Rabbinic Authority, Volume 3: The Vision and the Reality, Beit Din Decisions in English - Halakhic Divorce and the Agunah

By A. Yehuda Warburg

In the third volume of his groundbreaking series on rabbinic authority in English, Rabbi Warburg discusses the ramifications of a Jewish divorce. In this well-composed monograph, Rabbi Warburg primarily focuses on the case of the modern day agunah, a wife who is unable to get divorced due to her husband's recalcitrance. He addresses the various techniques, such as obligating the giving of a get (Jewish divorce document), finding relief for an agunah who signed an exploitative agreement, and listing different avenues to void a marriage (bitul kiddushin) used by the rabbinical court. This issue is of some controversy in the Jewish community, and there is heated debate about it.

• Language: English
• Publisher: Urim Publications
• Release date: Feb 5, 2018
• ISBN: 9789655243130

Book preview

3

Rabbinic Authority

The Vision and the Reality

Halakhic Divorce and the Agunah

Beit Din Decisions in English

Volume 3

Rabbi A. Yehuda (Ronnie) Warburg

Urim Publications

Jerusalem • New York

Rabbinic Authority: The Vision and the Reality:

Halakhic Divorce and the Agunah –

Beit Din Decisions in English, Volume 3

by A. Yehuda (Ronnie) Warburg

Copyright © 2018, 2017 by A. Yehuda (Ronnie) Warburg

Preparation of Index Sources: Dov Karoll

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רב דוד באבד, פוסק מפורסם של המאה התשע עשרה מעביר לנו מסורה שקיבל:

מריש כל אמינא מה ששמעתי מפי הגאון רבי באריש רפפורט . . . שהיה מקובל מפי רבו הגאון נודע בשערים האבד״ק לובלין, בבוא לפניו איזה שאלה, מקודם הי׳ שוקל בשכלו על אמיתת העניין לפי שכל האנושי האיך הוא, ואם נראה לו לפי שכל האנושי שהדבר אמת, אז הוא מעיין עפ״י חוקי תוה״ק מה משפטו – וכן הוא אצלי, בבוא לפני שאלת עגונה וכדומה, אם ברור הדבר בעיני לפי השכל ודעת בני אדם שהדבר אמת, אז אנכי מיגע א״ע למצוא צד היתר עפ״י חוקי ומשפטי תוה״ק וכו׳(שו״ת חבצלת השרון ב:כ״ח)

Rabbi Dovid Babad, a renowned 19th century authority communicates to us the following mesorah that he received:

"I heard from ha-Gaon Rav Barish Rappaport . . . that he had a mesorah from his Rav, ha-Gaon Noda Bashearim, ha-Av Beit Din of Lublin, that upon receiving a question to address, he would first weigh in his mind the truthfulness of the matter according to what human reason dictates and if in his estimation human reason the matter is true, then he will delve into Halakhah to arrive at a decision."(Teshuvot Havatzelet Ha-Sharon 2:28)

כל רב בישראל רוצה בתקנת בנות ישראל ויודע גודל המצוה להתירה מעיגון והאיסור הגדול לעגן כשהיה בידו לתקן ולא תיקן(רב משה פיינשטיין, אגרות משה אה״ע א:קי״ז)

"Every rav in Yisrael wants to promote the welfare of the daughters of Yisrael and he is aware of the greatness of the mitzvah to free her from igun and it is a major prohibition to leave a wife in chains if one has the ability to address the situation and does not resolve it."(Rabbi Moshe Feinstein, Iggerot Moshe EH 1:117)

וכל מי שמתיר עגונה אחת בזמן כאילו בנה אחת מחורבות ירושלים העליונה(הב״ח, שו״ת בית חדש החדשות סימן ס״ד)

"Freeing one agunah is like rebuilding one of the ruins of the ruins of the heavenly Jerusalem"(Rabbi Yoel Sirkes, Teshuvot Bayit ha-Dash ha-Hadashot 64)

הנני מסכים . . . להתיר האישה מכבלי העיגון . . . ויען שמבואר בתשובת ב״ח החדשות . . . כי מי שמתיר עגונה אחת בזמן הזה כאלו בנה אחת מחורבות ירושלים העליונה . . . וכן נדחקתי לגמור התשובה ביום הצום על חרבן בית תפארתנו [תשעה באב](הרב שלום שבדרון, שו״ת מהרש״ם א:פ״ד)

"I agree to free a woman from the chains of igun since it states in Teshuvot ha-Bah freeing one woman is like rebuilding the ruins of the Heavenly Jerusalem therefore I pushed myself to finish the teshuvah (the ruling) on the fast day which commemorates the destruction of our glorious temple [=Tisha be-Av]"(Rabbi Shalom Schwadron, Teshuvot Maharsham 1:84)

Contents

Foreword by R. Dr. Aaron Levine, z"l, to Volume 1

Preface

Part I Rabbinic Authority: The Vision

Chapter 1 The Consensual Nature of Halakhic Divorce

Chapter 2 The Propriety of a Conditional Divorce

Chapter 3 A divorcee’s relief from the consequences of an exploitative divorce agreement

Chapter 4 Division of marital assets upon divorce: From Metz Rabbinical Court of the Eighteenth Century to the Israeli Rabbinical Courts in Contemporary Times

Chapter 5 Two types of Bittul Kiddushin: Kiddushei Ta’ut and Umdana

Chapter 6 The efficacy of "get zikui: From conferring an absolute benefit upon a wife (zakhin le’adam) to acting for the absolute benefit from a husband (zakhin me’adam")

Chapter 7 An Inquiry into some of the varying halakhic traditions regarding the appropriateness of a divorcee marrying a kohen

