Refutation of The Movements Forcing Gittin

The trends of American Modern-Orthodoxy have promoted No-Fault Divorce in the areas of Halakhah. specifically Dayanut (דיינות) – justice. This has created issues where a Gett (גט) could become pasul (פסוּל) – invalid. Some of these rabbanim have promoted heresy in the area of Gittin. These heresies aren’t from the current century in their origin. It goes back to centuries of the misusage of concepts that

In 2002 CE, a group of Modern-Orthodox college students from Yeshiva University (YU) decided to create the Organization for the Resolution of Agunot (ORA) to help promote women who want a גט by misusing the term “Agunah” (עגונה) to describe women who don’t receive a Get on-demand. In actuality, the term “Agunah” refers to an entirely different concept that is not what they are describing in their propaganda.

The ORA is led by the YU graduate Jeremy Stern, and their Rabbinic advisor was Tzvi Hershel Schachter of YU’s rabbinical program (RIETS) where he was the Rosh Ha-Yeshivah. He is now the Rosh Kollel of one of the Kollelim at RIETS. He is also a halachic advisor for the Orthodox Union (OU).

Modern-Orthodoxy currently promotes terms like “Man-Made Agunah” (implying the husband is at fault for not giving a Gett) when, in actuality, the underlying details with these issues generally involve the Self-Made Agunah where the wife is at fault for the delaying of a גט. In many cases, it’s not the fault of the women either but the organizations that promote radical ideologies against civil Torah judgement. The ORA is the biggest organization promoting the movement of promoting Gett Meusah under the guise of helping Agunot.

The Modern-Orthodox culture has taken a small, resolvable problem and turned it into a much bigger problem. Their tactics involve forms of social pressure via public humiliation and intimidation. In essence, the ORA uses social terrorism as a way to compel the husband to give a Gett. This has been noted by Rabbi Yehoishophot Oliver. The ORA has only made things worse as they have caused the proliferation of mamzerim by procuring documents of divorce that are invalid. Thus, they think they can remarry, but those remarriages are adulterous. 

It is important to note that the sages said that those who are not knowledgeable in the matters of billing a divorce should not be dealing with them because ignorance in this field could lead to the sin of adultery (Kiddushin 13a). It is because of the unfortunate ignorance in these concepts that it is essential to learn these concepts before engaging in discussions, campaigns, or other forms of community activism in matters of divorce.

Mattir Agunot and The Definition of an Agunah

The real question that should be asked: Does the increase in cases, where a Gett can be coerced, an act of leniency or stringency? Since the Torah mentions that Gitting can not be forced under most circumstances, the act of helping a wife (wanting a divorce) is a leniency. With this in mind, one can understand why Modern-Orthodoxy is keen on making a Gett accessible whenever someone wants it even in the cases when it can not be forced. Meanwhile, the rabbanim, that are more stringent in this mitzvah, are careful as not to overstep a boundary that could lead to a Gett being invalid.

The usage of certain terminology is important to understand when it comes to matters of divorce. People will misuse terms in order to promote their ideas. One of the most important terms to mention, in the topic of גירושין, is the word  “Agunah” – עגונה (Plural: Agunot – עגונות).

The word “עגונה” has the same shoresh as “anchor”. In the context of marriage, it is a reference to a woman chained to a marriage. But what exactly does the word “עגונה” imply? This term describes a woman who is not able to be with her husband either because she doesn’t know where he is or is unable to be in the same place as him, but in context, it also implies that she is not trying to prevent the inaccessibility of her husband from occurring. The traditional definition of an עגונה was a married woman whose husband was lost overseas (Yevamot 121a). Therefore, she is “anchored” to the marriage and unable to re-marry until he is found dead or divorces her.

