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Sefaria 23

Nonetheless, the two marital separations may be understood not only as a protest regarding his behavior, a desire to distance herself from him, but even as an indication that she wanted to divorce him. One may say that these separations indicate the lack of a prospect for marital peace and therefore a desire to be divorced. As we know, some authorities posit that a separation for twelve or eighteen months with no prospects for marital reconciliation serves as a reason for a beit din to obligate a husband to give a get . 42 Rabbeinu Yeruham, Sefer Meisharim , Helek 8, Netiv 23; Teshuvot Hayyim ve-Shalom 2:112, Iggerot Moshe YD 4:15 (2). Despite the absence of an explicit notification that she wants to be divorced (read: an erroneous sale – mekah ta'ut ), nonetheless her two marital separations serve as an implied public statement ( gi'lui da'at ) that Sarah wants to be divorced. 43 We have refrained from determining whether Michael is obligated to give a get due to these separations. We cited the views of Rabbeinu Yeruham and others only in order to demonstrate that the lapse of time of living separately from her husband and no prospects for marital reconciliation indicate that she has intentions to be divorced from him. Cf. others who would contend that the separation was to seek help from family rather than wanting to be divorced from him. However, given that the "help source" was inadequate, she had little alternative but to return to the batterer. See E. Gondolf and E. Fisher, Battered Women as Survivors: An Alternative to Treating Learned Helplessness (1988), excerpted in Domestic Violence Law: A Comprehensive Overview of Cases and Sources 79 (Nancy K. D. Lemon ed., 1996). As we noted earlier, the psychological realities of Sarah do not fit a singular profile. In fact her case, similar to other situations of battered women, vary considerably from each other. As such, the purpose of the two separations was to exit the marriage rather than to address "mending the marriage".

However, as we observed, Sarah was embarrassed to dissolve the marriage since she had left her first marriage and therefore feared the reactions in her community upon finding out that she now decided to leave her second husband. Additionally, she needed a place to live, she was scared that he would kill her if she left him, and finally she was emotionally tied to Michael and therefore did not leave him. Consequently, after separating from him due to his behavior (read: using the defective item) and living with her abusive mother, she returned to him. One should not extrapolate from her decision to return to Michael that she accepted to endure the continuing violence, but due to the circumstances mentioned above and Michael's promises that he would change his way, she was motivated to return to the marital home. In the final analysis, the presence of traumatic bonding propelled her to return to an environment marked by violence.

The power of control leaves a woman bereft of the capacity to confront her batterer, and as we explained, a traumatic bond is established between the batterer and his victim. The power of this emotional bond played itself out in an event that transpired after their marital separation in May 2015. At that time, Michael started to look for women on the internet and he interacted with a German woman. During the summer of 2018, one rabbi from another beit din asked her – "If you had known about his interaction before the separation, would you have left him?" Her reply was – "I don't know". The social worker explained to us that her reply was due to the emotional ties that Sarah developed with Michael due to the Stockholm syndrome.

Even if Michael had developed intimate relations with this German woman, the expert for domestic violence explained to us:

Certainly much of the answer centers on many reasons, leaving an abusive situation is so complex, layered and nuanced. It is assuredly something that has been shown to escalate the danger in the situation, even when there has been no prior violence, and simply speaking, so many of my clients have sincere hope that things can improve. So, although an extramarital affair is quite obviously a painful occurrence, I suspect the honest response of "I don't know" was one that had to do with a likely fluid equation so many of my clients have expressed to me over the years – what are the trade-offs to leaving versus staying? 44 See further, K. Thomas et al., "I have lost everything – Trade-offs of seeking safety," 85 American Journal of Orthopsychiatry , March 2015, 170–180.

If we apply the aforementioned principle of an erroneous transaction which is grounded in the halakhot of price discrepancy to the matter of an erroneous marriage, we would arrive at the conclusion that if the wife separates from her husband due to inappropriate behavior (read: a public statement that reflects the desire to void a marriage), we would conclude the following in our scenario. In our case, though Sarah returned to her husband twice after leaving due to his abuse (read: using the item), one should not assume that she had accepted the abusive relationship. On the contrary, each time Sarah was promised by Michael that he would "change his ways."

Despite his empty promises, the acts of violence continued and escalated (known in the scientific literature as "the cycle of violence" 45 L. Walker, The Battered Woman , 55, at n. 29 (1979). ), and she remained with him due to her distress regarding housing accommodation, fear for her life and she loved him. Finally, he left her!

In the wake of the fact that he left the marriage, is there a basis for voiding the marriage due to Michael's failure to disclose to Sarah prior to the marriage that he had abused both of his previous wives?

Our reply to this question is predicated upon the second principle of a mistaken transaction. Assuming a man purchases a horse and discovers a defect while traveling with it, continuing to travel with the horse does not imply that he waived his right to void the sale. 46 Pithei Teshuvah , supra n. 40; Arukh ha-Shulhan HM 232:4. Pithei Teshuvah advances the following reason for this position. Even though the purchaser is riding the horse, one may void the sale because he is under duress. Though Pithei Teshuvah concludes that this view requires further deliberation, others contend that he is riding the horse due to the necessity of the circumstances and therefore the sale may still be voided. 47 Netivot ha-Mishpat HM 232:2, Orhot ha-Mishpat 32:17, Arukh ha-Shulhan , supra n. 46; Teshuvot Mishpat Shlomo 4:27.

To state it differently, the premise here is that we are dealing with a case of voiding a marriage and upon her return to the marital home (read: using the item) she was under duress and therefore she never waived her willingness to void the marriage. Seemingly, the series of events demonstrates otherwise! We are dealing with a separation that occurred in May 2012, and a return to the marital home one or two months later. Subsequently, she left him for eight months and returned for a year and quarter and then Michael left her! Given the times of separation vs. the period of living together, it is somewhat difficult to believe that Sarah was under duress for two and quarter years and never wanted to sustain the marriage.

If we translate the above circumstances into concepts of a mistaken transaction, it would seem that the circumstances of the case are similar to a purchaser who placed the item in the domain of the seller, took it back before the seller took it, then returned it to the seller's domain where it was again taken by the purchaser.

