Monday, June 6, 2011

Rav Bigman on Coercing a Divorce

By R. David Bigman, rosh yeshiva of Yeshivat Maaleh Gilboa

Over the opposition of women's organizations, the Committee for the Appointment of Rabbinic Judges recently selected Rabbi Nahum Prover to serve on the Supreme Rabbinical Court. According to these women’s organizations, Rabbi Prover uses a strict religious approach that is consistently against women. While I cannot speak to this general characterization of R. Prover’s approach, in the following lines I want to analyze the main halakhic source on which he and many other judges in the rabbinic courts base themselves when they refrain from forcing recalcitrant husbands to proffer a get.

I am speaking of a responsum penned by the 16th century sage, Rabbi Shmuel ben Moshe de Medina ( Responsa Maharshdam, Even HaEzer 41). In this responsum, the Maharshdam addresses an extraordinary story involving the details of the laws of divorce and levirate marriage. Unfortunately, this source is misapplied by many contemporary rabbinic court judges who fail to appreciate a number of central issues in this responsum.

The Case:

The question that came to the door of the Maharshdam describes a complex and fascinating family situation and a moving human story. At the center of this story is a girl who was betrothed to a boy her age who died unexpectedly. Because the two had not married, the girl of course was left with no children. Therefore, the boy’s brother (the yavam), an older man with a wife and children, became obligated either to marry this girl through the mitzvah of yibum or to perform the rite of chalitzah and thereby permit her to marry another man.

But here the picture becomes complicated. The yavam knew that this young woman had an elderly uncle who wanted to marry her despite her preference to marry a younger man of her own age. Moreover, the uncle’s wife was a relative of the yavam. He was worried that if he performed chalitzah and freed this young woman, the uncle’s wife (his relative) would be adversely effected. Perhaps the uncle would divorce her in order to marry the girl or would take the girl as a second wife into his home.

In this situation, wanting to protect the wife of the uncle from becoming abandoned or marginalized, he refused to perform the rite of chalitzah unless the uncle would obligate himself in some way to refrain from marrying his young niece after the chalitzah. Under these complicated circumstances, the Maharshdam was asked, can the yavam be forced to perform chalitzah and "liberate" the young woman.

The response of the Maharshdam to the case before him is unequivocal. One may not force the yavam to perform the rite of chalitzah. This case is similar to coercing a divorce, and the Mishnah and Gemara explicitly limit such coercion to cases where the husband suffers from extreme defects. At the end of his responsum, the Maharshdam brings a proof for his position from a discussion of divorce laws, quoting a tradition of the school of the Rosh brought in the book Chazeh Hatenufa (also quoted in the Beit Yosef of R. Yosef Karo). According to this position, it is permitted to coerce a get from a man who declares that he will divorce his wife only on the condition that she agrees never to visit her father’s home. According to the Rosh, because this is an unreasonable condition that will never actually be fulfilled (for there is a presumption that a woman will visit with her parents after divorce), it is permitted to force the husband to give the get without the fulfillment of his outrageous condition. From this tradition, the Maharshdam draws conclusions for our story. In a case where the husband makes conditions that are easily fulfilled (in this case – a guarantee from the uncle that he will not marry the girl), there is no reason to force the divorce. Should the court deem a divorce to be the proper resolution of the case, it can do so by ensuring that the reasonable condition be upheld.

A Lack of Sincerity

As noted, much use of this responsum has been made in the rabbinical courts in cases of recalcitrant husbands. Following the Maharshdam’s ruling, the judges say that a husband who conditions the giving of a get on exorbitant financial demands (for example – the abrogation of any obligation to pay child support) cannot be forced to give a get. They claim that if the woman's desire is to divorce, it is incumbent upon her to meet her husband’s conditions. This use of the Maharshdam’s position under contemporary circumstances of a delayed delivery of a get is fundamentally mistaken for several reasons.

Firstly, in many cases where a husband refuses to give a get in the rabbinical courts, the responsum of the Maharshdam is not relevant at all. The Maharshdam addresses a case where the husband sincerely wants to divorce his wife, but puts certain conditions on the granting of the get. In many contemporary cases of recalcitrant husbands, the men do not want to divorce their wives at all. In order to delay and prevent the divorce, they declare their desire to divorce under certain conditions that are very difficult for their wife’s to fulfill, thereby pushing off over and again the giving of a get. As this is not a situation in which the husband is looking to divorce his wife, it stands in contradiction to the Maharshdam’s words “since the yavam desires to perform the rite of chalitzah but his intention is that his yevamah will not marry her married uncle, therefore it is impossible to force him to perform the chalitzah in any way.” In other words, where there is a desire to perform chalitzah or divorce, but a condition stands in the way, it is impossible to force the divorce/chalitzah. However, in a case of a recalcitrant husband, who only ostensibly wants to give the get, but in fact intends only to delay the process – there is no impediment to coercing him to give a get.

This gap between the two cases reflects a fundamental difference between the halakhic discussion reflected in the Responsa literature and the legal system currently operating within the Rabbinic courts. For it is clear that one of the important details in the event that the Maharshdam addressed was the sincerity of the yavam. Indeed, the impression of the judges before whom the case was presented was that the yavam sincerely wanted to perform the chalitzah for the girl, but only hesitated out of concern for the fate of the uncle’s wife. Often in today's courts, a litigant’s claim (usually given through his rabbinic attorney or under legal recommendation), presented as his formally declared position, is accepted without investigation into its sincerity or true motives. This is the result of a process of “over-legalization” in the rabbinic court system that has adopted the more formal paradigm of the secular courts. In contrast to this paradigm, the halakhhah’s concern is predominantly with the husband’s motives, not his statement before the court. Therefore, the sincerity of a recalcitrant husband’s declaration of his desire to give the get but only on a certain condition must be investigated.

