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The New York State Get Bill and its Halachic Ramifications
Rabbi Chaim Malinowitz

Rabbi Chaim Malinowitz - Dayan, Bet Din of Kollel Harabbonim, Monsey, and a Senior Editor of the Schottenstein Talmud published by Artscroll.

  1. DRL 253.
  2. Actually, as many a Bet Din can attest, the further "right" one goes on the religious spectrum, the more frequently this problem exists for men as well. That is to say, their wives are refusing to accept Gittin, and the men are in a state of igun due to Rabbenu Gershom's ban against bigamy. Although a man has an option unavailable to a woman - a Heter Meah Rabbonim (the procedure through which a man is granted permission to marry a second wife if his wife refuses to accept a Get) - that procedure is drawn-out, costly, and, many times, ultimately unsuccessful. Contrary to popular wisdom, there are stringent grounds which must exist for a Heter Meah Rabbonim to be granted -- merely the wife's refusal to take a Get is most definitely not one of them. However, the plight of women who are agunot is doubtlessly more in the public eye, and this article therefore generally addresses the perspective of women agunot.
  3. T'shuvot Rivash 127 and countless other responsa dealing with coercion.
  4. DRL 236 B.
  5. Act of June 12, 1990, Ch.18, I Statutes of Canada (1990).
  6. Shulchan Aruch Even Ha'ezer 119:3,4.
  7. Ibid, Ramo, Paragraph 6.
  8. T'shuvot HaRosh 42:1.
  9. Other grounds can be found in various places in Shulchan Aruch Even Ha'ezer from Chapter 66 to Chapter 154.
  10. See footnote 2. In most cases, grounds for a Heter Meah Rabbonim are simply the grounds under which the woman is obligated to take a Get. See Shulchan Aruch, Even Ha'ezer 1:10, 115, and 119:6. And, if the situation would be reversed, the husband would be obligated, and at times compelled, to give a Get: ibid, Chapter 154.
  11. Shulchan Aruch Even Ha'ezer 70:12; 77:2,3.
  12. It is indeed ironic that Chazal (Gittin 88b) disqualified an otherwise valid Get because of fear it would lead to women enlisting the aid of civil authorities to procure a Get from their husbands. And in modern times, in New York State, part of the Orthodox world cheers a secular law which is designed to do exactly that!
  13. Shulchan Aruch, Choshen Mishpat: Chapter 26.
  14. Ibid, Paragraph 1.
  15. T'shuvot Rashba, cited by Bet Yosef in Tur, Choshen Mishpat, Chapter 26.
  16. Dina D'malchuta has specific, limited applicability to certain monetary rights, and a Bet Din would rule on its applicability to a specific case. It has nothing to do with utilzing the secular courts, which is described as a monumental chillul Hashem.
  17. Shulchan Aruch, Choshen Mishpat 26:3.
  18. Ibid, Paragraph 1.
  19. Ibid, Paragraph 2.
  20. T'shuvot Tashbatz II, 290.
  21. See N'tivot to Shulchan Aruch, Choshen Mishpat 26:8; see Aruch Hashulchan, ibid 26:2.
  22. T'shuvot, Vol. II, 82.
  23. In the event that a prenuptial agreement (which can certainly be encouraged) does not exist, there is no obligation after a Get to support one's former wife (besides the Ketubah payment). Full child support is, of course, halachically mandated. Also, there is ample room for a properly empowered Bet Din to ensure that a former spouse not be left poverty-stricken and helpless after a Get.
  24. Shulchan Aruch, Choshen Mishpat 369:11.
  25. See T'shuvot Maharik 187. See Shach, Choshen Mishpat 73:39, for other reasons for its inapplicability.
  26. Based on Rosh, Nedarim 28a.
  27. Jewish Press, July 24,1992.
  28. Rambam, Gerushin 1:1,2.
  29. Shulchan Aruch, Even Ha'ezer 134:5. See T'shuvot Maharam Mintz 17, Nodah BiYehudah II,129 and Ramo, Even Ha'ezer 119:6, for discussions of the validity of a Get received by a wife against her will post-Cherem d'Rabbeinu Gershom.
  30. The exception to this is when a Bet Din has ruled based on the facts and evidence presented, that the husband may be coerced into giving a Get. The reason it is valid in such a case is explained by the Rambam, Hilchot Gerushin, 220.
  31. Based on Mishnah Gittin SSb, and from countless sources discussing coercion.
  32. Based on sources discussing coercion: Rivash 127, Mabit I 22, and countless others.
  33. Choshen Mishpat 205:7, T'shuvot Rabbi Betzalel Ashkenazi 15; also from cases in Shulchan Aruch, Even Ha'ezer, Chapter 134.
  34. Torat Gittin on Even Ha'ezer 134:5 and others. Actually, every case of coercion is in reality merely a threat that the future holds more of the same.
  35. Ramo, Even Ha'ezer, 134:5, and commentaries.
  36. ShuIchan Aruch, Even Ha'ezer 134:1.
  37. Ibid, Paragraph 2.
  38. Ibid, Paragraph 7; see also Pitchei T'shuvah 134:4.
  39. See Pitchei T'shuvah, Even Ha'ezer 134:15 where he discusses the unbearable burden placed on Rabbanim in just such instances.
  40. T'shuvot Rivash 127.
  41. Ibid; see also Tashbatz I,1.
  42. Actually, HaRav Elyashiv states in a letter disseminated to Poskim in America that even following a verdict of kofin, utilizing the Get Bill would constitute coercion, since the secular courts do not mean to fulfill the Bet Din's verdict but are carrying out their own mandate.
  43. See footnote 11.
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