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In other words, it is as if the defendant conditioned his marriage upon being exempt from fulfilling the duty properly ("making a condition as to an express biblical law"). And as Rabbi Rozin argues, the obligation of sexual intercourse is a fundamental duty of all marriages. | {
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Contrary to several authorities who rule that kiddushin cannot be invalidated on the basis of a clear expectation, 39 Teshuvot Avodat Gershuni 35; Teshuvot Beit Yitzhak 1:106; Teshuvot Nishmat Hayyim 129; Teshuvot Noda be-Yehudah Mahadura Kama , EH 85, Mahadura Tinyana , EH 80; Teshuvot Maharsham 2:110; Teshuvot Oholei Aharon 2:44; Teshuvot Ahiezer 3:19; Teshuvot Heikhal Yitzhak EH 2:25; File no. 861974/1, Tzfat Regional Beth Din (opinion of R. Yo'ezer Ariel), 11.21.2003; File no. 861974/2, Tzfat Regional Beit Din, May 20, 2014 (only in conjunction with another reason). Though Rabbi Y. Landau argues in theory that a clear expectation may serve as a technique to void in marriage. Clearly, his rejection of employing the clear expectation standard to void a marriage is due to the prohibition of being a married woman. See Teshuvot Noda be-Yehudah , Mahadura Kama, EH 88, Mahadura Tinyana, EH 80. Clearly, there is opposition to invoking a clear expectation concerning the execution of certain types of marriage, such as marriages in jest ( kiddushei se'hok ) or a private marriage without ten Jewish male adults present ( kiddushin be'seiter ), where there is no intent to consummate the marriage. See Rema SA EH 42:1; Teshuvot Maharam of Lublin 64. However, we are dealing with another type of clear expectation where a husband acts in an improper manner after the marriage and such behavior may be a justification to void the marriage under certain conditions. Consequently, the view shared by Rema, Maharam of Lublin and others has no relevance to the case at hand due to the fact that they are addressing a different clear expectation. there are quite a number of decisors who permit invoking umdana as a means for invalidating kiddushin . 40 Teshuvot Maharam of Rothenberg , Prague ed., 1022 ( halitzah - in theory); Teshuvot Hesed le-Avraham , Mahadura Tinyana, EH 55; Teshuvot Har Tzvi EH 2:133; Teshuvot Radakh 9; Teshuvot Hatam Sofer EH 1:82; Teshuvot Avnei Hefetz 30; Teshuvot Meshivat Nefesh , EH 73–77; Beit Meir, Tzal'ot ha-Bayit 6; Teshuvot She'eilot Moshe EH 2 (4) ( halitzah ); Teshuvot Radar (Meisels), EH 40; Teshuvot Iggerot Moshe , EH 4:121 (in conjunction with kiddushei ta'ut -a case of halitzah ); Teshuvot Har Tzvi , EH 2:133; File no. 861974/2, Tzfat Regional Beit Din, May 20, 2014 (in conjunction with another reason). Said position may be predicated upon the argument that one may invoke the clear expectation technique to free a wife without a get even when dealing with the prohibition of a married woman. See Teshuvot Devar Yehoshua 3:20. Cf. Noda be-Yehudah , supra n. 39. Whether one can utilize a release from a levirate marriage judgment to conclude that one can equally void the marriage is open to debate. Eventhough a widow waiting for her deceased husband's brother to perform a release is biblically prohibited to anyone else and her status is not as stringent as the status of a married woman who is biblically prohibited to anyone else, one may nonetheless apply a halitzah ruling to a matter of marriage which entails voiding marriage. See Teshuvot Terumat ha-Deshen 250; Teshuvot Noda be-Yehudah , Mahadura Tinyana EH 66 (Cf. Mahadura Kama OH 21); Teshuvot har-Tzvi EH 1:95, 99. See further this writer's Rabbinic Authority , vol. 3, 154, n. 45. Based upon the foregoing, therefore we have cited the rulings of Maharam and She'eilot Moshe which deal with levirate marriage and advance the argument that a clear expectation ( umdana de'mukha) may serve as a ground to permit remarriage for the wife without the brother-in-law performing a release and these judgments may be equally applied to any marriage as a means to void the marriage. See the ruling of Rabbi Y.S. Nathanson argues that if in a case of levirate marriage one can free without halitzah , a fortfiori one may in a case of voiding a marriage due to an error in the marriage ( kiddushei ta'ut ). See Teshuvot Sho'eil u-Meishiv , Mahadura Tlita'a 61; Iggerot Moshe EH 3:46. | {
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Seemingly, the employment of an umdana here is open to challenge. As we know, for an umdana to be effective is dependent upon the expectations of both parties. For example, a sales transaction involves the agreement of parties, the seller and the buyer: " taluy be-da'at shenehem. " 41 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. The voiding of the sale with the appearance of a defect subsequent to purchase would be predicated upon two conditions: 42 Tosafot Ketuvot 47b, s.v. shelo ; Netivot ha-Mishpat HM 230:1. For our understanding of Tosafot, see Teshuvot Radakh Bayit 8, Heder 10; Rabbi Fradkin of Lublin, Teshuvot Torat Hesed EH 20 (56:4). | {
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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 of which the buyer did not know 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 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. The requirement of " taluy be-da'at shenehem " 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. 43 Tosafot Ketuvot , supra n. 42. For a differing interpretation of Tosafot , op. cit., see Y. Rosensweig, " Get zikui: section on bittul kiddushin ", (manuscript on file with this author); M. Avraham, "Voiding a marriage due to a major inference," (Hebrew) (manuscript on file with this author). For example, if a husband is engaged in criminal activity while married, the fact that a wife would exclaim, "had I known he would become 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. The husband's declaration would be – "If I become a criminal after the onset of the marriage, my marriage is invalid." 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 fornication. However, in contradistinction to the above view, in cases of a major clear expectation or what has been labeled as an umdana de'mukha (hereinafter: umdana ), a major inference from assessed expectations expressed by one person suffices in order to void a commercial transaction, and according to certain authorities a marriage or a levirate marriage may be equally voided under such circumstances. 44 Teshuvot ha-Rosh 8:4; Teshuvot Noda be-Yehudah , Mahadura Kama YD 69; Teshuvot Pnei Moshe 1:62; Teshuvot Maharshakh 2:45; Teshuvot Haham Tzvi 41; Tzalot ha-Bayit 1:6; Teshuvot Divrei Hayyim EH 1:3. | {
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Consequently, we are invalidating the kiddushin on the basis of this clear expectation (" umdana "), and Sara Cohen is permitted to marry any Jew, even a Kohen . | {
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This decision was approved by a renowned halakhic authority. 45 Whether there is a halakhic requirement devolving upon a beit din to enlist the support of "a second opinion" or this rabbinic approval is reflective of a practice (" nohag ") is subject to controversy. See this writer's Rabbinic Authority , vol. 3, 256–262. In light of the husband's absence from the hearing, the procedure adopted by this panel precluded the wife from fabricating arguments which were fallacious and deceptive regarding "the bedroom situation".See this writer's, Rabbinic Authority , vol. 4, 216–218, n. 2. | {
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Final afterthoughts | {
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If a husband's abstention from the duty to engage properly in conjugal relations is for the purpose of causing his wife pain, relying upon Rambam's judgment, 46 MT, Ishut 14:7. argues Rabbi Yosef Karo that he transgresses the negative biblical commandment of, "her conjugal relations he will not diminish." 47 SA EH 76:11. Seemingly, if the husband has no intention to engender pain and is abstaining for pragmatic reasons such as the need to travel in order to conduct business, even for a time period which is beyond the halakhically allotted time to be absent from one's spouse, he has not committed a halakhic infraction. 48 Sefer ha-Mitzvot , Negative Commandment 262; Teshuvot ha-Mabit 3:131; Ba'air Hetev, SA EH 76:16. | {
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However, others claim that clearly if the husband unintentionally causes pain by failing to engage in onah properly such as being impotent, sexually dysfunctional or being imprisoned, he is in contravention of Halakhah, and such situations may serve as grounds for obligating or coercing a get . 49 SA EH 76:13; Teshuvot Alsheikh 60; Teshuvot ha-Ridvaz 4:118; Teshuvot Oneg Yom Tov 168; PDR 12:96, 116. | {
