Jan 28, 2018

Interesting Psak: remarrying without a gett

A very interesting divorce case just went through the beis din. When I say "interesting" I mean in the sense of curious.

The beis din in Haifa heard the case of a woman who has refused to accept a divorce. The couple were married in 1973 and over the years had 4 children. After they both had affairs, they had been separated for 8 years and besides for hate, they have no relationship or communication with each other.  He says whenever he tried to talk to her, she would just start screaming and cursing, and that she has worked to turn the kids against him.

Wife says he is making false accusations and that she still loves him dearly, even though they have had a cold relationship for a while, and she requests conciliation.

The beis din initially decided to send them for conciliation but after seeing that there was no change they decided to order for a divorce. Wife refused to accept the gett and continues to refuse it. By now the husband has requested to be allowed to marry despite still being technically married to his first wife.

The beis din further decided, based on her admission that during conciliation talks she rejected him and acted roughly towards him, that her refusal is not because she really wants to be with him but is a form of vengeance. 

The beis din decided that because Husband is sephardic, and the sephardic community and rabbonim never accepted the cherem drabbeinu gershom against marrying multiple wives, he is allowed to marry another wife now, against the wishes of the first wife.

Normally, a husband being allowed to marry a second wife, usually via a "hetter mea rabbonim", needs to first deposit a gett with the beis din, in case the wife at some point decides to accept it, in this case he was not instructed to, considering it being deemed her refusal to accept for no justifiable reason, along with the fact that he is allowed to marry a second wife according to the Sephardic custom.
source: Ynet and Psak Din

So curious!

How does their determination to let him remarry with no limitation of cherem drabbeinu gershom get around the Israeli legal ban against polygamy or bigamy? Speaking of which, any time there is a hetter mea rabbonim how does this work legally?

In this case they deemed it unnecessary to even bother getting a hetter mea rabbonim, which is what they usually do in extreme cases. This raises the complaints that men have so much easier solutions to such cases than women, and calls for urges to the batei din and rabbonim to find usable solutions for women as well so they do not need to be stuck but could get out of horrible situations just like the men can.




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18 comments:

  1. The story is problematic. If she had an affair, then it would be אסור to remain with her husband even if both wanted to.

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  2. beis din always has ways around that. they simply say they dont believe her and say she is saying it just to make trouble, or other methods.
    assuming there is no way out of it, doesnt she still have to accept a gett, which is what she is refusing to do. can beis din accept it on her behalf?

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  3. Is cherem Rabbenu Gershom still in effect ? Has it not expired after a thousand years ?

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    1. That's something of a myth, as we don't even know *who* made the cherem (we know for certain of only one cherem of Rabbenu Gershom, against reading someone else's mail), let alone when and for how long. Regardless, Rabbenu Gershom died less than a thousand years ago; moreover, the cherem was renewed when the State of Israel was created.

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    2. I never heard it was renewed. is there anything written about this? documentation? what was the process?

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    3. Like I said, it never really lapsed, but the Chief Rabbinate formally re-accepted it after independence. That includes all kehillot, and no one protested, so there it is.

      Of course people who made aliyah with more than one wife were allowed to keep them.

      (It should be pointed out that polygamy was pretty much nonexistent in the Jewish world, at least outside of countries- Islamic ones, that is- where it was practiced by the wider population, and even then it was rare. Post-Matan Torah, the only non-king in Tanach with more than one wife is Elkana, father of Shmuel, and that was a special case. In all likelihood, no Jew in Europe at the time of Rabbenu Gershom had more than one wife anyway. There are claims the cherem was made because Christians attacked Jews for allowing polygamy even if they didn't practice it.)

      Then in the 1970's Ovadia Yosef began working against what he saw as Ashkenazic "halakhic cultural imperialism." One result of this is that polygamy is *slightly* more permitted in the Sephardic world. No one is allowed to actually have two wives, of course, but there are technical circumstances where polygamy being permitted makes some things easier. For example, this isn't exactly polygamy, but Yibum was still practiced in some Mizrachi communities. It no longer is, but if it's *technically* allowed, that makes certain aspects of divorce and remarriage easier to handle.

      Anyway, this case may be related to that last point. No one is literally married to two women, but it makes the beit din's job- and the couple's lives- a bit easier at times if it's not dismissed out of hand.

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    4. interesting.thanks.
      btw, from what I remember the reason for the cherem was an experience that rabbeinu gershom had personally, when he married a second wife that was much younger and she ended up leaving him for a goy, a general who ended up causing a lot of problems for the jewish community. I dont remember the details of the story but from what I read about that, this incident made rabbeinu gershom feel it was a bad idea.

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    5. I heard the "bad marriage" line as well. It has to be a myth, considering that there's no evidence R' Gershom even made the takana in the first place. (The takana exists; who made it is another question.)

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  4. There is something extremely odd about this story. To the best of my knowledge (and I heard this directly from the Chief rabbi), in Israel they almost never use Heter 100 Rabonim, let alone allow someone to remarry without a Gett (only exception is if the woman is physically unable to accept a gett, e.g., she is in a coma).
    If a woman refuses to accept a gett against the orders of a Beit Din she is treated the same way as a man who refuses to give a gett, i.e., they apply pressure such as withholding passport and drivers license, apply social pressure, and if that doesn't work imprisonment.

    Rabbi Lau said that there are current;y no women in prison for refusing to accept a gett, but only because the cases he dealt with all accepted a gett after the threat of prison.

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  5. There was a trick question on the bar exam when I took it- as part of the family law section, they asked a question about bigamy, even though that's part of the criminal law, not the marriage one. Maybe the Rabbinate just ignores everything that's not halakhic.

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  6. Takanat Rabbanu Gershon expired a long time ago...

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    1. As I said above, as there's no documented basis for the cherem (which of course doesn't mean it isn't in effect), there can be no documented "expiration."

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  7. I too have heard that the cherem is finished with no renewal, but have not heard of the batei din acting in accordance. perhaps by now they consider it a minhag or maybe as claimed above it was renewed. or maybe they just dont want to go back to allowing marriage to more than one wife, especially because it is illegal anyway.

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  8. It was never formally renewed.
    Think of it like a minhag accepted by all. (Even taimanim Yemenites, Afghanis (I know of one with two wives, one in America, one in Israel), Iraqis.)

    Some exceptions -- yibum (for those who do yibum (per ROY), olim with two wives (like my Afghani friend (actually, its his grandfather; the whole family and community is OK with it), and this case (woman refuses to submit to bet din, per RAEiger).

    Note too, the GRA wanted to do away with the cherem.

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    1. I doubt the claim of the Gra is any more documented than a required "renewal."

      Jews tend not to have more than one wife anyway.

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    2. As a Cohen, you should know about this. The GRA in Maaseh Rav haShalem p 276 wanted to do things to bring the geulah closer: abolish the (supposed, per you) cherem rabbenu gershom about two wives (which by the way, expired at the end of the fifth millennium, meaning year 5000), and reinstitute daily birkhat cohanim.

      As for documentation of the cherem, its very generally discussed in SA. Like I said above, its more of a minhag custom than a cherem (whatever cherem means).

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    3. I give up. You can only say the same fact so many times.

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