Nov 14, 2011
Interesting Psak: No Need For Divorce
When a marriage ends on the rocks, it is not always easy to get out of. There are some cases of aguna where the woman is stuck because the husband disappeared, war, overseas, etc. and nobody knows what happened to the person to the point of halachically acceptable testimony that would release her. More often than not, the husband refuses to give the get, holding it over her as a negotiating tactic - holding out for a larger settlement, custody of the children or just to be mean.
Different rabbonim have found, over the years, different ways to release some of these women. One of the great challenges any beis din has is in dealing with agunot and finding acceptable ways to release them from their chains.
A recent case led to an interesting psak by Chief Rabbi Shlomo Amar. 15 years ago a secular couple married, via the Rabbanut I assume, in a proper halachic marriage. Over the years the couple had children, but eventually the marriage went sour.
Initially they agreed to divorce, and even worked out all the issues and finances. Eventually, the husband changed his mind and decided not to give the get. He ran off, leaving the country, and refused all summons from beis din.
The case went from one beis din to the other until it landed on the table of the beis din of Rav Eliyahu Abergil in Beer Sheva. Rav Abergil looked into the story and paskened that because the witnesses at the wedding, 15 years prior, were mechalelei shabbos, the wedding was invalid to begin with and she therefore does not require a get. She simply was never actually married. Other dayanim disagreed, and the issue got kicked up to the higher court for a decision.
After much debating of the psak in the higher court of the beis din of the Rabbanut, they affirmed Rav Abergil's psak and decided she had never been married, and Rav Amar put out an official psak, that received the agreement of Rav Ovadia Yosef, to that effect. (source: Behadrei)
I might add that frequently, though obviously not all the time, when conducting a wedding where the participants are secular, the Rabbanut rabbi officiating will usually bring his own set of witnesses as he might not be sure if there will be kosher witnesses present. There are also still other issues, such as that they lived in a Jewish community as husband and wife, and even if the original marriage was no good, some opinions would still require a get. Perhaps that is what some of the debate was about.
Different rabbonim have found, over the years, different ways to release some of these women. One of the great challenges any beis din has is in dealing with agunot and finding acceptable ways to release them from their chains.
A recent case led to an interesting psak by Chief Rabbi Shlomo Amar. 15 years ago a secular couple married, via the Rabbanut I assume, in a proper halachic marriage. Over the years the couple had children, but eventually the marriage went sour.
Initially they agreed to divorce, and even worked out all the issues and finances. Eventually, the husband changed his mind and decided not to give the get. He ran off, leaving the country, and refused all summons from beis din.
After much debating of the psak in the higher court of the beis din of the Rabbanut, they affirmed Rav Abergil's psak and decided she had never been married, and Rav Amar put out an official psak, that received the agreement of Rav Ovadia Yosef, to that effect. (source: Behadrei)
I might add that frequently, though obviously not all the time, when conducting a wedding where the participants are secular, the Rabbanut rabbi officiating will usually bring his own set of witnesses as he might not be sure if there will be kosher witnesses present. There are also still other issues, such as that they lived in a Jewish community as husband and wife, and even if the original marriage was no good, some opinions would still require a get. Perhaps that is what some of the debate was about.
Subscribe to:
Post Comments (Atom)
Related Posts
Doesn't that psak negatively affect the status of their children??
ReplyDeletenot really. it might make their relation into a "pgam", but that is far better than a potential mamzer by not invalidating the marriage and seeing her have kids with someone else afterwards...
ReplyDeleteplus, there is no halachic difference when someone is born from a relationship that was "pagum". not like a mamzer or chalal
huh. live and learn :)
ReplyDeleteI know of one very prominent Rav who also brings his own witnesses along to weddings - and when it's a secular wedding, he davka brings two pasul witnesses, so that it should not be a valid kiddushin. He figures that with secular divorce rates well over 50%, and the high probability that they will not get a kosher get, it's better they should not be married properly lechatchila.