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Consequently, if a husband forbad his wife via a vow to nullify his duty to engage in conjugal relations, the vow will be invalid. For example, if he says to his wife, "a vow of abstinence if I cohabit with you," his vow has no validity due to the fact that he is obligated to perform sex and allow her body to feel satisfaction from the intercourse. 50 Nedarim 15b; Yevamot 118b; Hiddushei ha-Rashba, Nedarim ad locum; MT, Nedarim 12:9, Ishut 14:6; Birkat ha-Netziv , Mekhilta of Rabbi Yishmael, Mishpatim 3. As we know, according to the majority of authorities, a husband is proscribed from exempting himself from engaging in the duty of sex because it incurs pain ( tza'arah de'gufah ) for his wife. 51 Bereshit 31:50; Yoma 77b; Rashi, Kiddushin 19b, Bava Metzia 51a, Ketuvot 56b; Teshuvot ha-Rivash 484; Teshuvot Shoel u-Meishiv , Mahadura Kama 196. Cf. Talmud Yerushalmi Kiddushin 3:7–8. | {
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The concern about the pain engendered by the husband is not limited to the realm of intimate relations and it applies equally to the daily, interpersonal relationship of the couple. Already in a series of rulings in the Mishnah in the seventh chapter of Tractate Ketuvot, we encounter the interdict against a husband prohibiting his wife via a vow to derive certain benefits such as tasting a certain fruit or adorning herself, disengaging from familial and social interaction such as forbidding her via a vow to go to her father's home 52 As noted by some authorities, such compliance creates emotional pain. See Rashi, Ketuvot 71b; Tosafot ha-Rid, Ketuvot 71b; Hiddushei ha-Ritva, Ketuvot 71b. or proceeding to a house of mourning or a place of festivity. 53 Mishnah Ketuvot 7:2–5. And in Talmud Ketuvot 72a there is an enumeration of other demands of the husband that will denigrate and embarrass his wife. Such behavior, known as "vows which torment the woman's persona" (" nidrei innui ha-nefesh "), 54 Ketuvot 71a; Hiddushei ha-Ran, Ketuvot 32b, per Rif pagination; SA EH 76:17. is outlawed by Shulhan Arukh and Rema unless the wife consented. 55 SA YD Rema 234:67, 235:3, EH 74:4–8. In fact, a husband is proscribed from directing his spouse to interact with her parents and/or other family members. See Bi'ur ha-Gra SA EH 154:10. | {
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In sum, there is potential for dissolution of marital ties due to such vows which, in modern terminology, would be labeled as emotional abuse. In the wake of a husband's emotional abuse of his wife, are there grounds to coerce the giving of a get ? | {
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In all these Mishnaic rulings it states that he must give a get, and the language which is utilized is "take out" (" yotzi "). Though regarding a husband's vow dealing with preventing his wife from wearing a certain adornment, the majority of decisors mandate get coercion, 56 Tosafot Ketuvot 70a, s.v. yotzi ; Tosafot Yevamot 64a, s.v. yotzi ; Rashi, Ketuvot 71a, s.v. mefaresh ; MT , Ishut 14:8; Hiddushei ha-Ritva, Ketuvot 70a; Tosafot ha-Rid, Ketuvot 70a; Hiddushei Nimukei Yosef , Ketuvot 70a; Hiddushei ha-Ra'ah, Ketuvot 70a. Cf. Hiddushei ha-Rashba, Ketuvot 77a in the name of Rabbeinu Hannanel; Rashba , op. cit. in the name of Rabbeinu Tam. nonetheless, generally speaking, when the Mishnah states "take out, " the majority of authorities will only obligate a get . 57 Talmud Yerushalmi, Ketuvot 1:7, Yevamot 9:4, Gittin 9:9; Tosafot Ketuvot 70a, s.v. yotzi in the name of Rabbeinu Hananel; Piskei ha-Rosh, Yevamot 6:11; Teshuvot ha-Rivash 127; Teshuvot Tashbetz 2:68; Semag, Positive Commandment 48 (end); SA EH 154:21 in the name of yesh omrim . Cf. Rashi, Yevamot 65b, s.v. hu amar ; Tosafot , Ketuvot , op. cit.; MT, Ishut 15:7; Magid Mishneh, MT Ishut 14:8; SA EH 154:24. As noted by some legists, it is incumbent upon beit din to determine if the husband's emotional abuse of his wife is more severe than the incidents enumerated in the Mishnaic and Talmudic rulings of Tractate Ketuvot prior to obligating a get . 58 Teshuvot ha-Rashba ha-Meyuhosot le-Ramban 102; Sefer ha-Agudah, Yevamot 77; File no. 1098557/3, Beit Din ha-Rabbani ha-Gadol, August 14, 2017. Others assume that emotional abuse is worse than the behavior cited in the rulings of the Mishnah! 59 Bi'ur ha-Gra, SA EH 154:10; Hazon Ish EH 108:14. Consequently, it is unsurprising to find that there is a minority of decisors ( a " da'at me'ut ") who will coerce a get if the severity of the abuse exceeds the degree of abuse which emerges from the cases mentioned in the Mishnah and Talmud. | {
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Probably the most frequently cited responsum regarding emotional abuse, both in the universe of over 300,000 extant responsa and in the decisions of the Israeli Rabbinical Courts handed down under the Chief Rabbinate, addresses a case in which a husband physically endangered his wife's life by depriving her of food. In his attempt to ascertain whether this behavior constitutes grounds for divorce, Rabbi Shimon bar Tzemah Duran (known by the acronym: Tashbetz) of fourteen century North Africa draws two analogies to psychological battery in order to arrive at the conclusion that a get ought to be given. Tashbetz argues: 60 Teshuvot Tashbetz 2:8. Whether Tashbetz aligns himself with the position that an abusive husband is subject to get coercion is subject to debate. See Yad Aharon EH 154; Teshuvot Maharsham 5:38; Teshuvot va-Yomeir Yitzhak EH 135. | {
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If a husband declares, "I will neither feed nor provide for my wife," he is compelled to grant her a divorce . . . If bad breath would be grounds for such compulsion [as stated in the Talmud Yerushalmi], her very soul is far more so. . . . In this case, he should divorce her and pay the amount stipulated in the ketubah because it is written that "she was to live with him and not to suffer with him". . . . If even concerning one who prohibits his wife from doing things which are not so painful for her, we rule that he should divorce her . . . a fortiori when he causes distress on a regular basis that we should say that he should divorce her and pay the amount earmarked in the ketubah . | {
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"ref": "Rabbinic Authority V, Part 2; Rabbinic Authority; The Reality, Chapter 4; Case studies of a wife's claim for voiding a marriage and levirate marriage (\"yibum\"), d) A husband who does not engage in conjugal relations (\"onah\") 82",
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Tashbetz's use of analogy to cases of psychological abuse in determining the status of physical abuse is not an isolated instance. In obligating a wife-beater to grant a get , Rashba finds support for his conclusion in the above cited Mishnaic rulings obligating a husband to give a get in a case of a husband who attempts to prevent his spouse from associating with her family and/or friends. 61 Teshuvot ha-Rashba 7:477. | {
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Thus, as counterintuitive as it appears, for both Ramban 62 Ramban , supra n. 58. and Tashbetz, the level of enforcement of a divorce judgment relating to emotional abuse was clear and required no lengthy argumentation to defend. On the contrary, for these decisors the real issue lies in the realm of physical battery of a spouse; they determined the proper ruling in the latter case based upon the conclusion in the former. 63 Cf. Binyamin Ze'ev , infra n. 64 who contends that emotional abuse ought to be equated with spousal physical abuse in terms of the issue of whether one coerces or only obligates a get . See File no. 990702/2, Netanya Regional Beit Din, Sivan 5776. | {
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In opposition to the numerous decisors who will only obligate a get for spousal emotional abuse, there are some well-known and well-respected authorities who align themselves with Tashbetz's posture, mandating get coercion in cases where the degree of emotional pain/stress is significant. 64 Hagahot Maimoniyot Ishut 22:4; Darkhei Moshe, Tur EH 154 and Bi'ur ha-Gra's , supra n. 60 understanding of Ramban; Teshuvot Yakhin u-Boaz 2:44; Rema SA EH 154:1; Teshuvot Binyamin Ze'ev 88; Teshuvot Rabbi Yehuda Miller 14; Teshuvot Maharsham 5:35; File no. 9465-21-1, Netanya Regional Beit Din, 26 Shevat 5767 (Rabbi Shlomo Shapiro's opinion); Edut be-Yehosef 37. See supra n. 60 for the debate regarding Tashbetz's posture whether abuse is grounds for get coercion. Relying upon Hagahot Maimoniyot, Ishut 22:4 and Rema SA 154:1, argues Rabbi Yehudah Miller that severe emotional violence mandates imposing get coercion. See Teshuvot Yehudah Miller 14. | {