Part II Rabbinic Authority: The Reality

Chapter 8 Decisions in Even ha-Ezer

a. The validity of the act of kiddushin without the presence of two eidim

b. Bittul Kiddushin – The invalidation of an eligible eid kiddushin

c. A non-Orthodox mesadeir kiddushin and ineligible eidei kiddushin

d. If he acts improperly, we may act improperly

e. The scope of the mais ali plea and the imposition of harhakot (the isolating measures) of Rabbeinu Tam

f. A husband’s premarital misrepresentations: A case study in bittul kiddushin

g. A mentally dysfunctional husband: A case study in kiddushei ta’ut

h. May a beit din obligate a husband to give a get due to "igun"?

i. A wife’s refusal to receive a get and the lifting of the herem of Rabbeinu Gershom

Index of Halakhic Sources

About the Author

Foreword from Volume One

In referring to the highest level of truth finding in a judicial proceeding, our Sages use of the phrase, "Ha-dan din emet la-amito." What is being conveyed here is that knowledge of the law is not sufficient to render a verdict of truth. In order for the dayan to arrive at the correct verdict, the precise facts of the case must be discovered as well.

A beth din panel is not only thoroughly versed in the relevant hala­khot, but is also well-equipped by virtue of educational background and professional work experience to grasp the reality on the ground. This entails a relentless commitment to relevant fact finding, taking nothing at face value, and understanding the implications of the facts for the commercial behavior of the parties.

A second characteristic of the halakhic-judicial process dealing with monetary matters consists of the documentation that must accompany the verdict that the panel hands over to the litigants at the conclusion of the proceedings. The claims of the plaintiff, as well as the respondent’s rebuttals and counterclaims, are meticulously recorded. Next, a thorough discussion of the issues from a halakhic perspective is presented. Finally, the verdict is rendered, and this verdict is demonstrated to have flowed from the halakhic discussion.

R. Dr. A. Yehuda Warburg has assumed a vital role in implementing this vision of a double level of truth in the Beth Din of America and on other panels. In the present work, Rabbinic Authority: The Vision and the Reality, R. Warburg presents a number of his judicial rulings. What stands out in these decisions is the halakhic framework, legal perspective, and reasoned opinions R. Warburg sets up to support his decisions.

For a number of decades, I have been involved on an ad hoc basis as a dayan, including serving on judicial panels for the Beth Din of America. In this capacity, I have often crossed paths with R. Warburg and served together with him on the same judicial panel. In each panel we served on together, R. Warburg’s outstanding Torah scholarship was always in evidence, scholarship motivated by a perfectionist’s drive to achieve new vistas in advancing the double dimension of truth that stands as the ideal for the halakhic-judicial process.

R. Dr. Aaron Levine, z"l

19 Adar 1, 5771

February 23, 2011

Preface

The present volume is the third in a series of volumes intended as an introduction to a subject perhaps unfamiliar to many—rabbinic authority in our halakhic sources. The subtitle, The Vision and the Reality, points to the themes being addressed in this work.

In addressing the "halakhic vision" of rabbinic authority,¹ we will primarily focus our attention upon the issue of the modern-day agunah, the wife who is unable to receive her get due her husband’s recalcitrance.²

Some of our lines of inquiry will be the following: How does Halakhah address the consensual nature of halakhic divorce? Under what conditions may a beit din obligate a husband to give a get unconditionally? In the event of a husband’s continued refusal to give a get, what ammunition is in the halakhic arsenal to address this phenomenon, a matter that our community has been grappling with for many years? Obviously, for those rabbinic authorities and communities who endorse the execution of a prenuptial agreement which obligates a spouse to give or receive a get in a reasonable amount of time after the spouse requests it a divorcing couple in these communities may find solace in the fact that generally the matter of igun (loosely translated—being chained—i.e. via the withholding of a get) will not rear its head. However, for the thousands of couples who have been married for decades without the execution of a prenuptial agreement and for those who continue to be married without availing themselves of this agreement, either out of ignorance that such a panacea exists or due to the fact that their rabbinic decisors reject their implementation, what do we have in our halakhic stockpile for one of these wives to wage a war against a husband’s refusal to give a get?

May a beit din direct the imposition of social and economic isolating measures introduced in twelfth century Ashkenaz known in halakhic parlance as "harhakot of Rabbeinu Tam"? Must a beit din have grounds to obligate a get ("hiyuv le-garesh") prior to invoking these measures or is it sufficient to render a ruling of recommending a husband to give a get ("mitzvah le-garesh")? Are there grounds to authorize a wife to litigate her monetary claims in civil court, which may result in a husband’s willingness to give a get? Upon discovery that there were no eidim (witnesses) under the huppah during the time of kiddushin who heard the husband reciting "harei at mekudeshet li . . ." and witnessed the mesirah (the husband placing a ring on his prospective wife’s finger), or that an eid was (or both eidim were) ineligible to serve as a witness, may a ruling be handed down by a beit din composed or three rabbis or one rabbinic authority³ to be mevatel the kiddushin (loosely translated as voiding the marriage) and thereby obviate the requirement for a get? Can the invalidation of a qualified eid kiddushin result in bittul kiddushin? If a husband intentionally or unintentionally fails to disclose to his prospective spouse prior to marriage that he had a "mum gadol" (a major flaw) such as being impotent, unwilling to have children, gay, mentally dysfunctional, or being a criminal, are there grounds to void such a marriage and under what conditions can it be done? May a marriage be voided due to the husband’s behavior after the onset of the marriage based upon an umdana (the assessed expectation) that had she known prior to the marriage that he would conduct himself in a certain fashion, she never would have married him? May the marriage of a modern day agunah be voided based upon relying upon a minority halakhic view? Since in many instances voiding a marriage of a modern-day agunah entails the suspension of the biblical status of the woman as an eishit ish, a married woman can one rely upon a minority opinion to free her without a get? Prior to voiding a marriage, does the rabbi or beit din require a consultation with a second opinion(s)?

