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In the present case, according to the impression of the panel of the Beit Din , the plaintiff claims that the husband is repulsive to her with a clear pretext, and he may therefore be compelled to give her a get . 37 Sefer Meisharim 23:8 in the name of Rashba, Teshuvot Mahari Bruna 211; Rashbash , supra n. 24; Teshuvot Yakhin u-Boaz 2:21, in the name of Maharam; Teshuvot Maharshal 41; Teshuvot Rema 26, 96; Teshuvot Tzitz Eliezer 17:53. | {
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C. Admissibility of Evidence Obtained in Breach of Privacy | {
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Another question which must be discussed is the validity of the evidence identifying the defendant as a philanderer which was obtained in violation of his privacy, by means of the plaintiff planting a recording device and by the two sons reading the email correspondence on his computer. The computer was owned by the defendant, but the two sons guessed the password and succeeded in getting into the computer in order to read his email. | {
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What Halakhah applies to evidence that was obtained in a breach of privacy? Does the fact that permission had not been given for this breach disqualify it as evidence? | {
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The dilemma with which we are faced is whether the need to establish the truth outweighs the need to allow evidence which was obtained unlawfully (i.e., in violation of the halakhah ), or does protection of the public interest requiring that privacy be preserved override, in the case at hand, the need to reveal the truth? | {
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The American, English and Israeli legal systems are adversarial systems in which the judge is supposed to be passive and the parties lay out their arguments before him. Accordingly, the judge does not endeavor to uncover evidence that the parties did not present. In accordance with this system, it was ruled that the proceedings in court have finality, since the process is a value in itself, even in cases where justice is not exhausted. 38 Herbert L. Packer, Limits of the Criminal Sanction , Stanford University Press, 1968. | {
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On the other hand, a halakhic system requires the dayan, the judge, to be actively involved in the beit din process, 39 MT Sanhedrin 21:10–11, To'ein ve-Nit'an 6:1, Edut 1:4–6, 2:1–5. See further, E. Shochetman, Civil Procedure in Rabbinical Courts (Hebrew), Yerushalayim 5771, 11–14. and his function is to rule according to the truth. | {
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The Talmud teaches: "Any judge who renders a judgment that is absolutely true, even [if he sits in judgment for only] one hour, is considered by Scripture as if he became a partner with the Holy One, Blessed is He, in the act of creation," 40 Shabbat 10a. and contrarily, "Any judge who renders a judgment that is not absolutely true causes the Divine Presence to depart from Israel." 41 Sanhedrin 7a. | {
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An alternative line of reasoning is that the transgression per se does not disqualify the halakhic outcome, but the value of truth overrides the value of human dignity. 42 PDR 14:289. | {
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Addressing this issue, Rabbi Shlomo Daichovsky teaches us: 43 File no. 1-21-7661, Beit Din ha-Rabbani ha-Gadol, 10 Tammuz 5764. | {
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I believe that it is correct to say that in relation to a married couple, there is no concept of individual privacy. The joint privacy of them both is one unit, one tree. This is the nature of married life, which renders the individual intimacy of each as one intimacy. The cooperation between the spouses is in the areas of intimacy, emotion, physicality and property all together. How can one talk of intrusion into the privacy of one spouse vis-à-vis the other, when the whole essence of marriage is expansion of the individual privacy into joint privacy? Even when the couple is in conflict, as long as the marital bond has not been severed or as long as no decree of divorce has been issued, the collective privacy in which the two sides are partners remains in effect. I agree that this privacy is intended for them alone, and it is not permitted for outsiders to enter, but in our case, the beit din is supposed to investigate the problems in the marriage and to arrive at conclusions. The status of the beit din is like that of a doctor, and each party can and must present before it the problems in their married life, even if one party discloses the misdeeds of the other. | {
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Moreover, although the ruling in practice is that a breach of privacy constitutes a halakhic transgression, 44 Concerning Rabbeinu Gershom's prohibition against reading the letter of another without his knowledge, see Teshuvot Maharam of Rothenberg (Prague ed.) 1022; Be'er ha-Golah, YD 334 (end); Teshuvot Hikekei Lev 1, YD 49; Teshuvot Halakhot Ketanot 1:276; Teshuvot Torat Hayyim 3:47. On the question of damage caused by viewing the property of another (" hezek reiyah ") in relation to reading the material on another person's computer, there is a dispute, and we will not expand upon this issue here. the halakhic principle is that the evidence that was obtained as a result of this violation is not to be disqualified. This principle is learned from the halakhah pertaining to a person who for three consecutive years consumed the halakhically- forbidden fruit of a particular field. These three years count for the purpose of a presumption of ownership, even though the eating of the fruit was forbidden. 45 Bava Batra 36a (according to the Talmudic text of Ba'al Halakhot Gedolot , Rabbeinu Hananel and Rif); MT, To'en ve-Nit'an 12:12; Arukh ha-Shulhan, HM 141:8; Teshuvot Mishpetei Ouziel 4, General Matters 18; Teshuvot Rabaz 1:54; Teshuvot Mishneh Halakhot 2:59, 17:183. According to this position, "evidence that was obtained unlawfully is admissible as evidence, and the prohibition does not detract from the right of the possessor." 46 Eliav Shochetman, Ma'aseh Haba Ba'averah, (Hebrew), (Yerushalayim: 5741) 111, note 40. | {
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This halakhah derives from a principle that was articulated by the Amoraic sage Abaye, who stated: "any act which the divine law forbids, if it has been done, it has legal effect." 47 Temurah 4b. In other words, committing a prohibited act does not negate its legal consequences, for according to the halakhah , there is a distinction between the sphere of prohibitions (" issur ve-heter ") and the halakhic -civil sphere (" dinei mamonot "), and therefore, an unlawful violation of privacy does not disqualify use of the evidence that was obtained by means of this violation. 48 For further discussion on this matter, see Shochetman, supra n. 46. | {
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D. The Probative Value of the Recording and the Email | {
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In the present matter, despite the fact that it was the defendant who sued for civil divorce, the plaintiff claims that she decided to divorce the defendant even before he initiated the civil divorce proceedings. In addition, she claims that the incident with the policewoman posing as a prostitute indeed occurred, even though she does not have documents to prove it. Unfortunately she threw away the police report and the decision of the court which sentenced the defendant to community service for this incident, and therefore, she was unable to submit them to our Beit Din for our review. | {
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In order to prove her claims, the plaintiff submitted to the Beit Din a recording which indeed proved her activities in anticipation of civil divorce proceedings, as well as the defendant's admission of the incident with the undercover policewoman. | {
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However, the recording cannot serve as evidence, for as is known, there is a dispute as to whether voice identification (" tevi'at kol ") constitutes evidence or not. According to Ramban, there are people who are able to produce a voice like that of another person. 49 Ramban's Commentary to the Torah , Bereshit 27:12. A related problem emerges from the view of Ketzot ha-Hoshen, according to whom voice identification is a weak proof. 50 Ketzot ha-Hoshen 81:13. Finally, pursuant to Netivot ha-Mishpat, voice identification is regarded as mere information. 51 Netivot ha-Mishpat 81, Bi'urim 7. In contemporary times, Rabbi Daichovsky rules that a recording cannot be relied upon by itself, without additional evidence. 52 Shlomo Daichovsky, "Wiretapping," (Hebrew) Torah She-be'al Peh 36, 58 (5755). | {