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As we mentioned earlier in our decision, in the absence of the ability to coerce a get in the Diaspora, there are authorities who will void a marriage based upon invoking a clear expectation (" umdana de'mukha "). 65 See text supra accompanying nn. 40 and 45. As we mentioned in our decision, we employed the clear expectation that a woman would never marry a man who would not practice the duty of intimacy in general, and the accompanying conduct of embracing and kissing in particular. That being said, based upon the foregoing, there emerges a second clear expectation, namely that a woman would not marry a man who would emotionally abuse her. In short, there are two types of clear expectations which serve as grounds for voiding the marriage. The emerging question is whether there is a double doubt (a sefek sefeika ) regarding what the Halakhah ought to be and we can therefore offer a second reason for voiding a marriage. Seemingly, this avenue for voiding a marriage is not recognized. Implicitly or explicitly relying upon the view of Rabbi Mordekhai ben Hillel, 66 Mordekhai, Yevamot 21. Hence, it is of no surprise that Rabbi Mordekhai ben Hillel subscribes to the posture that a biblical doubt, a sefeika de'oraita, is to be resolved stringently on a biblical level. See Mordekhai, Yevamot, 88a. some decisors contend that the construction of a double doubt under such conditions will be ineffective. 67 Taz SA YD 110:15; Teshuvot Ranah 27; Teshuvot Marhash 30; Knesset ha-Gedolah, EH 68, ha-Gahot Tur 149 in the name of Tumat Yesharim; Avnei Mi'lium 27:18; Teshuvot Sha'ar Asher EH 1:29 in the names of Rabbis Alfandri, Ramaz Mahari Kubo and Simhat Yom Tov; Teshuvot Be'rah Moshe 34. Cf. Teshuvot Shoeil u-Meishiv , Mahadura Kama 4, Mahadura Tlita'a 120 who argues that this posture requires further deliberation. However, numerous decisors, Ashkenazic and Sephardic alike, argue that in the wake of a double uncertainty or a series of doubts in matters of a halakhic debate in a biblical matter including a matter of personal status ( ishut ), one can trump the presumption of a married woman ( hazakah of eishet ish ) and reinstate her original status as a single woman ( penuyah ). 68 Teshuvot Ein Yitzhak, 1 EH 24 (48) (release from a levirate marriage- halitzah ); Teshuvot Ein Yitzhak 1, EH 22 (18), 62; Teshuvot ha-Ranah 1:68; Teshuvot Pnei Moshe 2:51; Teshuvot Hikrei Lev 1, YD 130, EH 59; Teshuvot Maharashdam EH 33; Teshuvot Maharbil 21, 33, 48, 62, 64; Teshuvot Ba'ei Hayyai, YD 216; Teshuvot Maharash 5, 8, 35, 48; Teshuvot Perah Shushan EH 3:2; Teshuvot Sha'ar Asher , EH 1:29, 31; Get Pashut Gittin 129:13; Teshuvot Rabbi Akiva Eiger , Pesakim 37, Mahadura Tinyana 45; Teshuvot Beit Shlomo EH 37; Teshuvot Shem Aryeh EH 111; Kereti u-Peleti , YD 110; Pri Hadash , YD 110:5, 16; Teshuvot Yismah Lev 12; M. Yerushalamski, Teshuvot Minhat Moshe EH 11; Knesset ha-Gedolah, EH 65, ha-Gahot Tur 22–23 in the name of a dozen decisors; M. Yerushalamski, Teshuvot Be'er Moshe , Kuntres Binyan Yerushalyim 18; Teshuvot Nediv Lev EH 8; A. Makovsky, Teshuvot Ohalei Aharon 1:19; Teshuvot Ahiezer 3:19 (release from levirate marriage- halitzah ); Teshuvot Rav Pealim EH 3:11 (end); Teshuvot Yabia Omer 3 EH 18, 6 EH 3 (8), 6, 8; Teshuvot Shema Shlomo 1, EH 6; S. Messas, " A doubt in coercion of a Get ," (Hebrew) 23 Tehumin 120, 123–124 (5763); Teshuvot Minhat Asher 1:73; PDR 21:10; File no. 1126792/1, Netanya Regional Beit Din, 11 Tishrei 5778; Teshuvot ha-Rishon le-Tzion 2:8 For additional authorities who endorse this posture, see numerous responsa, Ashkenazic and Sephardic alike cited in Sefer Rav Berakhot , 126; Mishpat ha-Get , vol. 3, 495–499; Teshuvot Yabia Omer 1, EH 3 (14), 6, EH 3 (9, 14–15), 6 (5) and this writer's Rabbinic Authority , vol. 4, 159, n. 47. For the halakhic underpinnings of employing a double halakhic doubt as a vehicle to void a marriage, see supra chapter 2. | {
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Consequently, in the present case, one doubt is whether there one can halakhically endorse the clear expectation that a woman would never marry a man who would not practice the obligation of sexual intercourse ( onah ) in general, and the accompanying conduct of embracing and kissing in particular, as a means to void the marriage. And the second doubt is whether halakhically one can deploy the clear expectation that a woman would not marry a man who would emotionally abuse her as a vehicle to void the marriage. Seemingly, given that there is a debate as to whether the technique of a clear expectation is a means to void a marriage, the above double halakhic doubt emerges. 69 See supra text accompanying notes 40, 44 and 45. In light of the tradition that a double doubt regarding two halakhic controversies in a biblical mater may trump the presumptive married status of the woman, the marriage may be voided. | {
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Finally, in the wake of the absence of the performance of intimate relations ( onah ), our ruling implicitly rejects the Talmudic presumption ( hazakah ) of "it is better to live as two than to remain in widowhood" ( tav le-meitav tan do mi-le-meitav armalu ). 70 Yevamot 118b; Ketuvot 75a; Kiddushin 7a, 41a; Bava Kama 110b-111a. See Teshuvot Ein Yitzhak 1:24(31); Teshuvot Shevut Ya'akov 1:101. In other words, given that Talmud Bava Kama 110b-11a argues that the technique of the wife's clear expectation is defined by the applicability of the presumption "it is better to live as two than to remain in widowhood", As such; if the presumption is applicable then the clear expectation standard is inapplicable. On the other hand, if the presumption is inapplicable, then the standard is applicable. It is clear that the need for intimacy is a reason that a wife would remain married rather than live alone. See Otzar ha-Geonim, Teshuvot, Bava Kama , 103; Teshuvot Radakh Bayit 9, Heder 11; Iggerot Moshe EH 1:79; see supra text accompanying n. 22. For additional decisors who argue that the presumption is inapplicable in the absence of intimacy, see Teshuvot Ein Yitzhak 1, EH 24; Piskei Halakhot, Yad Dovid , 186b; Teshuvot Yabia Omer 7, EH 7; Teshuvot Beit Av 7, 28(3). Cf. Teshuvot Shevut Ya'akov 1:101; Teshuvot Ezrat Kohen, EH 44. Consequently, in the absence of the existence of intimacy, the wife's clear expectation is that she never would have married such a person and under certain conditions the marriage ought to be voided.In our case we endorsed this approach. Implicit in our endorsing this presumption is that it is predicated upon the preference of the majority of women to remain married due to the need of intimacy. See Iggerot Moshe, EH 1:79, 80, 3:46, 48, 4:83. Therefore the presumption may serve as defining the applicability of the clear expectation standard. Consequently, in our case we concluded that the majority of women want a man who engages in conjugal relations. Given that in our case intimacy as prescribed by Halakhah did not transpire, consequently in accordance to the clear expectation standard there are grounds to void the marriage. As we have demonstrated, in a matter of marriage there is a rebuttable presumption that "it is better to live as two than to remain in widowhood" therefore, a woman may be willing to live with her husband despite certain defects. On the other hand, regarding a wife's defects there is a rebuttable presumption that a husband is unwilling to live with her defects. See Magid Mishneh, MT , Mekhira 15:3. Similarly, in a commercial matter such as the halakhot of transactions, there is a rebuttable presumption that a purchaser is unwilling to accept defects. See SA HM 232:7; Teshuvot Pnei Moshe 2:55; Teshuvot Beit Shlomo HM 1:62. As noted by Bi'ur ha-Gra SA HM 232:13 the source for this presumption in a commercial matter is derived from a wife's defects. See Ketuvot 72b. A review of our responsa ( teshuvot ) will demonstrate that a woman wants to be married and under many conditions prefers to remain married to a man for multifarious reasons such as having conjugal relations, being desirous of bearing children, being economically dependent upon her spouse and that being married is socially attractive. 71 Teshuvot Maharik , shoresh 101; Teshuvot Ein Yitzhak 1, EH 24; Teshuvot Be'air Yitzhak EH 3; Teshuvot Iggerot Moshe EH 1:139, 4:113; Teshuvot Maharsham 2:60; Teshuvot Heikhal Yitzhak EH 2:21. | {
