot is to allow the wife to attend an all-ladies’ yarchei kallah Torah study retreat in any foreign location she chooses, at any time she chooses, in order to spiritually fortify herself as an antidote to the wrongful inclination. It is certainly reasonable for a generous-minded groom to sincerely accept upon himself such an obligation prior to the marriage, in light of the insistence of the Chafetz Chaim and other poskim that nowadays Torah study should be made available to the righteous ladies of Israel .

    As long as the marriage remains in a state of bliss, the wife may obviously choose to refrain from embarking on any yarchei kallah voyages with any significant degree of frequency, and thus refrain from going to Beth Din to request the extra mezonot to which she is technically entitled. But as soon as the wife decides to bail out of the marriage, she possesses the option of proceeding to Beth Din and requesting – not a sefer keritut – but simply her rightful mezonot in order to embark on a yarchei kallah voyage. The Beth Din will be able to coerce the husband to either grant mezonot or divorce his wife. The lady may then decide to embark on yarchei kallah voyages with significant frequency (perhaps as much as every single day, without end, since that is her technical prerogative). The husband might decide, once his wife continuously embarks on yarchei kallah voyages, that it is more profitable to divorce his wife, and so he will give his wife a sefer keritut (which will be absolutely kosher). The secular judiciary will also be able to enforce this contract, which – it must be emphasized – has nothing to do with divorce, but rather with providing the wife as many yarchei kallah opportunities as she desires.

    R. Bleich describes his pre-nuptial agreement in a lecture recorded at
    http://www.yutorah.org/lectures/lecture.cfm/711738/Rabbi_Dr._J._David_Bleich/Agunah

    In that lecture, R. Bleich describes the agreement as one which empowers the lady to go on any vacation herself at any time. I objected to R. Bleich (in the aforementioned telephone conversation) that the idea of a husband at his wedding giving his wife an extravagant carte blanche to go herself on a solo vacation anywhere in the world at any time does not strike me as compatible with the value of “kol kevudah bat melekh penimah”, a value recognized by several sources (-viz. the gemara in the gemara in Yevamot 77a and Shevu’ot 30a. Additionally, the Mefaresh to Nazir 12a, s.v. amar leih aminah lakh, understands the gemara there to be predicated upon “kol kevudah bat melekh penimah”, as well. Furthermore, R. Moshe Sofer, in his Chiddushei Chatam Sofer to Shabbat 21b, posits that a lady whose husband lights the Chanukah candles should not light her own candles, since the value of “kol kevudah bat melekh penimah” opposes the gratuitous sortie of a married lady outside the home, and Chanukah candles are lit at the entrance of the home.) Responding to my objection, R. Bleich introduced the modification that the purpose of the agreement is for the lady to specifically take vacations for an all-ladies’ yarchei kallah to learn Torah, which presumably is compatible with “kol kevudah bat melekh penimah”. Barukh Hashem, since there are many Orthodox Jewish communities around the world, a lady could constantly be going from one yarchei kallah to the next on a worldwide tour, and the husband generously agrees to pay for all of this.

  36. R’ Israel Fathers Rights Advocacy Council,
    Thank you for your kind words and important rejoinder. You are definitely in good company. As a matter of policy (as distinct from Halakhah), RMF was personally opposed to the use of pre-nuptial agreements, and so he would not agree with RJDB (or any formulator of pre-nuptial agreements).

    Namely, in IM EH 4:107, RMF describes a pre-nuptial agreement which obligates a husband to appear before a Beth Din whenever a dispute with his wife will arise. If the husband will not appear before any Beth Din, he could be fined by the secular judiciary. Although such a contract is obviously halakhically disqualified due to problems of asmakhta (-a contingency penalty clause that is unenforceable according to Torah law), the secular judiciary [-being oblivious to the halakhic intricacies of asmakhta-] will recognize it as binding. This will result in an amusingly maladroit situation in which the husband is being rightfully financially pressured by the secular judiciary to appear before the Beth Din [-“rightfully” since according to Torah law a husband is independently obligated to appear before the Beth Din when his wife so summons him-] but for the wrong technical reason [-since the secular judiciary will be thinking only about the contract, which is actually null and void according to halakhah.] Nevertheless, as maladroit and amusing a situation as this may be, all resulting gittin will be completely kosher, since in the final analysis the husband is independently obligated to appear before the Beth Din when his wife so summons him. (Explanation given to me by RJDB in a separate phone conversation, on January 31, 2008.)

