Reflections Following the Film “Refused” (Column 349)
In recent years I have become acquainted with the phenomenon of get-refusal and the distress of women who find themselves in such a situation. Quite a few cases are sent to me asking that I find a solution (which of course is not legally recognized, since the Rabbinate has a coercive monopoly in this domain). In most of them I do not manage to find a solution, but in some I do. In part of those, I participated on a panel that annulled the kiddushin (in a manner not recognized by the law or by the Rabbinate, but halakhically valid), and in others I write expert opinions that are sent to the rabbinical courts handling the case (which usually dismiss them with scorn). Still, I think this extra-institutional activity bears fruit, since my impression in recent years is that the Rabbinate, despite its generally very conservative approach, has moved quite a bit in its attitude toward the phenomenon and in how it is handled. My sense is that constant pressure is yielding some results.
A few days ago I was sent the film “Refused,” which deals with the phenomenon of get-refusal and with the condition of the refused women (I am filmed near the end, sitting on a panel that annulled the kiddushin of a woman refused a get). I will take this opportunity to comment on the film and on the phenomenon more generally.
Halakhic background
Get-refusal arises against the halakhic backdrop that grants the husband the exclusive right to dissolve the union. The husband is the one who divorces his wife, but this is also true for kiddushin (the husband sanctifies the woman, not the other way around). What creates the asymmetry is that while kiddushin requires the woman’s consent, divorce does not. The husband can divorce her against her will. Yet this asymmetry too has largely been erased due to the ban of Rabbeinu Gershom, which forbids divorcing a woman against her will and also forbids taking an additional wife alongside one’s existing wife. Seemingly, there is now symmetry between husband and wife in divorce as well, at least on the practical level. Still, an asymmetry remains due to the halakhic difference regarding the prohibition of adultery. Halakhically, a husband who has relations with another (unmarried) woman does not transgress a particularly severe prohibition (plainly a rabbinic prohibition, and perhaps this involves neglecting a positive commandment of marriage; there are opinions that in certain circumstances even that does not apply), whereas a married woman who has relations with a man, married or not, violates a severe prohibition of arayot and is liable to capital punishment (as is her partner).
This halakhic difference creates a situation in which a husband who does not receive his wife’s consent to divorce can live with another woman without too heavy a halakhic price, while a woman who does not receive the husband’s consent remains a married woman in every respect. Any sexual relations she engages in under such circumstances are a prohibition of arayot, and children from such relations are mamzerim. Thus, even after the ban of Rabbeinu Gershom, the symmetry is not complete, and for this reason there exists a mechanism granting a husband permission from one hundred rabbis to marry an additional wife alongside his current one. A woman has no such possibility, since her prohibition is a Torah-level prohibition of arayot.
Formal symmetry in the modern world
Formally, one could quibble and argue that, at the end of the day, there is full symmetry between woman and man. The prohibition and punishment in halakha are always identical for the two partners to the transgression. Any sexual act that is forbidden to the woman is equally forbidden to her partner, and both are punished in the same way. Just as a married woman may not have relations with another man, so too it is forbidden for that man to have relations with her. For example, think of Leah who is married to Jacob. True, Jacob may have relations with Rachel, but to the same degree Rachel may have relations with Jacob. And likewise regarding Leah, who is forbidden to have relations with David, to the same degree David is forbidden to have relations with her. If so, there appears to be complete symmetry between man and woman.
But that is only a formal angle. The formal symmetry I described holds only when speaking of a specific pair (a specific man and a specific woman). If there is a problem preventing a particular couple from marrying, it exists equally for both. Yet when one looks at the general situation from the vantage point of an individual vis-à-vis the rest of the world—namely, one asks what options a given woman or man has—there the symmetry disappears. Practically speaking, a married woman has no solution for forming another relationship (if she wishes to dissolve the union), whereas a married man does (even if, due to the ban of Rabbeinu Gershom, the original union has not been dissolved).
In a certain sense, this picture cuts between the modern world and the traditional world. The modern world advocates marriages of love after acquaintance; accordingly, the restrictions address both partners. A particular man and woman fell in love and wish to marry. Regarding this question, the situation is indeed entirely symmetrical: if it is permitted, it is permitted to both, and if prohibited, it is prohibited to both. But in a traditional world, the match is generally not made on the basis of prior acquaintance but through search and suitability, with the acquaintance and emotional bond forming afterward. There, the question is what options stand before the woman or the man vis-à-vis the world—whom he or she may get to know and with whom each can try to build a home. With respect to this question, there is a clear asymmetry between men and women: a married woman has no options at all, whereas a married man can try his luck among all unmarried women.
The film “Refused”
The film depicts the problem of get-refusal and the constraints it imposes on women. It follows several women who have been for years in a state of refusal, within which the husband also tries to extort them and to extract various concessions (regarding property or children). One of the women is a convert who came to Judaism and found there an inequality she had not been aware of. She found herself practically an agunah because her husband refuses to give her a get, and she realizes that for the rest of her life she is not going to enter such a system. The film presents a very typical negotiation between the spouses via a rabbi who has influence over the husband, in which various incentives are offered to persuade him to release his wife.
In one of the cases I myself handled, the Rabbinate courted the husband and offered him a monetary bribe to release his wife. Note well: a state institution in Israel offered a monetary bribe to a person so that he would comply with the law (the court ruled that he must divorce his wife). In the end, after we had already annulled the kiddushin, the bribe achieved its purpose. The husband relented, and the Rabbinate presented this as an achievement worthy of pride and as an expression of its great dedication to solving the problem of women refused a get (which did not really manifest in the proceedings, to put it mildly). This reflects the impotence of the state institutions in confronting the power and unequal status that halakha grants the husband.