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The emerging question is: in light of the absence of conjugal relations in our case, given that there are various other reasons for remaining married, ought one apply the presumption of "it is better to live as two than to remain in widowhood"? To state the question differently, since we voided the marriage, on what basis did we implicitly reject the application of the presumption in our situation? Notwithstanding the views of Rabbi Ya'akov Reicher and Rabbi Avraham Yitzhak Kook that the presumption would be applicable due to the fact that engagement in conjugal relations is not the sole reason underlying the presumption, 72 Teshuvot Shevut Ya'akov 1:101; Teshuvot Ezrat Kohen 44. See also Teshuvot Meishiv Davar 4:76. other authorities contend that in the absence of intimate relations the presumption is inapplicable. 73 Teshuvot Havot Yair 221; Ein Yitzhak , supra n. 71; Teshuvot Iggerot Moshe EH 1:79, 4:113; Teshuvot Yabia Omer 7, EH 7. Implicitly, our beit din has endorsed the latter approach. | {
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Given that the marriage is being voided due to the husband's failure to perform the duty of conjugal relations properly, why did she wait over four years to divorce him? First of all, she had no place to live. Her parents were dysfunctional and therefore could not provide a home for her and her child. And in fact, after the couple's separation, she lived in a shelter for women. Also, she heard that every marriage was difficult and it was her responsibility to attempt to address the problems. Consequently, although she had separated from him earlier, before the final separation, due to his engagement in spousal physical abuse, she returned to him, hoping that therapy would ameliorate the situation. However, the therapy never succeeded to restore his mental stability and he refused to take medicine to address his mental disorder. 74 A social worker as well as a marriage counselor claimed that he was suffering from an obsessive compulsion disorder. Their assessment was based upon their respective impressions rather than a professional diagnosis. As such, we were unable to factor their assessment into our deliberations whether his psychological condition may have served as grounds to void the marriage. In short, out of love for her husband and feelings of responsibility towards him she attempted to save the marriage but to no avail. Moreover, her rabbi told her to remain married. | {
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Finally, she was unsure whether he was incapable of improving "the bedroom situation" by performing properly at the time of intercourse, both in terms of the actual act of conjugal relations as well as exhibiting signs of intimacy such as kissing and caressing. However, marital intimacy never transpired. She was adamant that she wanted this marriage to succeed. Once she arrived at the realization that there were no prospects to live as a family for her and their child, she left him. Upon her realization that marital harmony was unattainable, she left due to the absence of the frequency and quality of intimacy. In short, reasonable explanations were offered as to why she remained in the marriage for a few years and as such there still remains a reason to void the marriage. 75 For the grounds of allowing a wife to delay leaving the marriage due to her sudden awareness of her husband's failure to disclose a major flaw prior to their marriage, see Iggerot Moshe EH 3:45, R. A. Weiss, Teshuvot Minhat Osher 1:72 (4); and this writer's Rabbinic Authority , vol. 3, 136–139. Halakhic logic ( sevara ) would dictate that such an allowance would apply if during the marriage her husband suddenly succumbed to a certain disease or exhibited improper conduct which she never expected would ever happen. In sum, in both situations reasonable explanations for delaying leaving the marriage would still allow for a beit din to void the marriage. Though we summoned the Nitva to appear at the hearing, he refused to attend. For the halakhic grounds of conducting a hearing in the absence of party in general and dealing with the trustworthiness of the wife in the light of the Talmudic presumption "a wife does not dare to lie in her husband's presence", see this writer's Rabbinic Authority , vol. 4, 216–218, n.2. For the applicability of this presumption in situations of absence of the husband at a beit din proceeding, see Hiddushei ha-Ritva Ketuvot 23a; Teshuvot ha-Rivash 127; Teshuvot Binyamin Zeev 166; Teshuvot Maharik , shoresh 72; Gevurat Anashim 29, 33; Teshuvot Noda be-Yehudah , Mahadura Tinyana EH 91; Teshuvot Maharbil 63, 101; Beit Shmuel, SA EH 152:12 (end); Teshuvot Ein Yitzhak 2, EH 34 (9) in the name of Ramban and Rashba; Teshuvot Yabia Omer 4, EH 11. Lest one contend that in accordance with Hiddushei ha-Ritva, Ketuvot 23a and Teshuvot ha-Ridvaz 3:406–407 that a wife's trustworthiness concerning her husband's behavior is undermined in cases where she states that he is a wicked (a rasha ) such as claiming that her husband engages in spousal rape, lives intimately with her during her menstrual period (a nidah ) or as occurred in our case fails to perform his conjugal relations properly, there are other decisors who argue that she is nevertheless, to be believed. See Teshuvot ha-Rosh 43:12; Teshuvot Ketav Sofer EH 103; Teshuvot Edut be-Ya'akov 36; Rabbi Elyashiv, Kovetz Teshuvot 1:185; Rabbi Yisraeli, Teshuvot Mishpetei Shaul 19. For a wife's credibility ( ne'amanut ) regarding her beit din presentation of her husband's conduct during their marriage, see Pithei Teshuvah SA EH 154:19 in the name of all authorities and later authorities ( aharonim ). Consequently, due to a halakhic consensus concerning her trustworthiness, there is a presumption that "a wife does not dare to lie in her husband's presence". As such, should she claim in her husband's presence that her spouse is impotent, engages in spousal rape or has conjugal relations with her while being a menstruant (a nidah ), she is believed. See further Teshuvot Yabia Omer 4 EH 11 in the name of the majority of "early authorities" ( rishonim) and "later authorities" ( aharonim ). However, according to certain decisors, the above position is contingent upon the fact that the wife has not advanced a claim for the monetary value of her marital agreement ( ketubah ). See Tosafot Yevamot 65b; Teshuvot ha-Rosh 43:12; SA EH 154:7; Taz SA EH 154:6; Teshuvot Mishpat Tzedek 1:59. Said claim may undermine the credibility of the presumption. | {
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This decision was approved by a renown halakhic authority. | {
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E. A husband who is a philanderer | {
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Facts of the case | {
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The couple married according to Halakhah in January 1978, and they separated in 1998. In that year, Morris (hereinafter: the defendant) filed for divorce in the civil court, and in July 2006, the civil divorce was granted. After the separation, the defendant moved in permanently with a non-Jewish woman, and according to the evidence submitted by Pearl (hereinafter: the plaintiff) and one of the relatives, as well as an article in a newspaper, he married this woman in a civil ceremony. | {
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To this day, the defendant has made the giving of a get conditional upon the withdrawal of the plaintiff's threat to file a claim in civil court for the defendant's failure to pay alimony by executing a post-divorce agreement. The plaintiff refuses to sign such an agreement. | {
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Although we summoned the defendant to appear before this Beit Din for a hearing on the matter of the get , he refused to comply with our request. Owing to a medical problem from which the defendant suffers, we twice suggested to him that we would hold the hearing in his home, but he rejected this offer. | {
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In a hearing that took place in the absence of the defendant, the plaintiff recounted that the defendant had taken at least ten trips to distant destinations in order to participate in work-related meetings. He travelled on Shabbat , he said, in order to attend meetings on Monday. The plaintiff had thought it strange that he left so early in order to attend a Monday meeting, but she said nothing to him. On one of the trips, the plaintiff called the hotel at which the defendant was staying, and when the call was put through to his room, a woman answered. The plaintiff was surprised, and asked the defendant, "Who is this woman?" He replied that it was a woman from the hotel cleaning staff. At that time, the plaintiff accepted his explanation. | {
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In 1996, the plaintiff found a photograph in which the defendant appeared with women at the beach, dated at a time at which he was in France. After discovering this photo, the plaintiff warned the defendant to put an end to his contacts with other women. | {
