Tuesday, June 24, 2008

Forcing a Divorce

By: Rabbi Ari Enkin

While marriage is intended to be a once-in-a-lifetime arrangement, unfortunately it isn’t always the case. Just as there are stringent requirements on how to formalize a marriage within Jewish law, there are also very exact ways of dissolving one. The objective of it all is to ensure that a woman receives the divorce document from her husband known as a get. The get is vital, as without it, a woman is forbidden to remarry.

Sometimes, though, a husband will postpone or otherwise withhold this document from his wife for a variety of motives, thereby imprisoning her in a nonexistent marriage. A complicated question emerging from such behavior is whether or not it is permissible to compel a husband into issuing his wife the get. Sometimes the answer is yes, and even with the use of force, as will be discussed below.[1]

Click here to read moreThe Mishna[2] teaches us that several types of husbands are obligated to divorce their wives, and that the divorce may even be forced upon them. Among these categories are: one with bad skin afflictions, one with bad breath, and one who gathers manure for a living. A woman whose husband falls into one of these categories is entitled to divorce him at her leisure.

There is, however, another category of husbands for which there is no clear consensus whether a divorce may be forcefully imposed.[3] Rabbinical authorities are divided over whether the beit din (religious court) can impose a divorce on a severely strained marriage. On the one hand, there is the Rambam, who maintains that a man can be forced into divorcing his wife if she so desires for absolutely any reason.[4] Other authorities are a lot more hesitant to allow women this dispensation of forced or coerced divorces for fear of ulterior, unbecoming motives.[5] Normative halacha seems to accept this latter view.[6]

There is, however, an additional dimension that allows for imposing a divorce on a rebellious husband, such as one who refuses to support or cohabit with his wife.[7] Modern-day authorities permit forcing such husbands to issue a get.[8] The remaining and forever unsolvable issue is determining who is a “rebellious” husband, other than the example just cited. Does it include an adulterous husband? A thief? What about a husband who abandons Judaism? Furthermore, even when coercion is deemed permissible, it may almost never involve non-Jews in any way,[9] or the divorce could be invalid.

To properly appreciate why rabbis are so hesitant to ever exercise their authority to impose a divorce, it is vital to understand that a woman who remarries after receiving a get that is halachically invalid for any reason is deemed an adulteress, although that is certainly not her intention. Furthermore, any children born after an invalid divorce would be considered mamzerim (illegitimate children), a status that is permanent and irrevocable and that strongly affects the child’s future marriage prospects and the status of his or her own future children as well.

The emotional and psychological turmoil for women in this situation is unimaginable. The evil that such uncooperative husbands exhibit is indescribable. Sadly, there is no consensus on how these cases can be solved. In light of this, there are authorities in the orthodox rabbinate who have devised a prenuptial agreement of sorts, which combines Jewish and secular law in a way that simply precludes such horrible situations from ever arising. Young couples would be well advised to research this option prior to walking to their wedding canopy.


[1] Based in part on “Coercing a Husband to Give a Get” in Gray Matter: Discourses in Contemporary Halachah by Rabbi Chaim Jachter with Ezra Fraser (New York: Noble Book Press, 2001), p. 3.
[2] Ketubot 77a.
[3] Ketubot 70b.
[4] Hilchot Ishut 14:8.
[5] Tosafot, Ketubot 63b.
[6] EH 77:2.
[7] EH 154:3.
[8] Igrot Moshe, EH 1:137.
[9] I.e., non-Jewish courts, etc.; Gittin 88b.

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