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Seemingly, since get coercion fails to be a halakhic option, obligating a get equally cannot be implemented. However, in dealing with a husband who engaged in an illicit affair with his mother-in-law, following in the footsteps of Hut ha-Meshullash , 20 Hut ha-Meshullash , supra n. 13 a Yerushalayim Beit Din contends that even those authorities who will object to obligating a get due to a ma'is alai claim would agree that such conduct is so repulsive that no wife would agree to live with a husband who commits such acts. 21 File no. 1-21-2521, Yerushalayim Regional Beit Din, June 18, 2009. Kal ve-homer , a fortiori, in our case of a stepfather who engaged in illicit touching of two stepdaughters and committed these acts in the presence of Hindy's oldest daughter who was traumatized by these incidents and is presently in therapy.
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The argumentation advanced by Dayan H. Izirer in the above-cited Beit Din decision conveys quite clearly and eloquently the ilat gerushin here in our case. Obligating a get of a husband who committed " ma'aseh ke'ur, " repulsive acts with his mother-in-law, the Beit Din expounds:
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It is clear from the submitted evidence that the wife was unaware of the acts and from the perspective of the wife this is a major insult. Undoubtedly, the husband's conduct impacts negatively on the emotional world of the wife and it is worse than a husband who curses his wife . . . it is an attack on the personal honor of the wife, family values and family stability. It is attack like engaging in adultery but even more severe. . . . We must determine which ilah (ground – AYW) will allow us to obligate a get . If we view it from the vantage point of "an adulterer" then we are concerned with the dissipation of monetary assets but here there is no loss of assets. . . . When . . . he commits improper acts in his home and within the context of his private life one does not require the rationale of asset dissipation. This is an attack upon the essence of his life with his wife. In this case, he exploits his relationship with his wife in order to engage in affairs with his mother-in-law behind the hidden eyes of his wife. . . . Another ground: A husband who desires his mother-in-law that is older than him by tens of years, his behavior towards her entails sexual deviancy and mental dysfunction. . . . The fact that this matter repeated itself many times and during an extended period of time places him in the category of oveir al dat Yehudit (transgresses the Jewish religion) and there is no need for forewarning either because everyone knows and it is as if he forewarned or due to the fact that this is deviant conduct within the framework of a mental disorder and there is no ability to control the matter (his desires – AYW).
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Upon reading the above, one can only conclude that the facts of our case are almost identical to the fact pattern presented by the Yerushalayim Beit Din. On one hand, we are dealing with a stepfather and stepchildren and the other beit din is focusing upon two consenting adults. However, on the other hand, in both scenarios the wife is unaware of what is transpiring and in each situation the husband is exploiting his ties with his wife. Whereas, in the other case, his ability to engage in an illicit affair with his mother-in-law is built upon his closeness to his wife, in our scenario Levi exploits the situation by utilizing his wife's home, including the bathroom near the girls' room to further his mission. Moreover, in terms of argumentation, the Beit Din's analogy to an adulterer is much more striking! Whereas, a husband's acts of adultery may entail asset dissipation and therefore a get ought to be obligated under such circumstances. However, here in our case, Levi is living in Hindy's home where she pays the mortgage, utilities, pays most of the tuition, and shares in financing family vacations. His contribution to the maintenance of the household was to pay for weekly groceries and provided his wife attire for the Yamim Tovim , the Jewish holidays. As such, there was no asset dissipation by Levi and yet Halakhah looks askance at his behavior. In the Beit Din's words:
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Undoubtedly, the husband's conduct impacts negatively on the emotional world of the wife and it is worse than a husband who curses his wife . . . it is an attack on the personal honor of the wife, family values and family stability.
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Subsequently a few years later, citing the aforementioned ruling of the Yerushalayim Regional Beit Din, the Netanya Regional Beit Din reaffirmed a wife's repulsiveness vis-à-vis a father's abusiveness of his daughter. 22 File 860977/1, Netanya Regional Beit Din, May 20, 2013. A few months later, Yerushalayim Regional Beit Din again viewed the inappropriateness of such child abuse through the lens of a " ma'is alai " plea. 23 File no. 917387/1, Yerushalayim Regional Beit Din, November 17, 2013.
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Moreover, a wife's desire to be divorced from such an individual is not limited to the repulsiveness of the act of child abuse. In dealing with marital relations, as the Talmud states in various places, "one does not live with a snake in the same basket." Though the Talmudic context of this expression addresses a spouse who acts inappropriately in terms of his halakhic obligations, namely failing to comply with the halakhot of setting aside hallah (dough), a husband who refuse to support his wife and halakhically invalidating marriage to a shoteh , a person who is halakhically mentally dysfunctional, 24 Ketuvot 72a, 77a, 86b. in subsequent generations the statement has been utilized as a description of marital relations marked by abuse as well as mental dysfunction. 25 Teshuvot Harei Besamim 4, Mahadura 4, 124; Teshuvot Har Tzvi EH 1:14–15; Teshuvot Yaskil Avdi 6, EH 61; File no. 969624/1, Haifa Regional Beit Din, May 26, 2016. The common denominator of all these examples conveys the notion that "one does not live with a snake in the same basket" means that a spouse cannot live with another spouse due to the other spouse's unwillingness to fulfill religious or marital duties or being psychologically impaired. However, in our situation we are invoking the expression that "one does not live with a snake in the same basket" in the sense that Hindy cannot live on the same premises ("in the same basket") with Levi due to his living in geographical proximity to her children, poses a threat which may potentially endanger her children's mental and potentially religious wellbeing.
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2. Umdana – A wife's assessed expectations of the marriage
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In contradistinction to kiddushei ta'ut which focuses upon an event prior to the marriage, namely the existence of a preexisting grave flaw in the husband's physiology or behavior which if failed to be disclosed may under certain conditions be grounds to void a marriage ( bittul kiddushin ), umdana ( ada'ata dehakhi lo kidshah nafshah – with this in mind, she would not have entered into ther marriage) deals with an event (or events) which transpires after the inception of marriage. 26 For our conceptual distinction between kiddushei ta'ut and umdana , see Teshuvot Ohr Sameah 2:29; Teshuvot She'eilot Moshe EH 2; Teshuvot Zikhron Yehonatan 1, YD 5. For authorities who invoke umdana as a technique to void a marriage, see Poskim cited infra n. 29. For example, "had I known that my husband would have become a mumar (an apostate Jew), become a criminal or would have become mentally dysfunctional during our years of marriage I never would have married him" may serve as illustrations of a wife invoking an umdana demukhah , a major inference from assessed expectations (hereafter: umdana ) which if proven may serve grounds to void a marriage without the giving of a get . 27 For examples of various umdanot which served as a basis to void a marriage, see Tosafot Ketuvot 47b, s.v. shelo ; Teshuvot Maharam of Rothenburg Prague ed., 1022; Teshuvot Noda be-Yehudah, Mahadura Tinyana EH 80 (end), 135; Teshuvot Beit ha-Levi 3:3; Teshuvot Hesed le-Avraham, Mahadura Tinyana EH 55; Teshuvot Torat Hesed EH 26; Bayit 9; She'eilot Moshe , supra n. 26; Zikhron Yehonatan 1, YD 5 (17); Teshuvot Avnei Hefetz 30; Teshuvot Sha'arei Ezra 4 EH 26; Teshuvot Meishivat Nefesh EH 73–77; D.Meisels, Teshuvot Radad EH 40; Teshuvot Maharsham 7:95 (a matter of a wife's mental dysfunction); Iggerot Moshe, EH 4:121; Teshuvot Har Tzvi EH 2:133. Whether an umdana may serve as the sole avenue to void a marriage or as a senif , a supporting argument to void a marriage is subject to debate. It is important to stress that this umdana has been employed in the teshuvot (responsa) both regarding kiddushei ta'ut as well as emerging after the onset of the kiddushin . In other words, concerning kiddushei ta'ut , once the major latent defect has been identified, some Poskim will employ the umdana by stating, "had she known prior to the marriage about this major defect she never would have married him." On the other hand, if the inappropriate behavior or mum , flaw, only began after the onset of the marriage and did not preexist prior to the marriage, there may be grounds to employ an umdana where she would (for example) exclaim, "had I known that he would become mentally dysfunctional during the marriage I never would have married him" For a discussion of these two types of umdana , see Zikhron Yehonatan , op. cit.