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On the couple's honeymoon, the plaintiff discovered that the defendant was strongly attracted to prostitutes. He planned the honeymoon so that they would stay in a hotel in close proximity to a street which was known as a "prostitutes' place". When the plaintiff was with her children in Israel, a cousin of the defendant stayed with him in New York, and while he was there, they checked out the rates of prostitution services in the city. Several times during the course of their marriage, the defendant asked the plaintiff about the going rate for prostitutes. | {
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At the end of 1996, or at the beginning of 1997, the defendant went to a neighborhood in New York where there were prostitutes, and he asked one of them, "What is your rate?" To his surprise, she answered that she was a policewoman (undercover as a prostitute), and took him to the police precinct. At the end of the court hearing, a penalty of community service for a short period was imposed on him. The plaintiff also recounted that she received a report from the police which mentioned the date of the incident and details of the arrest described above; she also received a legal document to the effect that the defendant must perform a number of hours of community service due to the offense that he had committed. | {
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Although these documents had been thrown away, the plaintiff submitted to this Beit Din a recording from September 1998, in which the defendant is heard to admit to the occurrence of the above incident. According to one of the sons, too, the defendant admitted that this had indeed happened. After this incident, the plaintiff again warned the defendant to put an end to his contact with prostitutes. | {
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After this incident, in December 1997, the parties' younger son (who at that time was 13–14 years old) discovered email correspondence with a strange woman on his father's computer. According to him, these emails indicated that his father had "an inappropriate relationship with the woman." When we asked him if his father had intimate relations with that woman, he answered that this happened many years ago, and he does not remember. However, at the time he was under the impression that the father had an intimate relationship with the woman. He added, however, that he remembers that when he confronted his father with these emails, his father was very angry that he had discovered them. Subsequently, the son showed these emails to the plaintiff, and she claims that they show clearly that the defendant had an intimate relationship with this woman. The plaintiff approached him on the matter, but he did not admit to having an intimate relationship with this woman. At the same time, he expressed his intention to stop corresponding with her by email. In the said recording, we heard the defendant admitting that he was in contact with this woman, even though he refrained from admitting that he had an intimate relationship with her or any other woman. | {
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From the plaintiff's words, it emerges that in the course of their marriage, she warned the defendant at least six times to cease and desist from any relationship that he had with other women. | {
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In January 1998, the parties' older son (who at the time was aged 18–19) found similar emails on the defendant's computer. We asked him whether the contents of the emails indicated that the defendant had an intimate relationship with the woman with whom he was corresponding, and the son answered that he did not know. Clearly, however, even according to what he did say, the interaction indicated, in his words, a "suspicious relationship." After discovering these emails, the son showed them to the defendant, and in this case too, the defendant got angry but again did not admit that he had an intimate relationship with that woman. The plaintiff did not see these emails herself. That year (1998), the defendant began to frequent pornographic websites; already in 1993, the children had found a pornographic film in the house. | {
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In effect, the plaintiff's awareness of the defendant's inappropriate behavior started to emerge at the end of 1996 with the incident of the alleged prostitute and culminated with the recordings in 1997 and 1998. Although, as we pointed out, there were certain incidents prior to this time which cast suspicions about his conduct, it was only commencing with the end of 1996 that her suspicions were validated. It is clear that the planned entrapment by the plaintiff by means of the recording constituted preparation in anticipation of the claim for divorce that she planned to submit to the Court. From an examination of the judgment of the Court, which was rendered after the recording, the connection between the recording and paragraphs 10, 12–13 of the judgment emerges clearly. Accordingly, despite the fact that it was the defendant who formally instigated the divorce proceedings in Court, the recording proves that the plaintiff had commenced, already a year beforehand, in order to convince herself that he was a philanderer and "to prepare the ground for divorce." Moreover, she also notified the Court that at that time she had consulted with two lawyers on the matter of divorce. | {
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Given the more recent revelations, she separated from him in 1998. | {
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Discussion | {
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A. Does infidelity on the part of the husband constitute grounds for divorce? | {
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It clearly emerges from the facts described above that the defendant was unfaithful to the plaintiff and even lived, at times, with another woman, and that despite the plaintiff's warnings, he continued in his adulterous ways, and he continues to act in this manner even after separating from his wife by civilly marrying another woman without giving a get to his wife. Therefore, he is to be defined halakhically as a "philanderer" ( ro'eh zonot ). According to Rema: 1 Darkhei Moshe, Tur EH 154:21; Rema, SA EH 154:2. | {
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Regarding a person who is a philanderer and his wife complains about it: if there is evidence that he was seen with adulterers or that he confessed, some say that he is forced to divorce her. | {
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The Netanya Regional Beit Din interprets Rema's ruling in the following fashion: 2 File no. 1-24-4564, 8 Shevat 5766. The invoking of an umdana can be equally culled from the words of Beit Yosef, Tur EH 154. See See Piskei Din Rabbanayim (hereinafter: PDR ) 12:25, 26; File no. 850106/2, Beit Din ha-Rabbani ha-Gadol, 14 Tevet 5772 and Teshuvot Shema Shlomo 3:19 (5). | {
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This means that he was seen in the company of adulterers, and it means that it is not necessary for him to be seen committing adultery, which would be the case if the issue was prohibiting an adulterous woman to her husband. But in order to determine that he is a philanderer (" ro'eh zonot " – AYW), it is sufficient that he is seen in the company of those who are habitual adulterers, and the circumstances in which they are seen then attest to the fact that he is a philanderer. . . . In all cases in which there is a strong presumption that he is a philanderer, we rule in accordance with this presumption and with his conduct which clearly proves his deeds, even though we have not seen him in the act. | {
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In the present case, it is not necessary to invoke a presumption in order to conclude definitively that the defendant is a philanderer, for as we described in detail above, the circumstances attest to the fact that he indeed availed himself of the services of prostitutes, such as in the incident in New York with the undercover policewoman, proving that he moved about in places where adultery and prostitution were to be found. Following this incident, other events that occurred throughout the course of the marriage become comprehensible (choice of location for the honeymoon; his long-distance journeys; the phone call with the woman in his hotel room; the email correspondence, the pornography on the internet, the engaging in a bigamous relationship etc.), which indicate that he is a philanderer. | {
