by R. Gidon Rothstein
24 Elul: R. Herzog on Pre-Authorizing a Get Before Going to War
Among the many casualties and tragedies of war, one that attracts particular attention of poskim is the limbo in which wives find themselves should soldiers go missing (or be taken captive, without good information about what happened or near-term hopes of getting his release). Shu”t Heichal Yitzchak Even HaEzer 2;40, dated 24 Elul 5709 (1949) presents R. Herzog’s discussion of how to solve the problem.
Writing conditional gittin was one idea, with technical issues that we’ll see. A more practical solution seemed to be to have the soldiers each write a harsha’ah le-get. Harsha’ah is when a person authorizes others to act on his/her behalf. The soldier would sign a document authorizing others to write a get on his behalf should he disappear for a specified period of time.
That way, his wife should be able to remarry whether or not he’s alive: if he’s deceased, she’s a widow; if he’s alive, she’s divorced. (I recently read the reminiscences of R. Shlomo Goren zt”l, With Might and Strength; R. Goren spent twenty years as the energetic and invested first Chief Rabbi of the IDF, and he mentions this as a pressing issue as well; his memoir spends much time on his work as a rabbi in the IDF, and shows what an army chief rabbinate does at its best, helping soldiers of all level of religious observance find their way to service of Hashem.)
R. Herzog has a few qualms with the arrangement.
It Doesn’t Work for Chalitzah
The first is that this would not be effective for women whose husbands have not yet had children. When a man passes away without children, the widow needs yibum (marrying one of the brothers) or chalitzah (the ceremony where the brother formally refuses to fulfill this levirate obligation, she removes his shoe and spits in it, and is then free to marry other men. By the way, I recently had cause to look it up, and the word levir means specifically a husband’s brother).
We might think harsha’ah would still work, because we’ll assume the husband is alive for as long as we do not have firm information he’s passed away (halachah generally allows us to assume that an established reality creates a chazakah, a presumption that that situation continues until we know it changes). If so, she has a get in hand from a husband who’s presumed to be alive, and therefore no need for chalitzah.
That doesn’t work for a soldier going to war, R. Herzog says, because all soldiers in an army at war are in enough danger to put their status in halachic doubt.
Furloughs Nullifying an Harsha’ah?
Another issue with this harsha’ah was whether it remained in effect when the soldier came home for a visit. Rambam rules that if a man told people to write a get for his wife and then was seen spending time alone with her (and secluded, where they could engage in marital relations), the get is invalid. Ramban thought that went too far, that it was only a doubtful divorce.
That question did not bother R. Herzog. The possibility that the husband living with his wife implied that he no longer wanted the harsha’ah to be valid only made sense when he had originally signed it because he was angry with her, because of a breakdown in their good marital relations. His later living with her as husband and wife suggests the anger or fight had passed, and they now wanted to stay together.
Our soldiers’ harsha’ot were different in that they were an expression of love and concern for their wives. If so, there’s no reason their living together should be evidence of a change of mind. That’s especially true since the rabbinate would also require each soldier to take a serious oath not to nullify or revoke this authorization.
Gittin 73 has a somewhat similar case, where a man gives a get to his wife and says it will take effect right then should he pass away (that’s another way to help her avoid these kinds of problems). That works, but is not practical for soldiers, since writing a get is a technical process that takes time and effort, and there are thousands of soldiers.
That Gemara nevertheless affects us, since it explicitly says that if he lives with her after giving her such a get, we have a problem (and there, too, the get didn’t seem to be a function of his anger with her, yet it invalidated the get). Rashi explains that we’re worried that this living together constitutes a remarriage (meaning: if he later dies, and the get retroactively takes effect, when they lived together at this point, they were unmarried. Since halachah generally assumes that an unmarried man and woman intend any act of sexual relations to be for marriage. In this case, it would mean he had remarried her at this point).
R. Herzog dismisses its relevance for us, because our soldier is only authorizing a get to be given once he disappears—which will necessarily be after any occasion on which he was living with her. R. Herzog again emphasizes that there’s no reason to suspect he meant to revoke that authorization, since it’s meant to help her, and he took this serious oath not to change his mind. To make it even better, he suggests that the authorization form explicitly account for visits he may make to see her, and say that that is not in any way meant to nullify the authorization.