Due to the problematic nature of our position that she was under duress for a long time, we asked the expert on domestic violence to address our issue, and here is her reply:

What is also in countless pieces of literature, and I will say has absolutely been corroborated in my twenty years of practice in the domestic violence field over and over again – that it is simply not one or the other. I imagine this is quite true for this client – that she was not either under duress or accepting of the marriage and its myriad of abusive elements. Rather, she was likely under incredible amounts of duress (at various levels of escalation) and also aimed to find moments, pockets, etc. of acceptance in an effort to survive the abuse and perhaps be able to maintain her and her children's lives with as little upheaval as possible. The "both/and" concept might serve as some part of the explanation why she, and countless others – return to and then leave abusive relationships many times (incidentally, the evidence-based average number of attempts to leave an abusive relationship is seven). As we've conversed about previously, no relationship I have ever worked with someone about is entirely bad – and so the confounding factor of someone having moments of peace, happiness, etc. in relationships that are also incredibly traumatic is a factor to note in response to your inquiry as well.

In other words, as an outsider casting one's eyes upon the scene, it would seem that Sarah's conduct is strange. Does her behavior reflect a wife who is under duress and therefore reluctantly submissive to Michael or is she a woman who wants to be married to him? The expert is informing us that we are dealing with the conduct of a battered woman who is traumatically bonded to a batterer who at times is living in captivity and at other times living outside of captivity. In short, we are focusing upon a woman who lives in captivity as well outside of captivity and under both sets of circumstances she is under duress.

As we noted, our conclusion is based upon the advisory opinions of experts in the field of domestic violence as well as the findings of professional literature.

A. There is no waiver of bodily pain.

Moreover, our position is rooted in the principles of the halakhic system. The Talmud and Shulhan Arukh have already established: 48 Bava Kama 93a; SA HM 421:12. See further Nishmat Avraham EH 3, 80, 4:193.

If a person says to his friend – "hit and wound me on the condition that you will be exempt (from responsibility)'' and his friend maimed him, he is exempt.

Despite the fact that agreeing to being assaulted entails a violation of the prohibition of maiming ( ha'valah ), nonetheless, ex post facto , if the friend complied with the condition, the condition is valid and he is exempt from paying for the injury. To state it differently, there is an intrinsic distinction between the prohibitive result and the halakhically illegal obligation.

The issue is whether Sarah "accepted" (" savrah ve-kiblah" ) the abuse. Based upon the foregoing, one cannot waive bodily pain. As Rabbi Asher b. Yehiel observes: 49 Teshuvot ha-Rosh 68:10.

A condition is invalid if it sanctions a friend's bodily harm which engenders pain.

Rivash concurs with this conclusion. 50 Teshuvot ha-Rivash 484. In opposition to Rabbi Shaul Nathanson who validates a one-time waiver of bodily harm, 51 Teshuvot Shoeil u-Meishiv , Mahadura Kama, 1:197. others oppose any sanction of bodily harm in a continuous fashion. 52 Mishneh le-Melekh Ishut 6:10, 15:1.

Yet, when addressing spousal relations, the picture changes. In contradistinction to some decisors, 53 Tosafot, Ketuvot 56a, s.v. harei zo in the name of Rabbeinu Elhanan; Mordekhai Bava Metzia 83a, 369 in the name of Ritva; Mordekhai Ketuvot 83a, 213; Hiddushei ha-Ritva, Bava Batra 126b s.v. verav Yehudah , Kiddushin 19b, s.v. divrei Rav Yehudah ; Teshuvot Maharik , shoresh 10 in the name of Rabbeinu Tam; Darkhei Moshe, Tur EH 38:8; Beit Shmuel, SA EH 69:5. the majority of authorities opine that one is proscribed from stipulating a condition regarding conjugal relations, since abstention from conjugal relations engenders pain for the wife. 54 Rashi, Kiddushin 19b, s.v. bedevar shel mamon ; Rivash , supra n. 49; Tosafot Ketuvot 26b; Ran, Kiddushin 25b as per Rif pagination; MT Ishut 6:10 (Cf. MT, Ishut 14:7); Tur EH 38, 69; SA EH 38:5, 69:6. See supra Chapter 4D, Final Afterthoughts.

In pursuance to the dominant view, though the wife waives her right to having intimate relations, we assess her expectations that she is not truly waiving it wholeheartedly. 55 Teshuvot Havalim ba-Nei'imim 1:33. In other words, the waiver is effective assuming one can prove that it is being executed wholeheartedly. 56 Teshuvot Darkhei Noam HM 3; Teshuvot Ginat Veradim HM 3:46; Teshuvot Maharsham 3:31. In the absence of executing an act to undertake an obligation (a kinyan ) to waive or an explicit statement of waiving, if there is a fear that she did not waive wholeheartedly, the waiver is void. 57 Teshuvot Maharit 2, HM 118; Teshuvot Kapei Aharon HM 12. Furthermore, given that the duty of conjugal relations is incumbent upon the husband, the wife cannot waive his duty. 58 MT Ishut 6:6, 12:7; Rashbam Bava Batra 126b, s.v. be ‘davar ; Teshuvot Maharam Schick YD 218.

But as we mentioned in pursuance to the opposing view, the stipulation of a condition is effective in regard to intimate relations provided that an explicit condition was made. In the absence of an explicit condition, the duty of conjugal relations remains operative. Given that in our case, Sarah failed to execute a condition, there is a halakhic consensus that Michael was proscribed from assaulting Sarah.

Based upon the foregoing, accompanied by additional reasons, we do not conclude that Sarah acquiesced (" savrah ve-kiblah" ) to the acts of battery.

Firstly, Sarah as a Torah observant Jewess did not waive bodily pain. The halakhic norm directed the appropriateness of her behavior. Secondly, as we noted earlier, the cultural norm prevalent in Western society is that spousal battery is generally abhorrent in the eyes of people, and of Sarah in particular as a victim of childhood abuse. In accordance with both the halakhic and cultural norms, Sarah understood that there is a need to bolt a marriage that is marked by domestic violence.

Moreover, as an Israeli beit din rules: 59 File no. 1393-14-1, Yerushalayim Regional Beit Din [unpublished], March 5, 2003.

Even if she continues to live with her husband in a loving and affectionate manner, this is no proof that she waived, since she is in a situation where she has no choice.

Similarly, in our case, we described Sarah's situation as one "where she has no choice." Consequently, even though she engaged with Michael in conjugal relations, one cannot say that the notion that "it is better for a woman to be married" ( tav le-metav tan du ) applies to her, or that "a woman is satisfied with anything" ( niha lah be-khol de-hu ) in an environment of domestic violence.