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The first of the authorities to discuss the definition of philanderer and its halakhic meaning is Rabbi Alexander Zuslin ha-Cohen of 14th century Germany, who writes: 3 Sefer ha-Agudah , Yevamot 77. | {
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A matter once came before me: Leah claims about Reuven that he is a philanderer while he denies it. I ruled that if she brings witnesses that he is so – he must divorce her and pay out her the ketubah , whether according to Scripture, or to the Talmud, or on rational grounds. Scripture – for it is written (Bereshit 31:50): "If you shall take wives beside my daughters." The Talmud, for it states there: "A person may take more than one wife only when he is able to provide appropriately for all the needs," and in this context, it is written (Mishlei 29:3): "But he that keeps company with harlots wasteth his substance." And on rational grounds, since philandering is worse than all the grounds cited in the chapter ha-Madir [Tractate Ketuvot] for compelling a man to divorce his wife. But this is only when there are witnesses who saw him with the Aramean woman in the manner of adulterers; but if gentile women bring him children [claiming that he is their father], he is not forced [to divorce his first wife], because there have been several incidents in which [Jewish men] have been conspired against in this way. | {
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Three reasons are brought in the above passage for the right of a woman to be divorced following infidelity on the part of the husband. First, intimate relations with another woman constitutes a fundamental breach of the marriage, particularly at present, when there is a halakhic prohibition of committing bigamy. Second, when the husband is unfaithful, there is a very good chance that he will not be able to provide for his wife's needs. Third, if it is possible to compel a man to give his wife a get when he emits a bad odor, a fortiori he can be compelled to give a get in a case in which he is unfaithful to his wife! | {
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In the nineteenth century, hundreds of years after the appearance of the Sefer ha-Agudah, Rabbi Yehiel Michel Epstein suggests additional reasons for compelling a philandering husband to give a get . Rabbi Epstein elucidates: 4 Arukh ha-Shulhan, EH 154:16 | {
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[Rema] wrote further, that if a person is a philanderer, and his wife complains, if there is evidence that he was seen with adulterers or that he confessed, there are those who say [ yesh omrim ] that he is compelled to divorce . . . and even though in relation to other sins which have no direct bearing on the woman he is not compelled to divorce, in the case of philandering, however, we do compel him, for in this case the sin does have a direct impact upon her. First, it affects her right to sexual gratification, for philanderers "despise that which is permitted to them and are attracted by the sweetness of stolen waters"; second, there is no doubt that he is certainly repulsive in her eyes, and finally, he might even pose a danger to her. And this is true not only according to Rambam, who maintains that if a wife complains that her husband is repulsive to her, he is compelled to divorce her, but even those who disagree with him would admit that in this case [compulsion is justified]. The Talmud explains that a person who refuses to fulfill conjugal duties is compelled [to divorce], and how much more so a philanderer, who is of course worse. All this applies when the truth of the matter has been thoroughly investigated. | {
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According to the above, the husband is liable, due to his infidelity, to refrain from intimate relations with his wife. His infidelity causes him to be repulsive to his wife. Finally, a husband who lives with another woman poses a danger to his wife (presumably referring to the risk of contracting a sexually transmitted disease). | {
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The common denominator of the reasons offered by Sefer ha-Agudah and Arukh ha-Shulhan in support of this ground for divorce is not due to the transgression of adultery itself, but rather in the destruction of family life caused by the husband as a result of these actions, and the wife is therefore entitled to demand a get. 5 Teshuvot Mishpatekha le-Ya'akov 6:4, 108. | {
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In such circumstances where there is evidence that he married another woman, not only is there cause for obligating the husband to give a get , but he may even be compelled to do so. The issuance of a get compulsion order for a philandering husband not only resonates in the positions of Sefer ha-Agudah and Arukh ha-Shulhan but emerges explicitly or implicitly in the rulings of other decisors. 6 Teshuvot Mahari Bruna 168; Tur , EH 154; Erekh Lehem, EH 154, 20; Bi'ur ha-Gra, SA EH 154:65; Teshuvot Mahaneh Hayyim 2, EH , 45 (on condition that there are witnesses who so testified); Rabbi Eliyahu of Tarla , Teshuvot D'var Eliyahu 73; Teshuvot Noseh ha-Ephod 32; PDR 8:254, 256–7. | {
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According to Rabbi Yehezkel Landau, if in fact the husband is no longer living with another woman, he is not to be compelled to give a get . This implies that if the husband continues living with another woman, such as in the present case, where he has been living with another woman for 18 years and is even married to her civilly, Rabbi Landau, too, would agree that he is to be compelled to give a get . 7 Teshuvot Noda be-Yehudah , EH, Mahadura Tinyana 90. | {
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Moreover, today, given our concern about the transmission of AIDS when a man is unfaithful, there are further grounds for compelling a get . 8 Sefer ha-Agudah , supra n. 3; File 1-21-2569, Yerushalayim Regional Beit Din, Hadin veha-Dayan 5, 10 (5764), Rabbinic Authority , vol. 2, pp. 177–181. As opposed to these authorities, Shulhan Arukh does not cite the words of Sefer ha-Agudah as normative Halakhah . His silence in aligning himself with this posture is explained in the following fashion: 9 Beit Yosef Tur EH 154. | {
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And in any case, it appears to me that the words of Sefer ha-Agudah, Rabbeinu Simhah and Ohr Zarua are not to be relied on to compel a get , because they are not cited by any of the famous authorities. | {
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Other later authorities ( Aharonim ) equally oppose compelling a get in the case of adultery by the husband. 10 Teshuvot Maharitz , 229; Teshuvot Rosh Mashbir 1, EH 27; Teshuvot Rabbi Azriel Hildesheimer 2:89; Tiferet Ya'akov , Gittin 154; PDR 7:65, 73; 12:24; File no. 210913-1, Tel Aviv-Yaffo Regional Beit Din, 5 Av 5759; File no. 10836/6, Netanya Regional Beit Din, 8 Shevat 5775. | {
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However, as we have said, Rema invests this view of get coercion with practical halakhic force. | {
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B. A wife who claims "he is repulsive to me" (a plea of mais alai ) – Grounds for compelling a get ? | {
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As we mentioned, according to some later authorities, divorce cannot be compelled on grounds of the husband's infidelity, and we must therefore examine the plaintiff's claim that her husband is repulsive to her due to the very thought that in his adultery, his body was in intimate contact with the body of another woman; she is sickened by the very notion of resuming intimate relations and of reconciliation with him! | {
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1. Rebellious Wife due to Revulsion | {
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From the Talmud in Ketuvot 63b, it emerges that there are two types of claim of rebellion that may be advanced in beit din by the wife regarding marital relations: | {
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(a) Rebellion due to a dispute (She says, "I want him as a husband but I wish to torment him") – A wife who does not want to divorce, but refuses to engage in marital relations, in order to cause distress to her husband due to her dispute with him. 11 MT Ishut 14:9; SA , EH 77:2. This rebellious wife is interested in divorcing her spouse without providing reasons, and she is tormenting her husband so that he will divorce her and pay out the value of her marital agreement (the ketubah ). 12 Tosafot, Ketuvot 63b, s.v. aval in the name of Rabbeinu Tam; Perishah , Tur EH 77:18. | {