ReplyDeleteTake that, opponents of civil marriage!
I was at a wedding, where the Rabbi announced "We are all witnesses to this occasion..." I am pretty sure he was trying to cover all the bases should things go wrong.
ReplyDeleteI wish somehow it would be standard in all marriages that in the case one wants a divorce and the other is holding back, the marriage will be nullified or some type of punishment, like a payment of $500000 for withholding a get. This applies to both sides, but I know it will never happen.
ReplyDeleteSam - you're describing the RCA prenup that has gained a lot of popularity in MO circles in the US. However, there is no court (halakhic or otherwise) that would approve the kind of sum you're talking about. Agreeing to such a sum would put the entire document in jeopardy. I believe the RCA has the husband agreeing to pay something like 200-300 USD per day until a get is given.
ReplyDeleteSpeaking of the RCA, I have heard (though never confirmed) that in a similar case of Aguna that could not be resolved, RMW went to the wedding video with an eye to catch the eidim doing something they shouldn't have. When he saw one of the eidim taking a drink before the chuppa, he was able to nullify the kiddushin. Can anyone confirm such a story?
Sam, the halacha does not provide for a mechanism of 'nullifying'. Unlike other religious cultures where the marriage is effected by ecclesiastical act, or civil cultures where the gov't licenses and even decrees marriage and divorce - in halacha this is solely a private contractual act. That's why the extreme option is to invalidate the marriage. If, on the other hand, we posit the couple was legitimately married and now needs it 'nullified' - that cannot be done.
ReplyDeleteYour second idea is already done in many places and spreading. That is the basic idea behind the halachic prenuptial agreement that many of us have signed before our hupa.
Although the idea behind this story is not terribly unusual in hutz la-aretz, I think that is pretty unusual in Israel to invalidate a wedding/marriage based on the formalities. There were a number of articles on this topic, with case studies from batei din, in early volumes of Tehumin. But usually those were cases of either 'civil' marriage; or weddings done by 'Reform' or 'Conservative' clergy.
@Shaul B.,
ReplyDeleteSo this prominent Rav makes brachot levatalah every time he is mesader kiddushin (sic)?
Question: How can we possibly know for certain if an eid from 15 years ago was mechallel shabbos or not?
ReplyDeleteJenny - When he saw one of the eidim taking a drink before the chuppa, he was able to nullify the kiddushin.
I don't understand this statement at all. Usually the eidim are sitting at the chossons tisch before the chupah and snack and drink just like everyone else sitting at the tisch (except perhaps the chosson himself if he is fasting).
And even if an eid does one thing contrary to halacha, does this nullify his eidus? This makes no sense as it would imply that ALL eidus is passul since we all sin at least once in our lives.
Mark -
ReplyDeleteI don't think the issue in this (possibly apocryphal) story is that taking a drink is contrary to the halakha, rather that someone who has been drinking could be cognitively impaired enough to cast doubt on his eidus.
Anon 14 Nov 22:57: Very easy to get around bracha levatala... "Baruch ata anonai enoheinu melech haolam..."
ReplyDeleteThis is a difficult psak to accept. As long as any two men who saw the kiddushin were properly observant, the kiddushin is valid even if the "designated" witnesses were not. Normally, the Rav himself is a kosher witness and all we need is one other observant Jew.
ReplyDeleteAs an aside, when a psak to mattir an eishes ish is so revolutionary, the bulk of responsible potential suitors will not be quick to rely on it. I wonder if even having affirmation on this psak by ROY will actually help this woman at the end of the day.
Actually, it may hurt her more if the campaign to receive an actual get is abandoned.
Zvi - assuming the woman is secular, as it sounds like she is, she probably doesnt care about how some religious people might not accept the psak and stay away as suitors. She is just happy to finally be allowed to remarry, and will most likely be looking for another secular person who most likely wont care, as long as the rabbanut allowed it he will be fine with it.
ReplyDelete