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We listened to two recordings that included two hours of conversations between the plaintiff and the defendant, but we could not recognize their voices on these recordings, which were recorded 19 years ago. Similarly, we listened to conversations spanning one and a half hours that concentrated on the subject of the family debt of the plaintiff's brother-in-law in connection with the couple's house and additional disagreements between them, particularly concerning the way in which the plaintiff's brother-in-law, who is a lawyer, dealt with the apartment. | {
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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 civil 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, "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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On the second matter, it is possible to rely upon the last quarter of an hour of the recording, which includes the husband's admission that the incident with the undercover policewoman had indeed occurred. In this recording, the defendant also confirmed his association with another woman, without admitting that he had an intimate relationship with her. | {
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The probative support for what was said in the recording about the intimate connection is provided by the testimony of the sons of the couple concerning the immodest email correspondence with a woman, as mentioned above. The younger son, who saw the correspondence in 1997 (he was then 13–14 years old) described it as "an inappropriate connection with a woman," and testified that the defendant promised that he would put an end to this correspondence. The plaintiff, to whom the son presented these mails at the time, claimed in the Beit Din that the contents of the correspondence clearly attest to lewdness and adultery, and in her words, "sexually explicit messages". The older son discovered similar messages in 1998 (he was then 18–19 years old), and while he could not say whether this correspondence pointed to an intimate relationship between the defendant and the woman, he also defined this connection as "suspicious." In other words, the plaintiff and the two sons separately raised the matter of the email correspondence of the defendant, and when they confronted him with it he got very angry, but he refrained from admitting that he had an intimate relationship with another woman. | {
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A judgment of Rabbi Zvi b. Ya'akov, a dayan serving on the Tel Aviv-Yaffo Rabbinical Court, provides an apparent basis for the position that the conduct of the defendant defines him as a philanderer. Rabbi b.Ya'akov rules as follows: 53 Teshuvot Mishpatekha le-Ya'akov 6:4, 107. | {
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In all events, it emerges from the view of Sefer ha-Agudah that we don't require actual witnesses to the fornication, as we would in the case of a wife suspected of adultery, but insofar as he is seen with the adulterers, he is classified as a philanderer. It appears that if he exchanges lewd messages on the internet and participates in these things . . . visiting these sites constitutes his being amongst the adulterers, and he is to be compelled to divorce her and pay out her ketubah . . . . | {
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In the present case, however, we cannot rely on the email correspondence, for the writing is electronic and it is clearly impossible to identify who wrote the messages. Even if we could know with certainty from which computer the messages were sent, and thereby determine, prima facie , that the owner of the computer is the person who sent them, this is not absolute proof, for it is technologically possible to penetrating the virtual space of the individual, to read, to change and to copy the digital information stored in the computer; such penetration is an everyday occurrence, and the phenomenon of hackers is well-known. Therefore, who can assure us, beyond all doubt, that the defendant, the owner of the computer, was the one who wrote these messages, rather than another individual? | {
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Authorities from earlier ages were unaware of modern technology in general and of computers in particular, but the later decisors already discuss this point. Avnei Nezer examines a letter that was found, written by a certain married woman to a suspect, which contained several abhorrent and repulsive expressions. The author wrote that if it was not written explicitly in the letter that the woman was adulterous, then this is considered to be no more than unseemliness. And if it emerges that this is her writing, then even though the writing is similar to her handwriting in another document which she admits is hers, this is not proof that she indeed penned the unseemly words. First, the other document might be forged, and should you wish to say that it is not possible to replicate each individual letter, but only a signature, and then the handwriting is not identifiable. But if you wish to say that it is possible to write each letter identically, then forgery is possible. Furthermore, proving the similarity will not serve with respect to her being prohibited to her husband, because the only acceptable method in such a case is visual identification of her handwriting. 54 Teshuvot Avnei Nezer EH 34. | {
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Rabbi Berlin addresses the case of a wife about whom there was a persistent rumor, and the suspected lover admitted to impropriety and also showed letters from her demanding that he not reveal the truth. Rabbi Berlin contends that the rumors carry no weight and that the testimony of the suspect, who was the single witness to the impropriety, was inadmissible, and he writes at length that she not be prohibited [to remain with her husband], for what is written there does not constitute impropriety. 55 Teshuvot Emek She'elah 17. | {
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On the basis of the above, one must be certain that the correspondence was in fact written by the husband and the woman to whom it was addressed. | {
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In the opinion of this Beit Din panel, the email correspondence is not to be presumed to be authentic, and it is therefore possible to accept the claim that it was edited and forged. In this case, the computer was not tested, and it is therefore impossible to prove from the electronic correspondence that the defendant was indeed a philanderer. As such, we cannot apply the ruling of Rabbi Zvi Yehuda b. Ya'akov that lewdness in the defendant's emails constitutes an instance of the approach of Sefer ha-Agudah (i.e., being seen with adulterers) with respect to the definition of a philanderer. | {
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At the same time, since the Beit Din is obliged to render judgment according to how the rabbinic arbitrators ( dayanim ) understand the pending issues, all the matters that we have mentioned that preceded the discovery of the email correspondence, along with all the events that occurred thereafter, fit the pattern of conduct of the defendant in general, and the encounter with the undercover policewoman and subsequent marriage to another woman without giving a get to his wife in particular, therefore clearly indicate that the defendant is to be labeled as a philanderer who never chose to religiously rehabilitate himself. 56 In the absence of rehabilitation (which would make him a " ba'al teshuvah" ), he remains labeled a philanderer. See Teshuvot Hakham Tzvi 133; Teshuvot Seridei Eish 1:94. | {
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E. Igun of the Wife – Grounds for Divorce | {
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In addition to the abovementioned grounds for divorce – the fact of the husband being a philanderer, and the plaintiff being repulsed by him with a clear pretext – justifying compulsion of the get , there is, in the circumstances of this case, another reason for compelling the get , i.e., the igun of the wife. | {