Under what conditions, if any, is a beit din empowered to give a get on behalf of a husband who has not given instructions to give one to his wife? There is well-trodden mesorah (tradition) that, in accordance with certain Poskim (halakhic authorities), a beit din will confer the benefit of a get upon the husband in the scenario of an adulterous or apostate wife who refuses to receive a get. Does such a mesorah exist regarding an agunah where the husband stands and screams that he refuses to give a get? In the absence of a mesorah, can one present a halakhically cogent basis for freeing an agunah via the vehicle of her receiving a get from a beit din due to the fact that it is an absolute benefit of the husband to give it?

The reality memorialized in various beit din judgments as well as the vision addresses all of these questions. Though an infrequent occurrence, we do realize that the matter of igun extends itself to a situation where a wife refuses to receive a get. Consequently, one of our beit din rulings responds to this issue as well.

As our limmud (our study) shows, in both the vision and the reality components of our presentation there exist divergent halakhic traditions to all of the aforementioned questions. The kiddushin (betrothal) relationship establishes a personal status, namely, that of a mekudeshet (a woman designated for a particular man and prohibited to all others).⁴ The establishment of this personal status, known as ishut, renders both spouses subject to various prohibitions, e.g. sexual relations with various relatives become prohibited.⁵ Whereas "hafka’at kiddushin" as used in contemporary parlance entails retroactively annulling the marriage of a recalcitrant husband who refuses to give a get after being directed to do so by a beit din, a beit din engaging in bittul kiddushin entails one’s readiness to nullify the issur of eishet ish (the prohibition of being a married woman). Hafka’at kiddushin, on the one hand, assumes that the matrimonial tie was created. On the other hand, bittul kiddushin presumes that the marital bond was never established.⁶

Whereas a refusal to invoke bittul kiddushin means that the issur continues to exist, the implementation of bittul means that the issur no longer exists and the wife, in the case of an agunah, is permitted to remarry without the issuance of a get. On the one hand, prohibiting bittul kiddushin in part is due to the lurking fear that the woman is an eishit ish and therefore should we permit her to remarry she would be living in sin and should she bear children, her offspring may be mamzerim (halakhic bastards).⁷ Those who sanction bittul kiddushin, on the other hand, do so in part because of the fact that we want to prevent mamzerut, lest the agunah remarry without halakhic permission.

As such, upon studying the matter of "igun we have entered into the universe of issurim" (prohibitions). Consequently, it is unsurprising to find the following posture of R. Aharon Walkin, an early twentieth century arbiter. A sina qua non to create the ma’aseh kiddushin (the act of halakhic marriage) is the presence of two adult Jewish males who are Torah observant, not blood relatives to either the man or the woman, witness the man reciting "harei at mekudeshet li betaba’at zo, kedat Moshe ve-Yisrael", observe the man transferring a ring to the woman, and see her acceptance of the ring.⁸ Addressing a case of an agunah who requests that her marriage be voided due to the fact that both witnesses during the kiddushin were invalid due to the fact that they violated the Shabbat and committed other sins, following implicitly earlier rulings, R. Aharon Walkin—who resided in Pinsk-Karlin, Ukraine responds to such a petition in the most trenchant terms,⁹

It is improper in my eyes to adopt this path to criticize the act of kiddushin eight years after the wedding . . . you must understand that such advice can destroy the purity of Israel . . . to multiply mamzerim in the midst of a holy nation; the marital bond from now will be not sustained. Everyone will destroy it in accordance with his will . . . And the stringency of being married (eishit ish) will be nullified . . . Therefore eight years after the wedding . . . we should not inquire for guidance to void the marriage . . .

His view is by far not one of a lone ranger. A few decades earlier, concerned about the slippery slope, Rabbi Hayyim Berlin—the son of the renowned R. Naftali Zvi Berlin—lambasts those authorities who engage in bittul kiddushin by stating,¹⁰

One cannot imagine the damage and the breaches that can emerge from this in our dissolute generation . . . they will begin comparing one matter to another one—in the beginning, they will permit based upon umdananot (assessed expectations –AYW) . . . they will permit (to remarry –AYW) every wife whose husband who has traveled overseas to America or Africa . . . And afterwards they will permit . . . if a person will promise a certain amount of nedunya (dowry –AYW) and subsequently it will be discovered . . . that he cannot keep his promise, they will say in her mind she would not have submitted to this marriage . . . and mamzerim will multiply in Israel.

As our presentation will demonstrate, there are numerous other halakhic traditions which allow for the voiding of marriages under certain conditions.

