[By Rabbi Yair Hoffman]
Most people are already sensitized to how horrible it is to withhold a Get from an ex-wife. It causes needless pain and suffering, not to mention major Chilul Hashem, a desecration of the Divine Name. Recently, this author posed the following question to a major Posaik. “Is it ever permitted for an ex-husband to withhold the giving of a Get to his wife?”
The Posaik responded that it was never permitted to withhold a Get in order to try to negotiate better divorce terms, but it is permitted to do so in response to false legal accusations that are still causing a continuing negation of the father’s rights to see his children. The Posaik claimed that when a false report has been filed against a husband and the husband is not allowed to see his children as a direct result of the false report, he may, with the permission of a reliable Posaik, withhold the get as leverage to ensure that the situation be rectified.
The reason behind the ruling is not, heaven forbid, to punish her, but rather to effectuate the relief of an untenable and ongoing situation. Halachically, this dispensation is a form of the Talmudic concept of Rav Nachman in Bava Kamma (27b) cited by the Bais Yoseph (Choshain Mishpat 4).- “avid inesh dina lenafshay, a person may under certain and specific circumstances effectuate unilateral action.
When asked who should be the arbiter as to whether these accusations are true or false, the Posaik responded that it definitely cannot and should not be the husband. It must rather be the ruling of a competent Rav or Bais Din, and only after a forensic evaluation has been conducted, where both parties had been spoken to, and after the determination that there doesn’t exist any corroborating evidence.
But who is to choose the Rav or Bais Din who will rule on the case? It should not be the wife, because she may choose Rabbis or Dayanim that are biased and on her side. It cannot be the husband, because he will choose people that are biased toward him. And, in a society where there are no longer any Kehilos to speak of, it is very difficult to come up with a nation-wide A-List of competent and reliable Rabbonim and or Batei Dinim.
As a society, we have become more tolerant and accepting of repulsive behaviors that were once anathema to all decent people. This is a most unfortunate state of affairs that must be changed. A person who pursues false criminal allegations against a spouse resulting in arrest and legal consequences where the other parent cannot see the children, has crossed a horrifying and abominable line in conduct, and has placed their very own Olam haba in jeopardy (see Rambam Hilchos Chovel UMazik 8:9 regarding the repercussions of Mesirah where there is no Pikuach Nefesh involved). The further prohibitions of Motzi Shaim Rah, and lying are also not inconsequential.
Several lawyers have informed this author of the unfortunate reality – false accusations abound in contemporary divorces.
The need for resolving this quandary of making sure that we do not create Agunos and at the same time ensuring that false accusations are not made against a spouse is most acute. Both scenarios are very serious, for just as causing an arrest on false abuse charges jeopardizes Olam HaBah, so too does the notion of making Agunos.
The Chezkuni (Bereishis 3:16) cites a Midrash and writes that if someone is betrothed to a woman and leaves her stuck as an agunah, then he is a denier of the World to Come. Consequently, he loses his share in Olam Ha’Ba – the world to come. The Baalei HaTosfos cite the same exposition and come to the very same conclusion. Making an Agunah causes one to lose Olam Habah.
There, of course, the status of the agunah began at the very very beginning of a marriage—upon halachic betrothal. Nonetheless, the idea is the same—these Rishonim hold that the husbands have lost their share in Olam Ha’Bah. Their fate and future no longer lie with Abraham, Isaac, and Jacob and their grandparents and great-grandparents for generations. Rather, the fate of these husbands is with the likes of the evil Bilaam and Gechazi.
But what if it was the woman who caused the marriage to fall apart? Is there then a rationale to hold back the Get? There is a fascinating Chasam Sofer (Nedarim 29) that even in an extreme case where a wife sinned with an extramarital relationship, “Ein lanu le’agein osa—we are not to make her into an agunah.” The Chasam Sofer continues that this is both obvious and clear.
What should our reaction be when we see an Agunah? The Responsa Yeshuas Malko (EH #54) by Rabbi Yisroel Yehoshua Trunk (Poland 1920-1893) writes, “All of Israel is obligated in trying to help such a woman.”
Rav Moshe Shternbuch of the Eida HaChareidis in Jerusalem (Teshuvos v’Hanhagos Vol. V #44) writes regarding someone who is refusing to give a get to his wife, it is “permitted and proper to publicize” that “no one should have anything to do with him.” The Posaik mentioned in the very beginning of this article would qualify this ruling of Rav Shternbuch as applicable only when the husband is not trying to get the spouse to remove false charges, and only when the charges have not been accompanied with corroborating evidence.
The Shulchan Aruch (Even HaEzer 1:11) rules that it is proper to enact laws and stipulations regarding marrying an additional wife (this was according to those that had not adopted the ban of Rabbeinu Gershom on polygamy). The Vilna Gaon explains that the Shulchan Aruch writes this in order to avoid situations which may cause or tempt the husband to make his first wife an agunah.
We can make two observations regarding this explanation of the Vilna Gaon. The first is that the notion of husbands making their wives into Agunos as a means of retaliation is certainly not new. The second observation is that we see clearly that steps should be taken to avoid this tragic reality of Agunos from coming about. It is our communal responsibility.