Despite the natural empathy I feel for women in such circumstances and the activity I try to engage in to advance their cause, while watching I found myself reflecting on get-refusal and the discourse around it, and I will now present those reflections.
The film’s bias
It is hard to face situations in which one sees a woman suffering for years and crying out of helplessness—especially when there is, in the background, a genuine halakhic injustice. Still, the picture presented in the film is one-sided and, in my opinion, also misleading. From my experience, in almost every such case (indeed, in almost every human situation) there are two sides to the coin. Naturally, the film presents only the woman’s side, but the husband is also a human being and he too has a point of view.
For example, in one case in which I was involved, after we annulled the kiddushin, I happened—by chance—to learn that the couple’s story had been going on for many years and had made its way through three court instances. The husband accused his wife of kidnapping their daughter (she traveled with her to Israel and refused to return her abroad), and the magistrate’s court and then the district court ruled that there had indeed been a kidnapping. The Supreme Court reversed the decision—though it too agreed that there had been a kidnapping—yet ruled that, due to the child’s welfare, she should not be returned to the husband abroad.[1] Once I heard this, I thought to myself that get-refusal likely served the husband as a bargaining chip in his dispute with his wife over returning the child. Suddenly, this looked rather legitimate (even if not legal), and I concluded that, had I known this from the start, I would not have intervened in that case. I stress that the annulment of kiddushin in that case is entirely valid, and I fully stand behind the ruling. But the motivation to intervene and conduct a parallel extra-institutional procedure does not exist when, on the human-moral plane, we are not speaking of saving the oppressed from his oppressor.
This case illustrates the fact that, in such a dispute, there are usually two sides, and one must hear both in order to form a view. Each side has reasons for its conduct, and even if that conduct is improper and subject to criticism, the full picture is almost always different from what it appears at first glance. From watching the film, I had the impression that even in the cases presented there it is quite plausible that there was another side we were not shown (and at times this is even hinted at in the film itself). Thus, for example, in the case of the Belgian convert, I gathered that a similar situation existed. There too the mother took the child, and the husband is apparently trying to use whatever tools he has to force her to allow meetings. If so, the film is decidedly slanted toward the women, and naturally the other side is not presented. But to the best of my understanding and knowledge, in most cases there is indeed another side.
This is a lesson for social debates in general, and especially for matters of religion and state. By their nature, such debates are laden with emotional baggage; they involve people who suffer and are embittered, and it is very easy to present images of misery and misfortune in order to sway public opinion. Moreover, a film focuses on particular characters, and it is very difficult within that medium to present a general and balanced picture that covers all sides and situations (see, for example, Column 335 on the film “The Social Dilemma”). On the other hand, film is a powerful medium, since it places the viewer in the shoes of the sufferer and inside the situation, creating identification with the characters. A personal encounter is a powerful medium for generating identification (cf. the common critique of films like “The Godfather,” which create identification with very cruel and negative characters). Thus, for example, films that depict suffering Palestinians—or, alternatively, cruel and murderous ones—convince people to support this or that political agenda. But again, this is an unbalanced picture of particular cases that does not take account of the full range of factors, and this is true even where the director is not trying to manipulate and is being honest in presenting the picture. The problem arises from the very medium. Therefore one must be very cautious about forming an opinion on the basis of such films—even though it is certainly important to watch them and to take into account what they present.
Inequality and the problems it creates
What I have written here is not a defense brief for the equality of halakha or of rabbinical court procedures. Halakha contains a problem of inequality and of granting excessive power to the husband over his wife. Even without judging this and discussing whether there is room to change it (Rabbeinu Gershom apparently tried to introduce some change in an egalitarian direction), it is still clear that this is what generates most of the phenomena I have described. If there were halakhic symmetry between the parties, there would generally be no need for the parties to deploy levers of power, and the phenomena I have described would not appear—or certainly not with such intensity. Because of this fundamental problem, and because the parties and the courts try to grapple with it, additional pathologies arise; attempted solutions and workarounds create yet more problems; and the halakhic-social snowball rolls downhill, generating ever more suffering and difficulties along the way.
By the way, as part of this phenomenon, it is important to understand that not a few of the problems that arise around marriage in Israeli society at large (common-law unions, living without marriage, and the like) are a result of imposing halakha on the public sphere (which ostensibly is intended to prevent them). When one cannot divorce conveniently, freely, and equally, people are deterred from marrying. Some marry “according to the law of Moses and Israel” and do not register, which of course can create problems of mamzerut, consanguineous marriages, and more. Those who have already married sometimes do not divorce but live with partners alongside their regular relationship (polyamory, anyone?). Thus, at least de facto, polygamy is created under the protection of law, and a troubling anarchy in the realm of personal status. This is bound up with halakhic and legal problems that are not simple, and all this is the result of the desire of the Rabbinate and the religious public to promote family life and to protect the institution of marriage in Israel.[2] Problems that arise on the halakhic plane swell on the social-public plane and create serious social and personal difficulties. The attempts to circumvent them in turn generate further problems. The assault comes each time from a different direction, and in the process the matter of personal status—and certainly the attempt to give it a halakhic character—dissolves. This is of course part of a broader phenomenon of the disintegration of traditional family units, but I suspect that here in Israel the policy that imposes halakha on the public contributes not insignificantly to these processes.