Given that the propriety of voiding a marriage entails entering into "the universe of issurim, the issue of being stringent or lenient regarding such matters emerges. In 1909, rabbinic controversy erupts concerning the question whether or not oil derived from sesame seeds are permitted on Pesah when the process of production prevented any possibility of leavening. Despite the opposition of various Yerushalmi rabbinic decisors, R. Kook—then rabbi of Yaffo—certified as kosher the factory that was producing the sesame oil. Responding to the concern that such a ruling would create a small opening that would eventually lead to a breach in the wall of Halakhah", R. Kook writes as follows,¹¹

And most importantly, I have previously written to these esteemed Torah scholars that I am aware of the character of our contemporaries. It is precisely by observing that we are ready to permit based upon plumbing the depths of Halakhah, they will arrive at the understanding that we are allowing it because of the truth of the Torah, and many will come, with God’s help, to listening to the voice of the instructors of Torah. But if it is discovered that there are such matters that from the perspective of Halakhah ought to be permitted and the Rabbis are insensitive to their burdens and pain of Israel, and allowed the matters as prohibited, this will result, God forbid, in the desecration of God’s name. Many of the transgressors of Halakhah will say regarding basic rules of Torah, that if the Rabbis wanted to permit them, they could have done so and the result will be that the Halakhah has been perverted.

To state it differently, in R. Kook’s mind, the slippery slope is a risk associated not only with lenient judgments but equally with unnecessarily stringent rulings which may result in the breach of the wall.

Concerning the breach of the wall, these words of R. Meir Gavison, a contemporary of R. Yosef Karo, the author of Shulhan Arukh are quite instructive and incisive,¹²

The Scholars were . . . especially attuned to the imminent transgressions of halakhah, and the licentiousness that may emerge as a result of the wife’s status as an agunah. For if permission for her to remarry is withheld, people will intentionally violate . . . possibly they will be unable to subdue their instincts and will surrender to temptation should we fail to identify a way of permitting them to remarry. . . . And consequently, it is therefore our responsibility to inquire for grounds on their behalf, and . . . to allow her in order to preempt any possibility of violation. And it is no minor issue to commit a sin and to cause others to sin . . .

Over sixty years ago, R. Yitzhak Z. Kahana has well-documented in his classical work, Sefer ha-Agunot, the numerous teshuvot which address the acute need to offer solutions to deal with the woman whose husband has disappeared ("the classical agunah") lest she remain an eishit ish as well as notes the well-trodden mesorah to rely on lenient opinions in a matter of agunah.¹³ A marriage which has no prospects for "shalom bayit (marital reconciliation) and therefore is dead", yet the wife cannot receive the desired get in order to rebuild her life, is deemed an igun matter and is deserving of the same halakhic consideration of seeking leniency accorded to the classical igun while simultaneously preserving her halakhic-moral persona as a bat yisrael (a daughter in our community). As R. Eliyahu Alfandri notes, get recalcitrance entails withholding good from our friends and as such is an infraction of loving your neighbor like yourself and failing to rescue him.¹⁴ In contemporary times, Dayan Eliyahu Abergil characterizes a husband who is "me’agein (chain"-delay the giving of a get) his wife as an individual who is engaging in midat Sedom, sedomite conduct.¹⁵ Denying one’s fellow man a benefit when it costs nothing constitutes egregious behavior and is identified with the sin of the people of Sedom and is a Biblical violation of the negative commandment do not take revenge.¹⁶

How does one seek a solution to the matter of "igun"? R. Dovid Babad, a renowned nineteenth-century posek of Galicia, communicates to us a mesorah that he received,¹⁷

I heard from ha-Gaon R. Barish Rapaport . . . that he had a mesorah from his Rav, ha-Gaon Noda be-She’arim, Av Beit Din of Lublin, that upon receiving a question to address, he would first weigh in his mind the truthfulness of the matter according to what human reason dictates and if in his estimation human reason the matter is true, then he will delve into Halakhah to arrive at a decision.

Subsequently, in the twentieth century, in dealing with a classical agunah problem, both R. Ya’akov Breisch and R. Yitzhak Weiss invoke this mesorah in order to find a solution for the woman.¹⁸

Despite the fact that the classical agunah problem entails a rabbinic matter, such a methodology ought to be equally employed when facing a modern-day igun problem which in certain instances deals with a Biblical matter. In fact, R. Aharon Lichtenstein lays out the halakhic-philosophical framework for addressing the modern day agunah issue.

Addressing the meta-halakhic factors in arriving at a psak din, decision in general and the plight of the agunah in particular, following the sagacious, authoritative counsel of R. Yosef B. Soloveitchik,¹⁹ R. Aharon Lichtenstein astutely observes,²⁰

Hora’a is comprised of two elements: pesak and pesika, respectively. The former refers to codification, the formulation of the law pertinent to a given area; and it is most characteristically manifested in the adoption on textual and logical grounds, of one position in preference to others. . . . Peskia, by contrast . . . bespeaks the application of what has already been forged in the crucible of the learning experience to a particular situation . . . Its challenge lies in the need to harness knowledge and responsibility at the interface of reality and Halakhah . . .

However, the cogency and legitimacy of a human approach to pesak, appears to many problematic. They would have us believe that the ideal posek is a faceless and heartless supercomputer into whom all the relevant data is fed and who then produces the right answer. Should this standard not be met, this shortfall is to be regarded as a failing . . . On this reading, the process of pesika, properly conceived and executed, bears no semblance to an existential encounter between seeker and respondent . . .

Purist proponents of this approach often cry it up as the "frum" view of pesika. In reality, however, this portrait of a posek is mere caricature . . . those who, at most kar’u ve-shanu, but certainly lo shimshu. As anyone who has been privileged to observe gedolim at close hand can readily attest, they approach pesak doubly animated by responsibility to halakha and sensitivity to human concerns. . . . And does not the whole history of coping with agunot reflect this concern?

In effect, for R. Lichtenstein, the human and social factor cannot operate independently of Halakhah. A halakhic decision does not reflect a moral or social fad. In short, he would agree with the aforementioned statement of R. Babad.

He would first weigh in his mind the truthfulness of the matter according to what human reason dictates and if in his estimation human reason the matter is true and is reflective of halakhic norms, then he will render a psak din, decision which is engendered by yirat Shamayim.