Note, in olden times, with limited communication abilities and transportation methods, going on a business trip to a different country (or continent) would make it difficult for a woman to know the where-abouts of her husband. In the time of the sages, the classical “Get refuser” was a husband, physically separated by a great distance, who knowingly sent a גט but then nullified the גט before it was given (Gittin 33a). The concept of Bitul (ביטול) refers to nullification –  revoking the rights and status of an object. To be mevatel (מבטל) an object means to nullify it.

If a husband sent a messenger (on the husband’s behalf) to give a גט to his wife but then have another messenger מבטל it, then the woman would remain married because the גט would be פסוּל due to בּטוּלָה. This would make her an עגונה…The Sages had a way of dealing with this issue. They decreed that a husband can not מבטל it as they did not want create more עגונות.

The concept of being “Matir Agunot” (מתיר עגונות) was to prevent the increase in עגונות. This is a concept that existed among the sages. Even the rabbis of later generations tried to create decrees to prevent women from becoming עגונות. However, unlike today’s time, it was done carefully as not to create ממזרים.

Through out history, there have been waves of heretical rabbis who have tried to manipulate the concept of Gittin in order to procure more Sifrei Gittin (ספרי גרושין) – documents of divorce. This is because these renegades have decided to promote things that create cases of unilateral judgement which is unjust and a descreation to the holy concept of דיינות. Instead, the renegades of holiness have created injustice.

Ha-Netinah: The Giving of a Gett

The concept behind the Giving of a Gett is a concept that even the Orthodox Jews of today’s world can not understand. They can not appreciate what the Torah and sages said about this topic. They tend to be blatantly ignorant of this concept even to the point of promoting the opposite of the words of our sages. Historically, the Western World required grounds for divorce or annulment. In recent history, all of the 50 states in the United States of America have accepted the practice of No-Fault Divorce – a form of civil divorce where there is no  reason or basis for why the dissolution of the marriage is taking place. 

In matters of Jewish divorce, we do not operate like the modern culture of No-Fault Divorce. There has to be certain grounds for גירושין to take place. A person can’t just claim that they don’t like their spouse (without giving a logical reason), and use that as the basis for why they want to be megaresh (מגרש) – divorced. Therefore, a “Get on demand” can not be practiced in most cases because

And for various reasons, there’s more restrictions on the cases where a woman can [claim] a divorce. This is probably because men are viewed as more logical, and their attitudes towards divorce are not as emotional as in the case of many women.

To understand the foundations of גירושין, it is understand what a גט really is. A גט is only valid if the husband gives it voluntarily (Rambam, Hilchot Gerushin 1:1).  Later (ibid 2:20), the Rambam mentions the case where the husband can be forced to give it, but there is additional commentary [not in the Rambam] explaining the parameters of that. The concept of justifiably forcing a Gett is not a concept that can be interpreted liberally or else it would create many, serious consequences…

As mentioned in Devarim 24:1, the גט must be written and then given to the wife in front of two witnesses – Observant Jewish males above the age of Bar Mitzvah. In practical terms, it is signed in front of a rabbinical court (at least 3 Rabbis) who can determine if it is valid.

The biblical Hebrew word Beit Din (בית דין) literally translates to “House of Judgment” but figuratively means “Court House”. It is the reference to a rabbinic court.  Just as קידושין requires 2 witnesses, so does גיטין. The witnesses have to be valid. If they are not decent people, then the גט is invalid.

The purpose of a גט is to sever the connection of husband and wife (ibid. Rambam). Therefor, for it to be a voluntary transaction and not have any additional issues take place after the גט is given, all of the other issues need to be resolved first. This includes knowing if the husband keeps his own property, where he will be living, and where the couple’s children. Most contemporary rabbis have not openly discussed these issues when discussing the topic of a גט even though there are some rabbinic writings on it from previous generations.