Another example is the impact of the ban of Rabbeinu Gershom. Rabbeinu Gershom came to improve the situation to some degree, but now women too can refuse to consent to a get. Thus we reach a situation in which, according to Rabbinate data, the number of men refused a get exceeds the number of women refused a get. This is an example of the same phenomenon of adding epicycles and deferents in an attempt to solve the problem within the existing paradigm, but causing the emergence of other problems from different—and sometimes unexpected—directions. The free market and individual initiative will always confound attempts at centralist social engineering.[3]
As I explained above, even when kidnapping a child is used as a weapon to force a get, sometimes the situation created is the opposite: the kidnapping generates the refusal, or at least encourages it. This holds even if the woman’s initial motivation was to obtain a get; still, with such an impulsive act she shoots herself in the foot and creates the ongoing problem. This is naturally accompanied by constant propaganda against the husband such that the child himself no longer wishes to live with him, and thus the rabbinical court or civil court will rule (the child’s welfare). In short, this is a snowball effect with many problems generated both by the halakhic complications and by the attempts to solve or circumvent them. Usually when we think up a method of social engineering—that is, to manage life in the way that seems most sensible to us—life kicks back from unexpected directions. Life is far more complicated than we think and than this film depicts.
People who are not committed to halakha
As I explained, a man deemed married has more halakhic options, because relations with another woman are not as severe a prohibition as they are for a married woman who has relations with another man. But in a large share of cases, we are dealing with people who are not very troubled by halakha (and those who have been through all this will in any case usually not enter a halakhic marriage again). The film itself presents a case of a woman refused a get who came to our court while pregnant by another partner.[4] That woman did not allow the halakhic constraints to affect her. And yet it is clear that such men and women also wish to marry formally—and at times even halakhically—and this is not possible for them.[5]
Religious coercion is usually practiced “for the benefit” of the secular (to help them preserve their Jewish identity and to save them the troubles of intermarriage, and so forth). At least this is what its proponents declare, and I personally believe them. But the costs are such that, in the end, the goal is not achieved, and in many cases the situation even worsens. Moreover, as a result the secular are very angry about the coercion and about the religious, and they see it as a power mechanism aimed at self-interest—amassing power, money, and positions for the religious—and above all, creating a religious character for the state. The desire to help them and to know better than they do what they themselves want is, in my view, absurd. There is no logic in paying such a price in order to “help” adults who do not want that help and then to absorb from them the ricochets and accusations for having done so.
In any case, again and again one can observe that the combination of halakhic coercion with a public that is not committed to halakha—whom one tries to force to behave according to it—is a sure recipe for trouble.
Suggestions
We cannot avoid saying something about alternatives. I will briefly point to several planes on which the situation can be improved, moving here from the weighty to the lighter.
First, there is the option of separating religion and state. The state would allow anyone to marry according to his or her understanding and in whatever forms they choose. Proper registration would be required, of course, to provide relevant information to all who need it. Note that today, when this is not allowed, there is no orderly registration and anarchy reigns. People take the law into their own hands, marry privately, and do not register. Thus a situation is created in which there is no proper legal tracking of the personal status of many Israeli citizens.
Second, other alternatives can be offered alongside the halakhic one. People who do not wish to manage their personal-status matters via the Rabbinate will do so via the civil courts or municipalities, as is customary worldwide. In this way we will not have to manage the lives of people who do not desire it. In the most conservative and moderate formulation, this is essentially Rabbi Dichovsky’s proposal to conduct “Noahide marriages” in Israel even for Jews. Dismantling monopolies generally benefits the system, and this is also true in the religious sphere (kashrut, marriage, burial, and so forth). But dismantling such a monopoly does not mean the absence of regulation. The regulator would merely ensure that each such track is conducted transparently (in line with its stated policy), so that consumers know what they are getting. And, of course, proper personal-status registration is needed for the public good, and that too is the regulator’s role.
Third, the rabbinical courts must display greater halakhic flexibility. There is no reason always to capitulate to the more conservative directions and to fear their own shadow. Very few times in human history have rabbinical courts been given authority and power to act under the law and with its backing, and this should be leveraged toward positive directions (today it is leveraged mainly toward negative ones). There are circumstances in which the kiddushin can be annulled without any concern, but the courts are very reluctant to do so. Again, beyond political fear (of conservative circles), there is concern about harming the stability of the couple’s bond and the institution of marriage. But they fail to notice that their policy harms, at least as much and usually more, the marital bond and the institution of marriage. Beyond this, as a general matter, policy considerations should come at stage B, after discussing the matter on its merits. First and foremost, they should acknowledge that, on the merits, kiddushin can be annulled in certain circumstances (which, to my understanding, are quite broad).[6] Within this framework, state mechanisms should be enabled to assist such proceedings, such as Prof. Berachyahu Lifshitz’s proposal (full disclosure: a friend) for the state to confiscate the money of kiddushin, or Rabbi Shilat’s proposal to physically flog get-refusers until they say “I am willing,” as well as conditions and pre-nuptial contracts, and more.
Concluding note: On the nature of the marriage contract
Marriage is, essentially, a kind of contract. I have already written here in the past that I am dismayed to see how crudely this contract is trampled. Infidelity by spouses is received in broad circles with disturbing leniency, ignoring the contractual and moral dimension of the matter. But at times this is a reaction to the fact that the establishment and the law try to force the contract’s continued existence even where there is no place for it.