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The defendant has already lived in a different state for a number of years; he fails to perform his marital duties (including refraining from fulfillment of his obligation regarding marital relations and maintenance). He has already left her in a state of being a chained wife due to get recalcitrance ( igun ) for over 18 years and is currently married to another woman. Assuming legally we were empowered to coerce a get , we would render such a judgment. | {
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Moreover, though there are some legists who do not accept irretrievable breakdown of a marriage (i.e. no-fault divorce) as grounds for compelling or obligating a divorce, 57 Teshuvot Divrei Malkiel 3:144–145; Teshuvot Divrei Shmuel 3:145; Teshuvot Shema Shlomo , EH 3:19; PDR 1:161; 4:97, 112; 7:109. See further this writer's Rabbinic Authority , vol. 2, 203–208, vol. 3, 328–333. but on the other hand, there are decisors who do accept the wife's inability to receive her get as grounds for coercing or obligating a get . 58 Sefer Meisharim, Helek 8, Netiv 23; Teshuvot Hayyim ve-Shalom 2:112; Teshuvot ha-Mabit 1:76, 287; Teshuvot Hakham Zvi 1; Teshuvot Divrei Hayyim , EH 1:45; Iggerot Moshe YD 4:15 (2); PDR 13:264; File no. 764231/6, Haifa Regional Beit Din, 25 Iyar 5774; File no. 910130/7, Netanya Regional Beit Din, 16 Sivan 5775; File no. 847350/3, Beit Din ha-Rabbani ha-Gadol, 11 Av 5775; File no. 947820/5, Tel Aviv-Yaffo Regional Beit Din, Adar 2 5776; File no. 865704/1, Tzfat Regional Beit Din, 11 Iyar 5776; File no. 1067799/1, Yerushalayim Regional Beit Din, 17 Iyar 5776.; File no. 1460333/11, Yerushalayim Regional Beit Din, 15 Sivan 5776; File no. 846913/2, Haifa Regional Beit Din, 18 Sivan 5777. See further this writer's Rabbinic Authority , vol. 3, 328–333, vol. 4, 143–161 and infra, Epilogue, n. 10. | {
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F. Decision on the Question of Compelling the Get | {
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From the above it emerges that there are several halakhic doubts ( sefeikot de'dina ) in our case. The Halakhah might be in accordance with the approach of Sefer ha-Agudah and Arukh ha-Shulhan, that a philanderer is compelled to divorce. Alternatively, the Halakhah may be in accordance with the view of Rambam, Rashbam, Rashi, Ra'avad, Smag and others who compel a person to divorce when the wife claims "He is repulsive to me," even without a clear pretext. 59 Teshuvot Tzel ha-Kesef 1:13. On the other hand, one might claim that the Halakhah is not decided in accordance with that view, but rather with the opinion of Rabbeinu Tam, Rosh, Shulhan Arukh, Rema and others, whereby one does not compel in the case of such a claim. 60 Sefer ha-Yashar, ha-Teshuvot 24; Teshuvot ha-Rosh , 43:6; SA , EH 77:1; Rema , ad locum Or the Halakhah might be resolved according to Rashbash and those who endorse his posture whereby if there is a clear pretext, one does compel. 61 Rashbash , supra n. 24 Or it may be that one does not compel, rather the Halakhah subscribes to the opinions of Rosh, Rashba and Beit Yosef as understood by Maharam, whereby even with a clear pretext one does not compel. 62 Teshuvot Osher Hanan 4, EH 77. Or the Halakhah reflects the enactment of the Geonim 63 Decisors who lived from the end of the sixth or the middle of the seventh century C.E. to the middle of the eleventh century C.E. in the west and the thirteenth century in the east. as explicated in Rif and in Or Zarua that in fact, according to the fundamental legal doctrine, one does not compel, but the husband is to be compelled due to the enactment pertaining to the maintenance of Jewish women at a certain standard. 64 Osher Hanan, supra n. 62 Similarly, in the present case, the Halakhah may be in accordance with the approach of Mabit, Hakham Zvi, Divrei Hayyim and others, whereby a get can be compelled due to the husband's get recalcitrance ( igun ), and at variance with the positions of Divrei Malkiel and those who support his view that is not a reason for compelling. In the circumstances of the present case, therefore, there are five doubts in relation to the question of compelling the defendant to give a get . | {
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In view of the proliferation of these halakhic doubts, how must we decide? | {
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One of the great authorities of the 19th century Hungary, Rabbi Moshe Sofer, limits the scope of Rambam's ruling. 65 MT Gerushin 2:20. His rationale is that the pressure that the beit din exerts on the husband to express his willingness to comply with what the authorities say is predicated upon the fact that the compulsion is lawful according to all views, and thus the husband accepts this compulsion as an acceptance of the rabbinic will. However, in cases in which there is a dispute amongst the authorities, we cannot compel the husband, due to the fact that his unwillingness may be justified: "the divorcing person can surely say, ‘on what basis do you prefer the Rosh to the Mordekhai?" 66 Teshuvot Hatam Sofer , EH 2:116. See also, Teshuvot Dvar Yehoshua EH 3:30; Teshuvot Hatan Sofer , EH 59; PDR 4:164, 166 (R. Elyashiv's opinion). See further, this writer's Rabbinic Authority , vol. 3, 35–43. | {
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We argued that because there was no face-to-face confrontation, similar to a Sanhedrin proceeding, the minority opinion cannot be dismissed, and as such the husband's will to listen to the words of the Sages is unclear. Consequently, any get coercion would result in "a coerced get " (a get me'useh ) and thus be invalid. 67 Get Pashut, Kelalim 5. For additional sources, see this writer's Rabbinic Authority , vol. 1, 24, vol. 3, 30, n. 11. | {
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According to Rabbi Moshe Sofer's argumentation, the husband can presumably not be compelled to give a get . | {
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However, this approach is unacceptable to other later authorities. Relying on the ruling of the nineteenth century Lithuanian rabbinic luminary, Rabbi Yitzhak Elhanan Spektor, 68 Teshuvot Ein Yitzhak 2, EH 35. Rabbi Yitzhak Herzog opines: 69 Teshuvot Heikhal Yitzhak , EH 1:2. See also, Teshuvot Sha'arei De'ah 1:119; Teshuvot Har Tzvi EH 2:183. | {
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That because the beit din ruled that he is to be compelled, the husband – despite being aware that there are those who rule against compulsion – accepted the ruling, because it is an obligation to comply with what the authorities in one's generation say. | {
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Rabbi Hayyim Hizkiahu Medini also cites the position of Hatam Sofer, but he challenges it, contending: 70 Sedei Hemed Hashalem, Ma'arekhet Gerushin 1:15. | {
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Since all who appear in a beit din are presumed to be experts in Halakhah , therefore both those who are unaware of the above dispute between the holy rabbis, and those who are learned with regard to it may be compelled to divorce. For it is the Halakhah that all are required to obey the judge who lives in their time, and if the beit din dealing with the case decides that the Halakhah is in favor of compulsion, we may very well say that the parties accept this decision with all their hearts (i.e. their undivided will – AYW), since it is an obligation to comply with the words of the contemporary judges. It is surely inconceivable that a litigant will enforce his opinion of Halakhah against that of the court sitting in his days. | {
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In pursuance to Rabbis Spektor, Medini and Herzog's approach, the conclusion regarding our case at this stage is that there is a basis for compelling the get for three reasons: a get is compelled in the case of the infidelity of the husband, who has been warned several times about his conduct; 71 Even if forewarnings were not executed as required by Sefer ha-Agudah , supra n. 3, nonetheless since marital infidelity is known as prohibited behavior, forewarning is not required. See Pithei Teshuvah SA EH 115:11 in the name of Teshuvot Shevut Ya'akov 3:127. a woman who claims, "he is repulsive to me" with a clear pretext – her husband is compelled to give her a get ; and where the woman is left in a state of a husband's get intransigence, there is a ground for compelling the get . Finally, get coercion is appropriate due to the fact that a philanderer may divert assets from "the marital piggybank" in order to satisfy his desires for lust; consequently, we compel the giving of a get in order that the wife receive the value of her ketubah and other marital assets rather than as retribution for his inappropriate behavior. 72 D'var Eliyahu , supra n. 32. | {