Introduction to Gett Meusah

 A גט can not be forced upon a husband except for very rare circumstances mentioned in the Talmud. In most cases, social or financial pressure invalidates a גט. If a גט was forced upon the husband, then it would be a Gett Meusah (גט מעושה). This type of Gett is pasul (פסוּל) – invalid.  If the woman was not properly divorced, then she is still married to her husband which could lead to adultery if she cohabits with another man. Such a גט is not worth the paper that it’s written on…

Why does a גט have to be given by the husband voluntarily? Why does it have to be given at all? A גט is a unilateral document that applies once she receives it (even if she didn’t want it). This was the established Halakhah (הלכה) – Jewish law. This הלכה is derived from biblical clause in Deuteronomy 24:1 which uses the Hebrew term “בעיניו” (in his eyes) and “לה” (to her) which implies that it is given to her (not demanded by her), and “וְשִׁלְּחָ֖הּ מִבֵּיתֽוֹ” (sending her away from his house) implying that she does not acquire his property in the process. The majority of Rabbis do not believe that it is wrong if a man divorces his wife against her objection. The Written Torah implies that the power of a גט is in the hands of the husband. Women have the power to accept the offer of marriage or divorce. However, Men are considered logical enough to know if initiating or terminating a relationship is worth it. Thus, the Torah has taught us that relationships are initiated and terminated by the man.

There’s various alternative ways a גט can be given through various non-written means, but this is not generally accepted. This happened in the time of the Maggid of Koznitz when a married, Jewish man assimilated to Russian society and joined their army…

Years later, when the Russian army had marched through the town, Her husband had returned to the town, the soldiers were housed in the homes of the residents. Her husband then agreed to give a גט even though it had not yet been formally written. They gave one on his behalf. However, many poskim (rabbinical legislators) were not happy with this…

R” Eliyahu Klatzkin of Lublin was involved with a case was during World War 1, where a soldier joined an army and didn’t want to cause an issue if he was to become missing in action…The soldier said he would give the authorization for the rabbis to give a גט but was not formally present at the tribunal…

The Cases where the Sages promote Forcing a Gett

Since many people claim that the Rambam claims that a Gett can be forced via violence, one must learn the Gemara that the Rambam was referring to. If one is not an expert in these concepts, then they are not fit to involve themselves in the making of גירושין.

The first type of גט is the category in which the rabbis can force a גט if there are physical defects that make it impossible for the wife to live with him. These defects make it impossible for him to fulfill the obligations of the כתובה.

The specific circumstances that this gemara mentions include the case where the husband has a job which causes him to smell bad (tanner, etc.), and the wife can not appreciate it. The Mishnah states “כופין אותו” – “compel him”. The sages then discuss the different means to which the גט can be coerced. They do not all claim violence in such cases. In this case, it doesn’t have the status of גט מעושה because there’s justification for the dissolution of the marriage.

Such cases are incredibly rare. They are very specific in nature, and these policies are not altered even today. This strict opinion on not changing the criteria for כופין אותו is reinforced by the commentary of Tosafot in Ketubot 70A (d”h Yotzi), Rashba 1:572, Teshuvot HaRosh 43:3, and Shulkhan Arukh: Even Ha-Ezer 154:5. Despite the harsh statement condoning the use of coercion, we do not force the husband to divorce his wife if he claims he is willing to give a גט. He can even say that he will give it provided that his reasonable requests are met. This is stated by the Rosh, Sefer Knesset Hagedolah, Dvar Emes, Oneg Yomtov, and Yitzhak Amarsham.

Wanting to End Parental Alienation is Not a Form of Gett Refusal

The topic of גט מעושה is often associated with Parental Alienation – the unjust cases where a non-abusive parent has no physical or virtual way of having contact with their child/ren. This is a form of abuse regardless of gender. It happens that on my first day, living in the holy land, I met a mother who was alienated from her daughters from age 16-18…

If a man is refusing to give a Gett only because of legitimate parental alienation, then it is not a form of “Gett Refusal” – Witholding a Gett. Rabbanim are obligated to prevent such injustices from occurring in their Kehilot (קהילות) – communities,.