On the other hand, it is a very binding contract; therefore it is important to institute efficient, clear, and as equal as possible ways to dissolve it. The policy of the Sages and the halakhic tradition that adopts an approach of trying to make dissolution difficult has no place in our day. It is fitting to ensure that a home is not dissolved on a mere whim, but once a decision has been made there is no justification for the path of suffering that the spouses must traverse and inflict upon one another. That path can be halakhic or otherwise, in accordance with the suggestions in the previous section—but in a modern world, such a path must exist.
One cannot run a state in the twenty-first century according to traditions and rules that were set and tailored for Jews in Babylonia or in the Land of Israel in the first centuries of the Common Era, in medieval Provence or North Africa, or in the Ottoman Empire of the early modern period. It is utterly unreasonable to determine the wishes of women in twenty-first-century Israel (“it is better to live as two than to live alone”) according to precedents and insights from those times and places. And certainly one cannot expect there not to arise public anger when such a frozen policy is imposed on a public that is not at all committed to the entire halakhic system (even were it updated and contemporary). That anger is what generates a host of outrageous phenomena and engenders problems from different and unexpected directions, and of course gives rise to an angry and unbalanced discourse—some of which could be seen in the film mentioned above.
[1] I have used this ruling more than once in the past to present the logical paradox known as the “paradox of adjudication.” See, for example, Column 257.
[2] As our sages have already said (ibid., ibid.): The institution of marriage is a wonderful institution—but who among us wishes to live in an institution?!
[3] On this, Milton Friedman already said that what saves the State of Israel is two thousand years of exile. Despite all the government’s attempts to ruin the state, individual initiative and the diasporic mentality that leads us to evade and ignore the law prevent those attempts from succeeding.
[4] By mistake—or simply to heighten the drama—the situation is presented there as if there is urgency to annul the kiddushin in order to save the child from mamzerut, which is of course a misunderstanding. Annulment of the kiddushin, to the extent it is done, operates retroactively, and the child is not a mamzer even if this happens after he is born.
[5] It is true that on this plane there is symmetry between man and woman: he too cannot remarry without first separating from his first wife.
Discussion
I tend to agree, although Rabbi Dichovsky’s proposal (and also the Rogatchover’s) does not seem precise to me. There is no need for a get there because this is marriage without kiddushin, as Maimonides describes at the beginning of Hilkhot Ishut (I assume that is what you meant). I have written at length in several places about marriage as a two-story model (universal—marriage, and on top of it particularistic—kiddushin), and about the practical ramifications of this. The get dissolves the kiddushin, while marriage is the natural state of living together as a couple, the “bringing her into his house” of Maimonides there, and that is terminated by ending life together. “Sending her out of his house,” in his language there.
That said, this proposal still assumes halakhic control over the field of kiddushin, and therefore seeks halakhic recognition or some halakhic status for such a relationship. I tend to think it is more correct to open the market and not require halakhic recognition as a condition for personal status on the legal plane.
You wrote—
Marriage is basically a kind of contract. I already wrote here in the past that it is astonishing to me to see how crudely this contract is trampled. The unfaithfulness of spouses is received in broad circles with troubling tolerance, while ignoring the contractual and moral dimension involved.
So why?
For a person who is not religious, who says this is immoral? And it is not even certain that there is a contract here.
It is immoral because one is acting against a person to whom one promised not to do this. And there is definitely a contract here, even apart from halakha.
More power to you.
The one-sidedness also lies in the fact that there are many men whose wives refuse to accept a get, since the law in the State of Israel does not permit divorcing a woman against her will.
Unfortunately, I was forced to endure many months of litigation and a difficult situation, for us and for the children, of being “separated,” until my ex-wife was kind enough to agree to divorce in exchange for a substantial sum.
At the time we established the organization “Fathers’ Rights,” which deals with discrimination against divorced fathers. During a visit we made to Rabbi Eli Ben-Dahan, who was then head of the rabbinical courts, he told us that the statistics show there are far more divorce cases opened by men and still unresolved because of the wife’s refusal to accept a get than cases opened by women—the opposite situation, as depicted in the film.
There was once an affair involving a get by conferment in the Safed rabbinical court; the topic interests me מאוד and perhaps others as well. I would be glad if the rabbi would write a column about it. Thank you.
1. I am very puzzled by you. Very conservative rabbis permit many agunot. Rabbi Ovadia Yosef permitted huge numbers of agunot, and so did Rabbi Goren and Rabbi Grazer-N. In general, all of halakha is full of releasing agunot.
2. Why can’t society operate according to the rules of the Gemara? I stress that I am not talking about the conduct of the state, where there is not so much halakha from Talmudic times.
3. Could you explain the reasoning behind retroactively annulling kiddushin because the woman would not have wanted to become an agunah? You could use that to annul every case of aginut in the world.
1. Halakha is “full” of permitting agunot when it is unknown whether the husband is alive, not when he refuses to give a get.
Indeed, that is a very interesting ruling. Its first half is apparently based on a ruling that I wrote (there they speak of annulment of kiddushin as a supporting branch). Perhaps I’ll write about it sometime if I get the chance. I have to say that I really did not agree with that ruling.
1. Go out and see. And also see Beit HaLachmi’s comment here.
2. Go out and see how things are conducted in the rabbinical courts.
3. See the ruling to which I referred. The Gemara itself (Bava Kamma 110) speaks about retroactive annulment of kiddushin.