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In sum, in our decision, we have advanced one series of five reasons for get coercion as well a second series of three reasons for get coercion. | {
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G. Voiding the kiddushin by virtue of the clear expectation that "she did not give herself over to marriage with this in mind" ( umdana ) | {
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Even though we have concluded that there are sufficient reasons for compelling the defendant to give a get , such compulsion would be practical only if the plaintiff were living in the State of Israel, where there is a legal possibility of compelling a get , and she could therefore have expected that her marriage would be brought to an end by implementation of the means of compulsion. | {
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However, in our case, the couple is at present living in the United States, in which there is no legal authority (and therefore, no halakhic authorization) on the part of the beit din to compel a get . In accordance with various decisors, in the absence of such authority, relying on the facts that were described and the evidence that was brought before the Beit Din , the kiddushin may be invalidated by invoking the clear expectation ( the umdana de'mukha ) that "she did not give herself over to marriage with this in mind." 73 Given that we are to coerce the giving of a get due to the governing legal system's failure to authorize such action or there would be no halakhic grounds to coerce a get under certain conditions we may void a marriage due to invoking the mechanism of kiddushei ta'ut (loosely translated: a marriage in error). See Teshuvot Ein Yitzhak 1, EH 24: Anaf 6(38); Teshuvot Dvar Eliyahu 48; Teshuvot Har Tzvi EH 2:181; Rabbi A. Shapiro, Sefer Minhat Avraham 2:10; Iggerot Moshe, EH 1:79. Halakhic logic (sevarah ) propels us to conclude that in the wake of the legal situation, we ought to equally invoke in our case and others the technique of the clear expectation standard to void a marriage. In fact, Rabbi Yosef Shaul Nathanson argues in such a fashion. See Teshuvot Shoeil u-Meishiv, Mahadura Kama, 198; Teshuvot Ramatz OH 1:15. See also, Teshuvot Ahiezer 27(4) in the name of Maharshal and Noda be-Yehudah. In other words, whether one may void a marriage based upon the invoking of the technique "a marriage in error" or a clear expectation is contingent upon the fact that legally one cannot coerce a get . Similarly, the Talmudic presumption "It is better to live as two than to live alone" is only operative if one cannot compel the giving of a get . See Teshuvot Ein Yitzhak 1, EH 24 (38–39, 41); Teshuvot Birkat Retzeh 107; Teshuvot Ahiezer 27; Iggerot Moshe EH 1:79. To state it differently, get compulsion serves as the yardstick in determining whether one may void a marriage and rebut the aforesaid Talmudic presumption. Cf. another approach which argues for the inapplicability of the presumption and grounds for voiding a marriage based upon the severity of a husband's flaw as per societal consensus. See infra, chapter 4f, text accompanying notes 64–65; Chapter 4g, text accompanying n.39. In other words, invoking the clear expectation means that there is an implied condition in the constitution of the marriage and its validity. 74 Teshuvot Binyamin Zeev 61; Teshuvot Terumat ha-Deshen 123; Sha'arei Yosher 5:18. Though numerous decisors mandate that a condition must comply with the halakhot of conditions ( mishpetei ha-tena'im ) in matters of marriage and divorce, nevertheless, in certain circumstances Halakhah will validate an implied condition . See Tosafot Ketuvot 97a, s.v. zavin; Tosafot Gittin 75a, s.v. le'afukei; Iggerot Moshe EH 4:121 (end). See further, B. Lifshitz, Promise: Obligation and Acquisition in Jewish Law (Hebrew), Jerusalem: 1988, 138, n. 106. In other words, despite the fact that we are dealing with the prohibition of "a married woman", nonetheless, we may invoke here in accordance to Rabbi Rozin, the mechanism of the clear expectation and void the marriage based upon an implied condition of marriage. On the other hand, voiding a marriage based upon "an error in the marriage"( kiddushei ta'ut ) is grounded upon the notion that Halakhah mandates a meeting of the minds ( gemirat da'at ) which is consummated with the act of kiddushin which is executed by an act of undertaking an obligation (a kinyan ). See Hazon Ish HM 22; Rabbi Y. Abramsky, Dinei Mammonot , Bnei Brak, 5729. The emergence of an error in the kiddushin due to the husband's failure to disclose a major flaw to his prospective wife prior to the marriage effectively prevents "a meeting of the minds". See Hazon Ish, EH 56:9, 77:6. For a contemporary adoption of this approach and the application of the concept of a sale in error to "an error in marriage" see Moreshet Moshe , Bava Metzia 60:4 and Teshuvot Beriti Shalom 5:15. Cf. Rabbi Akiva Eiger who contends that a sale in error ( mekah ta'ut ) is grounded in the violation of a condition ( tenai ) rather than intrinsically linked to the performance of undertaking a duty. See Teshuvot Rabbi Akiva Eiger 2:51, 106. To state it differently, despite the fact that we are dealing with the prohibition of "a married woman", nonetheless, in accordance to Rabbi Eiger we may invoke here, the mechanism of "an error in marriage" and void the marriage based upon an implied condition (rather than an explicit condition formulated in pursuance with the halakhot of conditions) of marriage. For other arbiters who subscribe to Rabbi Akiva Eiger's view, see supra n. 142. See the addendum. Consequently, it is of no surprise that numerous authorities have employed the clear expectation as a vehicle to void a marriage. 75 Teshuvot Maharam of Rothenberg , Prague ed., 1022 ( halitzah -in theory); Teshuvot Hatam Sofer EH 1:82; Teshuvot Avnei Hefetz 30; Teshuvot She'ilat Moshe , EH 2 ( halitzah ); Teshuvot Meshivat Nefesh , EH 73–74; Teshuvot Sha'arei Ezra 4, EH 26; Iggerot Moshe , EH 4:121 (in conjunction with "an error in marriage" – kiddushei ta'ut- a halitzah case); File no. 861974/2, Tzfat Regional Beit Din, May 20, 2014 (in conjunction with another reason); Teshuvot Har Zvi , EH 2:133; File no. 113995/3, Be'air Sheva Regional Beit Din (1/4/2018) (opinion of Rabbi Dershowitz). See supra n. 73. Said position may be predicated upon the argument that one may invoke the clear expectation technique in order to void a marriage even when dealing with the prohibition of a married woman. See Teshuvot Devar Yehoshua 3:20. | {
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Without addressing the validity of the appraisal of intention as a means for invalidating kiddushin , one formulation of the statement "for that reason she married" is found in the words of the Gra of Tarla, who notes: 76 Teshuvot Dvar Eliyahu, supra n. 32. | {
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And even though we accept Rava's opinion, whereby a man may marry several wives on condition that he can fulfill their needs, Ritva points out that where the custom is to marry only one wife, Rava would admit that in such a case, he must divorce her and pay out her ketubah , for this is an implied condition on the basis of which she agreed to marry him. Therefore, that which it is written concerning a man who takes a mistress promiscuously, it is a proven assessment that had she known that this would happen, she would never have agreed to marry him . . . | {
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In our context, the import of the assessment is that the plaintiff never considered marrying a man who was a philanderer. | {
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Final Afterthoughts | {