When we turn to childless soldiers—a significant percentage of an army where the men are young– this cannot work, as we said before (because if she’s a widow by the time they write the get, she needs yibum or chalitzah). The only solution would be for the husband to give her a conditional get, which is difficult to do in the numbers that will be necessary.
(He does later in the responsum repeat his worry that the husband’s furloughs constitute a nullification of the get or render ita get yashan, a get where she might end up getting pregnant after it was delivered (which is an halachic problem in that people will assume the child was conceived out of wedlock, and inspire gossip). He once again thinks the fact that whole get was a favor to her rather than a sign of discord helps.
In addition, since this will be a well-known aspect of serving in the army, fewer people will react that way. The court procedure also helps, since courts tear up gittin once they’re delivered; they give the woman a document that says she’s properly divorced, but without the date that that divorce took effect—it’ll give a date after which she can remarry, I think, but will not say when the original get was in force. That makes it less likely anyone will have enough information to cause problems.)
To have all those soldiers write gittin, we would need many, many such documents. To do that, we’d need to either have many sofrim and courts working, or use pre-printed forms.
Forms, however, are a problem. While Rambam rules that Chazal permitted pre-printing to ease scribes’ lives, Ramban and Ramah rejected it so completely that they held that if a woman remarried based on such a get, she would have to leave her second husband as if that whole marriage had been an adulterous affair.
That sounds like a problem, but R. Herzog thinks there’s enough doubt about the stringent views that we can rely on Rambam. He understood Ramban to be quoting R. Hai Gaon—a responsum who authenticity R. Herzog doubts—but that Ramban himself never said the get is invalid. Even the responsum doesn’t quite explicitly say the get is completely invalid, so he held that there was enough room to follow Rambam’s lenient view.
(R. Herzog doesn’t bring it up at all, but this is an example of where well-intentioned psak can lead to significant problems; were another halachic decisor to read these sources differently, he might hold that such a get was in fact completely invalid, as Ramban and Ramah seemed to. If so, he would hold that any children from this woman’s later marriage would be mamzerim. That doesn’t mean we always follow whoever’s most stringent, but it shows some of the difficulties of ruling in cases like this.)
Printing is also not a simple issue, since we usually assume gittin should be handwritten. But some authorities do allow a printed get as long as it has the proper wording and is supervised by a devout Torah scholar.
R. Herzog’s recommendation is that the get say that if the husband does not return for a year after the cessation of war, and there has not been enough evidence of his death that the two Chief Rabbis have allowed her to remarry, this will be a valid get an hour before his death (an hour is not meant exactly; it means some short period before his death).
A problem with that version of it is that he might die in a way that he wasn’t competent to give a get an hour before his death (such as if he slipped into a coma on the battlefield, and his body was then lost such that we never find it).
R. Herzog has a few answers. First, he says it’s not a frequent enough situation that we are required to consider it a possibility. Furthermore, even when a man’s a goseis, in the throes of death, there’s a debate about whether he might be able to authorize giving of a get. Besides, “one hour” means, in R. Herzog’s reading, “however long before I pass away that I still retain enough mental competence to give a get.”
Finally, this get was already delivered, when he was clearly in his right mind, and our question now is only if it can take effect later. The standards for that might be lower.
A Kohen’s Get
This strategy is more complicated for a kohen soldier, who cannot remarry his wife once they’re divorced (Rambam seems to hold that even if the get is given on the condition that it take effect later, there’s an element of retroactivity to it as well). Non-kohen soldiers can simply remarry, but a kohen is not allowed to marry a divorcee. Sometimes, also, the wife won’t want the divorce to take effect, such as where she wants to wait longer in case her husband shows up/is freed.
To help with all that, R. Herzog suggests that the get include a double condition—it takes effect either one hour before he dies (if he died) or if he doesn’t show up for a year and she does some act (like come to court to ask for freedom to remarry).
These were R. Herzog’s thoughts on how to grapple with a situation no one wanted to arise, as part of building a Jewish army that would care for its soldiers and their wives in the best possible way. It’s a reminder of what one version of halachic activity looks like—anticipating problems that might arise for innocent people, finding ways to avert/avoid them, to foster our best possible lives or, in cases like this, minimize the suffering that comes with a terrible loss.
Listen to Rabbi Rothstein discuss this here.