I already wrote in the past that halakha’s perspective is almost the opposite of the Torah’s intention.
From the Torah’s perspective, the matter of the get is essentially meant to protect the woman from abuse by the husband. And halakha creates the opposite situation.
“And it shall be, if she find no favor in his eyes because he has found in her some indecency, that he writes her a bill of severance, gives it into her hand, and sends her out of his house.”
The giving of the get is an obligation in a case where she no longer finds favor in his eyes. And if he does not give a get, then he violates what is written several verses later:
“If a man is found kidnapping one of his brethren of the children of Israel, and he enslaves him and sells him, then that thief shall die; and you shall remove the evil from your midst.”
A man who does not give his wife a get is very similar to one who kidnaps a person, and is liable to death. When one is liable to death, matters of law and contracts are void.
Halakha ignores this important point that underlies the get.
What a strange inference.
1. Who says he violates what is written a few verses later?
2. According to the Written Torah, the man is the only one who can give a get.
3. According to the Written Torah, the get is given because he is displeased with the woman. How exactly does that protect the woman?
After separating religion from the state, will the concept of marriage have any legal significance at all?
For the past several thousand years, marriage has been a religious concept (true, only because religion and morality were identified with one another)—based on the prohibition of adultery.
One could simply abolish the concept of marriage entirely from the law books. It would be a religious/moral matter between a person and himself, and it would be considered a personal contract, alongside which a legal contract would be signed, if anyone is interested in that at all. There would be no difference between students renting an apartment together and a family with a flourishing relationship and ten children.
Between that extreme and the present situation, you can draw the line in all kinds of places—recognize same-sex marriage but not polygamy, and so on. But those decisions would be arbitrary.
You can easily solve the imaginary “problem” by recognizing that this is an imaginary system of rules.
1. Who says so? The Torah. Holding someone by force is very similar to kidnapping. Is the explanation unclear, or what exactly is unclear there? Or is there some agenda here that ignores straightforward reading comprehension?
2. I said that according to the Torah the man is obligated to give a get. It is not left to his choice. “Finding favor” because he found in her indecency is not a matter of choice and decision, but a description of a state of affairs in consequence of which he must give a get.
3. The moment you hold someone whom you hate (because she deceived you or betrayed you), then you are abusing her. And the Torah opposes that.
The criminal mindset of a certain type of men is incapable of understanding the Torah’s words in their plain sense; they need permission to abuse.
I don’t think there is agreement or understanding regarding the terms of the contract, and therefore it probably has no binding force.
The ketubah is in Aramaic, so most Israelis do not understand what it says and think it is just some esoteric ritual.
Even among the population that understands Aramaic, the ketubah is not taken seriously as a binding document (they sign—“I will work, honor, sustain, and support”—and then send the wife out to work).
If we want the ketubah to function as a binding document, we would need to write it simply, with clear rules and sanctions in the text itself, and not assume that everyone agrees on the meaning of the contract (what exactly does “and I will honor you” mean?)
I suppose I would like to see a “lean” ketubah that defines the minimal set of duties and rights.
No cheating, no physical or verbal violence, plus a clear financial agreement.
Maybe it would be worth adding an appendix regarding children—how many they want and who will care for them (I don’t know how to make that binding).
There should be a clause allowing the contract to be dissolved with reasonable notice (including a mediation mechanism), without sanctions for the breach (assuming the lean contract was not breached).
1. That is your inference. “Holding someone by force is very similar to kidnapping” is your own idea. Just for the record, I hope you understand the great difference between kidnapping a person and not divorcing a woman.
2. If the man is obligated to give a get, that means he alone can dissolve the relationship. How is that different from halakha?
3. According to the plain sense of the Torah, the problem is being married to someone in whom there is “indecency.” What exactly does that have to do with what you are saying?
Well said, Chaim.
Obviously. Why does every legal system in the world have a branch of personal status (marriage and divorce)? Because this has legal implications: who inherits from whom, who makes decisions, who receives rights by virtue of his or her spouse, and so on.
Of course, you can refrain from setting defaults and tell people that they must determine everything themselves. But I think that is inefficient, and many would not do so.
The ketubah is not the kiddushin/marriage contract. Everyone understands what marriage means, and on the contrary, the details in the ketubah are usually something theoretical that in many cases is not implemented.
1. There is a certain type of men who want the possibility of abusing a woman, so in their imagination the difference is large, whereas in fact the difference is almost nonexistent. In both cases, we are dealing with an act that harms the freedom of the other party and is imposed on him or her against their will.
2. According to the Torah, the man cannot. He is obligated. The man does not have this freedom that abusive men wish he had.
3. The Torah does not say that it is problematic that there is indecency in her. The Torah says that if, for that reason that you discovered, she suddenly no longer finds favor in your eyes, you must divorce her (and not start abusing her because she hid things from you).
Everyone understands what marriage means?
I have yet to encounter a non-trivial concept that everyone understands/agrees on its meaning.
I would be glad if the rabbi could summarize what marriage means, and let the public judge…
I suggest a different cheerful amusement: try, in good faith, to offer a summary of what marriage means in the eyes of the reasonable person, and then volunteer someone who will cheer you up with a summary of the difference between his summary and yours.