Initially, Sarah thought she could tolerate and deal with the abusive behavior. However, with the passage of time, the abuse escalated. In other words, abusive behavior is ever-changing, and as such one cannot say that Sarah acquiesced to the situation. Said conclusion may be distilled from one responsum which focuses upon a man who married a mentally dysfunctional woman. It teaches us: 60 Teshuvot Harei Besamim , Mahadura Tinyana 72.

It was known when she was a virgin, that the majority of her life she was mentally dysfunctional and only infrequently was she mentally stable. And it seems that the husband knew before the marriage that her mind was feeble but not an idiot. And after the marriage, when he observed her moments of insanity he was comforted by his father-in-law and family members when they said the doctors said that after her pregnancy she will be cured from her lunacy. He trusted their words and continued to live with her . . . However, it did not last long and the sickness of lunacy overwhelmed her . . . and now she was placed in a hospital for lunatics. . . .

In his ruling, the authority provided various reasons to lift the excommunication of Rabbeinu Gershom and permit him to divorce her against her will, and among the various reasons, he states the following:

This logical argument that he acquiesced (" savur ve-kibel" ) does not only apply to a defect that is constant and does not change unlike idiocy which changes with the passage of time . . . and one cannot say he acquiesced.

Similarly, the Sanzer Rov writes: 61 Teshuvot Divrei Hayyim 1:51.

A man was engaged to a virgin when they both were minors, and the father of the bride told the groom's father that sometimes the girl becomes weak. But there is no need to worry because she is weary and that is due to being physically weak and after she grew . . . and the groom's family was scared that possibly she suffers from the illness of epileptics. . . . Another time, the bride's father said there is no need to worry, it is only weakness, and the groom and his father believed him . . . and the groom married the young woman. And after the marriage, with the passage of time, the sickness overcame her to the point that it became clear to the husband that she had epilepsy and he left his wife. . . . Until now (before the marriage – AYW) before it became clear they said she did not have epilepsy . . . but seeing now that she is epileptic, he separated from her and there was no waiver.

Analogously, relying upon Divrei Hayyim, Rabbi Meir Arik contends that regarding an illness that changes with the passage of time, a man who suffers from such a sickness is not obligated to continue to remain in the marriage. 62 Teshuvot Imrei Yosher 2:119. To state it differently, his agreement was contingent upon the fact that the illness was less severe. 63 See also Hiddushei ha-Ritva, Ketuvot 77a; Hiddushei ha-Rashba, Ketuvot 77a.

Though the above responsa deal with a wife's defects, one can extrapolate (employing a hekesh ) from the halakhot of a wife's defects to the halakhot of a husband's defects. 64 Tosafot Rid Ketuvot 74a; Shitah Mekubezet, Ketuvot 72a in the name of Rivash and Maharit; Imrei Yosher , supra n. 62; Teshuvot Yabia Omer, 8 EH 3 (16); Teshuvot Har Tzvi EH 2:180–181. For the dynamics of analogical reasoning, see this writer's Rabbinic Authority , vol. 1, 53–57.

Based upon the foregoing, notwithstanding Shulhan Arukh and Rema, 65 EH 154:1. we can argue in our case, which deals with the husband's defect, that one cannot say that she acquiesced after conditions deteriorated. As Rabbi Tzvi Hirsch Orenstein notes: 66 Teshuvot Birkat Retzeh 109.

When there is a change, one can say, "it is unacceptable to me."

Moreover, addressing the illness of epilepsy, Rabbi Arik contends: 67 Imrei Yosher , supra n. 62.

And concerning these major defects, which, in accordance with the doctors, deals with the disease of the nerves and the brain, and it is known that this illness intensifies each time . . . Consequently, the rule of "she is acquiescing" is inapplicable.

And the identical conclusion is applicable to our case. The act of physical assault by its very nature becomes more severe. Therefore, the rule of acquiescence is inapplicable under our circumstances.

Her real will was to leave him. However, her will was impaired by a coercive environment which was marked by a traumatic attachment to her batterer, loneliness, embarrassment and fear which motivated her to stay with her abuser and therefore there is a basis to void this marriage. 68 For the prevalence of these factors in staying in an abusive relationship, see K. Arenella, " Perceptions of Domestic Violence: Leaving vs. Staying in Abusive Relationships ," 2014 Scripps Senior Theses, Paper 408, 6, 8, 19.

In light of the above, Sarah is permitted to remarry without a get any man except a Kohen.

Final afterthoughts

Based upon the cumulative evidence submitted to this panel and in light of the absence of a professional psychological evaluation of Michael, it was the couple's estimation that Michael was suffering from a borderline personality disorder, while his second wife's impression was that he was suffering from a bipolar disorder. Despite the absence of a professional identification of Michael's disorder, nevertheless, according to Rabbis Yosef ben Moshe Trani, Yosef Steinhardt and Moshe Feinstein, a husband who is a batterer is ipso facto deemed by Halakhah as a mentally dysfunctional individual. 69 Maharit , supra n. 23; T e shuvot Zikhron Yosef, Likkutim 11; Iggerot Moshe , supra n. 24. See infra n. 70.

Upon accepting their view that a husband who engages in battery is deemed mentally dysfunctional, we can examine this behavior in terms of two grounds for divorce, namely the inappropriateness of the conduct as well as the psychological underpinnings of the behavior.

Let's begin by examining whether there ought to be grounds to coerce a mentally dysfunctional husband to give a get to his wife. The criteria for being classified mentally dysfunctional are set down in Tosefta and subsequently cited in Talmud: 70 Tosefta Terumot 1:3; Hagigah 3b. A fourth behavior which is deemed shoteh -like conduct is mentioned in Hagigah , op. cit. Alternatively, we can posit without attempting to identify whether the husband exhibits certain psychological behavior that in fact a batterer is to be construed as mentally dysfunctional. Dealing with an epileptic husband, contends Rabbi Yosef ben Moshe Trani writes: Reuven married a woman and after the marriage she became aware that he had epilepsy . . . subsequently the illness became severe until he lost his mind and then Reuven, with his mental dysfunction ( shetut ), wanted to choke his wife in the presence of two witnesses . . . ( Teshuvot Maharit 1:113). Similarly, centuries later, addressing a case of a man who assaulted people by throwing stones at them and hitting his wife, Rabbi Moshe Feinstein states: From his conduct it is clear that he is mentally deranged ( shoteh ) since in regard to his interpersonal relations he immediately (afer the marriage ceremony- AYW) hit her as he does with other people, and from this we may conclude that he does not comprehend what it means to have a wife. ( Teshuvot Iggerot Moshe EH 3:46) In the absence of a professional psychological diagnosis, Rabbis Trani and Feinstein argue that engaging in domestic violence ipso facto identifies the husband as mentally dysfunctional. Consequently, Michael's conduct as a batterer of his wife places him in the category of being mentally deranged (a shoteh ) without the need of a professional diagnosis and/or a halakhic examination of the criteria required to label him as mentally dysfunctional.

