Protesting Without Coercing

Some Thoughts on a Coerced Get and Protesting When a Man Withholds a Jewish Divorce
Guest post by R. Michael J. Broyde

Rabbi Michael Broyde is a law professor at Emory University, was the founding rabbi of the Young Israel in Atlanta and is a dayan in the Beth Din of America. He has authored many articles on the topic of get meuseh and written a book on the agunah problem.[1] Note: This post is available in PDF to more easily view the footnotes together with the text: Protesting Without Coercing (PDF)

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If a husband and wife separate and he no longer desires to remain married to her and she desires to be divorced from him, in such a case divorce is a mitzvah and commanded by Jewish law. . . . One who withholds a Jewish divorce because he desires money for no just cause is a thief. Indeed, he is worse than a thief, as his conduct violates a sub-prohibition related to taking a human life.
– Rabbi Joseph Elijah Henkin[2]

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I. Introduction

This short article deals with one of the more complex areas of halakhah – the area of get meusah, a coerced Jewish divorce. It will focus its time and energy on the prototypical modern case of a husband and a wife who both agree that they want to get divorced but cannot agree upon the terms of that Jewish divorce and the husband is thus withholding the Jewish divorce until he receives what he wishes even after the civil divorce is over and the case is settled as a matter of secular law. [As an editorial matter, it is worth noting that this situation is readily avoidable in advance through the use of a pre-nuptial agreement like the one widely distributed by the Beth Din of America at theprenup.org – but we assume here that, sadly, no such agreement was used. Everyone should use such agreements!] The question that is being addressed is simple. Is there an issue of a coerced get [get meusah] in the use of social pressure – picketing, boycotting, withholding aliyot, and the like – in such a situation? The answer is fairly clear as a matter of halakhah that there is no problem of a coerced get in such a case, although the reason is not obvious to many.

II. What is Coercion?

First and foremost, it is important to note that in order for a get to be invalid as a matter of halakhah, not only must coercion be used but this coercion must be halakhically illicit. Licit coercion does not invalidate a Jewish divorce, nor does illicit non-coercion. Certainly, of course, licit non-coercion is never a problem.

Thus, it is important to start any discussion of this topic with Rabbenu Tam’s famous view that even in a situation in which Jewish law rules that a man may not be licitly coerced into giving a Jewish divorce, social pressure may be applied on him in order to convince him to give a get (commonly called harchakot d’Rabbanu Tam). Although I could explain the history of this custom, it is easier to simply share a teshuva written by Rav Obadiah Yosef, and cosigned by Rav Yehuda Waldenberg and Rav Yitzchak Kolitz which was first published in published in Yabi’a Omer, VII:23 (Even HaEzer).[3]

The appeal before us, the Supreme Rabbinical Court [of Israel], revolves around a decision of the Regional Bet Din in Jerusalem on 9 Sivan 5744. The facts of the case are as follows:

The woman in question has been married to her husband for twenty years, but was childless. For fifteen years they were treated by doctors and through medications. All this was to no avail, until the doctors despaired of successfully treating them. The problem is evidently to be ascribed to the husband, and so has the wife herself argued in his presence, and so she requests to be divorced from him on the grounds of her legitimate desire for children.[4] The regional Bet Din at the time (9 Sivan 5742) ruled that the husband must חייב) ) grant his wife a get, but that he could not be coerced to do so. However, the husband rejected the court’s decision and did not wish to execute a get, despite the fact that they had already separated.

In the appeal which was presented before us on 14 Tevet 5745, we did not find sufficient cause to compel the husband to divorce his wife. We did, however, try to persuade the man, who is religiously observant, to follow the proper path and obey the decision of the court, for it is a mitzvah[5] to heed the words of the Sages who obliged him to divorce his wife and that he has chained his wife needlessly. And we gave the husband an extension of three months within which to grant a get to his wife.[6] However, when we saw that three months passed without response, we instituted the separations of Rabbenu Tam as found in the Sefer HaYashar (Chelek HaTeshuvot 24) which states:

Decree by force of oath on every Jewish man and woman under your jurisdiction that they not be allowed to speak to him, host him in their homes, feed him or give him to drink, accompany him or visit him when he is ill. In the event that he refuses to divorce his wife, you may add further restrictions upon him.