1. Do you not understand that you are stating your own opinion and that this is not the plain sense?
2. And if he does not listen?
3. The fact that in modern Hebrew “ki” means “because” does not mean that this is the Torah’s meaning. As is well known, in the Torah it has four meanings, and I assume you know that. Even if you say that the meaning of the word “ki” is “because,” it still does not fit your approach. According to what you say, the Torah should have stopped after the phrase “and it shall be if she does not find favor in his eyes,” because according to you anyone who hates his wife is obligated to divorce her, so what difference does it make whether there is indecency in her or not?
Besides, show me where halakha says that it is permitted to abuse a woman.
4. In your opinion, do divorces happen against the man’s will? Then for what case was “and he gives her a bill of severance” written? It is completely unnecessary if the divorce happens even without the man doing anything.
1. I always say what I think, just as everyone always says what they think. It cannot be otherwise. So I explained that there is a certain type of men with a certain mindset that allows them to abuse a woman and treat her like a slave, and from their perspective they will understand that as the plain sense of the Torah in the distorted way their mindset dictates.
2. If he does not listen, he violates a Torah prohibition. And if it gets to the point that he is willing to release her in exchange for money, then it really becomes identical to the law of one who kidnaps a person and sells him, who is liable to death. And halakha ignores this.
3. “Because he found in her indecency” broadly comes to explain how it could be that suddenly she no longer finds favor in his eyes. True, this point is open to interpretation—whether it is a binding condition or merely an example.
4. The bill of severance serves the social order, to prevent a situation of promiscuity, and for the woman, so that when she goes to another man she can prove to him that she is not a married woman but is free.
1. Do you really not see the difference between kidnapping a person and preventing him from marrying someone else? Even if both are appalling, that does not mean they are the same thing.
2. Same as above.
3. According to what you say, the Torah should have stopped after the phrase “and it shall be if she does not find favor in his eyes,” because according to you anyone who hates his wife is obligated to divorce her, so what difference does it make whether there is indecency in her or not? You did not answer that.
4. If the divorce is against the man’s will, the court can write the document. There is no reason in the world why the man should have to give the get.
I have somewhat of an ignoramus’s question in practical halakha:
Is the leniency based on the rule that “one betroths subject to the Rabbis’ consent,” and therefore requires a court, or is it based on mistaken transaction? And if so, why is a court needed to determine that this is a mistaken transaction? Why can’t a single judge see (especially in extreme cases) that this is an unreasonable and illogical case, and thus automatically…? And is annulment of kiddushin some specific legal effect that requires more than the judge’s understanding that this is a case of mistaken transaction?
1. You raised another important point in which abusers sin. The situation in which a woman is no longer in the house and also has no get is a situation forbidden by the Torah. “And he sends her out of his house”—a woman sent out of her house must have a get; the opposite situation is forbidden. But abusers do not have the sense to understand this.
The problem is not kidnapping in itself, but the combination of kidnapping and abuse, with the emphasis on the abuse. As opposed to a case where you kidnapped someone and made him the happiest man alive. The whole point of get-refusal is one thing: abuse. And the Torah says that social contracts such as marriage do not justify violating basic rights such as freedom. And halakha does not accept that.
3. As I said, the matter of “indecency” is not entirely clear, but it adds something to the lack of favor. This is not just any conflict but something that causes a rupture that cannot be bridged, in which case he is obligated to give a get, and this is an individual matter—for each person it can be something else.
4. In the Torah there is no court telling a person what to do, and no rabbis who marry and divorce people, and all this bureaucratic nonsense that came later. There is a social order in which each person must participate. And one who does not is sinning.
With God’s help, 18 Kislev 5781
The divorce in the Torah was intended to allow husband and wife to build independent lives after divorce. By contrast, the divorces to which the various “women’s organizations” lead are one-way. The woman will go out to an independent life of her own, while her former husband will be the primary provider for the “new family.”
Not only is the divorcé required to pay inflated “child support” beyond his financial means—he understands that this is only the beginning of his troubles, because every other day he can expect a lawsuit over one “exceptional expense” or another. He is thrown out of his home. He will see his children only במסגרת restrictive “visitation arrangements,” but he will continue to be a “bottomless pit” supplying the ever-growing financial demands of his ex-wife and her lawyers.
So there are those who “swallow their spit” and continue living as submissive slaves to “the ex-wife’s treasury,” with no chance of getting back on their feet and building an independent life; there are those who break and commit suicide; and there are those who try to make use of their right to delay giving the get, in order to secure a reasonable economic existence for themselves after the divorce, without being victims of unceasing “economic violence.”
The solution that will speed up the divorce process is ensuring fair conditions for both sides. When both parents are allowed a reasonable economic existence and preservation of the relationship with the children even after divorce—the way is paved for a divorce process conducted with dignity and mutual consent, for the good of the parents and the children alike.
Sincerely, Yaron Burlai Halevi Warkaheimer
Are you a Karaite? (It makes no difference to the discussion itself, but maybe it would explain why you are talking nonsense.)
1.a. Your move is: it is written that when one gives a get one must send her from the house, therefore it is forbidden to send her from the house without a get. You decided that on your own. b. The problem in kidnapping is the kidnapping itself. If you kidnapped and then released him, then you are no longer kidnapping him. c. No one is justifying husbands who refuse to give a get.
3. What a strange way the Holy One chose to write His position, according to you. Why would there be a command written in fixed terms when it is actually individual? According to what you say, it should have said that they are in a very deep conflict (something like “and he hates her”).