Our Rabbis taught: Who is a shoteh ? One who goes out alone at night, one who spends his night in a cemetery and one who tears his clothing.

Given that Michael did go out alone during the night and appeared naked on a highway, there is a relevant Talmudic controversy as to whether one requires one type of erratic behavior to be deemed mentally dysfunctional or one requires all three types of abnormal conduct to establish mental incompetence. Related to this, a subsequent passage in the Talmud adds a fourth form of aberrant behavior, namely one who destroys that which is given to him. 71 Hagigah 4a.

Notwithstanding some authorities, 72 Beit Yosef , Tur EH 119 and 121 in the name of Rabbeinu Simhah of Speyers; Teshuvot Maharik , shoresh 19 in the name of Rabbi Avigdor; Teshuvot Tzemah Tzedek EH 153; Teshuvot Hatam Sofer EH 2:4 in the name of Rashba. as we learn from Rabbis Yosef Karo's and Moshe Issereles's rulings regarding the disqualification of witnesses, the list is not a closed list but encompasses any form of irrational conduct which may establish him as mentally incompetent. 73 Beit Yosef, Tur EH 121; Darkhei Moshe, Tur, EH 119:5; SA HM 35:8. In fact, numerous decisors endorse their rulings and contend that the list is not exhaustive. 74 Teshuvot Mahari Weil 52; Teshuvot Ateret Hakhamim EH 18; Teshuvot Divrei Hayyim EH 53 (compare nos. 74–75); Teshuvot Nefesh Hayah EH 27; Teshuvot Ohr Sameah 13; Teshuvot Oneg Yom Tov 153; Teshuvot Hatam Sofer, EH 2:2; Teshuvot Beit Ephraim EH 89; Teshuvot Sefer Yehoshua 71; Teshuvot Divrei Malkiel 3:137; Teshuvot Tzofnat Pa'neah 103–107; Teshuvot Maharsham 6:159; Teshuvot Mishnat Aharon 56. In our case, implicitly endorsing the latter approach, both Rabbis Trani and Feinstein view the batterer as a mentally dysfunctional personality. Moreover, numerous authorities argue that the psychotic behavior must have occurred at least three times in order to label him mentally dysfunctional, a shoteh . 75 Teshuvot Maharam ben Barukh 455; Pri Megadim YD 1:23; Sha'agat Aryeh, Ohr ha-Yashar 28–31; Beit Ephraim , supra n. 74; Teshuvot Zikhron Yosef 10. In our situation, as we mentioned earlier, it happened ten times.

Given that Michael refuses to give a get to his spouse, are there grounds to coerce a get ? Mishnah Ketuvot states: 76 Ketuvot 7:9–10.

A man in whom defects arose; we do not compel him to divorce (his wife – AYW). Rabban Shimon ben Gamliel said: When is this case – when the blemishes are minor. But in the case of major flaws, we compel him to divorce (her – AYW). And these are (the flaws) for which we compel (a man – AYW) to divorce (his wife): one who is afflicted with skin boils, one who has a polyp, and one who collects excrement, the copper smelter, the tanner, etc.

Accordingly, there is a list of major defects concretized in the Mishnah (as well as in the Talmud) which serve as the grounds to compel a husband to give a get . 77 Additionally, certain instances of a husband's emotional abuse may justify get coercion. See Mishnah Ketuvot 7:1; Kiddushin 2:5; Ketuvot 48a, 70a, 71a-b; Yevamot 64a, 65a. Consequently, it is unsurprising that numerous authorities will invoke only these specific flaws as grounds for issuing a get compulsion judgment. 78 Rashi, Yevamot 65b, s.v. hu amar ; Tosafot, Ketuvot 70a, s.v. yotzi ; Tosafot, Yevamot 64a, s.v. yotzi ; MT, Ishut 15:7; Piskei ha-Rosh, Yevamot 6:11; Teshuvot ha-Rosh 17:6, 42:1 in the name of Ra'avyah, 43:3 (Cf. Piskei ha-Rosh , Ketuvot 4:3, 5:34; Teshuvot ha-Rosh 43:6); Mordekhai Ketuvot 194; Hiddushei ha-Ramban Ketuvot 63b; Hiddushei ha-Rashba Ketuvot 64a; Teshuvot ha-Rashba ha-Me'yuhasot le-Ramban 138; Sefer Meisharim, Netiv 23, Helek 8 in the name of Rashba; Tur EH 154 in the name of Ramah; Beit ha-Behirah, Ketuvot 63a; Teshuvot of Maharam of Rothenberg , Prague ed., 946; Hagahot Maimoniyot, Ishut 25:4; Teshuvot ha-Rashbash 93; Tur SA 154 in the name of Rosh; Teshuvot Mahari Bruna 211; SA EH 154:5, 21; Teshuvot Binyamin Ze'ev 1:88; Rabbi A. ha-Levi, Teshuvot ha-Ridvaz 4:108 (1180), 1331 (260); Teshuvot Be'air Sheva 61; Teshuvot Mekor Barukh 17; Teshuvot Emunat Shmuel 8; Teshuvot Maharit EH 2:14; Teshuvot Maharshakh 3:42; Bi'ur ha-Gra, SA EH 154:50, 65; Tosafot Yom Tov, Tur EH 154; Pithei Teshuvah SA EH 154:7, 29; Teshuvot Hakham Tzvi 1; Rabbi Eliyahu ha-Levi, Teshuvot Zekan Aharon 149; Hazon Ish, Ketuvot 69:23. The implications of this approach, namely that the scope of get compulsion is defined by a list of specific grounds enumerated in the Mishnah and the Talmud, means that certain conduct and types of illness such as insanity, homosexuality, child abuse or a contagious disease such as AIDS or syphilis will not be a ground for compelling a get . As the famed ruling of Rabbi Asher b. Yehiel (known by the acronym: Rosh) notes: 79 Teshuvot ha-Rosh 43:3.

One cannot add to what the Scholars enumerated.

The identical conclusion ought to apply to a case of a husband's mental dysfunctionality.