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Firstly, based upon our discussion of the ongoing situation of "one does not live with a snake in the same basket," of ever-present and recurring pedophilia behavior with his steopdaughters in the marital home furnishes an example of the umdana – ada'ata dehakhi lo kidshah nafshah.
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Furthermore, a second umdana in our case has been articulated by two aharonim (later authorities). Rabbi Eliezer Fried of Volozhin claims: 28 Teshuvot Hut ha-Meshullash 3:5. Whether Rabbi Tenenbaum would recognize such an umdana , we leave as an open question. See Teshuvot Divrei Malkiel 4:100. Cf. Iggerot Moshe EH 1:162( halitzah ).
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We have found a few times that we understand the nature of the wife and the nature of the matter that she absolutely does not accept the status quo . . . that she refuses [in retrospect – AYW] to be married to him and clearly then the kiddushin are invalid. And we encounter a few times in the Talmud that our Sages have authorized us to weigh demonstrable umdanot . And here if anybody would hear this particular umdana that it is unacceptable for her to be an agunah her entire life.
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Subsequently, Rabbi Petahiah Horenblass, Av Beit Din (presiding dayan) of Warsaw concludes in a rabbinic matter: 29 Teshuvot Pithei She'arim , Sheilot u-Teshuvot 32. Given that we employ the umdana "had I known he would be a criminal, I never would have married him," she has the status of " a safek eishet ish, " a doubtful married woman on a rabbinic level (For the meaning of safek kiddushin , see Ran , on Rif, Kiddushin 5b; Teshuvot Maharit 1:38; see further Introduction, supra text accompanying n. 33.) Therefore we may invoke the umdana of igun . Rabbi Eliezer, supra n. 28 would concur with this position.
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One can state, "with this in mind, I never would have married him," to remain an agunah forever.
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In the wake of the directive of a French beit din that there are grounds to obligate a get and the couple has been separated for over four and half years, the invoking of the umdana that should she have known that she would become an agunah for the rest of her life she never would have married him resonates in our case. 30 In the wake of being an agunah , a husband may be coerced to give a get . See supra Introduction, text accompanying notes 1–3. Since get coercion is not an option today in the Diaspora, we may consider the employment of the technique of umdana to void a marriage. See supra text accompanying n. 42.
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Upon her separation from Levi in what sense did she become an agunah ? Firstly, Levi's decision to flee to another country to avoid criminal prosection ipso facto denied Hindy her entitlement to onah , conjugal relations.
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Whereas according to some authorities the duty of engaging in marital relations is derived from the Biblical word in Shemot 21:10 " she'erah . . . he shall not diminish" or " ve'onatah he shall not diminish", 31 Mekhilta de R. Yishmael Mishpatim 3, ed. Horowitz-Rabin. others derive the duty by logical inference. 32 Mekhilta de R. Yishmael , ibid.; Ketuvot 48a. Elaborating upon this position, Rabbi Naftali T. Berlin contends: 33 Birkat ha-Netziv,Mekhilta , ibid.
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Reason informs us that (the husband) is so bound. . . . as everyone knows, for this purpose that a bride enters into marriage . . . Hence if he denies her sexual ties, she is deprived of her right.
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In other words, Halakhah recognizes the wife's right to conjugal relations and therefore the husband has a duty to provide it to her. If a husband can in fact engage in conjugal relations and refuses to comply with his duty either out of hatred or anger vis-à-vis his wife or due to a marital quarrel or because "he cast his eyes on another woman," he is classified as " a moreid, " a rebellious husband, and he can be coerced to give a get . 34 SA EH 77:1; Helkat Mehokeik SA EH 77:1; Hazon Ish EH 108:13.
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Given the fact that Hindy separated from Levi due to child abuse and he has refused to give a get , in effect are we to view him as a moreid since it is due to the separation that he cannot live with her? As we mentioned, a moreid is a husband who is withholding intimate relations due to being angry or due to hatred of his wife. In our situation, the cessation of relations is due to the fact that he is onus (under duress) due to circumstances beyond his control, namely being separated from his wife, an action which was commenced by his wife. Thus, how can we consider him a moreid ?
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Seemingly, we may find support for such a position in the Poskim that a sick husband shall wait six months until he is cured before engaging in onah . 35 SA EH 76:11; Beit Shmuel, SA EH 76:17. In other words, given his state of being an onus , since the husband's abstention from relations stems from his health rather than hatred for his wife, the husband is not viewed as a moreid . Analogously, the same should apply here where Levi's refraining from onah is due to Hindy's decision to separate from him rather than due to animosity towards his wife. In both cases, we should view the sick husband and the husband who is forced to move out of the marital home as a situation of ones . Consequently, should a husband be incarcerated due to criminal behavior, seemingly since his incarceration is due to his negligence, he should be viewed as a moreid given his inability to engage in intimate relations. However, some Poskim such as Rabbi Bezaleil Zolty construe the fact of imprisonment as creating a situation of being an onus , no different than a sick husband who is incapable of performing onah and therefore he isn't to be viewed as a moreid . 36 PDR 5:329, 331.
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Nonetheless, there are other authorities who disagree and argue that incarceration may occur either due to the husband's illegal behavior or due to circumstances beyond his control. On one hand, in a case where a husband was conscripted to the army for a specified time, akin to a husband who is sick for a prescribed time, a wife is halakhically required to remain in the marriage. 37 Hagahot Mordekhai, Ketuvot 26a (on Rif) in the name of Riaz which is cited approvingly by Darkhei Moshe, Tur EH 76: Beit Shmuel, SA EH 76:18 and Helkat Mehokeik, SA EH 76:17; Teshuvot Avnei Nezer, HM 83. See Teshuvot Imrei Mishpat 10(2–3) application of Riaz's position to the case of a husband who is imprisoned and thus unable to comply with his duty of conjugal relations. Given that the husband was coerced to serve in the army, we are dealing with a case of ones and therefore he isn't viewed as a moreid and thus there is no duty to dissolve the marital ties. On the other hand, serving in a prison is due to engaging in criminal behavior, consequently should a husband be incarcerated he is " posheia, " responsible for being unable to have relations with his wife. 38 Mordekhai, Ketuvot 183; Teshuvot Tashbetz 2:68; Teshuvot ha-Rashbash 183; Teshuvot Be'air Yitzhak EH 10; Teshuvot Beit Meir 114; Teshuvot Oneg Yom Tov , 168 (end); Teshuvot Hatam Sofer EH 1:131; Teshuvot Tzitz Eliezer 6:42 (3). Implicit in this view is that even if the imprisoned husband loves his wife and therefore unintentionally he cannot perform conjugal relations, by dint of his imprisonment he is transgressing the negative prohibition of refraining from having relations with his wife as well asfailing to comply with other marital duties 39 Teshuvot Maharam Alsheikh 50. See also, Tosafot Ketuvot 70a s.v. yotzi ; Piskei ha-Rosh Yevamot 6:11; Teshuvot ha-Ritva 122. As Rabbi Refael Halperin aptly notes that a husband who is imprisoned and therefore cannot support his wife, even though he is onus is no different than a husband who is afflicted with skin boils and can be coerced to give a get . Similarily, the imprisoned husband ought to be coerced to give a get. See Oneg Yom Tov , infra n. 44. and as such he is to be viewed as a moreid and therefore get coercion is in place.