As we will hopefully demonstrate, under certain conditions many Poskim throughout the centuries have offered solutions to allow a modern-day agunah to remarry without receiving a get. In fact, notwithstanding the position of some Poskim,²¹ under certain conditions, a beit din may rely upon a minority opinion as the sole grounds or as a senif (lit. an appendage), a supporting argument for freeing a woman from the chains of igun.²² In addressing a crisis situation, following a well-trodden mesorah,²³ R. Lichtenstein, notes that a minority opinion may be relied upon even if the matter entails a Biblical injunction.²⁴

Upon identifying a solution we ought to heed the words of R. Moshe Feinstein, who states,²⁵

And it is a major prohibition le-agein (to leave a wife in chains) if one has the ability to address the situation and does not resolve it.

Lest one be concerned about the view of other rabbis who look askance at voiding marriages, R. Feinstein observes,²⁶

Those who are of the opinion to prohibit are well aware the basis for permitting the matter and they should not be surprised when they hear that there are others who allow it. And if they fail to understand the grounds for permitting, they are not morei hora’ah (loosely translated as authorized arbiters in matters of prohibitions –AYW) and one should not be apprehensive of them at all and they must inquire into the matter and they will see the side of permitting the concern and they will no longer be surprised.

As R. Sinai Sapir states,²⁷

In matters such as those involving agunot, it is improper to collect stringencies. . . . In this situation, ‘the strength of the leniency is more powerful’, since we are concerned with halakhot involving lives . . .

Cognizant that the condition of igun may entail pikuach nefesh, danger to life, we have chosen to use dark red as the background color for our book cover. Human blood is always red. Usually, when it is oxygenated it is a bright red. However, when it is depleted of oxygen, it is a darker red. Metaphorically speaking, agunot have dark red blood. Minimally, freeing an agunah whose life has been bereft of total control and self-determination entails the preservation of her mental health and maximally it may involve the saving of human life. My personal experience involved encountering three agunot who have threatened to commit suicide due to their intractable situation.

Lest one contend that seeking solutions to matters of "igun" is to be relegated to Torah luminaries such as R. Elhanan Spektor and R. Yosef Baer Soloveitchik, author of Beit ha-Levi, R. Yitzhak ben Dovid of nineteenth-century Kushta exclaims,²⁸

If every Torah scholar would refrain from responding and say how can I enter this flame of a mighty blaze due to the severity of the prohibition of illicit relations (ervah)? . . . each man, a minor one like a great one (every Torah scholar, one of minor stature like one of major stature –AYW) is obligated to seek with candles, a careful search in holes and cracks possibly he will find relief for the benefit of the daughters of Israel to save them from igun . . .

In other words, throughout the ages, when dealing with matters of igun, arbiters have been engaging with the interface of Halakhah and reality.

In fact, commencing with the Middle Ages until contemporary times, numerous rabbis and battei din (rabbinical courts) alike both in the lands of our dispersion and in Eretz Yisrael have propelled themselves to enter this flame and have rendered decisions that have offered solutions for the matter of "igun".

Even in the absence of an agunah’s plea to address her situation in a beit din should it be crystal clear that there exists an igun situation, a beit din is obligated to enter this flame of a mighty blaze and deal with the case. For example, in the absence of any pending litigation between the couple regarding end of marriage issues such as child support and child custody and it is clear that the husband moved to a different city or country and he has no intention to return to the marital home for the foreseeable future, a beit din is dutibound to intervene as ba’alei din, as concerned parties in terms of hearing presentations and receiving testimony even though the wife did not submit a claim for receiving her get. In matters of issurim, prohibitions such as the matter of a get, all members of the Jewish community are plaintiffs, parties. Consequently, a beit din may unilaterally initiate a hearing in a matter of igun.²⁹

Clearly, under such conditions a wife’s presentation accompanied with supporting evidence is required for a beit din panel to address the matter of igun.

Just as a posek must perform his due diligence to search for a reasoned solution, similarly, an agunah must persist in identifying a beit din or rabbinic authority who will afford her relief. Even if an agunah received a reply from a beit din or a rabbi that Halakhah affords no solution for her igun, nonetheless, many authorities permit her to revisit her case by submitting it to another rabbi or beit din. Lest one challenge this conclusion based upon the Talmudic rule regarding issurim, if a scholar prohibited something, his colleague has no authority to permit it after it already has been forbidden³⁰ this rule may either be inapplicable in contemporary times³¹ or "a matter of agunah" is an exception to the rule.³² An agunah being forced to remain alone is untenable and therefore she should continue to seek out rabbinic authority to address her situation.

For many years, our Torah-observant community has encountered both here, abroad, and in Eretz Yisrael, situations where a recalcitrant spouse chooses to condition the giving or the acceptance of a get upon receiving certain benefits such as receiving monetary remuneration from the opposing spouse, custody of a child, or having certain issues related and/or unrelated to the end-of-marriage resolved in a beit din. Such conduct raises halakhic issues which we will address in the chapters dealing with the propriety of a conditional divorce and a divorcee’s relief from the consequences of an exploitative divorce agreement.

Additionally, in the component of our discussion of the vision of rabbinic authority, we focus upon some of the varying halakhic traditions regarding the propriety of a divorcee marrying a kohen and we will present a comparative treatment of how the Metz Rabbinical Court of the eighteenth century and contemporary Israeli Rabbinical Courts deal with the question of dividing up marital assets upon divorce.