Moreover, Rabbi Yosef S. Elyashiv argues that given that there is a halakhic controversy as to whether one can coerce a mentally dysfunctional husband to give a get , constructive consent of the husband to give the get is nonexistent. Relying upon Rabbi Moshe Sofer's classic position, 80 Teshuvot Hatam Sofer EH 1:116. Rabbi Elyashiv contends that a husband's constructive consent to a give a get is predicated upon the fact that all legists agree that in the given circumstance, a get ought to be coerced. Should one opinion disagree, one cannot speak of "a husband's real will" to give a get . 81 Kovetz Teshuvot 1:178. See further, this writer's Rabbinic Authority , vol. 3, 34–43. Despite the view of Rabbis Sofer and Elyashiv as well as others, 82 Our interpretation of Rabbi Moshe Sofer's posture resonates amongst many decisors. See Sdei Hemed , vol. 7, Ma'arekhet Gerushin 1:15; Teshuvot Sha'arei De'ah (Litwin) 1:119; Teshuvot Heikhal Yitzhak, EH 1:2; Teshuvot Dvar Yehoshua EH 3:30; Teshuvo t Seder Eliyahu 13. Though R. Yitzhak Elhanan Spektor of Kovno does not explicitly endorse this position, nonetheless his argumentation in resolving two cases belies such an approach. See Teshuvot Ein Yitzhak 2:35, anaf 2 (9), anaf 5 (34). Cf. other decisors who contend that we do not employ get coercion where there is a halakhic doubt what the Halakhah ought to be. See SA and Rema EH 154:21. there are authorities who will mandate coercion regarding a get recalcitrant mentally dysfunctional husband. 83 Rabbi Yitzhak ben Meir, Teshuvot ha-Rosh 42:1; Teshuvot Maharhash EH 33; Teshuvot Ne'eman Shmuel 66; Teshuvot Mohr ve-Oholot EH 10; Dvar Yehoshua , supra n. 82; Teshuvot Iggerot Moshe EH 1:80; Teshuvot Divrei Yosef 2, EH 8. In sum, there is a debate as to whether a mentally dysfunctional husband may be coerced to give a get to his wife. 84 For definitional guidance for determining the scope of mental dysfunction which is required in order to mete out get coercion, see Divrei Yosef , ibid.; Y. Goldberg, Elu she-Kofin Le-hotzi , Yerushalayim, 5773, 116–117.

The second ground for divorce is the question of whether the acts of domestic violence perpetrated by Michael serve as justification for get coercion. One approach, which first appears in the writings of Ohr Zarua, Rabbeinu Simhah and is later espoused by others, is to issue a compulsion order in the wake of a husband who assaults and insults his wife. 85 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 beit din, which teaches: 86 PDR 1:112–133.

The halakhah of get coercion is not due to the sins committed by the individual, but rather for the havoc wreaked in family life which is a result of the husband's behavior and therefore the wife is entitled to a get .

Responding to this posture of Ohr Zarua and Rabbeinu Simhah, Rabbi Yosef Karo in Beit Yosef demurs, stating: 87 Beit Yosef, Tur EH 154:3.

We cannot rely on their words . . . to coerce . . . since it is not mentioned by any one of the renowned authorities.

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. 88 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 be deemed a coerced get which 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. 89 SA EH 154:21 in the name of yesh omrim . Yet, Rabbi Karo concurs that a husband may be obligated to give a get . 90 Beit Yosef, Tur EH 74 (end), citing Ramban's responsum.

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."

In the wake of Beit Yosef's posture, Darkhei Moshe rules: 91 Darkhei Moshe, Tur, EH 154:17.

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 these are grounds 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). . . .

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 when he is mentally dysfunctional and physically abusive is a matter. 92 Teshuvot ha-Ridvaz 3:888 (447), 4:157 (1228); Teshuvot Binyamin Ze'ev 1:88; 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.

In sum, there are two grounds for divorce ( ilot gerushin ), namely that Michael was mentally dysfunctional and engaged in spousal battery. Whether there are grounds to coerce him to give a get is a matter of debate.

In terms of translating these two disputes in terms of doubts, we may state that there exist two halakhic doubts ( sefeikot de'dina ): one doubt is whether one can coerce a get when dealing with a mentally dysfunctional husband, and a second halakhic uncertainty is whether one may coerce a husband who assaults his wife to give her a get . The doubt regarding domestic violence emerged later than the doubt dealing with his psychological state. In other words, initially Michael suffered from a psychological disorder and subsequently he engaged in battery.

Lest one challenge the position that we are dealing with a double doubt due to the fact that both doubts did not emerge at the same time, clearly there is a debate as to whether two factual doubts must emerge simultaneously. However, in our case when dealing with a halakhic doubt, the two doubts may emerge one after the other. 93 Hiddushei Rabbi Akiva Eiger, Berakhot 2a, Yevamot 113b; Teshuvot Torat Hesed EH 13; Teshuvot Yabia Omer 4, OH 43 (4), 5 OH 6 (5), 6 YD 23 (6), 6 EH 4 (5), 7 OH 28 (6).

As we examined in the earlier portion of this monograph, 94 See supra chapter 3. there is a Yerushalayim Regional Beit Din ruling which addresses our issue. 95 File no. 917387/1, Yerushalayim Regional Beit Din, November 17, 2013. As we stated earlier:

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.

Without elucidation, the panel posits that 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. 96 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 is a rabbinic enactment, see 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 . Two contemporary decisors mandate get coercion due to the invoking of a double halakhic doubt ( sefek sefeika ) comprised of either three or four halakhic doubts. See Teshuvot Osher Hanan 4, EH 77 (10); Teshuvot Yabia Omer 3, EH 18 (4). 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.

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 authorities. 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 Torah 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.

Moreover, even according to Rashba and others that a doubt by biblical law 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 Torah level. In accordance with many legists, 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 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 ). 97 For the halakhic underpinnings of invoking a double doubt, see supra chapter 2 and for the foundations of invoking a double halakhic doubt regarding get coercion, see supra chapter 3.

Based upon the foregoing, in our case, we have a double doubt which is grounded in the two halakhic debates whether there are grounds for get coercion when dealing with a husband who is mentally dysfunctional and engaging in domestic violence. Relying upon the precedential opinion of the Yerushalayim Beit Din, 98 See supra n. 94 and supra n. 95 (end). we have grounds to void the marriage based upon invoking a double halakhic doubt regarding get coercion. 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-hatehillah ) we can void the marriage based upon a double halakhic doubt. 99 See Sedei Hemed , Ma'arekhet Get 30(6) and ha-Samekh 30(3) in the name of Rashba and Radvaz.

