Comments on Coercion for a GET:

Reply to Rabbi Chaim Jachter and the Organization for the Resolution of Agunot

Make Peace, Not War

Firstly, I am very upset with the beginning of the article, which follows the path of the Agunah movement, by going right for the name-calling and hate-promotion. This is going to reap the whirlwind. There is no way a woman can force a stubborn husband to give a GET without a gun, and surely, nobody suggests that! Of course, some pressure does work with some husbands, but the trend is wrong. Why don't we realize that the growing crisis of broken families and expensive and exhausting divorces are a blot on the Torah community's good name? Going to Beth Din is a disaster, with the highly paid toanim and professional judges, and this is only one of the assorted abominations going on in divorces in the Torah world. It must stop. The rabbis and leaders of the community must stand up to those who want to solve the divorce problems with hate. Shouting is going to make things much worse. The alternative to using a gun on the husband is to take a gun to the Shulchan Aruch, or, as is increasingly in vogue, to find a Rov who permits beating a husband to a pulp until the husband, to save his life, agrees to divorce his wife.

As I finished the above paragraph, the phone rang. A man has not seen his son for a long time. The wife is not interested in letting him see his son. He won't divorce her with a GET, she won't let him see his son. Probably, for the rest of their lives, they will battle over this and that. And nobody is there to stop it. Why are there no kind Jews to bring a ladder to the tree so the monkey can climb down?

Many years ago, when I was involved with Agunot, I spoke to two ladies who founded the first Agunah organization. I suggested we work together. One lady agreed, the other refused. "We don't want to work with rabbis," she told me. "We want to force them to change the way they approach Halacha." I was stunned. "You are not going to force me," I said. But I was wrong. The ferocious work of some feminists is causing changes in Halacha. I haven't changed. But when I see children born from the new age Halacha, I will cry out, "These may be mamzerim."

Yes, the Torah world is splitting. There are rabbis who do things that I consider completely wrong, such as the very important rabbi who gives hundreds and thousands of Gittin, who recently told a couple to take a walk without a GET, even though they wanted a GET. A senior YU rabbi heard this and almost jumped through the phone to get more information from me to find that lady as soon as possible. But the rot is there. This one invents "a mistake in Kiddushin," and this one invents "beat him to a pulp" and this one invents something else. The entire structure of Halacha and yuchson is decaying. Those of us who are still left are going to ban those born of such communities, it is that terrible, and that simple.

My rebbe, Rav Yosef Shalom Elyashev shlit"o, the Posek HaDor, told me that he removes the authority to give Gittin from those rabbis who twist the halachas to coerce husbands. I don't want to discuss what this means. But in practical terms, it is terrible.

 Rabbi Jachter's article begins by quoting an important rabbi to the effect that "one who withholds a get because of unjust monetary demands is a thief" and compares such behavior to murder.  Another rabbi called them "oppressors." After the prelude, the article goes into the phase two, how to coerce a husband. It is all one theme. Fight the fiends. I'm sorry, I don't agree with this approach. It just won't work. There are husbands who told me that if the pressure gets much worse they will skip town, or become irreligious, but they won't break because of what they consider viciousness. And if they do give a forced GET, is this what HaShem wants? The children born from such a GET may be mamzerim.

Ostracizing According to Rabbeinu Tam

Rabbi Jachter then discusses ostracizing the husband, the "harchoko of Rabbeinu Tam."  A husband who won't give a GET is ostracized by the community in a passive way. Nobody talks to him, etc. Finally, he will capitulate and give a GET, or so it is hoped.

Is this a solution? Rabbi Jachter thinks it may be. But  the Ramo he quotes about  ostracizing is not talking about the usual case of divorce. It is talking about those cases whereby Beth Din sees in the husband one who must divorce, without the need of the wife to complain. A husband who is physically unable to be a husband is such a person. The Vilna Gaon says this clearly in his gloss on the Ramo, and the Ramo himself says it in his commentary to Tur. This is also the context of the Shulchan Aruch in the chapter. The suggestion to use the Harchoko of Rabbeinu Tam is only in such a case whereby the rabbinical court has clearly arrived at a conclusion that the husband must divorce his wife even if the wife doesn't say "he is repugnant to me." But in the majority of divorces today, the Beth Din does not identify the husband as a guilty party who must divorce his wife because he can't be a husband. Rather, the divorce cases today are about wives who complain about their husbands, and the courts don't label the husband as a sinner or marital cripple, even if he has certain other bad traits. Therefore, in the majority of cases, the husband cannot be coerced with ostracizing with the Harchoko of Rabbeinu Tam, because this is allowed by Ramo and the Gro only in cases of a guilty husband.