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(b) Rebellion due to revulsion ("He is repulsive to me") – the wife can no longer bear to engage in marital relations with her husband. 13 Rashi , Ketuvot 63b, s.v. aval amrah . | {
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In our view, the arguments of the plaintiff cannot be classified as rebelliousness of the first type, for she has no interest in causing her husband distress, neither due to any argument with him, nor so that he will pay out the value of her ketubah . On the other hand, the plaintiff is not claiming that her husband is repulsive to her regarding marital relations; rather, that life together with him is repulsive to her, and she no longer wishes to be married to him. The question, therefore, is whether this second type of argument of rebellion due to revulsion is limited to cases in which the woman can no longer bear having intimate relations with her husband, or whether it can also be advanced in circumstances in which the wife can no longer tolerate married life with her husband due to his conduct towards her. | {
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Rabbi Aharon Sasson casts doubts regarding this question, particularly as to the correct understanding of Rambam's opinion: 14 Teshuvot Torat Emet 186. | {
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When the Talmud says, "He is repulsive to me," . . . her claim is that she can no longer engage in sexual relations with him due to revulsion, like the precise understanding of the expression, "He is repulsive to me like the flesh of a pig, etc." But if her argument does not relate to revulsion at intercourse, then her argument is not that of "He is repulsive to me," and even if she says, "I do not want him because I hate him," or "He will no longer be called my husband," etc., as is said in this case, these statements do not indicate a claim of "He is repulsive to me" etc., for it is possible that the hatred arises not due to revulsion but only because of a dispute with him, or something else, and then her claim is not one of revulsion. . . . And it might also be possible to say the contrary, i.e., "He is repulsive to me" is one way of saying "I hate him and I do not want to be with him" etc., . . . as is implied in Rambam's words there: "She is not as a prisoner who is forced to have relations with one who is hateful to her" etc. The formulation, "He is repulsive to me" is not used [by Rambam], from which we may deduce that hatefulness and repulsiveness are one and the same thing. And the reason that the Talmud did not include hatred in general is because it wanted to be sure that there is an objective reason for the hatred. | {
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And after adducing various proofs for each side of the argument, he concludes: | {
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In light of all this, I have doubts in the present matter, since I have not found a definitive answer in any of the decisors, or even the slightest indication of a preference in relation to any of these arguments. This may be because the matter was so clear to them that they did not feel the need to provide any definitive rulings. Therefore, my tendency is that whenever the wife says, "I do not want him and I hate him and he is no longer to be called my husband," we will apply the halakhah of "He is repulsive to me." | {
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Indeed, from the writings of a number of authorities, a distinction emerges between the two possible claims of the wife that she is revolted by her husband, and according to this, only in relation to being revolted by intimate relations will the halakhah of the rebellious wife (" moreidet" ) due to revulsion be applied to the wife. 15 Hiddushei Ra'ah , Ketuvot 63b, s.v. heikhi dami ; Beit ha-Behirah , ad lo c ., s.v. ugedolei hamehaberim . | {
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Rabbi Herzog defines revulsion by a medical analogy in a more narrowly-focused fashion: 16 Teshuvot Heikhal Yitzhak 1:2. | {
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And one must further distinguish: the claim "He is repulsive to me" is not just a matter of simple hatred, but deep revulsion at having relations with that body, and this is one of the deep secrets of the soul [in our days, the doctors have discovered a disease known as haphephobia – fear of being touched, i.e., for a reason which cannot be explained, a person is reluctant to touch a certain person or object, and Rambam, in his divine wisdom, preceded modern day physicians in many things, including this]. | {
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It emerges from the words of many decisors that the claim of revulsion also applies in circumstances in which the wife is not interested in continuing to live with the husband, and there is not even a need for a wife's explicit statement of revulsion. Said conclusion may be derived from how the plea of repulsion is dealt with by other decisors. For example, in discussing compelling levirate marriage ( yibum ), one authority explains that according to Rambam and others, "Not only does this apply in relation to a claim of ‘he is repulsive to me,' but in any case in which she claims a get , we give it to her immediately." 17 Teshuvot Maharik , shoresh 102. Rabbi Shmuel de Medina opines that the sanctions of Rabbeinu Tam (i.e. isolating measures that serve to pressure a recalcitrant husband to give a get ) do not apply only to the claim, "he is repulsive to me." 18 Teshuvot Maharashdam , EH 41. Beit Shmuel and others cite the above responsum of Rabbi Sasson discussing a case in which the claim was not formulated as "he is repulsive to me," and thus we may infer that they rule similarly regarding this claim or formulation. 19 Beit Shmuel, SA EH 77:1; Teshuvot Tzemah Tzedek (Lubavitch), EH 262:11; Teshuvot Pnei Moshe 1:55. The position of these legists is adopted in various rulings of the rabbinical courts functioning within the network of the Chief Rabbinate in the State of Israel. 20 PDR 5:154, 157; 8:124, 126; 9:17, 181–184; Dayan U. Lavi, Teshuvot Ateret Devorah 1, EH 37. | {
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The following appears among the reasons for the judgment of Netanya Regional Beit Din: 21 File no. 284462/9, April 9, 2014. | {
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According to many of the authorities, and also according to Rambam and the Shulhan Arukh, the definition of "repulsive" does not depend on this particular form, nor does it necessarily depend upon marital relations; rather, the criterion is substantive, relating to the whole of the shared life, and insofar as it is clear to us that the woman hates her husband and does not want him, and in the opinion of the beit din her words are sincere and are based on a clear pretext(s), then it is as if she said, "He is repulsive to me," even though she does not insist that marital relations with him are repulsive to her. And, as emerges clearly from the enactment of the halakhah of the Academy [Geonim] (which is attributed to the halakhah of "He is repulsive to me," and as was proven also by Rabbi Sasson above, and nothing need be added), where it was clear that she was not claiming that he is repulsive to her due to sexual relations, nevertheless the halakhah of "he is repulsive to me" was applied. | {
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In the present case, the plaintiff did not say explicitly "He is repulsive to me," but her words clearly express the revulsion she feels at the husband's infidelity, and her unwillingness to continue her married life with him. | {
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We therefore rule in accordance with the opinion that the halakhoth that apply to the rebellious wife due to her husband being repulsive to her also apply when the wife claims that she no longer wishes to live together with her husband. | {
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2. The evidence required to prove the plea "he is repulsive to me" | {