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Secondly, his failure to support her for the last four and half years of separation engenders an additional reason why mandating get coercion is in place. Finally, the extended time of separation in and of itself mandates the issuance of a compulsory order to give a get . In short, Levi's failure to comply with his marital duties of engaging in conjugal relations and spousal maintenance coupled with his extended period of separation according to a well-trodden mesorah which recently has been memorialized in three Israeli beit din rulings requires that get coercion ought to be imposed due to the fact that Levi's behavior has transformed Hindy into an agunah . 40 See supra Introduction, text accompanying notes 1–3.
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Finally, given that Levi fled France and moved from place to place in Europe there is a basis to coerce a get . 41 Levush 154:9 in the name of Teshuvot ha-Rosh 43:1–2.
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In short, there are grounds to coerce a get based upon the wife's plea of " ma'is alai " as well Levi's unintentional withholding of conjugal relations and support coupled with his moving from place to place for four and half years since his separation from Hindy.
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If Hindy had been residing in Eretz Yisrael where get coercion is an option, albeit employed on a limited basis in dealing with child abuse, 42 Pikei Din Rabbanayim 8:124; File no. 9217-68-1, Tel Aviv-Yaffo Regional Beit Din, February 12, 2008. her marriage may be dissolved by get coercion. Additionally, if child abuse would be viewed through the prism of a ma'is ali plea accompanied by an " amatla mevureret ," there is basis for get coercion. 43 See supra notes 13, 16–17. Finally, given that Levi fled France (without his wife) fearful of being imprisoned in his native country due to the commission of a criminal act and refusing to comply with his marital duties such as conjugal relations and providing spousal maintenance creates an igun situation and therefore there is a basis to coerce a get . 44 Teshuvot Oneg Yom Tov 168; File no. 865704/1, Tzfat Regional Beit Din, May 8, 2017.
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And in pursuance to certain Poskim , in light of the option of get coercion, Hindy may have been unable to invoke the umdana, "had I known that my husband would engage in pedophilia of my children during our years of marriage I never would have married him." However, today outside of Eretz Yisrael, where Hindy resides, there is no beit din which is legally and thus halakhically empowered to coerce a husband to give a get .
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Consequently, in the absence of the ability to coerce Levi to give a get in contemporary times in the Diaspora we may employ kiddushei ta'ut and umdana as vehicles to void a marriage. 45 Teshuvot Devar Eliyahu 48; Teshuvot Ein Yitzhak 1, EH 24; R. Meir Posner, Tzal'ot ha-Bayit 6; Teshuvot Zikhron Yehonatan 1, YD 5; Teshuvot Divrei Malkiel 4:100; Teshuvot Shoeil u-Meishiv, Mahadura Kama 198.
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Based upon our foregoing presentation and the cumulative evidence submitted to this beit din , notwithstanding contrary views recorded which reject the deployment of umdana as a means to void a marriage, 46 Teshuvot Avodat ha-Gershuni 35; Teshuvot Beit Yitzhak 1:106; Teshuvot Nishmat Hayyim 129; Teshuvot Maharsham 2:110; Teshuvot Heikhal Yitzhak EH 2:25; File no. 861974/1, Tzfat Regional Beit Din, January 21,2013 (Rabbi Y. Ariel's opinion). In accordance with their view, invoking the umdana creates a situation of a safek kiddushin , a doubtful kiddushin, and for some Poskim such as Teshuvot Maharbil 1:17 one should refrain from being more lenient in kiddushei safek than a doubtful divorce. Nonetheless, Teshuvot Maharik , shoresh 171, Pri Hadash, YD 110 (end) dealing with Sefek Sefeika , Teshuvot Maharsham 8, EH 239, Teshuvot Sha'arei Tzion 3, EH 4, 22–24 and others follow the view of Ran in first chapter of Tractate Kiddushin that safek kiddushin creates a hezkat penuyah, a presumption of a single woman me'deoraita , on a Biblical level, and the rabbis ruled stringently due to the prohibition of eishet ish and therefore she requires a get . following a mesorah to which we alluded to earlier, we find that our analysis of the umdana , ada'ata dehakhi lo kidshah nafshah which may be invoked concerning an ongoing marital situation of "one does not live with a snake in the same basket," of ever-present and recurring pedophilia behavior with his stepdaughters as well as the umdana "one would have not married a man to remain an agunah forever" characterized by Levi's extended separation from Hindy with its attendant consequences of failing to comply with his marital duties provide two of the grounds for freeing Hindy from her marriage without the giving of a get .
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Based upon the foregoing presentation of the existence of two umdanot ("she never would have married a pedophile" and "she never would have married someone who would be me'again her forever"). Hindy Silver is free to remarry without a get any Jew except a Kohen . 47 In our actual decision, there is a " senif " (lit. – an appendage) which refers to a questionable halakhic view which buttresses the position in our case, namely the voiding of this marriage. We chose to refrain from elucidating the reason in our presentation here.
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A husband who is a batterer
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1. A decision obligating a husband to give a get
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The facts of the case
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In 1969, Ya'akov Markowitz married Rachel Markowitz in accordance with Halakhah . The couple had three children. One was born in 1971, the second child was born in 1973 and the last child was born in 1979. Prior to 1979, Ya'akov participated in a few incidents of violence at work and sometimes drove the car erratically. In 1979 Ya'akov became involved with people of ill-repute and Rachel alleges that this was the reason that Ya'akov began at that time to become physically being abusive towards her. Support for her claim was corroborated by copies of nine documents issued by doctors and hospitals which confirm that between 1983 and 1988, she was a battered wife. For example, in 1983, due to his assaults she experienced traumas to her arms, shoulders, brain bone and the neck. All these traumas required medical treatment. A year later, she was a victim of a severe head injury, an attempt of strangulation with marks on the throat and experienced psychological traumas which resulted in headaches, shivering, high blood pressure and depression. These acts of battery as documented by the doctors and hospitals continued for a few more years and during this period, in November 1985, she left the marital home because her life was threatened by him while brandishing a rifle. In late 1985 Rachel gave him a second chance after Great Rabbi Kling of Lyon, France, reproved Ya'akov for his assault as being in violation of the Jewish tradition but his involvement and words of admonishment were to no avail. In December 1985, she filed for civil divorce but she was still hoping that he would change and attempted for a third and final time to reconcile with him. Though Rachel attempted to reconcile with him and threatened him that if the battery didn't subside she would leave him, nonetheless in June 1986, he again attempted to strangle her and she finally separated from him permanently. Subsequently, on October 7, 1987, her husband entered her apartment, while she was in bed he stabbed her a few times, and their son saved her. Due to the stabbing, she was admitted to the intensive care unit of a local hospital with a life-threatening bleeding condition. For the attempted homicide, he was imprisoned for ten years by an Assize Court, a French criminal court due to his violation of Articles 2, 295, 296, 297, and 304 of the French penal code. In 1995, he was released from prison. In reply to our question whether her husband had a criminal record prior to their marriage, quickly and unhesitatingly she responded, "There was no criminal past."