Rav Moshe Feinstein, zt’l (Igros Moshe YD Vol. IV #15) in a letter to Rabbi Chanina Simcha Posner written in the summer of 1976, writes categorically that no one party has the right to be me’agein the other party for financial purposes. (Me’agein is the verb form of making someone into an agunah.)
Elsewhere, the Shulchan Aruch rules that it is generally forbidden to judge on Shabbos (Orech Chaim 339:1). The Remah adds that even if someone needs to be punished it is forbidden to place him in jail so that he not run away. The Mishnah Berurah (329:14), written by the saintly Chofetz Chaim, rules that this ruling of the Remah does not apply to husbands who are refusing to give their wife a get. He writes that one is allowed to put such a husband in jail over Shabbos so that he will not run away and will thus be present on motzaei Shabbos to give a get to his wife.
Not one of these sources is denying the right of a husband to present his side of the story to a beis din. What these sources all do, however, is demonstrate that the refusal to come to the table and the withholding of a get to inflict psychological harm or pressure to capitulate in other matters is an abominable form of behavior that causes people to lose their share in the World to Come and justifies jailing them on the Sabbath itself.
The only justification to withhold a get, according to the Posaik, is if the wife has falsely accused and filed charges against the husband and the husband is suffering legal repercussions on account of the filed charges. And even then it is only if there is a Rabbinic finding that the charges are false. In a further discussion, the Posaik delineated one other situation wherein the husband would be justified in withholding the Get and that was when the wife had vindictively kidnapped the children without his assent and began living far away from the husband. This too, however, may only be done under the advisement of a Posaik or Bais Din and only after rigorous investigation that the facts are correct.
What we do need to do, however, is figure out a protocol where neither party is in charge of figuring out which Rabbis or which Bais Din will determine whether the charges are real or false and whether the facts of the vindictive relocation are true as well. Until then, we should carefully warn both parties that both filing false accusations and causing a wife to be an Agunah are actions that cause the violator to lose his or her share in the world to come. May Hashem relieve the suffering of all parties involved – especially children caught in the middle.
The author can be reached at [email protected]
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23 Responses
No such thing as an “anonymous posek”. Either someone stands by his Psak with his name on it, or it is useless. One can claim anything they want and then bring an “anonymous Posek” and let it stand. If someone believes something to be the truth and they present it a certain way they should also be ready to write their name to the PSAK Halacha.
I don’t fully understand the following sentence:
“In a further discussion, the Posaik delineated one other situation wherein the husband would be justified in withholding the Get and that was when the wife had vindictively kidnapped the children without his assent and began living far away from the husband.”
My question is, if the wife grabs away the children and doesn’t let the father see them, what difference does it make if she is now living far away, or right next door?
If he can’t see them, even if they live 10 feet away from him, they might as well have gone to the moon.
When did Rabbi Yisroel Yehoshua Trunk live?
Who is the posek? #1 is absolutley right.
It should be plain and obvious that witholding a get often results in tremendous chilul hashem and presents ammunition for those who wish to attack Halacha and Torah. If that is not enough reason to give a get than what is?
Now more than ever we must make it clear that it is never acceptable for a husband to withhold a get for any reason whatsoever. If a husband feels aggreived or a victim of slander he can do what the rest of the world does, take it up in court/bais din.
Rabbi Yisroel Yehoshua Trunk lived from 1820 to 1893. Must have been a typo..
Is Mr. Hoffman attempting to cover up the “wonderful” article that he wrote a few weeks ago denouncing forcing a husband to write a get?
Why isn’t it made mandatory by Rabbonim for couples to sign a pre-nup so these terrible tzaros of agunos can become extinct?
a major Posaik?
I can believe many people who give sources, but a major Posaik? Doesn’t use a name? come on now? is he afraid or just made up?
Not only that but “The Posaik responded that it was never permitted to withhold a Get in order to try to negotiate better divorce terms” where is this alluded to in halacha?
Even though we find it disgusting, it does not appear to be forbidden in shulcan aruch.
Perhaps the problem should be restated thusly:
Times have changed marriage. What was a standard marriage a few hundred and few thousand years ago has changed and women are in many ways equal to and in other ways superior to men. Yet our marriage laws are rooted in our thousand year old tradition.
Therefore where it was never an easy thing to ‘blackmail’ the women (and her family) today not only is it possible but it is too easy to get out of paying a get and instead get paid!
the author is commended for trying to bring light into a dark chapter for frum people but has seemingly missed the mark.
Obviously pre-nups are the answer, but they never seemed to catch on in the frum crowd where the blackmailing seems to have taken hold.
1) Per Halacha, a husband is NOT required to give his wife a Get just because she wants it and asked for it. He can decide he wants to remain married to her and she must accept that as the bottom line. This is explicit halacha written in Shulchan Aruch.
2) Even under situations where Halacha does require a Get, a husband can delay providing it if the wife is violating his halachic rights by withholding custody or visitation kneged halacha or stealing his money. (All marital money and properties belong to the husband except what the wife owned before she got married.)
A husband doesn’t have to give a Get while the wife is not following her halachic requirement to him.