In the wake of rabbi or a beit din's inability to persuade a husband to give a get to his wife, there are various techniques, one of them dating back to early thirteenth century Ashkenaz, which empower halakhic authorities under certain conditions to free a wife to remarry without the issuance of a get by her husband. 1 See this monograph and this writer's Rabbinic Authority: The Vision and the Reality , vol. 3, 134–176, 231–269, 294–333; vol. 4, 143–297. Yet as we have noted elsewhere, 2 Rabbinic Authority , vol. 3 supra n. 1, 14–16, 134, 140, n. 8. there are decisors who are reluctant to void a marriage.

Addressing a situation of an agunah who requests that her marriage be voided due to the fact that both witnesses during the kiddushin were invalid, as they violated the Shabbat and committed other sins, following implicitly earlier rulings, Rabbi Aharon Walkin, who resided in Pinsk-Karlin, Ukraine, responds to such a petition in the most trenchant terms: 3 Teshuvot Zekan Aharon 1:81.

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

His view is by far not one of "a lone ranger". Concerned about "the slippery slope," Rabbi Hayyim Berlin, the son of the renowned Rabbi Naftali Tzvi Berlin, lambasts those arbiters who engage in voiding a marriage ( bittul kiddushin ) via invoking a clear expectation ( umdana de'mukha ), by stating the following: 4 Teshuvot Nishmat Hayyim 87. See also Teshuvot Nishmat Hayyim 128–129. For other arbiters who advances the same argument for opposing the implementation of a clear expectation as a means to void a marriage, see Teshuvot Helkat Ya'akov EH 85; Teshuvot Meil Tzadakah 4; Teshuvot Matteh Aharon 1:41.

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

Finally, in situations where a husband fails to disclose to his prospective spouse prior to the marriage that he possesses a major defect, such as being impotent or being gay, these authorities will direct the husband to give a get on rabbinic grounds lest people would err, thinking that a married woman leaves her husband without the execution of a get . 5 Ketuvot 73b; Lehem Mishneh, MT , Ishut 4:10; Teshuvot Ahiezer 1, EH 27; Teshuvot Ein Yitzhak 1, EH 24. In other words, they will not know that the voiding of the marriage in the particular case was due to an error and therefore that execution of a get is otherwise required. Clearly, based upon this line of reasoning, some decisors may equally oppose utilizing the techniques of the double doubt as well as "a clear expectation" ( umdana de'mukha ) of the wife to void a marriage involving a get recalcitrant husband.

In the wake of this strident opposition to voiding marriages, it is unsurprising to encounter today numerous rabbis and rabbinical courts throughout the world that endorse this halakhic tradition, and staunchly refuse to void marriages. The net result is that there are many women, whether they are Orthodox, Conservative, Reform or unaffiliated Jews, who remain victims of get recalcitrance. Though many of these women remain committed to their values and continue to live for years exhibiting fidelity to their estranged spouses, regretfully others become irreligious and engage in promiscuity.

In light of the Orthodox rabbis and rabbinic courts who adopt the posture that voiding a marriage is not an option for addressing the plight of the agunah , what can be done to deal with the plight of the agunah ? As we will see, both the rabbis as well as the rabbinical courts may be capable of improving the state of affairs, namely, the husband's willingness to give the get or the wife's readiness to receive a get without deliberating as to whether there is a possibility to void a marriage.

For many years, we have observed situations where a recalcitrant spouse chooses to condition the giving or the acceptance of a get upon a prior resolution of all end of marriage matters such as dividing marital assets, parenting and custody arrangements, child support and the execution of a civil divorce. Regretfully, on at least two occasions, there is one beit din located in Monsey, New York which has allegedly given the dispensation of 100 rabbis ( heter me'ah rabbanim ) enabling a get recalcitrant husband to marry a second wife. In both situations, a get has been deposited at the beit din and would be given to the wife on the condition that the husband's demands regarding custody and renumeration of hundreds of thousands dollars would be met. Given that in both cases, the wife wants to receive her get , in accordance with the views of Rabbis Elyashiv and Feinstein one cannot place any obstacles in her receiving her sought after get and consequently there is no basis for such a dispensation. 6 Yi'sa Yosef, EH 8; Iggerot Moshe EH 4:3. Such conduct raises a variety of halakhic issues which we will address here in the context of get recalcitrance on the part of the husband.

To understand the ramifications of conditioning the giving of a get , let me share a few cases that I have encountered in recent years in my work as a dayan (a rabbinic arbitrator).

A couple has been separated for over eighteen years. Approximately a dozen years ago, a civil divorce was executed. 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 that states that the parties mutually agreed that all of their end of marriage matters have been resolved. Given that the plaintiff refuses to accede to his request, she remained an agunah until we recently freed her. Such egregious conduct is not an isolated incident. In another case, after ten years of litigation in civil court followed by the subsequent issuance of a civil divorce, the wife then received her get . The delay in resolving the end of marriage matters such as the division of marital assets and alimony was due to the fact that on numerous occasions, the husband changed his attorney. In other scenarios, albeit very common ones, from the time of the onset of litigation in a civil court, the process generally takes one to two years to be completed before a civil divorce has been executed, and only then does the wife receive her get .