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Given that the acts of abuse began already in 1979, we asked her why she waited until 1986 to leave him. Her reply was that she feared for her life and he threatened her that should she leave him he would slaughter her siblings. On one occasion, she went to the police to report an act of domestic violence. Once she left the police the violence accelerated, and given that she continued to be fearful for her life she continued to stay in the marriage. Moreover, in the 1980's the police did not act on an order of protection. It was for these reasons that she never applied for an order of protection against him. Moreover, should her husband be incarcerated, it was her assessment that upon release he would threaten her life.
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Being traumatized by her husband's conduct and feeling physically threatened, it was unsurprising that during the entire three and half hours of our hearing she focused upon her personal predicament of being a battered wife, with only a brief mention of her financial situation during her marriage and absolutely no mention of her children, except for her reply to our question, "do you have children?" It was only after the close of the hearing; she responded to our query and e-mailed the following communication to us:
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I have to add some important points concerning your question – "how was your life?" Every day my ex-husband came back home very late at night, sometimes at nine but most of the time at 2 AM or even later, and always with friends to drink alcohol and to make noise. He never told me where he was and what he did! When I came home with the children after work, around five o'clock, I was stressed to do so quickly the schoolwork with the children, their shower, to cook their dinner and to bring them to bed, before their father came home because I didn't want that they could see eventual scenes of violence. When he came home late at night, his meal was always ready on the stove but nevertheless he woke me up and I had to warm up his meal. That was my sad life.
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After serving on divorce cases for close to two decades, it was the first time that during the entire proceeding a mother failed to even mention her children. This e-mail communication underscores for the beit din panel that the one time she speaks about her children it is done within the context of her life as a victim of spousal abuse.
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In June 1988, a civil divorce was executed and the court concluded that the husband was responsible for the divorce due to acts of domestic violence. In 2005 and 2006, she demanded her get . However, to date, despite her request as well as the attempts of various rabbis to procure her a get , he has refused to give it to her.
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Discussion
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According to Halakhah , raising your hand to strike a fellow-Jew, much less assaulting him, is a violation. 1 Devarim 25:3; Sanhedrin 58b; Mishneh Torah (hereafter: MT ), Hovel u-Mazik 5:1. Moreover, one must respect the dignity of one's wife and one is prohibited from striking her. 2 Bava Metzia 59a; Rema, Even ha-Ezer (hereafter: EH ) 154:3. See further this writer's Rabbinic Authority , vol. 2, 81–116. Throughout Jewish history, rabbinical luminaries such as Rabbeinu Yonah and Rabbi Pelagi have railed against husbands who batter their wives and are unaware of the severity of the prohibition. 3 Sha'arei Teshuvah, Sha'ar 3, 77; Teshuvot Hayyim ve-Shalom 2, EH 36. In fact, a batterer is liable to pay his wife for any injury incurred from the assault. 4 MT, Hovel u-Mazik 4:16; Ohr Zarua Bava Kama 161. As an Israeli rabbinical court recently states: 5 File no. 4927-21-1, Petah Tikvah Regional Beit Din, 6 Tishrei 5765.
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A wife is not the acquisition of her husband, "for life she is given and not for pain." There is no place for distinguishing between a wife and a friend, and as the words of Rema state, "it is a sin like striking a friend". . . . On the contrary, in relation to one's wife, the husband is obligated to love her and respect her more than the duty concerning his friend.
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That being said, the emerging issue is whether a wife is entitled to divorce herself from a batterer. Clearly, a wife who is a victim of battery is entitled to separate from her husband due to the Talmudic dictum, "one does not live with a snake in the same basket". 6 Teshuvot Maharam of Rothenburg , Prague ed., 946; Teshuvot ha-Rashba ha-Meyuhosot le-Ramban 102. Under such conditions, can a beit din obligate a husband to give a get ? Notwithstanding that there is a debate whether battery serves as grounds to coerce a get , 7 Beit Yosef, Tur EH 154:20; Rema, SA EH 154:3. many Poskim in the past and in contemporary times will obligate a husband to give a get under certain conditions. 8 Teshuvot ha-Rashba , supra n. 6; Teshuvot Maharam of Rothenburg , Cremona ed., 291; Tur EH 154:20; Beit Yosef , Tur EH 74 (end); Teshuvot Noseh ha-Ephod 32:18; Hazon Ish EH 108:14; File no. 4927-21-1, Petah Tikvah Regional Beit Din, 6 Tammuz 5765; File no. 9465-21-1, Netanya Regional Beit Din, 26 Shevat 5767; File no. 3426-21-3, Tel Aviv-Yaffo Regional Beit Din, 21 Shevat 5768; File no. 537502/4, Haifa Regional Beit Din, 11 Mar Heshvan 5775. Clearly, those Poskim who sanction get coercion for a batterer would concur that one can obligate a get, which in the hierarchy of get judgments entails a lower level of enforcement than a get compulsion order. 9 Teshuvot Binyamin Ze'ev 88; Piskei Din Rabbanayim (hereafter: PDR ) 11:328.
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Psak Din (Decision)
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Based upon the cumulative evidence submitted to this panel, we obligate Ya'akov to immediately give a get unconditionally to Rachel. 10 Once a beit din obligates the giving of a get , no preconditions can be advanced by the husband prior to executing the get . See Teshuvot ha-Rashba 4:256; Bedek ha-Bayit on Beit Yosef – Tur Hoshen Mishpat 143; SA EH 143:21. See further this writer's, Rabbinic Authority, vol. 3, 55–81.
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2. A decision to void the marriage
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Discussion
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In light of his get refusal, therefore we have to address the voiding of the marriage. Among the techniques that allow a beit din to void a marriage ( bittul kiddushin ) we encounter kiddushei ta'ut , loosely translated an erroneous marriage. Three conditions have to be obtained prior to invoking kiddushei ta'ut for the expressed purpose of voiding a marriage:
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(1) The husband's defect must be a major one (a mum gadol ), such as sexual impotency, refusing to have children, insanity, homosexuality, apostasy, a marital expectation communicated by the prospective husband prior to the marriage which turns out to be a misrepresentation, engaging in criminal behavior – such as business fraud and pandering prostitutes – or exposing one's mate to a contagious disease such as syphilis or HIV, but only if such a flaw was present prior to the onset of the marriage. All of the aforementioned examples of a husband's flaws have been characterized by one or more authorities as a mum gadol . Whether a particular defect serves as a major defect and therefore grounds for voiding a marriage is subject to the discretion of an arbiter or beit din . Consequently, there will be a difference of opinion concerning the severity and the magnitude of the defect that is required to void the marriage.
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(2) The wife must be unaware of the defect prior to the inception of the marriage and must only discover it after the marriage. On the other hand, if, for example, a husband commits adultery or contracts Alzheimer's during the marriage, though both may be characterized as a mum gadol significantly impairing the matrimonial relationship, there would nevertheless be no grounds for a wife's claim that the marriage was consummated in error because the conduct or disease respectively occurred after the onset of the marriage.
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(3) Finally, upon a wife's awareness of the major latent defect that her husband may have intentionally or unintentionally failed to disclose "the mum gadol, " there is a debate whether she must immediately bolt the marriage or, if she has "a ta'am ha'gun, " a reasonable explanation, in the words of Rabbi Moshe Feinstein, 11 Iggerot Moshe Even ha-Ezer 3:45. she may remain in the marriage for a certain period of time. 12 See this writer's, Rabbinic Authority, vol. 3, 136–139.