Even in the case of a guilty husband, or one a marital cripple,  major authorities forbid using ostracizing. This is the Shach, who quotes a major authority from before his time, who says that nobody does this anymore. Chazon Ish, the leading posek in the world fifty years ago, agrees with the Shach. Even with a marital cripple one does not use ostracizing.

Interestingly, the major authorities in Halacha are the Rashbo and Rosh, who have numerous responsa about forcing husbands to divorce, and they never mention Rabbeinu Tam's ostracizing. It is thus obvious that they disagree with it, and this could well be the reason that for many generations rabbis refused to use it. The Shulchan Aruch of Reb Yosef Karo does not mention it. Therefore, if a Beth Din used it today, there would be a serious problem of an impugned GET, and worse.

One of the sources Rabbi Jachter quotes is the Maharam Lublin Teshuva 1. That teshuva is about a woman who has epilepsy, and he deals also about a husband who has epilepsy, can we force him to divorce his wife. In that context, he quotes the Mordechai that when the Talmud considers a husband a failure and a sinner for not divorcing his wife, there is a disagreement if the rabbinical court may beat him to divorce his wife. Even those who refuse to beat such a guilty husband permit ostracizing him. Thus, we see once more, that the issue here is not forcing the usual husband with ostracizing, but rather forcing a guilty husband or one physically incapable of being a good husband. It is wrong to ostracize a husband based on sources that are wrong.

Furthermore, there is a good reason why today and for centuries we don't do ostracizing. This is because even Rabbeinu Tam permitted only passive pressure. When, however, the community is prejudiced against a man,  so that people openly insult him, shout at him in shull, and do other active pressures, this is surely a problem of a forced GET. Perhaps only in earlier generations when Beth Din had complete control of the community could it presume to ostracize and be assured that only passive pressures would be employed.

The Aruch HaShulchan, quoted by Rabbi Jachter as a source to permit ostracizing, is also talking about the context of guilty husbands, not the wife who wants a divorce because she can't stand her husband.

There are other points, but we will stop here, and oppose Rabbi Jachter's conclusion that ostracizing is an acceptable tool to force a divorce. If, indeed, there are going to be forced Gittin such as these, in defiance of the Shach, Ramo, Gro, children born from them may be suspect, heaven forefend. However, in the event that a husband is a marital cripple, or a person described in the Talmud as one who must divorce his wife, and the greatest rabbis in the world decreed ostracizing, this would be something else. But never should local rabbinical courts declare ostracizing on their own.

There is an extensive literature in Shulchan Aruch about a family or community where a doubtful mamzerim entered. This could ruin the entire family or community. (EH 2.3) I don't want to go into this, but plainly, if the Posek HaDor is upset with the tendencies among some Rabbinical Courts to coerce where great rabbis proscribe it, the future is bleak.

Another point. Coercion works only when the husband realizes that the Torah requires him to divorce and thus "it is a command to obey the rabbis." However, these lenient rulings to coerce a husband are only the opinion of certain rabbis who are not the great rabbis of Israel. A husband therefore who is forced by them is not bound by "a mitzvah to obey the rabbis" because the greatest rabbis forbid the ostracizing.

Therefore, for the above and other reasons, we must attack the Agunah issue not by calling names, but by assembling a community task force that will stop the hate and start solutions and Shalom.

We might begin by removing the term Agunah from our discussion. Not every woman who cries for a GET is an angel. There are some vicious husbands out there, such as one I know who took ten years to divorce his first wife, and finally gave a GET for a large sum of money and the opportunity to marry someone else. Now that second lady is an Agunah, and the community has no advice for her that is practical. Her life is ruined, and she has nobody to talk to except the angry ones.

If we want to call names, why don't we start with ourselves, because we are not doing practical things to make peaceful endings.