In this volume, we have included nine presentations inspired by reasoned opinions handed down on various beit din panels, including the International Beit Din located in New York City. In each presentation, we offer a rendition of the facts of the case. Subsequently, there is an analysis of the halakhic issues emerging from the case, followed by a psak din, a decision rendered by the beit din panel. To preserve the confidentiality of the parties involved in these cases, all names have been changed, and some facts have been changed or deleted. Realizing the controversial nature of some of the cases dealt with in this volume, we are keenly aware of Rabbi Yosef Karo’s ruling and admonition that a scholar must refrain from permitting a matter which the community views as being prohibited.³³ Yet, on the basis of a well-trodden mesorah, such judgments can be rendered provided that reasons are given for one’s position.³⁴ As such, we have offered reasoned opinions for our decisions. Whether there is a requirement to receive consent from a rabbinic authority who does not serve on the beit din panel prior to rendering a decision, we discuss in chapter 8, case b (end).

Both components of this monograph, namely the vision and the reality of rabbinic authority have benefited immensely from live interactions as well as telephone and e-mail communications that I had and continue to have with various rabbinical authorities in Eretz Yisrael who serve or served as dayanim in the regional battei din and Beit Din ha-Rabbani ha-Gadol, the Supreme Rabbinical Court in the Chief Rabbinate network of battei din. As dayanim who 24/6 immerse themselves in "the yam of the Talmud (the sea of the Talmud"), sifrei hiddushim (novellae), sifrei pesak (restatements) and teshuvot (responsa), listen to parties’ claims and counterclaims, and hand down reasoned decisions primarily in the area of divorce, their insights and advice have been immeasurable.

Chapters two and three have appeared originally in the pages of Tradition and portions of chapter four were delivered in Fall 2013 at The Center of Jewish History in New York City in honor of the publication of Professor Jay Berkovitz’s book, Protocols of Justice: The Pinkas of the Metz Rabbinical Court 1771–1789.

Hopefully our presentation will educate our community regarding the parameters and scope of rabbinic authority in general and shatter the silence surrounding the various techniques towards confronting the matter of "igun" in particular.

19 Ellul 5775

September 3, 2015

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1. As we know, Halakhah distinguishes between the theoretical law, which emerges from an abstract study of the sources of Halakhah, and the law that is applied in a particular factual context, i.e. halakhah lema’aseh. See Bava Batra 130b and Talmud Yerushalmi Beitza 2:1 (R. Yohanan’s statements).

However, whereas the vision portion of the presentation deals with the decisions of halakhic authorities as as memorialized in sifrei pesak (restatements of Halakhah) and sifrei teshuvot (responsa), the the reality portion of our presentation focuses upon the halakhic-judicial rulings of a beit din.

2. The modern-day agunah is to be distinguished from the classical agunah whose husband’s whereabouts are unknown and therefore the wife cannot obtain her get. Clearly, get recalcitrance is not a modern phenomenon. Already in the Middle Ages, the phenomenon existed in both the Ashkenazic and Sephardic communities. See Teshuvot ha-Rashba 1:860-861; Teshuvot ha-Rosh 43:8, 13; Teshuvot Tashbetz 1:1, 132; Teshuvot ha-Rivash 57; Mordekhai, Ketuvot 186; Teshuvot Maharil ha-Hadashot 206; Teshuvot Maharik, shoresh 26,29,71; Teshuvot Maharam Mintz 11.

3. It is a matter of dispute whether one requires one rabbi or a beit din of three in order to address matters of igun. For this debate, see Teshuvot Terumat ha-Deshen, Pesakim u-Ketavim 139; Rema, Shulhan Arukh (hereafter: SA), Even ha-Ezer (hereafter: EH) 17:39; Helkat Mehokeik, SA, EH 17: 78; Beit Shmuel, SA, EH 17:124; Bi’ur ha-Gra, SA, EH 17(131); Ketzot ha-Hoshen HM 3:2; Netivot ha-Mishpat HM 3:1 Arukh ha-Shulhan, EH 17:118; R. Hayyim Pelaggi, Teshuvot Hikekei Lev, EH 57; Teshuvot Mahari ha-Kohen, EH 3; Teshuvot va-Ya’an Avraham 28; Sha’agat Aryeh, Kol Shahal 13 (end); Teshuvot Minhat Ani 65; Teshuvot Seder Eliyahu Rabba ve-Zuta, 125–126; Mar’ot ha-Tzovot, EH 17 (158); Atzei Arazim, EH 17 (165); Z.N.Goldberg, Lev Mishpat, vol. 1, 149-150.

Should a hearing be conducted by a single rabbi, there is a controversy whether testimony submitted to the rabbi should be in the presence of three dayanim, namely a beit din. See Helkat Mehokeik, op. cit.; Taz, SA, EH 17:56 and Teshuvot R. Akiva Eiger, Mahadura Kama 123 cited by Pithei Teshuvah, SA, EH 17 (155); Teshuvot Hatam Sofer, EH 2:130; Seder Eliyahu Raba ve-Zuta, op. cit.; Mar’ot ha-Tzovot, op. cit.; Atzei Arazim, op. cit.; Pithei Teshuvah, SA, EH 17 (152) in the name of Brit Avraham; Arukh ha-Shulhan, op. cit.; Hazon Ish, EH 27:9; Lev Mishpat, op. cit. Implicit in our understanding, should a rabbi be allowed to address such matters, he must have the credentials to be an arbiter, no different than being a decisor in halakhic ritual law but he is not viewed as a beit din. See Hiddushei ha-Granat, Nezikin 195. Furthermore, in accordance to Rabbi Michal Epstein, rabbinic approval must be sought prior to the rabbi issuing a teshuvah (a responsum) in igun matters. See Arukh ha-Shulhan, EH 17:139, 255.However, many Poskim disagree with his view. See infra chapter 8(b) text accompanying notes 57-81.