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Given that we could not identify a preexisting flaw in the husband's persona, we were unable to void the marriage based upon " kiddushei ta'ut ".
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In bold contrast to the avenue of kiddushei ta'ut which focuses upon the presence of a major defect which existed prior to the marriage , as various Poskim note emerging from a Talmudic discussion, one finds another type of bittul kiddushin which talmudically is defined as " ada'ata dehakhi lo kidshah nafshah, " loosely translated, with this understanding, if she had known at the time of the marriage that she would be married to a man with a certain defect, she would never have consented to the marriage. 13 Bava Kama 110b–111a. In effect, the Poskim label this reasoning as an umdana , an assessed expectation of the wife which relates to future conduct which transpires after the onset of the marriage . For example, "with this understanding, had I known my husband would become a criminal during our marriage I never would have married him." 14 For this difference between umdana and kiddushei ta'ut , see Teshuvot Ohr Sameah 29; Teshuvot She'eilot Moshe, EH 2 (1, 17); Teshuvot Zikhron Yehonatan 1, Yoreh Deah (hereafter: YD ) 5; Teshuvot Seridei Eish 3:25 (21); Teshuvot Har Tzvi EH 1:99; Iggerot Moshe EH 4:121.
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Seemingly, the employment of an umdana here is open to challenge. As we know, for an umdana to be effective depends upon the consent of both parties. For example, a sales transaction involves the agreement of parties, the seller and the buyer – i.e. " taluy be-da'at shneihem. " 15 Teshuvot Shoeil u-Meishiv, Mahadura Kama 1:145, 197; Teshuvot Noda be-Yehudah , Mahadura Kama, YD 69, Mahadura Tinyana, EH 80; Teshuvot Maharsham 3:82,5:5.
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The voiding of the sale with the appearance of a defect subsequent to purchase would be predicated upon two conditions:
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1. The buyer would have not consummated the deal if he had realized that the item sold would be defective within a reasonable time. As Shulhan Arukh Hoshen Mishpat 232:3 states,
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If one sells another land, a slave, a domesticated animal, or other moveable property, and a defect, which the buyer did not know if, it is found in the purchase, the buyer may return it (to the seller and receive his money back – AYW) even if a number of years (have elapsed since the transaction – AYW), since this transaction was based upon fundamental error, provided that the buyer did not to continue to use the item after he became aware of the defect. If however, the buyer continued to use the item after he saw (or became aware of – AYW) the flaw, he has (by his behavior – AYW) renounced (his right of rescission) and cannot return (the defective item and receive his money back – AYW).
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2. The seller would negotiate the sale contingent upon the utility of the item being sold. In other words, the voiding of the sales transaction is dependent upon the existence of both the seller's and buyer's implied conditions.
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The requirement of " taluy be-da'at shneihem " as a precondition prior to the invoking of an umdana equally applies to marriage, which is based upon the consent of both a man and a woman. 16 Tosafot, Ketuvot 47b, s.v. she-lo ; Netivot ha-Mishpat, Hoshen Mishpat (hereafter: HM ) 230:1. Cf. Tosafot, Yevamot 45b, s.v. me .
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For example, if a husband is engaged in criminal activity while married, the fact that a wife would exclaim, "had I known he would be a criminal, I never would have married him" would seem to offer no basis for voiding the marriage, since a similar statement must have either been articulated by the husband or be presumed on the husband's behalf. In fact, the husband may not want to void the marriage in order to avoid his sexual intercourse being viewed as be'ilat zenut (an act of prohibited fornication). However, some Poskim argue in cases of a major umdana – or what has been labeled as an umdana gedolah or demukhah (a major inference expressed by one person) – that this suffices in order to void a marriage.
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The emerging issue is whether Halakhah recognizes the umdana, "had I known he would be a criminal, I never would have married him," as a basis for voiding the marriage? Notwithstanding certain authorities who reject the possibility that a marriage may be voided on the basis of an umdana , 17 Teshuvot Beit Yitzhak 1:106; Teshuvot Nahalat Yoel Ze'ev , 1, EH 58–59; Teshuvot Heikhal Yitzhak EH 2:25; Rabbi Uriel Lavi of Tzfat Regional Beit Din, File no. 861974/2, 20 Iyar 5774, 20. are there grounds to void a marriage in our case?
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Take the following case: Prior to the marriage, a prospective husband fails to disclose to his prospective wife that he was arrested along with two other men on suspicion of counterfeiting coins. The woman was questioned and she knew nothing about the crime. Subsequently, the man and woman married and later she wanted to divorce from him. However, the husband was imprisoned (and the implicit assumption is that he was incapable to give a get ) and given that she was agunah , the question posed to Rabbi Yosef Shaul Nathanson, a nineteenth century authority in Lemberg, Poland, was whether the marriage may be voided based upon umdana . Upon inquiry into the facts, the marriage was voided on two grounds: Firstly, he determines that the seder kiddushin , the betrothal ceremony, was invalid. However, he then states, " hadashot , innovative thinking, I am communicating to sanction this oppressed one" and suggests that we are dealing with a major latent defect due to the existence of an umdana . His analysis centers upon the Talmudic discussion of the childless widow who is obligated by the laws of yibum (levirate marriage) to marry her brother-in-law. Her brother-in-law is a mukeh shehin , afflicted with boils. Initially, Talmud Bava Kama 110b invokes the umdana that "had she known at the time of the marriage that she would have to marry a man with boils, she never would have married her husband." However, one of the reasons that the umdana is rejected by the Talmud is due to the doctrine that is better to be married rather than being single. Consequently, the fact that she is now bound to another man who is afflicted with boils would not serve as a reason for refraining from marrying his brother. In light of this discussion, argues Rabbi Nathanson,
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. . . I view this as a matter of a fortiori reasoning (from the situation of mukeh shehin ). In that case (where she was clearly married to her first husband who possessed no blemish), we say regarding the levirate husband who is a mukeh shehin that she would be able to be released to marry another without the performance of halitzah were it not for the doctrine that, "it is better for her to remain in this state of marriage." A fortiori , where the husband is sitting in jail, totally under the power of the government, and nobody knows his fate, she should be permitted to be free; for under these conditions, the doctrine, "it is better to be in such a state" plainly is inapplicable, because it is impossible for her to engage in marital ties with him. . . .
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To state it differently, in light of the definitional guidance we may distill from the umdana regarding halitzah , Rabbi Yosef Shaul Nathanson arrives at the conclusion that a husband who is not living with his wife is precluded from engaging in conjugal relations and therefore the marriage may be voided.
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Additionally, Rabbi Nathanson defines the umdana by stating:
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This is a major defect as it is written in Section 237(232 – AYW) in Hoshen Misphat clause ten that if he is subject to capture and execution by the government he has a defect and she can "return him". . . .
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Following in the footsteps of Rabbi Eliezer ben Yoel ha-Levi and Rabbi Yonah Landsdorfer, 18 Sefer Ra'avyah, Teshuvot u-Be'urei Sugyot , 1032; Teshuvot Me'il Tzedakah, 2. umdana is being defined by Rabbi Nathanson as "a mistaken transaction". 19 Teshuvot Shoeil u-Meishiv, Mahadura Tlita'ah, EH 61. In other words, in pursuance to Rabbi Nathanson, the husband failed to disclose to his wife prior to the marriage that he would be serving time in prison. Consequently, the umdana here is being defined in terms of the ta'ut , the error that no woman would marry a man if she knew that he would be in prison.