    However, RMF then discourages the wholesale employment of pre-nuptial agreements. Interestingly, there are two different published versions of this responsum. The originally published version is featured in the edition of the Iggerot Mosheh published in Israel by Yeshivat Ohel Yosef Printers as well as the one published in the United States by Noble Book Press Corporation. It contains no judgment call as to the appropriateness of widespread use of prenuptial agreements. However, as is evident from the smaller typeset, R. Feinstein subsequently added a line to that same responsum, in which he discourages the widespread use of prenuptial agreements. This more complete responsum was published in the edition of Iggerot Mosheh published by Moriah Offset Company of Brooklyn, NY, and it is to this more complete responsum that the text refers. [Several other responsa within the same volume of Iggerot Mosheh are affected by discrepancies between the Yeshivat Ohel Yosef Printers/Noble Book Press Corporation editions and the Moriah Offset Company edition: EH 4:99, 103 and 108, as well as CM 2:33 and 74. In each case, the typeset discrepancy seemingly indicates that the Moriah Offset Company edition reflects the more updated information.]

    RJDB’s response to RMF is that times have evolved and now the righteous ladies of Israel deserve pre-nuptial agreements. Since RMF’s objection was one of policy rather than one of Halakhah, we can use a pre-nuptial agreement. Obviously, this is a major policy question that every moreh hora’ah be’yisra’el must weigh when he is mesader kiddushin.

    In terms of the situation that you describe of a lady who refuses to receive a sefer keritut, it is my impression that this situation can be easily remedied by the instant engineering of a heter me’ah rabbanim, particularly since (as referenced above) Vilna Ga’on didn’t see any need for a heter altogether.

  37. For the record, I am deleting all of the comments of Israel Fathers Rights Advocacy because I lack the time or desire to edit them for the rampant lashon hara he spouts.

  38. You are making serious accusations. If you want to do it right, document everything and try to publish it in a respectable journal or even newspaper. Any decent newspaper will be scared of potential lawsuits and therefore verify your accusations.

  39. Israel Fathers Rights Advocacy Council

    what do you suggest has not been stated as open record by the Overseer of the Justices and Courts, or exist in open litigation flies?
    what are you suggesting is an accusation rather than case file for the record, or official report of the State of Israel? Or California? Or London Bet Din?

  40. Put together precise citations, so people can verify your claims, and publish in a respected medium that will check your sources and give you credibility.

    I can write a blog post saying that your mother is really a man and that it has been proven repeatedly in open court. That doesn’t make it anything more than an assertion because it is unverifiable without additional information.

  41. David Mescheloff

    May I humbly suggest that torahmusings readers have a look at my article in Tradition winter 2010-2011 http://www.traditiononline.org/news/article.cfm?id=105596, and at my article in Techumin vol. 21 on premarital agreements, in which I analyze some dozen proposals that have been made in recent decades. One of the weaknesses of Rav Bleich’s proposal is that it almost enables a woman to press her husband to divorce her on demand, a possibility which would likely lead to the dissolution of families which could survive and thrive if they could only get past a crisis. I cannot elaborate on the Marital Agreement to Mediate in the space of a comment here. Let me just note that it has a long list of advantages over all other extant prenups. HaRav Elyashiv shlit”a told me explicitly that it is all right, as long as every couple arranging it receives a full explanation and is fully aware of what it means and its consequences. It was also approved by a bet din headed by the Rishon Letzion Harav Amar shlit”a. I have arranged this several times, as have other rabbanim in Israel. I will gladly email any interested party two Hebrew articles I have published about it, as well as the files that make up the “kit” I have prepared for the Marital Agreement to Mediate, and a list of eleven unique advantages it has. As to the question of the legitimate forms of coercion that are halakhically appropriate for different circumstances, this is a complex matter, but with completely reasonable rationales. I wrote about it at length some ten years ago in my as yet unpublished doctoral dissertation. Again, I will gladly forward a digital copy to anyone who is seriously interested in studying and understanding the topic. This format cannot possibly deal with it adequately.
    As has been pointed out in Hirhurim already (https://www.torahmusings.com/2010/11/new-periodical-tradition-433/), the Marital Agreement to Mediate will not solve all problems. But then again, no agreement will. Indeed, divorce recalcitrance is a complex issue that no serious thinker can expect will be resolved by any one technique alone. Yet expensive, lengthy, traumatic divorce “proceedings” through litigation – which are much more prevalent than get recalcitrance – can be resolved in most cases in relatively short order and inexpensively, through mediation. Skilled mediators have been shown to be successful in an average of 85% of cases. Would that the Marital Agreement to Mediate would provide relief to divorcing couples in distress to that extent.

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