4. Kiddushin 2b

5. The act of kiddushin also creates financial duties that will be transformed into spousal duties on the completion of the marriage ceremony known as nissuin. For further discussion, see this writer’s Contractual Consequences of Cohabitation in American Law and Jewish Law, 20 The Jewish Law Annual, 279,304–311 (2013).

6. Clearly the term hafka’at kiddushin is utilized in the context of a case that may be subject to bittul kiddushin. See Teshuvot Nishmat Hayyim 87 (126); Teshuvot Zekan Aharon, Mahadura Tinyana, EH 104; Teshuvot Maharsham 6:159.

7. In numerous situations we are dealing with a get le-humra, a precautionary get and therefore it is a matter of controversy whether the children are mamzerim or not.

8. SA, EH 42:2, 5. Whether the witnesses who are present under the huppah must see the netinah only or equally hear his words of kiddushin is a matter of debate. See Rema, SA, EH 42:4; Beit Shmuel SA, EH 42:12; Teshuvot Hatam Sofer, EH 1:101; Iggerot Moshe, EH 1:82 and Sha’arei Yosher, Sha’ar 7, chapter 12.

9. Teshuvot Zekan Aharon 1:81.

10. Nishmat Hayyim, supra n. 6. See also Teshuvot Nishmat Hayyim 128–129; Teshuvot Helkat Ya’akov, EH 85.

Despite R. Berlin’s strong reservations regarding bittul kiddushin in this case submitted to him, in other rulings R. Berlin will invoke "kiddushei ta’ut", provided that there are other reasons to serve as grounds to void the marriage. See Teshuvot Nishmat Hayyim, 84, 87.

11. Teshuvot Orah Mishpat, Orah Hayyim 112.

12. Teshuvot Maharam Gavison 82. See also, Teshuvot Re’eim 36; Iggerot Moshe, EH 1:43.

13. Y. Z. Kahana, Sefer ha-Agunot, (Jerusalem, 5714), 7–76. See also Teshuvot Yabia Omer, vol. 7, EH 8. Cf. Teshuvot Maharik, shoresh 30.

14. Teshuvot Seder Eliyahu Rabba 13.

15. Teshuvot Dibrot Eliyahu 8:116

16. Dibrot Eliyahu, ibid.

17. Teshuvot Havatzelet ha-Sharon 2:28. For the implementation of this approach in the context of a commercial case, see Rabbinic Authority: The Vision and the Reality, vol. 2, 323–324.

18. Teshuvot Helkat Ya’akov, EH 56; Teshuvot Minhat Yitzhak 9:150.

19. Though in one of his classical essays R. Soloveitchik writes that halakhic concepts are a priori and it is through them that the halakhic man looks at the world, nonetheless, in rendering a psak, a decision the impact of the human and social factor upon decision making is noted. See Joseph B. Soloveitchik, Halakhic Man, Philadelphia, 1984, 3; J. B. Soloveitchik, Community, Covenant and Commitment, ed. N. Helfgot, Jersey City, 2005, 24-25.

20. A. Lichtenstein, "The Human and Social Factor in Halakhah," 36 Tradition, 2002, 1, 3-4, 6-7.

21. Bi’ur ha-Gra SA EH 17:61; Helkat Mehokeik SA EH 17:47; Hazon Ish EH 31:12

22. Taz, SA EH 17:15; Teshuvot Shevut Ya’akov EH 3:110; Teshuvot Hayyim ve-Shalom 2:35; Teshuvot Yabia Omer, vol. 6, EH 4(8), vol. 7, EH 17(8), 19(7); vol. 9, EH 36(10), 38(5); Teshuvot Sha’arei Tzion 2:15.

23. For the grounds for relying upon a minority opinion in a Biblical matter and for additional teshuvot which address relying upon a minority opinion in Biblical as well as rabbinic matters, see infra, Chapter 8(b).

24. Lichtenstein, supra n. 20, at 11, n. 30

25. Iggerot Moshe, EH 1:117.

26. Diberot Moshe, Ketuvot, vol. 1, 244–245.

27. Teshuvot Minhat Ani 51. For earlier similar observations, see Teshuvot Masat Binyamin 109; Teshuvot Maharashdam EH 45; Teshuvot Shevut Ya’akov 1:10.

28. Teshuvot Divrei Emet 9 (beginning). See also Teshuvot ha-Rosh 51:2; Terumat ha-Deshen, supra n. 3; Helkat Mehokeik, supra n. 2; Teshuvot Maharashdam EH 43-44;Teshuvot Nivhar me-Kesef 63;Teshuvot Penei Moshe 2:130, 3:15. Regardless of one’s rabbinic stature, an arbiter must possess the credentials to render a decision in matters of marriage and divorce. See SA YD 242:14; SA EH 49:3.

29. Hiddushei ha-Ritva, Kiddushin 27b, s.v. gemorah; Teshuvot ha-Rashbash 46,287; Teshuvot Tashbetz, vol. 1, 13 in the name of Ramban,vol. 2, 19 in the name of R. Shimon; Teshuvot Divrei Hayyim EH 45; Teshuvot Ma’amar Mordekhai, Mahadura Kama, EH 92.