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In the same century, Rabbi Aharon Levine av beit din (presiding dayan ) in Reesha in the Ukraine addresses the following question. Prior to the marriage, the prospective husband failed to disclose to his wife that he was a criminal dealing in a white slave business. After the marriage, he was imprisoned and was forced to civilly divorce her but refused to Jewishly divorce her, i.e. he was recalcitrant regarding the giving of a get . Relying primarily upon a halakhic impropriety in the wedding ceremony, Rabbi Levine offers the following senif , supporting argument, to his ruling to free the woman without a get : 20 Teshuvot Avnei Hefetz 30. Though we are relying upon Rabbi Levine's ruling which invokes the technique of umdana as a supporting argument to void this marriage, nevertheless there are other authorities who employ this mechanism as a sole argument to void a marriage. See Teshuvot Noda be-Yehudah , Mahadura Tinyana EH 135; Teshuvot Har Tzvi EH 2:133.
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Since subsequently it was discovered that the groom was one of the criminals who engaged in a white slave trade business, it can be stated that even if there had been no defects in the ceremony, it is without validity, since there is no greater umdana than this, that the woman did not consent to marriage with this in mind. We have found in Bava Kama . . . that even though we may want to say that a childless widow who falls before a man with boils can be freed without halitzah due to the fact that "with this understanding she did not agree," we cannot do this because as Resh Lakish states, "it is better for a woman to be in such a state than be single . . ."
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And though Rabbi Levine cites the ruling of Rabbi Nathanson as a precedent for his ruling which he readily admits is dealing with almost the identical fact pattern and relies upon the same Talmudic discussion of halitzah to serve as a ground to void the marriage, nevertheless, his understanding of the umdana is markedly different from Rabbi Nathanson's perception and he concludes:
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But this line of reasoning is inapplicable to our case because the groom was among those criminals whose lives are in continuous danger, and they dwell in perpetual fear, so it would be impossible for her to have a normal life with him. And, additionally, what woman would desire to live with a low-life and evil person such as this, and she did not agree to marry him with this understanding. And there is no umdana greater than this, that if she was aware of this she would have not married . . . if she had known of his criminality.
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In contrast to Rabbi Nathanson who focuses upon the inability of engaging in conjugal relations with a husband who is incarcerated, Rabbi Levine focuses upon the negative aspects of being married to a criminal which stem from threats to the nuclear family in general and to the wife in particular, both from the outside world as well as from the husband himself. Whereas Rabbi Nathanson defines the ramifications of imprisonment in narrow terms, Rabbi Levine defines incarceration and the effects of criminality in more expansive terms. Finally, whereas, Rabbi Nathanson is arguing that one of the reasons that the marriage ought to be voided is due to "kiddushei ta'ut" which is defined in terms of an umdana contends Rabbi Levine that after the marriage, the husband became a criminal and in light of the umdana that no woman would marry a man who becomes a criminal, he voided the marriage. In other words, whereas Rabbi Levine utilizes the umdana to address the husband's criminality which emerges after the marriage, argues Rabbi Nathanson that the umdana can be employed to articulate the husband's conduct before the marriage. In effect, the umdana , in Rabbi Nathanson's mind defines the ta'ut which failed to be disclosed to his wife prior to the marriage. Despite the differences between Rabbi Nathanson and Rabbi Levine regarding the nature and scope of the umdana, in effect Rabbi Levine employs medameh milta le-milta (analogical reasoning) while explicitly stating that his ruling is based upon Rabbi Nathanson's teshuvah . The common denominator between the two Poskim is that they deploy an umdana dealing with the inability of a wife living with a criminal albeit an umdana leading to differences avenues to void the marriage!
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Based upon the cumulative evidence submitted to this beit din panel, for seven years Rachel was living with a criminal who engaged in acts of domestic violence which culminated after their separation in his incarceration for attempted murder of his wife. Following in the footsteps of the aforementioned mesorah , tradition emerging from Rabbi Levine's ruling that recognizes that an umdana as it relates to a future event may serve as a vehicle to void a marriage, we invoke the umdana, "had I known he would be a batterer, I never would have married him," in accordance to the parameters established by Rabbi Levine in the context of an umdana , therefore we void the marriage and Rachel is free to remarry without a get .
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In sum, we invoke an umdana which transpired after the onset of marriage in order to void the marriage. The umdana relates to the fact that the husband is a batterer.
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Lest one challenge our conclusion in light of the fact that it took Rachel seven years to bolt the marriage due to his commission of criminal acts and therefore there is no basis to void the marriage, let us add the following. Given that already in 1979, his improper conduct commenced and she already realized that "this wasn't the person she expected to marry," she should have separated from him already at that time. And in fact, there are authorities who would contend that upon her awareness of his criminality she should have bolted the marriage. 21 See this writer's, Rabbinic Authority , vol. 3, 136. Her decision to remain with the marriage until 1986 demonstrates " savra ve'kiblah, " she accepted the situation and therefore there ought to be no grounds to void the marriage. 22 Tur and Beit Yosef EH 154; Rema, SA, EH 154:1; Teshuvot Rabbi Akiva Eiger, Mahadura Tinyana 51, 106.
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However, others may argue that in the event that there is a reasonable explanation for remaining in the marriage, one can still invoke the umdana and void the marriage. 23 Teshuvot Ein Yitzhak 1, EH 24; Teshuvot Maharsham 3:16, 77, 6:160; Iggerot Moshe EH 1:79–80, 3:45, 48, 4:113. The debate whether one must bolt the marriage upon the emergence of the improper behavior is raised in situations of kiddushei ta'ut . Here we are dealing with the presence of an umdana . Though there seems to be no discussion of whether the same controversy ought to be applicable when invoking the umdana , logically it should equally exist in this context as we found in pesakim and teshuvot dealing with kiddushei ta'ut . As we explained, Rachel decided to remain in the marriage due to the threats upon her life as well as her siblings made by her husband should she leave him. Nonetheless, after a series of events spanning seven years, she realized that to continue to live with him was no longer an option and she separated from him in 1986. Given that sixteen months after their separation, he attempted to murder her and she only escaped from death due to the assistance of one of her sons corroborates and gives credence to her long-term concern for her own personal safety! As such, we can understand why she remained with him for such a long time.
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In fact, the original source for the umdana, "had I known he would have a particular defect or act in a certain fashion, I never would have married him" is found in Talmud Bava Kama 110b and in that discussion there is no mention of any time limitation that is required before invoking the umdana . Secondly, there are Poskim who invoke the umdana years after the kiddushin was established. For example, addressing the case of a mentally dysfunctional husband who was hospitalized, Rabbi Tzvi P.Frank rules: 24 Teshuvot Har Tzvi EH 2:133. Lest one challenge the authenticity of this teshuvah given that it was included in the collection of Rabbi Frank's teshuvot which were published after his demise, it clearly corresponds to his position as he authored in other rulings. See Teshuvot Har Tzvi EH 1:99 and EH 2:201. Cf. Rabbis Binyamin Be'eri and Eliyahu Bracha, Mishnat Yosef , Tevet 5776, 79–81, 415–417.
