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Comments on the New York State "Get Law"
Rabbi Gedalia Dov Schwartz

Comments on the New York State "Get Law"
Rabbi Gedalia Dov Schwartz

Much controversy and confusion have been generated in regard to the enactment of the 1992 Amendments to Section 236B of the Domestic Relations Law, known as the "Get Law." (A get is a divorce recognized by the Jewish religion, issued by a rabbinic court (Bet Din).) Because the 1992 law amends the Equitable Distribution Law of 1980 and allows the court to consider a "barrier to remarriage" in ruling upon the disposition of marital property and establishing maintenance, there are certain rabbinic authorities who understand the new law as coercing the husband to give a get out of fear of financial penalties. They consider that the new law authorizes the court to directly compel the husband to give a get under the threat of monetary penalties. Under Jewish law, a get given under compulsion is not valid. Thus, if this evaluation of the new law is correct, it would have serious consequences in the granting of religious divorces in N.Y. state.

Before reviewing the actual law itself, it is important to understand the source of the background material regarding the matter of a "get me'usseh," or coerced get.

It is a basic principle in the laws of gittin (religious divorce) that the husband must give the get of his free will without compulsion.1 Consequently, interference with the husband's free will involvement in the get procedure would raise the question of a get me'usseh, a coerced get.

There are certain specific cases where the halacha prescribes coercion as a legitimate means of effecting a get in order to remove the wife from an intolerable situation. 2 In regard to the proper use of coercion in such situations, the Gemara3 discusses and establishes the guidelines for the exercise of this method for the executing of a get. It is required that the Bet Din first deliberate and rule that the husband is in the category of one who must be compelled to give the get. Only then is compulsion employed.

After due deliberation, the Bet Din may employ even physical methods for compliance, and even non-Jews may act as its agents. They are to state to the recalcitrant spouse: "Do what the Jewish court has told you to do!" These procedures are discussed in the Gemara, 4 and are considered legitimate and effective, as long as there is adherence to the guidelines applicable in the specific case. The principle of permissible coercion must be initiated and decided by a Bet Din before employing non-Jews to carry out the get procedure. If it is initiated by non-Jews without the ruling of a Bet Din, even if such a ruling were in favor of a get, the get would be considered "pasul" (invalid).

In a situation where Bet Din has determined that a coerced get is proper, and non-Jews are carrying out their ruling, there is a difference of opinion whether the non-Jews must clearly state, "Do what the Bet Din of Israel are telling you!"

According to R. Meir Halevi,5 if they do not mention the Jewish court, the get is pasul even if the Bet Din has ruled that he must be coerced. However, the Rosh disagrees and rules that the get is valid even if the non-Jews made no mention of the Bet Din's ruling, as long as that ruling permitted coercion.6

In regard to the method of coercion which may be employed, there is a controversy whether actual physical force may be used in a case where the Talmud only used the expression "yotsi," i.e. the husband should divorce his wife, or whether he is to be told that he is obligated by law to divorce his wife and if he refuses he may be called an "avaryan", a law-breaker. Because of this dispute the Ramo rules that physical force should not be used in these cases, in order to avoid a possible get me'usseh. 7 But where the relationship is forbidden, he states that physical force may be used to compel the giving of a get.8

In situations where physical force is not permitted, the Bet Din can declare sanctions against the husband which amount to virtual excommunication and ostracism. 9 Although Rabbenu Tam ruled that in the case of "mavis alai," (i.e. the wife claims, "My husband is repulsive to me") the husband should give a get but Bet Din cannot use direct physical force, he favored all sorts of community sanctions and ostracism against the husband until he gave a get. Nor did he consider this in the category of a "get me'usseh" since the man had an option to go to another community that did not have such sanctions.10

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