30. Berakhot 63b; Avodah Zarah 7a. See further, this writer’s Rabbinic Authority: The Vision and the Reality, vol. 1, 35, at n. 65

31. Arukh ha-Shulhan, Yoreh De’ah (hereafter: YD) 242:63; Teshuvot Maharsham 9:79

32. Teshuvot Sha’arei De’ah 100;Teshuvot Millu’ei Even 29 (end); Teshuvot Heikhal Yitzhak, EH 2:45.

33. SA,YD 242:10

34. Shakh, SA, YD 242:17; Ba’air Hetev SA, YD 242:12; Arukh ha-Shulhan, YD 242:25; Mahaberet al Tenai, 43; Diberot Moshe, supra n. 26.

IRabbinic Authority

The Vision

Chapter 1

The doctrine of the consensual nature of halakhic divorce

Addressing the dynamics of how a Posek arrives at his decision, we observe elsewhere,¹

Prior to rendering a decision, the arbiter must acknowledge his own finitude in terms of the level of his own halakhic knowledge compared to his contemporaries and predecessors, as well as recognize the importance of rendering a psak (a decision) pursuant to normative halakhah regarding the matter he is addressing. Should compelling reasons dictate the need to deviate from normative halakhah, utilizing the canons of decision-making, he may render an autonomous judgment. To arrive at a psak, the Posek must delve into commentaries of the Talmud and responsa literature, which generally reveal their reasoning processes, as well the restatements and rabbinic court judgments, which are frequently devoid of proofs and explicit reasoning . . .

The ability to analyze and potentially overrule one’s predecessor, whether he is the author of a teshuvah or a sefer psak, requires the arbiter . . . possesses yirat shamayim (religious piety) and scholarship. In his decision-making, he must weigh the significance of contrary precedent opinion and exercise logic as well . . .

. . . an arbiter must engage in a special type of logic, "medameh milta le-milta" (applying analogical inferences for the purpose of discerning the similarities and differences between cases), in order to address new situations . . . the practice of analogical reasoning reflects the ongoing dialectic between deference to early authorities and creative innovation . . . the engagement in medameh milta le-milta is thus concomitantly a stimulant and a depressant—a spur to creativity, but equally a motive for restraint . . .

In short, ko’ah ha-hiddush (the spur to creativity and originality) is tempered by a Posek’s yirat Shamayim, his commitment to thoroughly investigate the wealth of sources, and the collaborative effort of numerous authorities in the past that have confronted similar and/or identical problems.

Once the arbiter enters into the world of issur ve-heter (ritual law), additional factors come into play prior to him arriving at a psak. Decisions emerging over the centuries dealing with halakhic divorce law, as we will show, either explicitly invoke these considerations or implicitly utilize some of these factors prior to rendering a psak.

One of these considerations emerges from the nature of halakhic kiddushin (betrothal) and nissuin (marriage). Both the acts of kiddushin and nissuin entail a consensual agreement between a Jewish man and Jewish woman. It is a very special agreement that establishes a personal status, namely that the mekudeshet (the betrothed woman) is designated for a particular man and prohibited to all others. The establishment of hezkat eishet ish (the presumptive status of a married woman) renders both the man and woman subject to various prohibitions—e.g. sexual relations with various relatives become prohibited. The act of kiddushin equally creates financial obligations that will become spousal duties upon the consummation of the act of nissuin.²

The severing of matrimonial ties is predicated equally upon both parties’ willingness to marry each other. We are taught in Devarim,³

When a man has taken a wife, and married her, and it come to pass that she find no favor in his eyes, because he found something inappropriate in her; then let him write her a bill of divorce, and give it to in her hand and he will send her from his house . . .

Elucidating upon this Torah verse, the Mishnah, various passages in the Talmud, and subsequently the classical restatements conclude that the execution of a divorce requires the volition of the husband.⁴ The potential normative status of this conclusion stems from the fact that this doctrine of a husband’s free will concerning the execution of a divorce is found thousands of years ago in the Talmudic canon, whose rulings are authoritative due to the fact that there has been some metaphysical acceptance of these rulings by members of the Jewish community dating back from the days of Rambam until contemporary times.⁵

On the other hand, normative Halakhah as recorded in the Tosefta, Mishnah, various passages in the Talmud and subsequent halakhic rulings until the early Middle Ages rule that a husband may deliver a get to his wife against her wishes.⁶ In other words, Halakhah required only the husband’s consent in giving a get.

Subsequently, over a thousand years ago, in the eleventh century, Rabbeinu Gershom of Germany enacts seventeen pieces of rabbinic legislation (or the legislation was attributed to Rabbeinu Gershom), including one providing that Halakhah mandate that the wife’s consent is required prior to the husband’s delivery of the get.⁷ The enactment was complied with in the medieval Franco-German communities and though there was originally a time limit placed upon the validity of the takanah (rabbinic legislation)⁸, nonetheless it is widely accepted that the enactment is still operative at least with regard to Ashkenazic Jewry to this very day.⁹ Invoking the language reminiscent of a twentieth century liberal mind, R. Asher ben Yehiel (known by the acronym: Rosh), who resided in thirteenth-century Germany and Spain, characterizes the takanah in the following fashion:¹⁰

It [the legislation –AYW) equalized the power of the woman to the man’s power; just like a man cannot divorce her against his will, similarly a woman cannot be divorced against her wish.

That being said, one of the ramifications of marriage is the creation of the status of eishet ish—which means, amongst other matters, that the Posek must tread cautiously in releasing a married woman from the bonds of matrimony prior to ascertaining whether there are grounds for executing a get. Absent any grounds for permitting the divorce, should a get be executed it may be viewed as a "get me’useh" (a coerced get) and according to the majority of Poskim the get would be null and void.¹¹ Therefore, should the wife rely upon this get and subsequently remarry and have children, her offspring would be halakhically stigmatized