And this was also expressed by Rema in a gloss (Even HaEzer 154:21) based upon a responsum of Mahari Colon (shoresh 102). In his commentary Biurei HaGra (EH 154:67), the Vilna Gaon explains that exerting this sort of pressure does not constitute coercion in the granting of the get since he may escape it by moving to another city, and also since any pressure not exerted directly on his person is not considered coercion.[7]

It is true that Mahari Ibn Lev (Part 2 sec. 18) wrote that:

Even though both SMaG and Mahari Colon agreed to implement the sanctions of Rabbenu Tam, and [furthermore] we have found no one who clearly dissented from that decision, nevertheless we have not seen any contemporary rabbis who have so acted. On the contrary, when such a step was considered by most of the sages, and the impulse was to impose the sanctions of Rabbenu Tam, an outstanding scholar arose and protested against this intention, possibly because he was of the opinion that the sanctions of Rabbenu Tam are more severe than excommunication itself; thus if excommunication constitutes coercion, a fortiori so do these sanctions! And even though some time ago I ruled that the sanctions of Rabbenu Tam be imposed, the case there was different than the one presently sub judice, and moreover even in that case it was not actually done.

This ruling of Mahari Ibn Lev was cited by R. Abraham di Boton in Responsa Lechem Rav no. 31, upon which he commented, that:

Nevertheless, if the outstanding scholars agree to impose Rabbenu Tam’s sanctions in this instance, I will go along and actually permit it in this case.

Moreover, in the case presently under consideration even Mahari Ibn Lev might have allowed it; either out of concern for the husband who had not yet fulfilled the commandment to procreate and who may yet build a family with a different wife; or out of concern for the woman who wants children towards her old age and since twenty years have already passed, and the “Harvest is gone and summer is ended and these have not yet been saved,” as indicated by an examination of Even HaEzer (154:6) and the commentaries there.

In Responsa Tzel HaKesef (I:5‑6) [the author] goes on to great length in this direction and concludes that one is fully able to rely [upon his argumentation] to impose the sanctions of Rabbenu Tam in all such cases. And so I found also in Resp. Rosh Mashbir (Even Haezer 38) who cited the statement of MaHarhash in a responsum (no. 42):

And despite that which Mahari Ibn Lev wrote [cited above] that he could not bring himself to impose the sanctions of Rabbenu Tam even in an instance of chalitzah, and all the more so one of divorce which is more serious, nevertheless in a case where migdar milta[8] is the concern one may well say that imposing such sanctions is in order, and the author of Kerem Shlomo similarly asserted that a majority of late authorities agreed to actually impose the sanctions of Rabbenu Tam.

Furthermore, see Resp. Yisa Ish (Even HaEzer no. 19) who also wrote that the sanctions of Rabbenu Tam may be imposed in line with the opinion of Mahari Colon. See furthermore Resp. Mahari Taytatzak (II:172) and Sefer Pachad Yitzchak (Lapronti; Ma’arekhet Samekh 18a).

We added to these strictures (of the sanctions of Rabbenu Tam), that no gabbai[9] of any synagogue in the area where the husband resides be allowed to seat him in the synagogue,[10] or call him to the Torah, or ask after his welfare, or grant him any honor, and all people are to distance themselves from him as much as possible until his heart submits and he heeds to the voices of those instructing him that he grant his wife a divorce in accordance with the Law of Moses and Israel and thereby free her from her chains.

This decision was adopted unanimously with my friends and colleagues Rabbi Eliezer Yehuda Waldenberg and Rabbi Yitzchak Kolitz. And so it was done, at which time the husband submitted and granted his wife a divorce in accordance with the Law of Moses and Israel.[11]

One sees from this teshuva a basic point: Even in situations where a person may not be coerced into giving a get, the decision to banish the person from the community and engage in lawful protest over his conduct is not considered coercion since it does not use any coercive force at all, neither against his money nor his person.