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On the basis of the above, although there are authorities who oppose use of this clear expectation that "she did not give herself over to marriage with this in mind" as an instrument for invalidating the kiddushin , 77 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 Oholei Aharon 2:44; Teshuvot Ahiezer 3:19; Teshuvot Heikhal Yitzhak EH 2:25; File no. 861974/1, Tzfat Regional Beit Din, 1.21.2003, (opinion of R. Yo'ezer Ariel); File no. 905457/10, Tel Aviv-Yaffo Regional Beit Din, September 11, 2017. Clearly, one of the reasons for rejection of the employing the clear expectation standard as a vehicle to free a wife without a get is due to the prohibition of being a married woman. See Teshuvot Noda be-Yehudah , Mahadura Kama, EH 88, Tinyana, EH 80. nevertheless, in reliance on the authorities mentioned above, we rule that this appraisal of intention can be invoked as a means for voiding the kiddushin in this case. 78 Our conclusion that he is a philanderer can be distilled from the various events that transpired during the course of the marriage, dating back to the location of the couple's honeymoon, certain marital conversations which demonstrate his interest in prostitution, his interest in pornography, frequent unexplained trips of the defendant and culminating with the incident of the undercover non-Jewish police woman, the two recordings, testimony of the children, and civilly marrying a non-Jewish woman without giving a get to the plaintiff. Pursuant to Rema , supra n. 1, a husband is labeled a philanderer if he admits to engaging in an illicit affair or if he is found amongst adulterers. In our case, though the plaintiff alleges that he was found soliciting a woman in a locale of prostitutes, nevertheless she lost the police report and documentation of his arrest regarding this incident. Moreover, the defendant never admitted that he was a philanderer. Yet, as noted by others, in the wake of the absence of an admission and/or the testimony of witnesses, circumstantial evidence and invalid testimony is admissible. See Teshuvot ha-Rashba 3:74; Teshuvot Hatam Sofer EH 1:94; Y. Herzog, "In the matter of a get given under duress," (Hebrew) 1 Hadarom 3, 25 (5717). See further, this writer's Rabbinic Authority , vol. 2, 97, n. 80. Alternatively, we can substantiate our argument of "a plea of repulsiveness with a clear pretext" based upon credible evidence ( raglayim le'devar ) in order to establish a ground for divorce ( ilat gerushin ) that she refuses to continue to live with him without the need to submit evidence which would label the defendant a philanderer. See File no. 1021593, Netanya Regional Beit Din, March 27, 2016; File no. 936936/2, Tel Aviv Regional Beit Din, December 5, 2016; File no. 113995/3, Be'air Sheva Regional Beit Din, January 4, 2018; A. Radzyner and A. Westreich, "Revolutionism and conservatism in the rulings of the Israeli Rabbinical Court: The enforcement of divorce on the grounds of ‘ mais ali ,'" 42 Iyunei Mishpat (manuscript on file with this author). For the validity of utilizing the testimony of a non-Jewish woman in establishing the defendant's willingness to engage in an illicit affair (albeit failing to prove that he is an adulterer) in a location where eligible witnesses are absent (" takanot kadmonim " – the legislation of early authorities), see Rema supra text accompanying notes 1–2; Rema SA EH 35:14; Bi'ur ha-Gra SA HM 35:28; Teshuvot Terumat ha-Deshen 353; Netivot ha-Mishpat 35, Hiddushin 19. Lest one challenge our conclusion that in a case of licentiousness (" davar she'be'ervah ") this legislation is inapplicable (see Teshuvot Petah Beit David 66), in a situation of an agunah , as in our case, the legislation ought to be applicable. See Teshuvot Shoeil u-Meishiv 1:84; Teshuvot Atzei Arazim 18 (as a supporting argument – senif ) to the presence of a clear expectation). Cf. Teshuvot Imrei Yosher 2:56; Teshuvot Beit Yitzhak EH 1:84. Finally, our acceptance of the veracity of the plaintiff's presentation in establishing that he is a philanderer can be distilled from other situations where a wife's words are viewed as being trustworthy. See Teshuvot Mahari ibn Lev 3:102; Teshuvot Maharalbah 33; Gevurat Anashim 67; Teshuvot Ein Yitzhak 2, EH 34; Teshuvot Yabia Omer 4, EH 11. In sum, the trustworthiness of the plaintiff, the validity of the testimony of the policewoman, the various events which impart credence to his being "in the company of adulterers" and our dealing with a case of an agunah serve as the halakhic basis for arriving at the conclusion that he is a philanderer. Having established that the defendant was a philanderer we now have identified one of his personality traits which allows us to employ the clear expectation that "she did not give herself over to marriage in order to be married to a philanderer." Despite the fact that there are grounds to void the marriage based upon invoking the various doubts dealing with get coercion (see supra chapter three), we chose to resolve the matter based upon the employment of the technique of a wife's clear expectation that had she known that her husband would have been a philander she never would have married him. | {
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Therefore, the plaintiff is permitted to marry any Jew, including a Kohen , without receiving a get . | {
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In our decision we wrote the following: | {
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From the above presentation of our decision it emerges that there are several halakhic doubts ( sefeikot de'dina ) in our case. The Halakhah might be in accordance with the approach of Sefer ha-Agudah and Arukh ha-Shulhan, that a philanderer is compelled to divorce. Alternatively, the Halakhah may be in accordance with the view of Rambam, Rashbam, Rashi, Ra'avad, Smag and others who compel a person to divorce when the wife claims "He is repulsive to me," even without a clear pretext. On the other hand, one might claim that the Halakhah is not decided in accordance with that view, but rather with the opinion of Rabbeinu Tam, Rosh, Shulhan Arukh, Rema and others, whereby one does not compel in the case of such a claim. Or the Halakhah might be resolved according to Rashbash and those who endorse his posture whereby if there is a clear pretext, one does compel. Or it may be that one does not compel, rather the Halakhah subscribes to the opinions of Rosh, Rashba and Beit Yosef as understood by Maharam, whereby even with a clear pretext one does not compel. Or the Halakhah reflects the enactment of the Geonim as explicated in Rif and in Or Zarua that in fact, according to the fundamental legal doctrine, one does not compel, but the husband is to be compelled due to the enactment pertaining to the maintenance of Jewish women at a certain standard. Similarly, in the present case, the Halakhah may be in accordance with the approach of Mabit, Hakham Zvi, Divrei Hayyim and others, whereby a get can be compelled due to the husband's get recalcitrance ( igun ), and at variance with the positions of Divrei Malkiel and those who support his view that is not a reason for compelling. In the circumstances of the present case, therefore, there are five doubts in relation to the question of compelling the defendant to give a get . | {
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In view of the proliferation of these halakhic doubts, how could we have decided? | {
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As we examined in the earlier portion of this monograph, 79 See supra chapter 3. there is a Yerushalayim Regional Beit Din ruling which addresses our issue. 80 File no. 917387/1, Yerushalayim Regional Beit Din, November 17, 2013. As we said: | {
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The aforementioned decision of the Yerushalayim Regional Beit Din focuses upon a suit for divorce filed by a woman on grounds of repulsion of her husband following a verdict in the civil court that convicted the husband of obscene acts carried out on minors. In its argumentation, the panel addresses whether there is a basis for coercing a get when a wife advances a plea of "he is repulsive to me" accompanied by a clear pretext. Though there were a few decisors who subscribe to get coercion under these circumstances, the majority reject this view. Moreover, some authorities would not even obligate a get in these circumstances. Secondly, the beit din explores whether there would be grounds to coerce a get due to the fact that the husband acted deceitfully when he refrained from disclosing to his wife prior to their marriage that he was a convicted pedophile. Here again, upon beit din review; it was found that the propriety of a get compulsion order was equally a matter of halakhic debate. In the wake of this understanding of these two issues, what emerges from the decision of the beit din panel is that there are two halakhic doubts (hereinafter: double doubts): namely, whether one may coerce a get in light of a husband's abusive behavior and whether one ought to coerce a get due to his deception. Without elucidation, the panel posits that since get coercion entails a biblical prohibition, therefore we are dealing with a double halakhic doubt on a biblical level, where a get may be coerced. In light of a controversy whether we can permit a wife to remarry when there is a biblical double uncertainty, the panel aligns itself with the posture which would allow for this remarriage. However, since it presumes that each doubt has to be even ( shakul ), which means that there must be equal number of decisors who will coerce a get versus an equal number of decisors who reject this possibility prior to invoking the technique of a double halakhic doubt; this method could not be implemented. As we mentioned, the majority of authorities oppose get coercion vis-à-vis a husband who engages in pedophilia. And regarding the matter of misrepresentation, it is unclear whether the numbers of authorities who endorse get coercion that corresponds to the number of those who reject the implementation of get coercion. | {
