Jewish Divorce and the Role of Beit Din
Rabbi Jonathan Reiss
Jewish Divorce and the Role of Beit Din
by Rabbi Jonathan Reiss
(NOTE: This article originally appeared in the Winter 5760/1999 issue of Jewish Action, a magazine publication of the Orthodox Union, and is reprinted herein with permission.)
One of the major roles of a beit din [rabbinical court] today is to supervise gitten for divorcing couples. It is vital that a Jewish couple arrange for a get1 upon their divorce. Without a get, a couple remains married according to halachah even if they have obtained a civil divorce. Until the husband has given his wife a get, neither party may remarry. Should the wife bear a child from another man, that child will be a mamzer, and prohibited from marrying within the Jewish community.
Because of the importance of obtaining a valid get, parties should ensure that the get proceeding is supervised by an experienced rabbi or beit din whose gitten are respected throughout the Orthodox community.2 At the Beth Din of America, which is sponsored by the Orthodox Union and affiliated with the Rabbinical Council of America, we supervise hundreds of gitten each year. Because of the expansive resources and networking abilities of the Beth Din, we are also able to coordinate with other batei din and rabbis across the country and throughout the world to help resolve difficult cases and to arrange for gittin to be delivered by proxy in cases where the spouses are far apart geographically.
Another role of beit din is to resolve disputes and adjudicate cases.3 According to halachah , when Jewish parties have a dispute, they are obligated to submit the dispute to beit din, rather than to the secular court system. Therefore, if a husband and wife are getting divorced, and are unable to settle their differences without litigation,4 they are, as a general rule, obligated by halachah, to submit to a qualified beit din.5
Additionally, one of the functions of a beit din proceeding is to bring peace and harmony into the world.6 In the context of a divorce case, this function includes taking measures to ensure that a get is given when a marriage is over,7 and that possible mamzerut situations are averted. The halachah requires that special sensitivity and attention be extended to a woman unable to marry because she is an agunah.8 Accordingly, the Beth Din of America expends much of its resources resolving numerous agunah, or “potential agunah” situations.9
To summarize, the role of a beit din in Jewish divorce cases is multifold:
(a) to supervise the get process;
(b) to decide (or help mediate, if possible) financial and custodial issues when such issues cannot be resolved by the parties; and
(c) to help “unchain” a woman in an agunah situation, or for that matter, a man in an analogous situation,10 unable to remarry because her or his spouse cannot or will not cooperate in the get process.
An important way in which the Beth Din of America facilitates gittin is to encourage the use of pre-nuptial agreements which (a) require the parties to submit to the Beth Din of America in the event of divorce, and (b) concretize the support obligation incumbent upon the husband while the marriage is still in existence. The Beth Din of America has arranged for gittin in many cases where the couple had previously signed a pre-nuptial agreement to submit to the Beth Din in the event of marital separation. Indeed, the pre-nuptial agreement has proven to be a most potent device to prevent agunah situations. The Beth Din strongly encourages marrying couples to enter into legally binding and halachically endorsed pre-nuptial agreements, submitting to the jurisdiction of the Beth Din of America in the event of divorce.
We should note that, as an additional protection to the parties and the integrity of the process, the Beth Din of America, as a matter of policy, does not allow toanim [rabbinic advocates] to participate in proceedings before the Beth Din.11 We also discourage the use of zabla12 except in limited cases whereby parties choose their borerim from a roster of dayanim who are members of the Beth Din and have been found to be trustworthy and scrupulous individuals.
In America today, many divorcing couples unfortunately choose to adjudicate their marital disputes in secular court rather than in beit din. This phenomenon can be explained in part based on the following concerns:
1. Parties fear that a decision of beit din will not be enforceable.
However, decisions of a beit din are routinely upheld by courts, provided that the parties have entered into a binding arbitration agreement and the beit din has complied with the procedural requirements of arbitration law (such as allowing each party to be represented by counsel, providing the parties with a fair opportunity to present their cases, not exceeding the scope of the jurisdiction, etc.).13 The Beth Din of America, for example, requires parties to enter into a legally binding arbitration agreement [sh’tar birurim] in accordance with New York law CPLR §75 and also presents the parties with a brochure of its Rules and Procedures prior to each hearing so that the parties are fully aware of their procedural rights. A copy of the Beth Din’s Rules and Procedures is available at our web site at www.bethdin.org.
2. Parties sometimes justify their failure to go to a beit din on the grounds that a beit din lacks the ability of a secular court to handle a divorce case, especially a complicated one.
Parties are not wrong to search for a "proper" beit din (see Sanhedrin 32b) which should, at a minimum, be competent, fair, thorough and professional. However, the fact is that competent batei din do exist. Perhaps the more relevant concern is that parties want to make sure that the beit din which hears their case is in touch with their values or the dynamics of their community. The best way to ensure that such a beit din hears the divorce case is for couples to stipulate in their pre-nuptial agreement that in the event of a dispute, upon divorce, they will submit to a particular beit din which both parties deem acceptable.
Situations sometimes arise whereupon one spouse is prepared to submit to a competent beit din to handle the divorce, but the other is not.
Often, it is the woman who refuses to submit to a beit din for all aspects of the divorce (other than the get), based on the fear that beit din is “prejudiced” in favor of men. However, as a matter of Jewish law, a beit din is not permitted to be prejudiced in favor of either party. Certainly, competent batei din are careful not to violate this basic tenet of Jewish legal procedure. In addition, if one spouse refuses to come to beit din when the other spouse is prepared to come to beit din, that spouse is considered “recalcitrant” as a matter of Jewish law, and may thus be subject to a seruv [public contempt order] for refusal to appear before beit din.