III. When Is Coercion Illicit?

Second, it is important to reiterate the basic view of Rabbi Moshe Feinstein that there is no issue of “coerced divorce” (get me’useh) where it is clear that the husband actually wishes to end the marriage and be divorced and is contesting only the fiscal details of the divorce.[12] Similar sentiments are expressed by Rabbi Abraham Isaiah Karelitz when he states that even when there is illicit coercion, if the husband really does want to give the get and be divorced, the get is still valid, since the true desire of the husband is to be divorced.[13] This point appears to be agreed to, in modified form, by Rabbi Yitzchak Isaac Herzog, who also states that coercion does not invalidate a get that is commanded even if it cannot be judicially compelled.[14] While it is true that Rabbi Feinstein is hesitant to rely on this rationale absent other lenient factors, it is clear that in cases where no real coercion is used – but only harchakot d’Rabbenu Tam – Rabbi Feinstein’s reasoning is fully applicable.

A close examination of Rabbi Feinstein’s responsum is in order. That responsum states:

There is another reason to validate the get [in a case of actual court-ordered financial coercion] even if there was coercion. You [the questioner] asked the husband if he would have divorced his wife anyway without the settlement after the secular divorce, and he answered that he would have, but he would have demanded certain arrangements concerning the children’s education; we see from this that he really wanted to be divorced, and only did not ask for certain things for the children because of the settlement, and gave the get immediately. In such a case, even if the settlement is coerced, or even actual force is used to write the get, we see that there is no coercion on the giving of the get, but only to prevent the get from being used to extract other things from her. . . . Every person desires to [support his wife]; however, one who does not wish for this woman to be his wife, or he knows that she will not reside with him in a marital relationship, such a person really does want to be divorced, and it is merely because she desires a get that he wishes to extract from her certain things . . . It is not good for a person to be legally married when one lacks any of the marital virtues from one’s wife.[15]

Rabbi Feinstein advances two very important insights.

The first is that in a situation where the marriage is actually over, there is no halakhic problem with using what would otherwise be illicit coercion to compel the giving of a get, even if no money is paid to the husband.

The second is that where payment is made by the wife to settle this matter and is combined with some coercion placed on the husband (but where the marriage is in fact over) that coercion does not violate Jewish law and void the get. In the eyes of Jewish law, the husband is issuing the get in return for the payment of money, since the marriage really is over and he derives no real benefit from continuing it.

The first insight, while by no means unique to Rabbi Feinstein, is found in only a small number of authorities.[16] However, the second insight is found in a large number of halakhic authorities of the last thousand years and is completely normative. Writing about a case where a husband received payment and was then coerced into writing the get, Rabbi Avraham Boorenstein in his Avnei Nezer states:

[Those who prohibit this type of coercion] are referring to a case where the husband wishes to live with this woman and represent her as his wife. In such a case halakhah never says because of the coercion and the money he divorced her [rather, the get is void because illicit force was used]. Certainly, even if one gave a man all the money in the world, he would not divorce his wife [with whom he is living]. But a man such as this who betrayed his wife, and abandoned her for many years, we certainly do say the coercion and the money persuaded him to sell the divorce to an even greater extent than it persuades one to sell a field, since this man does not desire his wife at all, and only desires leverage over her so that she cannot marry another without his permission, and he can get money from her for this. Certainly in such a case we say because of the money he divorced her. This is very logical.[17]

Included in the list of Jewish law decisors who accept this rule that payment of money with some coercion, in a case where the marriage is over (and in the case of some of the authorities, even if it is not) and the husband does not desire to return to the marital abode, produces a valid get are the above-mentioned Rabbi Boorenstein, Rabbi Samuel Ehrenfeld, R. Simeon bar Tzemach Duran Rabbi Abraham ibn Tawah, Rabbi Solomon ben Simeon Duran, Rabbi Yosef [Paimer] of Slutzk, Rabbi Moshe Zev Ya’avetz, Rabbi Solomon Kluger, and Rabbi David Tavli Rubin, as well as perhaps Rabbi Raphael Yom Tov Lipman Halpern. Similar but not identical analyses can be found in the works of Rabbi Solomon Zalman Lipshitz and Rabbi David Solomon Eibeschutz and is mentioned in the writings of Rabbi Yitzchak Elchanan Spektor and Rabbi Tzvi Hirsch Orenstein.[18] One can add to this list the above-mentioned decisors who accept an even broader rule.[19] Indeed, no less an authority than the Beit Shmuel[20] notes that there are many circumstances in which one can rely on this approach, even when only a small amount of money is given by the woman. Many other authorities could be cited to support this halakhic rule, and it appears to be accepted ab initio (le-khatchillah) by many.