During this period of litigation, many American rabbinical courts do not address whether there is a duty of the husband to give a g et to his wife. Halakhah recognizes two distinct grounds for obligating a get . Firstly, as we know, whether a husband is obligated to give a get, generally speaking, hinges upon whether there exists an ilat gerushin, a ground for divorce which would require a man to give a get . These grounds for divorce may be subdivided into two categories. One category is a wife's physical defect such as the inability to conduct conjugal relations with her husband, such as being afflicted by a contagious and/or dangerous disease or by dint of her revulsion of his body odor which is linked to his occupation. 7 Ketuvot 77a; Yevamot 65b. On the other hand, a husband's inappropriate behavior may serve as a justification for divorce. For example, spousal rape, refusal to cohabitate with his wife, physical and/or emotional divorce of his wife, or refusal to financially support her may serve under certain conditions as a claim for coercing or obligating a husband to give a get . 8 SA EH 76:1, 154:1, 6; Rema SA EH 154:3. Secondly, according to various decisors, a get ought to be given in the wake of a couple being separated for over a year or eighteen months where there are no prospects for marital reconciliation ( shalom bayit ). 9 Rabbeinu Yeruham, Sefer Meisharim Netiv 23, Helek 8; Teshuvot Radakh , Bayit 3, s.v. u'le'ravha; Teshuvot Hayyim ve-Shalom 2:112; Teshuvot Shem Aryeh EH 8; Teshuvot Iggerot Moshe YD 4:15 (2). Should a beit din obligate a get based upon a marital separation of one year or eighteen months and should a husband fail to comply with the ruling or a divorce judgment based upon one of the grounds for divorce, the wife is to be identified as a mesurevet get and therefore a chained woman (an agunah ). In such a situation, the identification of the woman as an agunah may serve as grounds to compel or obligate a husband to give a get . See this writer's, Rabbinic Authority , vol. 3, 328–333. Some contend that even if a particular get that was received by the wife poses certain halakhic issues and the husband demands money from his wife in order to execute a second get, since there is a fear that she will be without a get "many days," she is to be labeled an agunah . See Teshuvot Pnei Yehoshua EH 80; Teshuvot Simhat Yom Tov 12; Teshuvot Maharsham 3:251 (1). In other words, the absence of having a get for a short period of time may label the woman as an agunah . In other words, though the absence of having a get for a short period of time may label the woman as an agunah , nevertheless it is a label bereft of any halakhic consequences regarding leniency. Numerous contemporary Israeli rabbinical courts adopt this position. 10 Piskei Din Rabbanayim (hereinafter: PDR ) 7:112–113, 11:364, 12:193–203, 13:267, 14:183, 194; 19:52; File no. 4276-63, Beit Din ha-Rabbani ha-Gadol, November 11, 2003; File no. 3599-22-1, Tiberias Regional Beit Din, Plonit v. Ploni , November 24, 2004 (R. Yoezer Ariel's opinion); File No. 7479-21-1, Tel Aviv-Yaffo Regional Beit Din, November 18, 2007; File no. 8801-21-1, Tel Aviv Regional Beit Din, June 24, 2009; File no. 289477/1, Netanya Regional Beit Din, December 28, 2010; File no. 842462/1, Netanya Regional Beit Din, January 16, 2012; File no. 248769/3, Netanya Regional Beit Din, Ploni v. Plonit , May 16, 2012; File no. 587739-6, Haifa Regional Beit Din, July 17, 2012; File no. 289799-1, Netanya Regional Beit Din, Ploni v. Plonit , January 2, 2013; File no. 862233-1, Tiberias Regional Beit Din, Plonit v. Ploni , January 8, 2013; File no. 901912/1, Haifa Regional Beit Din, May 7, 2013; File no. 8426111, Ashdod Regional Beit Din, Plonit v. Ploni , June 10, 2013 (R. Avraham Atiyah's opinion); File no. 284462-9, Netanya Regional Beit Din, May 14, 2014; File no. 764231-6, Haifa Regional Beit Din, May 25, 2014; File no. 869531/2, Netanya Regional Beit Din, July 31, 2014; File no. 849440/19, Tel Aviv-Yaffo Regional Beit Din, July 14, 2015; File no. 847350/3, Beit Din ha-Rabbani ha-Gadol, July 27, 2015; File no. 146033/11, Beit Din ha-Rabbani ha-Gadol, June 21, 2016; File no. 1066559/1, Yerushalayim Regional Beit Din, October 30, 2016; File no. 1043346/1, Tel Aviv-Yaffo Regional Beit Din, May 8, 2017; File no. 865704/1, Tzfat Regional Beit Din, May 8, 2017; File no. 1011050/3, Tel Aviv-Yaffo Regional Beit Din, October 24, 2017; File no. 1083672/1, Haifa Regional Beit Din, January 25, 2018; File no. 1063300/10, Beit Din ha-Rabbani ha-Gadol, April 13, 2018; File no. 905329/1, Tel Aviv-Yaffo Regional Beit Din, March 31, 2019; Teshuvot Yabia Omer 3, EH 18 (13); Teshuvot Ateret Devorah 2, EH 89. Clearly, these American rabbinical courts may be espousing the opinion of others who argue that "a dead marriage" per se will not serve as grounds for obligating the husband to deliver a get to his wife. 11 Teshuvot Divrei Malkiel 3:144–145; Teshuvot Divrei Shmuel 3:145; Teshuvot ha-Gaon Avraham Herzog EH 154; A. Herzog, Pesakim u-Ketavim 7:133–134; Teshuvot Tzitz Eliezer 6:42, 17:52; Teshuvot Shema Shlomo 3, EH 19; PDR 1:162, 4:112, 7:108–109, 112–113, 9:200, 211–212, 10:173, 11:362, 364; 12:206, 13:360, 14:183, 193; File no. 4827-21-2, Beit Din ha-Rabbani ha-Gadol, (R. Izirer's opinion), July 3, 2005; File no. 172-21-1, Beit Din ha-Rabbani ha-Gadol, February 18, 2009; File no. 1750-21-1, Beit Din ha-Rabbani ha-Gadol, (R. Izirer's opinion), May 5, 2009; File no. 290506/1, Netanya Regional Beit Din, November 21, 2010; File no. 77890/5, Be'air Sheva Regional Beit Din, May 29, 2014; File no. 698719/15, Yerushalayim Regional Beit Din, July 26, 2015; File no. 1083672/1, Haifa Regional Beit Din, January 25, 2018 (a supporting argument); File no. 1147208/2, Beit Din ha-Rabbani ha-Gadol, July 2, 2018. As such, they generally refrain from issuing a divorce judgment based upon irretrievable marital breakdown. Yet, generally they equally refrain from rendering a divorce decision stemming from a ground for divorce.

Even assuming a beit din would hand down a divorce decision that obligates a husband to give a get, and, assuming the husband readily agrees, can a get be properly executed while resolution of other end of marriage matters are still pending? In other words, the emerging issue is whether all the end of marriage issues, such as awarding the value of the ketubah , parenting arrangements, child support and the division of marital assets must be resolved prior to the execution of the get . 12 For a lively exchange regarding this matter, see R. Menashe Klein and R. Shimon Ya'acobi, "The giving of a get and financial arrangements: which precedes the other?" (Hebrew), 22 Tehumin (5762), 157–183. Many American rabbinical courts ( battei din ), as well as American Orthodox rabbis, will counsel their clientele and constituency respectively that a get must be given only after all end of marriage issues have been resolved and/or a civil divorce has been executed. Consequently, it is unsurprising to encounter situations such as the ones described above in which a wife remains halakhically married to her spouse despite the fact that there has been longstanding marital breakdown and separation, a period marked by the absence of conjugal relations, no spousal support, and no prospects for marital reconciliation accompanied by years of divorce litigation. Yet, relying upon the aforesaid rabbinic counsel under such circumstances, the woman has no realistic expectation that the get will be forthcoming in an expeditious fashion.