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Additionally, I saw in Hesed Le-Avraham, Tinyana, at the end of siman (responsum – AYW) 55 that is applicable to our matter. Regarding a husband who became an apostate (a mumar – AYW), clearly had she known she would not have married him. And (his psak – AYW) should equally apply to our matter since he is insane and a person cannot live together with a snake in the same basket . . . and this is worse than a person afflicted with skin boils ( mukeh shehin – AYW) and we may say had she known at the time of the marriage she would have not married him . . . and with an insane person one cannot live together and it is akin to an apostate. . . .
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Clearly, Rabbi Frank's case which invokes an umdana does not indicate that the husband's succumbing to mental dysfunction transpired right after the act of kiddushin . 25 See also Teshuvot Hesed le-Avraham, Tinyana, 55 (end). For additional proof, see this chapter, case e, text accompanying notes 61–67. Finally, as Rabbis Fried and Horenblass note there is an umdana that a woman would never marry a man who would place her in an igun situation. Obviously, this umdana is being invoked years after the act of kiddushin . See infra text accompanying notes 34 and 35.
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What is the prerequisite for employing the umdana ? As Rabbi Nathanson notes, in a situation where there are grounds to coerce a get and we are unable to employ coercion, 26 Teshuvot Shoeil u-Meishiv, Mahadura Kama 198. then we are permitted to invoke an umdana . In our case, due to his acts of physical abuse directed against his wife there are grounds for get coercion. 27 Notwithstanding that many Poskim reject get coercion in the situation of a battered wife (see Beit Yosef, Tur EH 154; Darkhei Moshe, Tur EH 154:17; Teshuvot ha-Radvaz 4:157; Rabbi Kalfon Moshe , Teshuvot Shoeil u-Meishiv , 4 EH 14; Teshuvot Mishpat Tzedek 1:59; Teshuvot Tzitz Eliezer 6:42, perek 3), there are others decisors who will issue a compulsion order in situations of severe and/or continuous acts of husband's battery which may endanger a batterer's wife See Teshuvot Maharam of Rothenberg, Prague ed., 927 in the name of Rabbeinu Simha; Teshuvot Maharam of Rothenberg , Cremona ed., 291–292; Hiddushei ha-Ritva, Ketuvot 77a; Teshuvot ha-Rashba 1:793; Teshuvot ha-Rashba ha-Meyuhosot le-Ramban , supra n. 6; Rabbeinu Simhah, Ohr Zarua, Bava Kama 161; Teshuvot Tashbetz 2:8; Teshuvot Yakhin u-Boaz 2:44; Beit Yosef op. cit. in the name of Agudah; Bi'ur ha-Gra, SA EH 154:17; Rema, SA EH 154:3 in the name of " yesh omrim "; Teshuvot Maharshal 69, Beit Shmuel SA EH 154:9; Teshuvot Binyamin Ze'ev 88; Teshuvot Perah Mateh Aharon 1:60; Teshuvot Hut ha-Meshullash 4, Tur 3, 35; Teshuvot Mateh Lehem EH 1:8; Teshuvot Hatam Sofer EH 2:60; Teshuvot Noseh ha-Ephod 32 (15); Avnei ha-Ephod EH 154:8; Teshuvot Hayyim ve-Shalom 2:112; Hazon Ish Gittin 108:14; Y. Kobo, Teshuvot Kokhav me-Ya'akov, EH 9; Mishpatekha le-Ya'akov 2:45; PDR 3:220; File no. 537502/4, Haifa Regional Beit Din, November 4, 2014; File no. 1056520/2, Tel Aviv-Yaffo Regional Beit Din, April 10,2016. For additional Poskim who would coerce a batterer to give a get under certain conditions, see the recent teshuvah , responsum found in Teshuvot Amudei Mishpat 1:12. In fact, some authorities view a batterer as an individual who is to be labeled as "an oveir al dat Yehudi " and assuming he is forewarned to cease and desist from such behavior and continues with his physical abusive behavior, there are grounds to coerce him to give a get . See Bi'ur ha-Gra SA EH 154:11; Teshuvot Noda be-Yehudah , Mahadura Tinyana EH 90–91. Cf. Teshuvot Maharshal 69. Given that we are bereft of the authority today to employ get coercion, even if years have lapsed since the act of kiddushin , in pursuance to Rabbi Levine's view we can invoke umdana and thus void the marriage.
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In our case, the husband is not living with his wife for many years, he does not want to return to her and we have been told that he is living with a non-Jewish woman. This situation, as well as his past criminal acts, serves as a basis to coerce a get . In the wake of our inability to apply get coercion, one can invoke " ada'ata dehakhi lo kidshah nafshah " even years after the kiddushin and therefore void the marriage.
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As some Poskim point out, prior to invoking the umdana one must be assured that there exists no basis to coerce the husband to give a get . 28 Rabbi Meir Posner, Tzal'ot ha-Bayit 6; Teshuvot Zikhron Yehonatan . 1, YD 5; Teshuvot Divrei Malkiel 4:100; Shoeil u-Meishiv, supra n. 26. If get coercion is a distinct possibility, then her marriage could have been dissolved by get coercion due to Nitva's get intransigence In fact, there is a precedent for employing get coercion when dealing with a batterer who assaulted his wife as part of his habitual conduct, afterwards attempted to murder her and subsequently was imprisoned for his illegal conduct. 29 PDR 3:220. Relying upon the positions of Even Yisrael, Mateh Lehem and Avnei ha-Ephod, argues the Beit Din that the husband's imprisonment precludes him from performing his marital duties such as providing spousal support and engaging in intimate relations, therefore we coerce him to give a get . Furthermore, even though many authorities such as Gaonim, Ramban and Rema will refrain from coercing a get regarding a batterer, 30 Otzar ha-Geonim, Ketuvot , p. 191; Teshuvot ha-Rashba ha-Meyuhasot le-Ramban 102; Darkhei Moshe, Tur EH 154:21 nevertheless, contends the Beit Din that such cases are dealing with assaults which are not life-threatening. However, should the battery be life-threatening, these Poskim would concur that a get coercion ruling should be rendered. 31 PDR , supra n. 29, 222. For earlier rulings, see supra n. 27. See also, Teshuvot va-Yomer Yitzhak EH 135 in the name of Rosh , Rashba , Rivash , Tashbetz and Tur . Given that in France, the Jewish community isn't legally empowered and therefore halakhically permitted to employ get coercion, in accordance to the above mesorah , tradition 32 See supra text accompanying n. 28. we can invoke the umdana .
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Finally, as Rabbi Eliezer Fried of Volozhin argues: 33 Teshuvot Hut ha-Meshullash 3:5. Whether Rabbi Tenenbaum would recognize such an umdana , we leave as an open question. See Teshuvot Divrei Malkiel 4:100. Cf. Iggerot Moshe EH 1:162( halitzah ).
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We have found a few times that we understand the nature of the wife and the nature of the matter that she absolutely does not accept the status quo . . . that she refuses [in retrospect – AYW] to be married to him and clearly then the kiddushin are invalid. And we encounter a few times in the Talmud that our Sages have authorized us to weigh demonstrable umdanot . And here if anybody would hear this particular umdana that it is unacceptable for her to be an agunah her entire life.
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Subsequently, Rabbi Petahiah Horenblass, Av Beit Din of Warsaw contends in a rabbinic matter: 34 Teshuvot Pithei She'arim 32. Given that we employ the umdana, "had I known he would be a criminal, I never would have married him," she has the status of " a safek eishet ish, " a doubtful married woman on a rabbinic level; therefore we may invoke the umdana of igun . Rabbi Eliezer, supra n. 33 would concur with this position. See case 8f supra notes 30–31.
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One can state, "with this in mind, I never would have married him" in order to remain an agunah forever.