4. “If a matter is too difficult for you…” See there.
Gabriel, I’d be happy to try to answer. But first, if you would kindly enlighten us as to what the following expressions mean:
“concept,” “trivial,” “understand,” “summarize,” “judge,” and “the public.” Once you define the meaning of those expressions for me, I can try to answer you.
This ignorance characterizes quite a few Torah scholars and decisors, who really do confuse these concepts. You are in good company.
We are talking about something like mistaken transaction, but here it is annulment due to a future event and not present information, and therefore we called it an estimate. If you are interested, you can read the ruling.
Your comment about the need for a court is very correct. In principle this is a halakhic ruling and not a judicial decision, especially since we did this for the woman without the husband being present. But in matters of marriage and sexuality (a matter of ervah), it is customary to make decisions in a court panel.
In the same way, someone who sold an apartment and discovered that a few months later its price had risen—not only would demand to cancel the sale because of an “estimate” that had he known the price would rise he would not have sold, but would also appoint his own representatives to serve as a “court” that would unilaterally annul the agreement he signed. As the saying goes: “He is the litigant, he is the witness, he is the judge” 🙂
In bewilderment, Chayim Balau
Indeed; at some point I will pass along your questions and bewilderments to Rav Ashi and Ravina. I am sure they will be happy to answer you.
What kind of estimate is it that if she had known he would flee immediately after the wedding she would not have accepted kiddushin? What is the difference between that and saying that if she had known that after 10 years he would beat her, she would not have accepted kiddushin? Or that he would not remember her birthdays 20 years later? This estimate also seems somewhat difficult to me. The estimates there in the sugya also concern some kind of defect or reality in the levir (or in the husband)—without connection to mistaken transaction—such as one afflicted with boils or an apostate. That is a reality that already exists and is a concern. Here it is a behavioral matter. No one knew and no one could have known (except the Holy One, blessed be He) this, and according to the rabbi this reality of fleeing also did not exist at the time of the kiddushin. This situation also is not similar to someone who unexpectedly converts out of Judaism after a week of marriage. It is a matter of a quarrel. There are people (in the U.S.) who also got divorced after a month or a week because of quarrels. Could one also say about them that there is a conclusive estimate and annul kiddushin?
I addressed these points in detail in the ruling. Simply speaking, in the Gemara in Bava Kamma it is not about information that existed at the time of the transaction but about future information (the brother-in-law became an apostate after the wedding). Likewise with one who sells his property on condition of ascending to the Land of Israel; there too the event that annulled the transaction took place afterward.
When he fled the day after the wedding, there is no tan du here, and therefore even according to the Gemara’s premise in Bava Kamma that a woman prefers to marry anyone and have tan du at any price, here, where she did not get her tan du, one cannot say that this was acceptable to her. That is obvious.
In a place where she did have a period of married life and things happened afterward, it really is more complicated, although even in such situations one can say that the kiddushin are void because she did not consent on that basis. But that requires expansion beyond the cases in the Gemara (such expansions have already been made by later decisors).
Even by your reasoning, if at the time of the wedding he planned to flee, then it is like one afflicted with boils.
I meant to respond to Emanuel before I saw the previous comment, and you can delete my unnecessary comments here.
It is not unnecessary. You are right. Except that in my opinion there is no need for that, because even if he did not plan it in advance, the kiddushin can still be annulled. I included that in the ruling as well.
I am the Last Posek. Neither a Karaite nor an Amora.
1. According to the Torah, there is a prohibition against sending the woman away without a get.
Beyond the obvious cases that everyone would agree are kidnapping, there are intermediate cases that raise questions, and therefore this is not a well-defined concept. For example, if a rabbi succeeds in causing others to follow him, there is here a kind of kidnapping carried out psychologically. He has taken control of their desire, and they have no control or choice over it.
Therefore I say (and you do not understand) that what is important in determining whether a particular action is bad or good is not the “kidnapping” itself but the interest behind the act and whether it benefits or harms the person. But you cannot understand this. So skip it.
3. You are getting hung up on a point that I said is problematic and open to interpretation. But the abusive interpretation that you advocate is certainly not one of them.
For people like you the Torah had to write an explicit verse:
“If a man is found kidnapping one of his brethren of the children of Israel, and he enslaves him and sells him, then that thief shall die; and you shall remove the evil from your midst.”
But even that does not help, because you interpret the matter in the distorted way that permits kidnapping and abuse.
4. “If a matter is too difficult for you”—that is when you choose to go and consult. “Then you shall arise and go up.” Not that they arise and come down upon your life on their own initiative to justify their salary.
Not the permission of two hundred rabbis, but one hundred rabbis.
One may also ask, according to the view that God “removed His providence” from His people: can the bride, the congregation of Israel, not claim a “conclusive estimate” that had she known at the time of the making of the Sinai covenant that the “groom” would decide to stop caring for his bride and leave her exposed to the forces of nature, would the “bride” have undertaken to keep the 613 commandments on that basis? Is there not here a “great protest against the Torah”?
Sincerely, Y. Ben-Shafan
And perhaps that is the meaning of “they reaccepted it in the days of Ahasuerus,” when the Holy One, blessed be He, showed that even in states of “hiding His face,” He continues “to work behind the scenes” to save, help, and protect His “bride,” and will not abandon her forever.
Sincerely, Yaron Dov Spiegel-Yeshpeh
She could have, but she did not claim it; from here, a great protest against the great protest.