Bargaining Terms

Furthermore, even in cases where the husband indeed intends to eventually divorce, he may often demand exorbitant financial conditions as part of the negotiations of the divorce settlement. In actuality, these stipulations that he proposes are not absolute preconditions for him to give a get to his wife, but rather are part of the “game” of negotiating a more favorable financial settlement for him. Since the responsum of the Maharshdam focuses entirely on actual absolute preconditions posed by the husband, the question of whether these preconditions are realistic or not is paramount. In most of our cases of recalcitrant husbands, the question of preconditions is not relevant. Any stipulations made by the husband are meant only as bargaining chips with no intention that they actually be fulfilled as presented. As noted, judges in the rabbinic courts unfortunately rarely address the question of the motives behind the claims of the husbands. They address the conditions only on a formal level that leads them to preclude the possibility of coercing the get. Therefore, after the declaration of the husband’s conditions, the couple is usually advised to continue their negotiations toward a financial compromise. Because in these cases the husband’s conditions are excessive, and because time is on the side of the husband, such negotiations take place under extremely unfair conditions.

Incidentally, problematic insincerity in the rabbinic courts takes place in an opposite fashion as well: A husband who knows that eventually he will divorce his wife can claim that he is not willing to divorce at all, and thereby buy time in order to improve the settlement in his favor. Here too, the judges accept his declaration of refusal to divorce at face value, and advise the couple to work out their issues. Of course, in this situation time is on the side of the husband, who only improves his chances for a more favorable settlement from his perspective.

The Gray Area in the Middle

Another flaw in the use of the words of the Maharshdam in contemporary cases of recalcitrant husbands lies in the interpretation of the following quote from his responsum: "But only (in a case of) a condition of this (type) which is nearly impossible to fulfill [ie the terms that the woman not visit her father’s home] do we compel to divorce without (its fulfillment), however other conditions that are easy to fulfill - there is no doubt that one who compels a get where said condition is not fulfilled increases cases of mamzerim...".

The prevailing interpretation of these words in the rabbinic courts understands that only in a case where the husband puts impossible conditions (such as preventing the woman's visits with her parents) - only then can one force him to give a get; for any other conditions that he may place the court’s hands are tied. But this interpretation ignores the end of the passage that points in a different direction. There the Maharshdam states that when the husband puts conditions that are easily fulfilled (such as in this case – a request for a guarantee that the uncle won’t marry her), then there is an impediment to force the get. From here one might conclude that when the condition is not "easy", the law would be different.

In other words, Maharshdam discusses two extreme cases: when the husband sets impossible conditions, and when he sets easy conditions. In the first case, giving the get can be coerced; in the latter case one does not compel him. But what is the law for all the possibilities in between these two extremes - for example, when the husband puts excessive financial requirements as a condition of granting the divorce? This is a condition that is not "impossible" but also not "easy"; for such cases, which are of course the overwhelming majority of cases conducted in the courts, the responsum of the Maharshdam is ambiguous.

The Human Dimension

From all the analysis above, the responsum of the Maharshdam, a cornerstone of the rabbinic opposition to coerce a divorce, is not relevant to most of the cases of get refusal nowadays -- certainly not for those who refuse to divorce because they do not want a divorce, and not for those who wish to divorce but demand excessive conditions as part of negotiating a financial settlement. Under what circumstances might this responsum be relevant to prevent the coercion of a get? Imagine a husband who appeared before a court and claimed that he wanted to divorce his wife, but could not do so because he was unable to make alimony payments and proved that indeed he had a financial problem that prevented him from paying the alimony. If the court was convinced of the sincerity of his words, it would be possible to consider whether the sum of money that he demanded his wife forgo is a condition that is "easy to uphold" for the woman, and then and only then, could the position of the Maharshdam be used to prevent the coercion of the giving of the get. However, because the number of cases of women who are refused a get under these circumstances is practically nil, it seems incumbent upon the courts to drastically reduce their use of the Maharshdam’s responsum.

[Incidentally, even in situations where this position of the Maharshdam is relevant, it must be known that great sages such as Rabbi Shlomo Dichovsky claim that one need not be concerned for the position of the Maharshdam. And furthermore, from the discussions of the great authorities of recent generations, it becomes clear that the non-physical coercive methods that the courts make use of today (from taking away a credit card to prison sentences) are not considered the type of coercion that halakhah finds problematic (An exhaustive of the literature can be found in Heichal Yitzchak, Even Haezer Vol. I:2-3 and Yabia Omer Vol. III Even Haezer 20).]

Besides the halakhic analysis above, there is an important meta-halakhic point I want to make. Maharshdam’s responsum was related in the context of a familial case of extreme sensitivity. It is apparent that Maharshdam identified with the yavam’s attempt to protect both his relative (married to the girl’s uncle) and the girl herself. With attentiveness to the complexity of the situation, he refrained from compelling a get for fear that it would effect these women adversely. Among the important things for rabbinic court judges to draw upon from this responsum is an appropriate attitude to the plight of the litigants before him, a delicate attention to the whole human situation in all its complexity, and a combination of commitment to the letter of the law with the wisdom to see into the hearts of the litigants and examine their sincerity. A wholesale and indiscriminate application of an interpretation of Maharshdam’s responsum that ignores its context as is common in rabbinical courts today is entirely contrary to the internal spirit of the words of the Maharshdam. It is like throwing away wheat and keeping the chaff.