But there are Shittohs that hold, that the words ‘Vchosav Loh’, is not a order, just as part of the story, which was usually done so that the woman can have written proof that the husband no longer wants to be married to her. The Pashut Pshat of the Pesukim seem very much to say just that.
In the olden times it was dangerous for a man to take someone else’s wife; so they always asked for written proof.
tl;dr stuff is complicated and author has no advice
I think what this posek writes is elementary and simple: It is the husbands right to give a get or not. So saith the Torah. Not very PC, but that’s the din.
At the same time there is a vast difference between a right and the right thing. Rubashkin’s judge had the right to impose the sentence she did. That does not make it the right thing, not by a long shot.
A husband is within his rights to withhold a get, yet can lose his olam haba. Because it is a legal crime.
So is it correct for a husband to withhold a get? Sometimes it would be fair. Why would a wife be able maintain damaging accusations and think she deserves a get?? (We are talking about where she continues to harm him, not where she accused him in the past.)
pre-nups not permit by halacha
I humbly disagree with rabbi Hoffman who states that we jail with holders of gets if we feel they will run away even on shabbos.the Chofetz Chaim was only talking about a case where the man was supposed to be judged for some other case and since he would run away from that case and he happens to withholding a get then we would jail him on shabbos.but if he was only with holding a get and nothing else was involved the Chofetz Chaim is not talking about that case. Thank you .Izaak Makinshlock
Dear rabbi Hoffman after looking in the Mishnah brurah ” es chotoeai ani mazkir” you are correct and I was wrong. Forgive me Izaak maki schlock .thank you
There are actually religious prenuptual agreements that a chason can sign whereby he agrees that if his marriage goes south, his wife can bring him to an agreed upon bais din that has the status of an arbitration committee. If the bais din decides that he should give the get, and he refuses, the state can fine him thousands of dollars a day and imprison him. The black hat community doesnt have the guts to do this, so this unfortunate problem will continue to exist. A woman who does not demand this type of prenup, is a sucker.
#12 Rubashkins judge got away with what she did because of the corrupt animal rights, nut case anti-Semitic and anti-Torah system, not because she had any legal, moral or Constitutional “right” to do so.
Toras Moshe
Just because a husband may not be halacally obligated to give a wife a get just because she asks for it does not mean that he shouldn’t give her one if she asks for one and the marriage is functionally over. As for withholding other right like seeing his children, she should not be doing as it is wrong unless you can prove abuse but even if she is he has not right to withhold the get, it is just pure torture. As for marital money not all the money is the husband’s if the wife make money and is supporting the husband the money does not belong to him. the only time it does belong to him is if he is supporting his wife, then he can demand a portion of her wages to cover that expense, but that doesn’t mean that all of it is his, this is complicated and would not just blatantly say it is all his.
unfortunately these false accusations are too common, and they destroy the husband’s life..a woman who does that & alienates the kids from the father deserves no get or future .period!!
Assumin the “posek” is correct that a husband never has a right to withhold a get, still there is no doubt that doing so until his terms are met does not invalidate the get. There are thousands of precedents for that. On the other hand, applying financial or social pressure to the husband to give the get, without a clear psak from a beis din, can very often invalidate a get.
The bottom line is as chazal said, whoever is not thoroughly competent in the halachos of gitin and kidushin should not get involved in them.
(As for the first assumption that a husband “never” has a right to make demands in order to give a get, consider a case where, for no solid reason, the wife demands a get, and will force the husband to be separated from his children, home, and community. He will have to rebuild his life through what may be no fault of his. Doesn’t he have a right to some compensation? The term “aguna” is used lately much more often than in previous times, and often the correct term should be moredes).
Actually, considering that she should have recused herself beforehand, Rubashkin’s judge did NOT have the right to impose any sentence at all, much less the sentence that she did cruelly impose on him.
“The Posaik mentioned in the very beginning of this article would qualify this ruling of Rav Shternbuch as applicable only when the husband is not trying to get the spouse to remove false charges, and only when the charges have not been accompanied with corroborating evidence.”
did you ask him, sounds like you didn’t WHY NOT??
the mechaber (eh 77:2) and the rema (77:3) rule that even with maos alei beit din is not empowered to force a get. even if she has evidence of maos alei they rule beit din wont force her to remain in his home but wont force him to give a get. if she claims she was beat by him that would be grounds to force it be given only after beit din verified the veracity of the claim according to the mechaber and gave him the opportunity to shape up and stop it and he still persisted. if she altogether has no evidence of grounds for a get then even she persistently requests it the beit din is not empowered to grant it. the teshuvos harosh (43:6) rules that if beit din pressures him to give it when they weren’t supposed to, the result is a get meusa.
Rav Moshe Shternbuch in Teshuvos v’Hanhagos (1:389) says a husband cannot be forced to give a get or even humiliate (nidoi) him in order to try to gave him give a get if the wife doesn’t have halachic grounds to request one. Rav Eliashiv in Kovetz Teshuvos 174 says that a husband does not have to give a get being requested on the basis of maos alei based on Shut HaRashba # 135 based on Ramban.