The question is whether there is a basis for such a halakhic posture. Relying upon Mahari Mintz's guidelines for executing a get , Rema states: 13 Rema SA EH 154, Seder ha-Get 81.

And the scholar who is preparing the execution of the get says to her: "Please know that you will be divorced with this get from your husband." And the rabbi will inquire after the ketubah (the husband paying the value of the ketubah – AYW) that the husband will return the (value of the – AYW) ketubah or she will waive her right to it lest they start quarrelling due to the (value of the – AYW) ketubah with the result that the husband will say, "on this condition I didn't divorce her."

As such, given that that the get was given in error (a get mut'eh – AYW), the consequence will be a retroactive annulment of the get . Other authorities, albeit only a few, agree with this position. 14 Teshuvot Maharam of Lublin 122; Mishkenot Ya'akov EH 34; Levush EH 123–125; Teshuvot Amek Sheilah EH 116; Teshuvot Helkat Yoav EH 25. Other decisors adopt this approach on the condition that the husband was misled prior to the giving the get and he was under the impression at that time that everything was to materialize as mutually agreed upon. See Teshuvot Noda be-Yehudah , Mahadura Kama, EH 11; Teshuvot Helkat Yo'av EH 25; Erekh Shai EH 134; Teshuvot Malbushei Yom Tov 2 EH 7; Teshuvot Hesed le-Avraham , Mahadura Kama EH 42.

Addressing this minority view, Taz notes that it was rejected: 15 Taz, SA EH 145:6.

And it is not on the side of truth and that nearly all rabbis have already disagreed with it, and forcefully rejected it.

Explaining this view, Rabbi Ya'akov Ettlinger writes: 16 Teshuvot Binyan Tzion 144.

Since not everyone is versed in Halakhah , Rabbi Mintz argues that there will always be slander if the husband shouts that he divorced her in error and therefore the get is null and her children will be halakhic bastards ( mamzerim ), even though the truth is otherwise.

Based upon the fear of a wrongful get , we can understand the position that all end of marriage issues ought to be resolved prior to executing a get .

However, the majority of authorities argue, explicitly or implicitly, that the get procedure (the seder ha-get ) entails a husband's nullification of all prior conditions ( bittul moda'ot ). 17 Beit Shmuel, SA EH 145:16; Teshuvot Ma'sat Binyamin 76; Teshuvot Bah ha-Hadashot 90–91; Sema and Levush, Bah ha-Hadashot, ibid. Teshuvot Tzemah Tzedek EH 290:1; Noda be-Yehudah , supra n. 14; Beit Meir EH 145:9; Avnei Mi'luim 10:2; Teshuvot Mahariz Enzel 81; Teshuvot Divrei Hayyim 1:84; Arukh ha-Shulhan EH 145:30; Teshuvot Oneg Yom Tov 154. For additional decisors who ascribe to this position, see Teshuvot Ateret Devorah 2:86. For the requirement of nullifying all pre-existing conditions prior to a husband's giving of the get, see SA EH 134:1–3; Rema ad locum. Absent a clear stipulation during this procedure that the get is conditional upon a wife's compliance of a particular condition(s), a husband is preempted from contending that it was an erroneous divorce due to the fact that his wife reneged on an earlier commitment concretized in a divorce agreement, or that had he known that a particular matter which was resolved after the execution of a get was to his detriment, he never would have divorced her. See Tosafot Gittin 46a; Teshuvot ha-Rivash ha-Hadashot 10; Teshuvot Maharam Alsheikh 78; Teshuvot Maharshal 25; Teshuvot Ein Yitzhak EH 2:37 (4); Teshuvot Ridvaz 1:83; Teshuvot Maharit EH 13. Cf. Teshuvot Maharam of Lublin 122; Teshuvot Mishkenot Ya'akov EH 34. Consequently, there is no basis for a husband claiming that it was an erroneous divorce due to the fact that his wife reneged on an earlier commitment concretized in a divorce agreement, or that had he known that a particular matter which was resolved after the execution of a get was to his detriment, he never would have divorced her.

Even if one adopts the majority opinion that opposes the retroactive annulment of a get due to a breach of the divorce agreement or the resolution of a matter to the husband's detriment after the execution of the get , there is an additional reason that all matters must be resolved before the giving of a get . One arbiter states that with the advent of the execution of a Jewish divorce, "the husband and wife should not be bound by any connection or condition in the world," 18 Teshuvot Mahari Mintz 123. which has been understood to mean that neither spouse should file any claim after the execution of the get, lest the couple remain susceptible to committing a sexual prohibition. 19 Ketuvot 27b; MT, Issurei Bi'ah 21:2, 27, Rabbi Menashe Klein, supra n. 12, 171; Teshuvot Mishneh Halakhot , Mahadura Tinyana 357.

Upon a closer scrutiny of the Halakhah , we encounter a more nuanced approach to how a divorced couple ought to conduct themselves. On one hand, to avoid the engagement in intimate relations or even a suspicion thereof, an ex-husband shall refrain from living with her in the same courtyard, and to avoid social interaction, the couple ought not to proceed to a beit din proceeding together. 20 SA EH 119:7, 9; Beit Shmuel, ad locum 17 . Nevertheless, if the husband appoints an agent to pursue a particular claim, no prohibition has been violated. See Rema, SA EH 119:8. For the prohibition of a divorced couple to reside in the same apartment or home, see Tur EH 119 and SA EH 119:7–11. However, according to certain opinions, should he enter a home or her house by chance there is no prohibition, since he is not living there or interacting with her. And some adopt a stricter opinion, lest such meetings lead to the engagement in prohibitions. 21 Beit Yosef, Tur EH 119, Taz, SA EH 119:19. For decisors who sanction a divorcee's entry into his ex-wife's home for two or three hours for the purpose of discussing business matters, see Teshuvot Terumat ha-Deshen 243; Rema , supra n. 20; Helkat Mehokeik, SA EH 119:24; Pri Hadesh EH 119:22. Some interpret Rema's position that such entry is contingent upon the presence of the wife's new husband or other people. See Mahazit ha-Shekel, SA EH 119, Arukh ha-Shulhan EH 119:31, and Teshuvot Ranah 91.