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Since a doubt regarding the propriety of get coercion entails a biblical doubt, therefore we are dealing with a double halakhic doubt on a biblical level, where a get may be coerced. 81 A doubt involving the propriety of get coercion under particular circumstances is to be construed as a biblical doubt. See Hiddushei ha-Ramban Yevamot 46a; Hiddushei ha-Rashba , ad locum; Pithei Teshuvah SA EH 70:3 in the name of Hatam Sofer and Beit Meir. In other words, if there is a halakhic controversy whether to coerce a get , due to the existence of a halakhic doubt we refrain from coercing a get . See Tosafot, Ketuvot 70a; Rema, SA EH 154:21. Should a get be coerced under such conditions, the get is null and void. The assumption is that if Halakhah mandates the get ought to be coerced we are dealing with a situation that the wife can no longer live with her spouse and consequently, she is not bound ( shi'bud ) to him. As Dayan Izirer notes, "The nullification of the servitude empowers her with the right to be liberated from all of the husband's servitudes, including the primary servitude that she is prohibited due to him to others and she is preempted to receive all her marital rights because she was married to him." See H. Izirer, "The Duty of the Get and Maintenance to a Rebellious Wife who is Repulsed by Him," (Hebrew) 2 Shurat ha-Din 64, 99 (5754). See supra, p. 65, n. 45. In short, the propriety of get coercion entails a biblical doubt regarding the presumption that she is a married woman. Whether there are grounds to coerce a get is a biblical issue, but the actual implementation of the mechanism of get coercion in contemporary times is a rabbinic enactment, see Hiddushei ha-Ramban, Yevamot 46a; Hiddushei ha-Rashba , ad locum.; Izirer, op. cit., 102–103. Therefore, a doubt regarding whether to apply coercion entails a biblical doubt whether there is a basis to coerce a get . Whether one can void the status of "a married woman" in case of a compounded biblical doubt regarding get coercion in a case of get recalcitrance ( igun ), see the debate in Teshuvot Oneg Yom Tov 167; Y. Goldberg, Elu She-kofin Le-hotzi , 51, n. 46, 131, n. 18. | {
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As we mentioned, it is clear from reading the Yerushalayim Regional Beit Din's decision that the fact that most authorities rule against the propriety of get coercion prevents the invoking of a double doubt, and said conclusion is also supported by other legists. However, it is our understanding that Bahag, Rif, Rambam, Rosh (possibly), Ra'avad, Semag, Ramah, Meiri, Ritva, Rabbi Yosef Karo (possibly), Rabbi David ibn Zimra, Rabbi Mordekhai ha-Levi, Hida, Rabbi Ya'akov Emden and Rabbi Ovadiah Yosef all rule that under certain conditions (e.g. a doubt as to what the Halakhah ought to be), a biblical doubt (a sefeika de'oraita ) ought to be resolved stringently on a rabbinic level. In pursuance to this tradition that we are dealing with a rabbinic matter, there is no requirement that the double doubt represent that the authorities are equally divided (i.e. shakul ) to determine whether one may coerce a get in order to free the wife without a get . Even if one side of the doubt reflects a minority opinion, the double halakhic doubt will be effective. Finally, given that the rule of "following the majority" is applicable only to resolving issues within the confines of a beit din proceeding, one cannot speak of a majority opinion and minority opinion concerning intergenerational disputes. As such, the requirement that the decisors be equally divided regarding a pending issue is not mandated regarding a double doubt. | {
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Moreover, even according to Rashba and others that a biblical doubt ought to be resolved stringently on a biblical level that does not necessarily mean that the application of a double uncertainty will be ineffective. The consequent leniency associated with the implementation of a double uncertainty is due to the rule of following the majority (" aharei rabbim le'hattot "). The existence of one doubt creates a situation of 50/50 uncertainty (" ke-mehtza al mehtza dami "), and then the second doubt creates a majority which results in treating the matter leniently on a biblical level. In accordance with many legists ( Poskim ) this approach is the dominant understanding as to why the employment of a double doubt will be effective. Given the above lines of reasoning, there is no prerequisite that the doubt must be even, namely that the arbiters would be equally divided concerning the propriety of the issuance of a get compulsion judgment prior to employing the rule of the double doubt. As such, relying upon a well-trodden tradition ( mesorah) of Ashkenazic as well as Sephardic legists that sanctions the employment of a double uncertainty concerning a matter of Biblical ritual law including a matter of personal status ( ishut ), the invoking of the double doubt regarding get coercion under certain conditions will trump the presumption that she is a married woman and will reinstate the original presumption of being a single woman (a penuyah ). 82 For the grounds of being a single woman, see supra n. 81. For the halakhic underpinnings of invoking a double doubt, see supra chapter 2. For two alternative double halakhic doubts which will void the marriage in this case, see infra chapter 4F, text accompanying nn. 40–41. | {
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Based upon the foregoing, freeing the plaintiff without a get may be based upon the employment of a double doubt relating to five different debates as to whether one can coerce a get concerning the wife's plea of repulsiveness as well as the controversy centering around the issue whether the engagement of philandery serves as a basis to implement get coercion against a get recalcitrant husband. 83 Given that the authorities are not equally divided regarding the propriety of imposing get coercion concerning philandery and the plea of repulsion, implicit in our conclusion to void the marriage based upon a double doubt is that the halakhic doubt may be uneven. See Teshuvot Torat Hesed (Lublin), EH 9 (5); Teshuvot Yabia Omer 4, YD 12 (14), 6, YD 24:13, 10, OH 38 (4). See further, supra chapter 3. Cf. Teshuvot Divrei Malkiel 7:93; Get Pashut 120:26; File no. 917387/1, Yerushalayim Regional Beit Din, November 17, 2013. Alternatively, we may have invoked the mechanism of a double halakhic doubt in order to void this marriage based upon our discussion of the second set of three reasons for get coercion. See supra text accompanying notes 65–72. In short, in the wake of a get recalcitrant husband, we deem the matter as "an hour of emergency" ( sh'at ha-dehak ) and a priori ( le-khatehillah ) we can void the marriage based upon a double halakhic doubt. 84 See Sedei Hemed , Ma'arekhet Get 30(6) and ha-Samekh 30(3) in the name of Rashba and Ridvaz. | {
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F. A husband who engages in spousal battery and child abuse | {