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Notwithstanding Rabbi Moshe Schacht's view that it is uncertain whether there is a basis for employing this umdana , 35 Teshuvot Ohel Moshe 2. for both Rabbis Fried and Horenblass it was clear that there were grounds to invoking the umdana that should she have known that she would become an agunah for the rest of her life she never would have married him as a senif , as a supporting argument to void the marriage. 36 In contemporary times, Rabbi Uriel Lavi, presently serving as an av beit din, presiding dayan of the Yerushalayim Regional Beit Din argues that the employment of any umdana may only serve as a senif to a decision to void a marriage. See File no. 861974/2, Tzfat Regional Beit Din, May 20, 2014.
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Seemingly, creating an igun situation does not constitute an " ilat gerushin, " grounds for divorce. As we know, a wife is entitled to advance a plea for divorce on the grounds of the existence of her husband's physical defects such as his contraction of an infectious disease or impotency and engaging in improper conduct towards her such as refusing to engage in conjugal relations 37 Ketuvot 77a; SA EH 154:1; Taz, SA EH 154:1; Beit Shmuel, SA EH 154:1; Yevamot 65a–b; SA EH 154:6. or being physically abusive towards her. 38 SA EH 76:11, 77:1; Beit Shmuel, SA EH 77:5; Rema SA EH 154:3; Bi'ur ha-Gra, SA EH 154:10. Cf. Rema, SA EH 154:21. Under certain conditions and according to many authorities, a beit din will coerce the giving of a get . Though a husband who is get recalcitrant entails "withholding good from a friend" and is an infraction of "loving your neighbor like yourself," 39 Teshuvot Dibrot Eliyahu 8:116. most Poskim would not consider freeing a woman from a situation of " igun " as an ilat gerushin .
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However, Rabbeinu Yeruham introduces the notion that a husband's get recalcitrance may serve as grounds to coerce a get . He states the following: 40 Sefer Meisharim , Netiv 23, helek 8.
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My teacher Avraham ben Yishmael writes that it seems to him that a wife who says she does not find her husband pleasing and that he should give her a get and ketubah , and the husband says that he likewise does not find her pleasing, but does not want to give a get . . . we wait twelve months regarding the get , because possibly she will reconcile. After the year, we force him to divorce her. . . .
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In short, in the wake of "a dead marriage" where there are no prospects for marital reconciliation, if the husband refuses to give his wife a get , but desires that his wife to remain an agunah , Rabbeinu Yeruham concludes that we compel him to give a get . 41 For differing interpretations of this ruling, see this writer's, Rabbinic Authority , vol. 2, 203–208.
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Notwithstanding those authorities who reject igun as an ilat gerushin for even obligating a get much less a basis for get coercion 42 Teshuvot Divrei Malkiel 3:144–145; Teshuvot Divrei Shmuel 3:145; R. Y. Herzog, Pesakim u-Ketavim 7:133–134; PDR 1:162, 4:112, 7:108–109, 112–113, 9:211, 10:173, 11:362, 364; File no. 059133397-21-1, Beit Din ha-Rabbani ha-Gadol, ha-Din ve-ha-Dayan 18:12, December 25, 2007; File no. 764231/6, Haifa Regional Beit Din, May 25, 2014; File no. 698719/15, Yerushalayim Regional Beit Din, July 26, 2015. there are other Poskim who endorse Rabbeinu Yeruham's view that igun may serve as grounds for sanctioning get coercion. 43 MT, Ishut 14:8; Shitah Mekubetzet, Ketuvot 57a in the name of Ritva; Shitah Mekubetzet, Ketuvot 64a in the name of Ritva; Teshuvot Hakham Tzvi 1; R. Akiva Eiger, Derush ve-Hiddush , 91, Vilna ed.; File no. 910130/7, Netanya Regional Beit Din, June 3, 2015. For further acceptance of this position amongst the Poskim see sources cited by PDR 13:264, 269–271 and H. S. Sha'anan, Iyunim be-Mishpat 1:28. For other Poskim who align themselves with this position, see supra Introduction to Chapter 8. Cf. with Rabbi Goldberg who argues in a pilpulistic fashion (loosely translated – engaging in casuistry) rather than le-Halakhah (in theory) and le-ma'aseh (in practice) that in the situation of an agunah we may coerce the husband to give a get . See Z. N. Goldberg, "In the matter of coercion due to igun ," (Hebrew), in A. Tendler, Treatise of sources & comments on get coercion (Hebrew), 63–76, Jerusalem: 1998.
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Based upon the foregoing, given that his prolonged separation from Rachel and his nocompliance with his marital duties of engaging in conjugal relations and furnishing spousal support creates an igun sitation and therefore serve as grounds to coerce a get 44 See supra Introduction text accompanying notes 1–3. and in wake of the inability to coerce a get today in France, we may invoke the umdana of " ada'ata dehakhi lo kidshah nafshah. " 45 See supra text accompanying n. 28.
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There exists an umdana that had she known that she would become an agunah for the rest of her life she never would have married him. In our case, the couple was already separated in 1986 and since that time Ya'akov has refrained from engaging in conjugal relations and providing support for Rachel. Being separated for over a quarter of a century from her spouse and being married to Ya'akov who refused to comply with his marital duties created an igun situation for Rachel. 46 Though Rachel only requested her get in 2005 and 2006, she already became an agunah years earlier due to the prolonged separation and his noncompliance with his marital obligations. On behalf of her, employing the umdana , the beit din states that had Rachel known that she would become an agunah she never would have married him.
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In short, the inability today to employ get coercion regarding a husband who is a batterer as well as a husband who has created an igun situation serve as the bases of allowing us to invoke an umdana to void their marriage.
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Moreover, utilizing this avenue of preventing igun to void a marriage indicates that the umdana may emerge years later after the consummation of the act of kiddushin and yet may serve as a vehicle to be mevatel kiddushin .
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Psak Din
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Notwithstanding contrary views which reject the deployment of umdana as a means to void a marriage, 47 Tosafot Bava Kama 110b, s.v. de'adatei ; Teshuvot Avodat ha-Gershuni 35; Teshuvot Beit Yitzhak 1:106; Teshuvot Nishmat Hayyim 129; Teshuvot Maharsham 2:110; Teshuvot Heikhal Yitzhak EH 2:25; File no. 861974/1, Tzfat Regional Beit Din, January 21,2013. we follow the mesorah of other Poskim who invoke the use of an umdana as a vehicle to void a marriage. 48 Teshuvot Maharam of Rothenburg , Prague ed., 1022; Teshuvot Noda be-Yehudah, Mahadura Tinyana EH 80 (end),135; Teshuvot Beit ha-Levi 3:3; Hesed le-Avraham , supra n. 25; Teshuvot She'eilot Moshe EH 2( halitzah ); Zikhron Yehonatan , supra n. 14; Avnei Hefetz , supra n. 20; D. Meisels, Teshuvot Radad EH 40; Teshuvot Sha'arei Ezra 4 EH 26; Teshuvot Meishivat Nefesh EH 73–77; Teshuvot Maharsham 7:95 (a matter of a wife's mental dysfunction); Iggerot Moshe , EH 4:121; Teshuvot Har Tzvi EH 2:133. Based upon the umdana of expecting to receive her get rather than becoming an agunah for life, as well as the umdana of never expecting to be married to a criminal, we hereby rule that the marriage is voided and Rachel is free to remarry without receiving a get .
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A husband who has a bipolar personality disorder
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The facts of the case
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