Rabbi Tzvi Gartner, in his recent work Kefiya Be-Get, dealing with many aspects of coerced divorce, summarizes the matter by stating:

It appears that it is difficult to rely on the approach of Iggrot Moshe and Tiferet Tzvi in a case where the only benefit which accrues to the husband is removal of the obligation to support his wife, since this is a matter in dispute between Tosafot and Rashba. Nonetheless, their analysis is persuasive at the minimum in the case where the husband does not desire a marital relationship and only desires to extract something from the woman in exchange for a get, and she gives him money for the divorce.[21]

Indeed, a plausible reading of Rabbi Feinstein’s own words incline one to accept that his expressed hesitancy to rely on his “novel insight” applied only to the first of them, where there was no payment to the husband. The second insight is certainly accepted by many great authorities as normative Jewish law, and validates any get given in the process of a settlement where the wife gives anything of value to the husband to which he is not entitled. Nearly all contested secular divorces fit into this latter category.

IV. Conclusion

Based on these two rationales alone – and many other are also present – it is clear that the use of social pressure to encourage the giving of a get in a situation in which the couple has already separated, a secular divorce has been granted and the marriage is over for both of them – and even more so where a bet din has issued a seruv against the husband — never creates a situation of get meuseh.

Having said that, a word of caution is also needed and is important. Matters of this type – when to protest and how to protest – are complex matters of judgment and halakhah both as to what Jewish law permits to avoid problems of an invalid get and what is proper in any given setting (something can be wrong without creating an invalid get, for example). In areas like this, people should not act on their own and determine the halakhah based on their own sense, but ought to follow the rules of a respected bet din or halakhic authority.

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[1] See Michael Broyde, Marriage, Divorce and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America for the book and “The New York State Get Law,” Tradition 29:(4)3-14 (1995) and “The 1992 New York Get Law: An Exchange” Tradition 31:(3)23-41 (1997), as well as letters to the editor in Tradition 32:(1)99-100 (1997) and Tradition 32:(3)91-97 (1998).

[2] R. Yosef Eliyahu Henkin, Edut le-Yisrael 143-144, reprinted in Kol Kitvei ha-Rav Henkin 1:115a-b. The term “sub-prohibition” is a translation of the Hebrew term “abizrayu.”

[3] The footnotes to this teshuva are merely background and were written by Michael Broyde. The paragraph divisions, except for the first, are not in the original Hebrew, but are added here for the aid of the reader.

[4] Ta’anat b’eyna hutra l’yada; see Yevamot 64a; Shulchan Arukh EH 154:6-7 and Arukh HaShulchan EH 154:52-53.

[5] The general application of social pressure on individuals who refuse to abide by the decision of a bet din is an integral component of halakhah. The imposition of social sanctions as a method of enforcing the ruling of a bet din is a recurring theme in the Shulchan Arukh (see for example Yoreh Deah 334:43 and Choshen Mishpat 1:5, 1:6, 2:1, 8:5, 11:1, 11:5 [Rema], 16:3, 18:3 and 100:3). The argument that halakhah no longer allows for such penalties, sometimes advanced by those unfamiliar with Jewish law, is unquestionably incorrect in light of these criteria. Moreover, the problem of igun (abandonment without divorce) in the Orthodox Jewish community requires the implementation of the rules for applying social pressure found in the Shulchan Arukh.

[6] Halakhah does not always permit placing a recalcitrant spouse in nidui (excommunication) absent a direct ruling by a bet din. If, in a particular instance, the halakhah does not permit the husband to be coerced to give his wife the get, then the husband may not be placed in nidui to induce him to give a get (Rema, Even HaEzer 154:21). Placing him in nidui would constitute improper coercion and impinge upon the validity of a get issued in the wake of such action. It should be noted, however, that placing in nidui one who refuses to appear in bet din is not intended to pressure this person to give or receive a get. It is intended mainly to pressure the recalcitrant party to appear in bet din.