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During March 1995, Esther Mark (hereinafter: the plaintiff) married Fred Miller (hereinafter: the defendant) in accordance with Halakhah . The couple separated in September 2011 and in August 2015 a civil divorce was executed. We summoned the defendant to appear at the Beit Din in order to address the matter of the get . However, he refused to appear for a hearing. We conducted a hearing with the plaintiff and we heard her arguments as to why she felt entitled to receive a get . In March 2018, we obligated the defendant to give a get to the plaintiff. To date, he refuses to give one, claiming that even if the plaintiff agreed to reduce his financial responsibilities towards her, obligations mandated by the civil court, he would still remain adamant in refusing to give a get . | {
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Approximately twelve years into the marriage, the defendant began to engage in domestic violence. In terms of spousal abuse, he kicked her in the mouth, broke her finger necessitating that it be placed in a splint for a few weeks, she received bruises and experienced breathing problems for a time from being thrown down the stairs, he meted out a karate chop and injured her ankle from being pushed down the stairs. These incidents as well as others all occurred when the defendant was either dissatisfied with the plaintiff's conduct or with his children's behavior. Regarding child abuse, the defendant physically abused them over twenty times, frequently emotionally and verbally abusing them by insulting and intimidating them. On various occasions, the plaintiff warned him to cease and desist from his abusive behavior. Due to these events, the children only interacted with the defendant in the plaintiff's presence. Despite the defendant's acts of domestic violence which caused the plaintiff and the children to fear for their lives, she refrained from contacting the police and/or child protection services in order to stabilize her family and avoid being personally humiliated in her community and having her children stigmatized and shunned by their relatives, friends and peers. In September 2011, the defendant moved out of the marital home and subsequently civil divorce litigation ensued. | {
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Discussion | {
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The threshold question is whether there are grounds to trust the allegations of domestic violence advanced by the plaintiff. Her presentation is memorialized in the findings of a civil court case dealing with the parties. Despite the fact that the defendant argued that the incidents were fabricated and that the plaintiff initiated the physical strife, the court evaluated the credibility of the parties and arrived at the conclusion that the plaintiff's testimony was credible. As a beit din, we endorsed the civil court's findings. 1 Based upon the assumption that a professional will not threaten his own livelihood, and absent any verification that he took bribes, we recognize the judge's findings and verdict without any further inquiry. See Mishnah and Talmud Gittin 10b; Tosafot Gittin 9b, s.v. af al pe; Tosafot, Hullin 97a; Mordekhai, Gittin 324; Teshuvot ha-Rashba 1:982; Teshuvot ha-Rashba ha-Meyuhasot le-Ramban 74, 78; Teshuvot Maharik , shoresh 121; Tumim, YD 114:5; SA and Rema HM 68:1; Sma , ad locum 6; Pithei Teshuvah, SA EH 17:53 in the name of Hatam Sofer; Teshuvot Beit Yosef, Ketuvot 10; Teshuvot Ein Yitzhak, OH 17; Teshuvot Be'er Yitzhak, EH 5 (5); Teshuvot Torat Hesed me-Lublin 2:1; Hiddushei Rabbi Hayyim ha-Levi, Gerushin 6:9. | {
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A. Spousal battery – grounds for get coercion? | {
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We now must address the issue of whether there is a basis to coerce a get in a situation where a husband is a batterer. One approach, which first appears in the writings of Ohr Zarua, Rabbeinu Simhah and espoused by others, is to issue a compulsion order in the wake of a husband who assaults and insults his wife. 2 Teshuvot Ohr Zarua 3, Bava Kama 161; Teshuvot Maharah Ohr Zarua 127 in the name of Rabbeinu Simhah and Rabbeinu Menahem; Beit Yosef Tur EH 154 in the name of Rabbeinu Simhah; Teshuvot Maharam of Rothenberg , Prague ed., 927; Teshuvot ha-Rashba 1:693 (Cf. Teshuvot ha-Rashba 7:477); Darkhei Moshe, Tur EH 154:16 in the name of Rabbi Shemaryah; Teshuvot Binyamin Ze'ev 88 in the name of Ri and Rabbeinu Tam; Teshuvot Maharshakh 2:130; Teshuvot Hatam Sofer EH 2:60; Arukh ha-Shulhan EH 154:15; Teshuvot u-Mitzur Devash EH 10; Teshuvot Hina ve-Hisda 3, Ketuvot 77a. See also the opinion of a contemporary of Rabbi Karo, Beit Shmuel SA EH 154:24 and Helkat Mehokeik, SA EH 154:18 in the name of Maharshal and Teshuvot Noseh Ephod 32. Whether Teshuvot Tashbetz 2:8 aligns himself with this view is subject to debate. See Yad Aharon EH 154; Teshuvot Maharsham 5:38; Teshuvot va-Yomeir Yitzhak EH 135. A contemporary rationale for get coercion is articulated by an Israeli dayan who teaches us: 3 PDR 1:5, 13. See also PDR 1:333, 338; File no. 30138-21-2, Beit Din Rabbani ha-Gadol, July 28, 2008; Teshuvot Mishpatekha le-Ya'akov , vol. 6, Siman 4, 108. | {
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get coercion is due the destruction of family life by the husband as a result of his behavior rather than due to the acts of abuse and the wife is therefore entitled to demand a get . | {
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Responding to this posture of Ohr Zarua and Rabbeinu Simhah, Rabbi Yosef Karo in Beit Yosef demurs, stating: 4 Beit Yosef, Tur EH 154:3. | {
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We cannot rely on their words . . . to coerce . . . since it is not mentioned by any one of the renowned authorities. | {
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In light of the view of the Beit Yosef's predecessors who argue that since the Mishnah and/or Talmud failed to explicitly mention that spousal battery is a ground for divorce ( ilat gerushin ) which mandates get coercion, a beit din may not issue a compulsion order. 5 Rashi, Yevamot 65b, s.v. hu amar ; Tosafot, Ketuvot 70a, s.v. yotzi ; Tosafot Yevamot 64a, s.v. yotzi ; Tosafot Ketuvot 70a, s.v. yotzi ; Piskei ha-Rosh, Yevamot 6:11; Teshuvot ha-Rosh 42:1 in the name of Ravyah, 43:3; Teshuvot ha-Rashba ha-Meyuhasot le-Ramban 138; Sefer Meisharim , Netiv 23, Helek 8 in the name of Rashba; Hiddushei ha-Ramban, Ketuvot 77a; Hiddushei ha-Rashba, Ketuvot 77a; Hiddushei ha-Ritva, ad locum; Ran on Alfasi, Ketuvot 36a ; Teshuvot ha-Rivash 127; Semag , Positive Commandment 48; Teshuvot Mahari Bruna 211; Teshuvot ha-Ridvaz 4:1331(260); SA EH 154:5, 21; Bi'ur ha-Gra SA EH 154:50, 65; Teshuvot Be'er Sheva 61; Be'air ha-Golah, SA EH 77:6; Hazon Ish, Ketuvot 69:23; R. Eliyahu ha-Levi, Teshuvot Zekan Aharon 10, 149. In the wake of a debate whether get coercion can be mandated, one is prohibited from issuing a get compulsion order lest it is deemed a coerced get whivch is null and void. See Tosafot Ketuvot 70a; Rema SA EH 154:21; Bi'ur ha-Gra, op. cit.; Arukh ha-Shulhan EH 154:6. And this view was subsequently established in Rabbi Karo's Shulhan Arukh. 6 SA EH 154:21 in the name of yesh omrim . Yet, Rabbi Karo concurs that a husband may be obligated to give a get . 7 Beit Yosef, Tur EH 74 (end) citing Ramban's responsum. | {
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Therefore, the rationale for the opposition to coercing a husband who is a batterer to give a get is based upon their understanding that the resultant get is deemed "a coerced get " ("a get me'useh ") and consequently it is invalid. Consequently, should the wife remarry relying upon this get and have children, the offspring would be labeled as halakhic bastards ( mamzrerim ). Since a halakhic bastard is the product of an incestuous relationship, the fact that the get was invalid means that in effect she was still married to her first husband when she had children with her "second marriage." | {
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In the wake of Beit Yosef's posture, Darkhei Moshe rules: 8 Darkhei Moshe, Tur, EH 154:17. | {
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I don't see his words at all because it is worthwhile relying upon the Geonim, a fortiori given that Ramban and Maharam [also] agree in their responsa concerning assaulting a wife (that it is a grounds for to obligate a get – AYW) and they brought clear proofs to their words and logic agrees with them. And the fact that it isn't mentioned (the reason that spousal battery is not mentioned in the Talmud as a ground for a get – AYW) one possibly could say that it was obvious in their eyes . . . and it did not happen in their days (that there was a phenomenon of spousal battery – AYW). . . . | {