With God’s help, 21 Kislev 5781
To “Eshtamoda'ana”—greetings,
The claim that “the Lord has forsaken the land” has been hurled at the people of Israel more than once, beginning with the gentiles who said in biblical times, “Where is your God?”, and continuing in the Middle Ages, when the gentiles displayed the statue of the “triumphant Church” opposite the humiliated “Synagoga,” and said to the Jews, “Who is and where is your beautiful beloved among the myriads, for whose sake you are fed to the lions?”
Historical experience shows that what sustained the people of Israel throughout the generations was the faith that the “hiding of the face” is temporary, and that their hope had not vanished for the bright future in which God would reveal Himself and save His people. In Spain, where many Jews followed the Aristotelian conception that denied divine intervention in the world—there were hundreds of thousands who did not endure in times of distress and abandoned the religion devoid of hope.
Those who believed that “there is a future”—they are the ones who kept the flame of Judaism from being extinguished.
Sincerely, Yaron Noam Spiegel Burlai
That is certainly a good question. But in my opinion there is no claim here of a “great protest,” just as in the case of a bride whose husband holds her and later, when he sees that she can stand on her own and her capability has grown, he releases her. Similar to one who says: “I do not wish to be supported, and I will not work.”
One should note that the bride is the people of Israel throughout all its generations, not only us. From that perspective, the Holy One, blessed be He, did give the bride tan du, and only when He saw that we were more mature did He let go.
Let your ears hear what your mouth is saying: “For example, in one of the cases in which I was involved, **after** we annulled the kiddushin, I happened to discover that the couple’s story had already been going on for many years and had gone through three instances in the courts.”
So maybe it is not such a bad idea for the rabbinate to have a monopoly—because unskilled rabbis like you come along—who are not knowledgeable about the legal proceedings and the family history of the couple and rule on annulment of kiddushin without knowing the facts.
The privatization of the rabbinical courts leads to a failure to understand what a systemic state perspective is. [In parentheses I will note that I would be happy for there to be alternatives to the rabbinical court and that it not be a monopoly—but your above remark proves why (among other things) the alternative you propose is not good.]
My ears heard very well what my mouth said, and unfortunately they also read the nonsense you are writing. The rabbinate too was unaware, and acted in its usual unprofessional and even scandalous manner.
If you had exercised a minimal ability in reading comprehension, which you manifestly lack, you would have seen that I distinguished between the validity of the ruling and the motivation for taking up the case. A distinction that has no place in an official institution.
As for your assessments of me, any further criticism from a fool only strengthens me in my path. So many thanks to you for your words. Go forth and prosper.
With God’s help, 21 Kislev 5781
To Rabbi M. D. A.—greetings,
Well then, it seems that it was not the “groom” who decided not to intervene, but rather the “bride” who asked him, “Do not storm and do not yearn.” I already know and am familiar with all the laws of nature and manage without your help!
It occurred to me that this is why the prayer begins with “Shield of Abraham.” To teach us that even the greatest success-story among giants—a man who possessed great wealth that he attained through his own labor and effort, a man who won the esteem of the society in which he lived to the point that they called him “a prince of God among us,” a man who was victorious in battle against mighty kings—still continued to recognize his need for his God to help, protect, and save him, and rose early every morning to pray to his God and ask Him for help.
Sincerely, Yaron Noam Spiegel Burlai
Why does every legal system in the world have a branch of personal status (marriage and divorce)?
Maybe because the view that almost every form of shared life is legitimate is fairly new (a man and woman living together without marriage has been accepted mainly only in recent decades, homosexuality a bit later, and polyamory is currently fighting for legitimacy).
Not at all. As I explained, even if everything is accepted there is still a need to regulate personal status by law, in order to prevent anarchy in various aspects of the family unit.
1. Personal service contracts [a laborer, in halakhic terminology] can be canceled unilaterally, in halakha and in law. At most one has to pay compensation.
2. A large part of the problem in the area of coercing gittin is that the rabbinical court has no ability to coerce by beatings; this primitive means works beautifully, unlike imprisonment.
And in my opinion it also fits contemporary moral standards. Just as a person is forcibly removed from another’s property, so should a person be forcibly removed from another’s freedom.
1. I did not really understand the background to this message. But not every personal service contract can be canceled. For example, this speaks of the subordination of a hired laborer, not an independent contractor. It is also likely that this is a laborer hired for a minimal period, like a day for example.
2. I do not know how well that would work, but I have already written in the past that I completely agree (this was a proposal raised by Rabbi Shilat).
More power to you. In my view, the best long-term path is to set aside kiddushin according to the law of Moses and Israel (similar to levirate marriage) and choose actively what might be called a “covenantal marriage,” one that contains no element of acquisition whatsoever, but rather the agreement of two equal parties. This is the model of Noahide marriage as described by Maimonides. In my opinion, these are Jewish marriages (as Rabbi Dichovsky wrote: “Are not the children of Israel among the descendants of Noah?”). In this kind of relationship there is no prohibition of “one who has relations with an unmarried woman,” and certainly nothing here amounts to “promiscuity,” since these are exclusive relations. And as Maimonides wrote: “The matter does not depend on him alone. Rather, whenever either he or she wishes to separate from the other, they separate” (Laws of Kings 9:8), as interpreted by the Rogatchover. It is important to note that Rabbi Dichovsky ruled this only ex post facto—that no get is required after a civil marriage—and not ab initio. But the reasoning is valid even ab initio.