Nonetheless, it is our view that a refusal by a woman (who has been summoned to beit din by her husband) to have beit din handle all aspects of her divorce case (other than a get) does not exonerate her husband from his moral obligation to give her a get in a situation where the marriage is clearly over. This is for a number of reasons. First, many such woman today are under the mistaken impression that there is no obligation to go to beit din when it comes to divorce matters (other than the get) and therefore it is hard to categorize them as “willfully” recalcitrant. Secondly, even if one party acts wrongly to the other, it is never correct for either the husband to withhold a get or for the wife to refuse a get when a marriage is clearly over. Thirdly, there are certain cases where the beit din may conclude that the husband himself is not observant and ordinarily would not come to beit din but is only coming to beit din in his divorce case because he thinks that by doing so he will be able to “get a better deal” or be able to embarrass his wife with seruv because he knows that she will not submit to beit din. In such cases, there is no obligation upon beit din to accommodate the husband’s newfound “piety” to the detriment of the woman. Of course, when appropriate, the Beth Din of America will issue a seruv against any party who refuses to submit to beit din, including a divorcing spouse, but this in no way derogates against the Beth Din's insistence that a get be delivered at the conclusion of the marriage. A get should never be used as a “weapon”.
Regrettably, there are certain people who try to abuse the institution of beit din to their personal advantage. For example, there are cases in which a non-observant man and wife agree to be divorced through the civil courts, and the man only “dons his kippah” and demands that the wife come to beit din for a rehearing after he is unsatisfied with the civil court verdict. It is improper to issue a seruv against the woman in such a case for refusal to come to beit din, and certainly wrong for the man to refuse to give her a get. It is a requirement of batei din to preserve the dignity of beit din and not allow the institution of beit din to be abused by such unscrupulous individuals.14 Fortunately, most individuals within our community, respectful of our Torah value system, would never take measures to prevent their spouse from remarrying once a marriage has ended. It is the role of beit din to reinforce Torah values and to sanctify the name of Heaven in the process.15
----------------------------------------------
To contact the Beth Din of America Call Rabbi Jonathan Reiss at (212) 807-9042; E-mail: menahel@bethdin.org; Web site: http://www.bethdin.org
----------------------------------------------
NOTES:
1. A get is a Jewish divorce document delivered by a man to his wife in order to effectuate their divorce according to Jewish law. See Devarim 24:1-4; Shulchan Aruch, Even Haezar 119-154.
2. See Kiddushin 6a: “Kol Sheayno Yodea,” and the commentary of Rashi thereto.
3. See Shmot 18:13-27.
4. As a general rule, the Beth Din of America encourages divorcing spouses to resolve their differences through mediation (and employs the services of an experienced divorce mediator.) Through the mediation process, which is strongly encouraged by Jewish law, the parties can avoid much of the acrimony that often results from litigation.
5. As a general rule, in order for a person to be permitted to go to secular court, he/she must obtain a heter arkaot [written permission to go to secular court] from a respected beit din or other rabbinic authority. Examples of cases where such a heter may be issued are: (a) where the other party refuses to submit to beit din, or (b) if the case is deemed by a competent halachic authority to be a type of case which beit din is incapable of handling (see Choshen Mishpat 26, Kol Kitvei HaRav Henkin 2:174-177). Some authorities are of the opinion that there is no need for a heter arkaot when the defendant is a secular Jew who would clearly not submit to beit din. In any individual case, a competent rabbi should be consulted. 1:18; Sefer Meirat Eynaim, Choshen Mishpat 12:8.
6. See Beit Yosef, Choshen Mishpat 1; Avot 1:18; Sefer Meirat Eynaim, Choshen Mishpat 12:8.
7. This article does not address marital counseling issues in cases where a marriage can still be saved. When appropriate, the Beth Din of America refers parties to qualified marital counselors.
8. See, e.g., Igrot Moshe Y”D 1:249, Minchot Yitzchak 1:1, 1:98, Tzitz Eliezer 5:24, Teshuvot Chatam Sofer, 1:145, She’alat Ya’abetz 1:32.
9. An agunah, broadly defined, is a woman who is no longer in a functional marriage and who cannot remarry because her husband cannot or will not give her a get and is also not known to be dead. As a general rule, a marriage is no longer functional and a get should therefore be given in any case where a husband and wife no longer desire to live together as husband and wife or if a beit din concludes that there is no chance for shalom bayit [reconciliation] between them. See Igrot Moshe, Y”D 4:15, Kol Kitvei HaRav Henkin 1:115 a-b.
10. See Taz, E”H 119:12, Maharsham 6:140.
11. See Pitchei Teshuva, Choshen Mishpat 17:15.
12. Zalba is a procedure whereby each litigant selects one of the arbitrators in the panel and then the two arbitrators [borerim] select the third and final arbitrator.
13. One area where courts exercise a very strict standard for review of beit din decisions is in the area of child custody. However, not every case involves child custody determinations. Additionally, many divorcing couples do submit to beit din for custody issues as well, based on their readiness to comply with the decision of the beit din. In fact, the reality is that, provided that a beit din demonstrates that its decision is based on the “best interests of the children,” courts are likely to enforce a decision of the beit din even in child custody matters. The Beth Din of America has decided a number of cases involving child custody issues and regularly employs child therapists and professional experts to assist in the Beth Din’s determination. No child custody matter resolved by the Beth Din of America has been overturned in secular court.
14. See Teshuvot VeHanhagot 1:795.
DISCLAIMER