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Although several authorities are of the opinion that accepting the claim "He is repulsive to me" is conditional upon evidence being brought in relation to the cause of the revulsion, 22 Beit ha-Behirah, Ketuvot 63b, in the name of Rambam; Teshuvot Maharit , EH 40; Teshuvot Divrei Malkiel 3:145; Hazon Ish , EH 79:16; File no. 992236/1, Beit Din ha-Rabbani ha-Gadol, May 17, 2015. many arbiters claim that there is no need for admissible proof for this purpose, and it is sufficient that her revulsion is evident from what she says or from the circumstances, 23 Tosafot, Ketuvot 63b, s.v. aval ; Teshuvot ha-Rashba , cited in Beit Yosef , Tur EH 77, s.v. umah sh'amar she-Rabbi Meir , Tosafot Rid, Ketuvot 64a ; Teshuvot Hut ha-Meshullash 2; Bah, Tur SA EH 77:2; Rema SA EH 77:3; Helkat Mehokeik, SA EH 70:42, 77:25; Beit Shmuel, SA EH 77:27, Dinei Moreidet 3 (Cf. Beit Shmuel SA EH 77:33 – See Ba'al Hagahat Lishkat ha-Soferim ); Teshuvot Mahaneh Ephraim EH 126; Hazon Ish, EH 69:16. See also Teshuvot Yabia Omer 3, EH 18:2. or if she presents an explanation, a clear pretext ( amatla mevureret ), for her claim that he is repulsive to her. 24 Tosafot ha-Rid, Ketuvot 64a; Teshuvot ha-Rosh 43:8 in the name of Maharam of Rothenberg; Teshuvot Tashbetz 4 ( ha-Hut ha-Meshullash ) 3:35; Teshuvot ha-Rashbash 93; Rema, SA EH 77:3 in the name of Tur and in the name of Maharam of Rothenberg. Lest one argue that one cannot rely upon Rashbash's ruling since it was offered in theory ( le-halakhah ) and not in practice ( le'ma'aseh ), nonetheless numerous decisors have understood that one can coerce a get even in accordance with Rashbash. See Teshuvot Seder Eliyahu Rabbah 13; Teshuvot Maharmit EH 40; Teshuvot Shoeil u-Meishiv, Tlita'ah 1:350; Mishkenot Ya'akov . Ma'arekhet 40, 229. The plaintiff's claim that her husband is a philanderer based upon her presentation to this panel constitutes an example of one who claims that her husband is repulsive to her with a clear pretext. See File no. 980712/1, Haifa Regional Beit Din, 2 Mar Heshvan 5775. There are indeed those who argue that there is no requirement for any explanation on the part of the wife, 25 Teshuvot ha - Rashba ha-Meyuchasot le-Ramban 138; Teshuvot ha-Rashba 1:573; Teshuvot Pri Tzedek of Rabbi Raphael Tzror, 2, in the opinion of several early decisors. a position which is not reflective of normative Halakhah . | {
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The majority of decisors are of the opinion that it is insufficient to simply provide some sort of explanation for the claim, "he is repulsive to me," and what is necessary, according to them, is a "clear pretext." 26 See ha-Hut ha-Meshullash , supra n. 24; Rema , SA EH 77:3, and the super-commentaries; Teshuvot Yabia Omer 3, EH 18:3–4; PDR 16:145. | {
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The assumption is that despite the emotional/psychological aspect of the claim, "he is repulsive to me," the wife who is suffering has the ability to express her feelings in a rational manner in front of the beit din by explaining the source or the reason for these feelings with a "clear pretext," and the beit din must determine whether there is a true, justified ground for divorce. | {
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3. Discretion of the beit din in accepting the claim, "he is repulsive to me" | {
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In fact, determination of whether the "clear pretext" is sufficiently compelling to attract the application of the halakhot of the rebellious wife whose husband is repulsive to her is subject to the discretion of the beit din , in accordance with "what the dayanim discern for themselves" in order to assess the sincerity of the claim that the husband is in fact repulsive. 27 PDR 3:201, 206–207; 20:197, 200. | {
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In other words, the beit din must believe that the wife is making the claim for real, relevant reasons, rather than as a trick or a tactic because "she had cast her eyes on another." 28 Beit he-Behirah, Ketuvot 63a; Teshuvot ha-Rosh 43:6. Thus, for example, if the woman waives collecting the value of her ketubah , the sincerity of her claim has more credence. 29 Rema SA EH 77:2; Teshuvot Maharit 2, EH 40; Hazon Ish , EH 79:4. Compare others who contend that it is sufficient for a beit din to determine that the husband is repulsive as grounds for divorce and the wife claiming the value of the ketubah will not undermine the plea of repulsiveness. See Teshuvot ha-Ridvaz 1333; Rabbi Daichovsky, Lev Shomeia le-Shlomo , 1:106–107. | {
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In his clear, articulate manner, Rabbi Kook defines the nature of the "clear pretext" as part of the investigation conducted by the beit din : 30 Teshuvot Ezrat Kohen 56. | {
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Where it is clear to the beit din that justice is on her side and he deserves, by his improper actions and practices, that she would be repulsed by him . . . that he caused everything. | {
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In the present case, the plaintiff's claim that her husband is a philanderer constitutes an example of one who claims that her husband is repulsive to her with a clear pretext. In the words of Arukh ha-Shulhan quoted above, 31 Arukh ha-Shulhan, supra n. 4 . "for philanderers despise that which is permitted to them and are attracted by the sweetness of stolen waters, and he is certainly repulsive in her eyes." | {
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Other authorities regard such behavior as repulsive. Addressing engaging in illicit affairs, for example Rabbi Eliyahu of Tarla writes as follows: 32 Teshuvot D'var Eliyahu 73. | {
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With regard to compelling a person to divorce, this is certainly worse than the defects in relation to which the husband is compelled to divorce, and there is no greater revulsion than this. | {
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In our days, Rabbi Uriel Lavi elucidates: 33 Teshuvot Ateret Devorah 1, EH 37. | {
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It appears from the Sefer ha-Agudah . . . that such conduct on the part of the husband usually leads to him losing his money and to deprivation regarding marital relations and causes the woman distress, i.e., the conduct itself by its very nature entails revulsion on the part of the wife and justifies compelling the husband to divorce . . . revulsion that is recognized and accepted in these circumstances in relation to all wives, and the husband is to be compelled to divorce. | {
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"ref": "Rabbinic Authority V, Part 2; Rabbinic Authority; The Reality, Chapter 4; Case studies of a wife's claim for voiding a marriage and levirate marriage (\"yibum\"), e) A husband who is a philanderer 68",
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In the present case, it is clear on the one hand that the amount of maintenance paid to the plaintiff ($400 per month) was not affected by the defendant's liaisons with another woman or other women. On the other hand, according to the plaintiff, the infrequency of the marital relations with her husband must be attributed to his adultery. | {
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"ref": "Rabbinic Authority V, Part 2; Rabbinic Authority; The Reality, Chapter 4; Case studies of a wife's claim for voiding a marriage and levirate marriage (\"yibum\"), e) A husband who is a philanderer 69",
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Rabbi Shlomo Daichovsky advances the importance of the discretion of the beit din in determining that he is repulsive. The following excerpt of his beit din ruling 34 File no. 168/54, Beit Din ha-Rabbani ha-Gadol (14 Kislev 5755, unpublished): a summary of the judgment was published in ha-Din veha-Dayan 2, 3 (5763). is quoted by Israel's High Court of Justice, a civil tribunal: 35 HC 1371/96 Miriam Refaeli v. Yosef Refaeli , Israel SC 51 (1) 198 (4.20.1997) para. 17. | {
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The need for a clear pretext in relation to one who says "He is repulsive to me" is not because such a claim without a pretext is not sufficient, but because in such a case we are concerned that she might have cast her eyes on another. But as long as her revulsion is clear in the eyes of the beit din , even if it is not justified, the woman is considered as saying "He is repulsive to me" with a clear pretext, and as Hazon Ish said ( Even ha-Ezer 69:16): "The main thing depends on the impression of the beit din , if there is mean-spiritedness in her demanding her ketubah , but if her claim that "he is repulsive to me" appears to be sincere, but she is demanding her ketubah in order to support herself, she will not lose her claim. | {
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Rabbi Eliyahu Bakshi-Doron adds: 36 File no. 168/54, as cited in the High Court, supra n. 35. | {
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Even those who disagree with Rambam that a get is to be compelled when there is a claim of revulsion, agree that if there is a clear pretext, and the claim is sincere and no concern arises that she has cast her eyes on another, the divorce is to be compelled. | {
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Subsets and Splits