Despite the significant limitation, Rema rules that bet din may order the community to refrain from extending any favors or engaging in business with the recalcitrant spouse. Bet din is also permitted to impose any other sanction of this sort (i.e., withholding favors from this person). As long as the bet din does not place the recalcitrant party in nidui, Rema rules these actions taken by bet din do not constitute coercion to participate in a get proceeding. These sanctions are often referred to as harchakot d’Rabbenu Tam.

[7] Pitchei Teshuva (Even HaEzer 154:30), cites Gevurat Anashim 72 (this work was written by Rabbi Shabtai ben Meir HaCohen, the author of the Shakh) who asserts that “today” the sanctions described by Rema are the equivalent of nidui and would constitute improper coercion to give or receive at get. It can be argued, however, that Gevurat Anashim‘s stringent ruling applies to an insular and thoroughly intertwined Jewish community, which was the norm in the pre-emancipation communities of Eastern Europe at that time. In such a community, withholding favors from an individual would have a devastating effect upon him. This result, it is claimed, is the equivalent of nidui. In the typical Orthodox community in America, where most people earn their living through economic interactions with the secular world, of course, withdrawing favors from an individual would not have nearly the same impact as it would in those communities. Hence, it appears reasonable to conclude that even the Shakh would rule that, in today’s circumstances, imposing harchakot d’Rabbenu Tam in America on a recalcitrant spouse would not constitute improper coercion to participate in a get proceeding.

Moreover, none of the commentaries on the Shulchan Arukh other than Pitchei Teshuva express dissent to Rema’s acceptance of harchakot d’Rabbenu Tam. In fact, Arukh Hashulchan (Even HaEzer 154:63), as well as other authorities (Maharam M’Lublin 1 and 39, Eliyahu Rabbah 1-3, Rav Betzalel Ashkenazi 6 and 10, Chief Rabbi Yitzchak Isaac Halevi Herzog, Techuka Liyisrael Al Pi Hatorah III:202 and 209) cite Rema’s ruling as normative. Rabbi Eliyahu Ben-Dahan, director of the Rabbinical Courts in Israel, stated at the Zwillenberg International Conference for Dayanut (in New York on 6 Kislev 5753, December 1, 1992) that the practice of the Rabbinical Courts in Israel is to impose Harchakot d’Rabbenu Tam upon recalcitrant spouses upon whom halakhah does not permit coercion to be employed. Rabbi Dahan’s report is substantiated by Rabbi Chagai Izirar who writes (Birurim B’halakhot Haraayah [R. Kook] p.243) that the Harchakot d’Rabbenu Tam are accepted as the halakhic norm, and it is well known that Rabbinic Courts implement it”. Rabbi Izivar writes that Harchakot d’Rabbenu Tam may be utilized even in a case where a woman has unilaterally decided to end the marriage (to’enet maos alai), if she provides a reasonable basis (amatla mevureret) for her actions.

[8] It should be noted that the halakhah extends to a Rabbinic judge wide discretionary powers; see Ketubot 85a and 85b. While various authorities disagree whether and to what extent this privilege is applicable in every generation, it is important to quote here the remarks of Rambam cited by Shulchan Arukh that “if it appears to the bet Din that someone is stealing from his friend but the theft is not recoverable according to halakhah, the bet din is permitted to forbid the community to engage in business with the thief. If the offending party is a woman, the bet din may order that “no one should marry her or be involved in arranging a marriage for her until she returns the stolen money;” Rambam, Hilkhot Sanhedrin 24:1-2, Shulchan Arukh, Choshen Mishpat 15:5. Rema adds that even if a person cannot be punished by strict application of Torah law, bet din may instruct the community to withhold favors from someone who is behaving improperly. Accordingly, it would appear from this Rema that even if someone is not liable for the punishment of Harchakot d’Rabbenu Tam, bet din has the discretionary power to order the community to withhold favors from someone who is giving or receiving a get.

[9] It is clear that the community leaders must inform the members of the community of an individual’s placement in excommunication so that the community can properly adhere to the laws concerning excommunication. In fact, Rema (Yoreh Deah 334:1) notes that excommunication should be imposed even if the excommunicated individual will abandon the Torah lifestyle as a result. Apparently, the need to apply the punishment is sufficiently important to permit risking the spiritual loss of a community member.