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Numerous decisors subscribe to Beit Yosef's and Darkhei Moshe's posture that one cannot coerce a husband who assaults his wife to give a get . 9 Teshuvot ha-Ridvaz 3:888 (447), 4:157 (1228); Binyamin Ze'ev, supra n. 2; Teshuvot Lehem Rav 31; Teshuvot Maharshakh 2:130; Teshuvot Mishpetei Tzedek 1:59; Teshuvot Perah Matteh Aharon 1:60; Teshuvot Ma'sat Moshe 1, EH 17; Teshuvot Mo'hari ha-Levi 9; Teshuvot Rabbi Akiva Eiger (in manuscript) EH 55; Teshuvot Mishneh Halakhot 14:146; Teshuvot Noseh ha-Ephod 32:15. | {
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Nevertheless, there are authorities ( Poskim ) who claim that in situations where the spousal assaults are frequent and life-threatening to the wife there are grounds to coerce the husband to give a get . 10 Teshuvot Hut ha-Meshullash , Tur 3, 35; Teshuvot ha-Rashba 4:311; Rema, SA EH 154:3 in the name of "some say" ( yesh omrim ); Matteh Aharon, supra n. 9; Teshuvot Yafeh le-Lev 8, EH 154 (5); Teshuvot Yismah Lev EH 11; Teshuvot va-Yomer Yitzhak 1, EH 135; Teshuvot Shoshanim le-David 2:20; Teshuvot Tzitz Eliezer 6:42; Teshuvot Amudei Mishpat 1:12; File no. 1120087/1, Beit Din ha-Rabbani ha-Gadol, August 7, 2017, in the name of Beit Yosef, supra n. 2 and Piskei ha-Rosh, Ketuvot 7:19. Cf. others who reject get coercion even under these circumstances. See Mishpat Tzedek , supra n. 9; Teshuvot Beit Aharon EH 3, Siman 8; Sho'eil ve-Nishal , supra n. 9; Mishneh Halakhot , supra n. 9. Clearly, the need to act stringently and avoid the strictures of a " get me'useh " underlies this position. See Gevurat Anashim 44. | {
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Since the defendant was intermittently abusive due to issues of anger management, the plaintiff and children felt that their lives were threatened. However, the acts of domestic violence did not rise to the level of actually threatening their lives. Yet, on two separate occasions, the defendant broke her finger and threw her down the stairs, injured her ankle and her lip required stitches. Nonetheless, concerned with Rabbi Yosef Karo's view, some legists reject get coercion even under such circumstances. 11 Teshuvot Shoeil ve-Nish'al 1, EH 14; Teshuvot Eliyahu Rabbah EH 13. | {
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As such, we are relying upon the minority of authorities (" da'at me'ut ") who endorse get coercion for a husband's acts of spousal battery. 12 For the grounds of relying upon a minority view in cases of get recalcitrance (" igun "), see this writer's Rabbinic Authority , vol. 3, 248–250, 252–256. Clearly, in accordance with Teshuvot ha-Rosh 43:3, a victim of domestic violence who imagines that his or her life is in danger does not serve as a justification to coerce a get . For some arbiters who understood Rosh in such a fashion, see Tur EH 154; Mishpat Tzedek , supra n. 9; Teshuvot Tzitz Eliezer 6, 42:1; Iggerot Moshe EH 1:80. Regardless of whether one espouses the view that one obligates or coerces a get for battery perpetrated by the husband, the implicit assumption is that a husband who physically abuses his wife is violating Halakhah . See Ohr Zarua , Bava Kama 3:161 in the name of Rabbeinu Simha; Ohr Zarua, ibid . ; Ra'vad, MT Ishut 21:10; Teshuvot of Maharam of Rothenberg , Cremona ed. 291; Mordekhai, Ketuvot 186; Teshuvot Binyamin Ze'ev 88; Beit Yosef Tur EH 74; SA EH 154:3; Teshuvot Ridvaz 4:257; Rema, SA EH 154:3; Bi'ur ha-Gra, SA EH 154:11. Arguing that in contemporary times, a wife is repulsed by being a victim of domestic violence to the degree that she refuses to live with a batterer, Rabbi Shlomo Amar concludes that a get compulsion order ought to be issued. 13 Teshuvot Shema Shlomo 1, EH 15. | {
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Prior to either obligating or, some say, coercing a batterer to give his wife a get , there is a requirement to forewarn him to cease and desist from such behavior. 14 Teshuvot ha-Rashba 4:113; Maharah Ohr Zarua , supra n. 2; Binyamin Ze'ev in the name of Rabbeinu Simhah, supra n. 2; Rema, SA EH 154:3; Bi'ur ha-Gra , SA EH 154:11; Beit Shmuel, SA EH 115:17; Pithei Teshuvah, SA EH 115:11 in the name of Shevut Ya'akov. In our case, the plaintiff forewarned him a few times but to no avail. In contemporary times, even in the absence of forewarning, given that this behavior represents a well-known sin (" aveirah mefursemet ") and is a violation of criminal law and/or it is clear that the battery transpired over an extended period of time, in our present case there would be no requirement of giving a forewarning prior to issuing a divorce order. 15 Pithei Teshuvah , supra n. 14. Cf. Tzitz Eliezer 22:83 in the name of Rabbi Kapah. If assault occurs over an extensive period, a divorce judgment may be issued without a forewarning from the victim of domestic violence. See Tashbetz , supra n. 2; Teshuvot Yakhin u-Boaz 2:84; Teshuvot Terumat ha-Deshen 242; Teshuvot Heikhal Yitzhak EH 1:3. Cf. Tzitz Eliezer , op. cit. in the name of Beit Yosef, Darkhei Moshe, Helkat Mehokeik , and Beit Shmuel . | {
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B. A wife who claims "he is repulsive to me" (a plea of mais ali ) - Grounds for compelling a get ? | {
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Lest one challenge our conclusion by claiming that one may only obligate a get in a situation of spousal battery, we will show that there are two additional rationales for coercing a get in a situation of spousal battery. | {
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Firstly, we must examine the plaintiff's claim that her husband is repulsive to her (" ma'is ali ") due to the very thought that she would never marry a man who would be abusive physically, emotionally and verbally and secondly we will address that the husband was transgressing Halakhah by engaging in abusive behavior vis-a-vis his spouse and children. | {
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1. Rebellious Wife due to Revulsion | {
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From the Talmud in Tractate Ketuvot 63b it emerges that there are two types of claim of rebellion on the part of 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. 16 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 the marital agreement ( ketubah ). 17 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. 18 Rashi , Ketuvot 63b, s.v. aval amra . | {
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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, 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 only 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 cast doubts in relation to this question, particularly with regard to the correct understanding of Rambam's opinion, teaching: 19 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 wherever 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." 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" – AYW) due to revulsion be applied to the wife. 20 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 manner: 21 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 teachings of many other authorities 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 an explicit statement of revulsion. Said conclusion may be derived from how the plea of revulsion is dealt with by other legists. For example, in discussing compelling a release from levirate marriage ( halitzah), 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" 22 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." 23 Teshuvot Maharashdam , EH 41. Beit Shmuel and others cite the above responsum of Rabbi Sasson, discussing the case in which the claim was formulated in words other than "he is repulsive to me," and thus we may infer from this formulation that they rule similarly. 24 Beit Shmuel, SA EH 77:1; Teshuvot Tzemah Tzedek (Lubavitch), EH 262:11; Teshuvot Penei Moshe 1:55. The position of these arbiters is adopted in various rulings of the rabbinical courts functioning within the network of the Chief Rabbinate in the State of Israel. 25 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 in the reasons for a judgment on a related case by the Netanya Regional Beit Din: 26 File no. 284462/9, 4.9.2014. | {
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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 on 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 clear pretexts, 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 towards her husband's abuse, and her unwillingness to continue her married life with him: | {
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Subsets and Splits