[10] Shulchan Arukh (Yoreh Deah 334:43 and 44), provides an extensive list of people who should be ostracized from the community. Included in this list is one who has refused to abide by the decision of the bet din. Shulchan Arukh (Yoreh Deah 334:2) rules that one must greatly curtail social and economic relationships with someone who has been placed in an ostracized status. Rema (Yoreh Deah 334:2) records the practice of barring one placed in this status from entering a synagogue.

[11] According to this teshuva, even in a case where halakhah does not allow for coercion of a recalcitrant spouse, Harchkot d’Rabbenu Tam may be implemented. This includes the community implementing a ruling from a competent bet din that community members:
1) Will withhold any “favors”, large or small, from this individual;
2) Will not do business with the recalcitrant individual;
3) Will publicize the actions of the offending party and publicly proclaim him in violation of Torah ethics, based on the ruling in Shulchan Aruch (Even HaEzer 154:21) that a recalcitrant spouse who may not be coerced may be referred to as a “sinner”.

[12] R. Moshe Feinstein, Iggrot Moshe, Even HaEzer 3:44. The rationale for his ruling is very simple. He argues that the prohibition of a compelled get is limited to situations where the compulsion is used to divorce a couple who actually wish to remain married. Compulsion in a case where divorce is truly desired does not create a get me’useh.

[13] R. Abraham Isaiah Karelitz, Chazon Ish, Even HaEzer 99:2.

[14] R. Yitzchak Isaac Herzog, Otzar ha-Poskim 2:11-12 (appendix) and Hekhal Yitzchak 2. The ruling that coercion does not invalidate a get when divorce is genuinely desired can perhaps be also explained by combining the rulings of Rabbis Henkin and Herzog discussed above. First, one must realize that there is an obligation to have a Jewish divorce once there is an irreconcilable separation and that this is commanded by Jewish law, as Rabbi Henkin states above. Second, Rabbi Herzog rules that coercion does not invalidate a Jewish divorce that is an obligation (mitzvah) even if not judicially mandated (kofin). Thus, since all cases where the husband genuinely desires divorce are irreconcilable separations, one comes to the conclusion that once there is a desire to end the marriage, and the only disagreement concerns terms, coercion does not invalidate the get, since the get is obligatory.

[15] R. Moshe Feinstein, Iggrot Moshe, Even HaEzer 3:44.

[16] See R. Tzvi Hirsch Brody, Tiferet Tzvi, Even HaEzer 102; R. Meir Eisenstadt, Imrai Aish, Even HaEzer 57; R. Meir Simcha of Dvinsk, Or Sameach on Rambam, Gerushin 2:20; Vayishal Shaul, Even HaEzer 2:20; and R. Isaac ben Moshe, Or Zarua, Teshuvah 126.

[17] R. Avraham Boorenstein, Avnei Nezer, Even HaEzer 167.

[18] R. Avraham Boorenstein, Avnei Nezer, Even HaEzer 167; R. Samuel Ehrenfeld, Chatan Sofer 59; R. Simeon bar Tzemach Duran, Tashbetz 1:1; R. Abraham ibn Tawah, Tashbetz (Chut ha-Meshulash) 4(iii):35; R. Solomon ben Simeon Duran, Responsa of Rashbash 339 (argues with Rema, Even HaEzer 134:8); Rabbenu Yosef of Slutzk 79; R. Moshe Zev Ya’avetz, Agudat Eizov, Even HaEzer 19(18); R. Solomon Kluger, Kuntres Tikun Olam, Tikun 3, Teshuvah 1:1 and R. David Tavli Rubin, Nachlat David 34, as well as perhaps R. Raphael Yom Tov Lipman Halpern, Shut Oneg Yom Tov 168. Similar but not identical analyses can be found in R. Solomon Zalman Lipshitz, Chemdat Shlomo, Even HaEzer 80(3) and R. David Solomon Eibeschutz, Naot Deshe 144 and is mentioned in R. Yitzchak Elchanan Spektor, Be’er Yitzchak, Even HaEzer 10:1 and R. Tzvi Hirsch Orenstein, Birkat Retzeh 118.

[19] The first, more expansive insight of Rabbi Feinstein and others above.

[20] R. Shmuel ben Uri, Beit Shmuel, Even HaEzer 134:14.

[21] R. Tzvi Gartner, Kefiya Be-Get, at 244.