Jewish Law - Articles ("Comments on the New York State 'Get Law'")

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Comments on the New York State "Get Law"
Rabbi Gedalia Dov Schwartz

Also the ruling of Rambam²⁰ is utilized by Rav Herzog: a case where the woman finds it intolerable to live with her husband because she finds him repulsive, the Rambam rules that the husband can be physically coerced; this opinion is mentioned and considered where monetary sanctions are being invoked by the Bet Din. Although the ruling in the Shulchan Aruch does not condone any physical coercion, following the opposition of Tosafot, ²¹ nevertheless, this situation was joined with the other concepts if not directly forcing the get.²² Consequently, Harav Herzog rules that in the case of extreme igun and possibility of promiscuity, mezonot (support) should be mandated by the Bet Din.

In regard to a question concerning a government ruling not to grant a civil divorce if a get is not being given, Hagaon R. Moshe Feinstein, zt'l, addressed the matter of mezonot (sustenance) being imposed by the secular court.

"With regard to your... question, if a secular judge imposes upon the husband, when he refuses to give a get, to make a payment of money to her for her mezonot and all her needs, is such a get considered a get me'usseh? Behold until he divorces his wife, he is responsible for her mezonot and all of her needs according to the Din (Jewish law) and she is even permitted to petition the secular courts for an order to compel him to provide her with mezonot and all of her needs. Even though the secular courts will order more than would a Bet Din, because those courts will compel him to support her even if she works and profits, when those courts order him to provide her with mezonot and with all of her needs under any circumstances, it is evident that if he divorces her in order to rid himself of this responsibility, that such a get is not considered a get me'usseh and that it is a "kosher" get, l'chatchilah. ²³

In a direct response to the establishment of the proposed amendment to the original "Get Law", Harav Hagaon R. Yitzchok Liebes, Head of the Bet Din of the Igud Harabbonim, published a teshuva (responsum) in his sefer Bait Avi ²⁴ which he rules that the law does not intrude in the problem of get me'usseh. In his extensive discussion of the background sources, he emphasizes the approach of the Torat Gittin, that since the possible pressure created is not directly directed towards the actual get process, but rather towards the husband's choosing to unburden himself from a financial obligation by giving a get, then it cannot be considered as a get me'usseh. Although he writes there are poskim who consider monetary coercion in the category of oness, not like the opinion of Rabbenu Yerucham, he feels that the critical issues of igun and its consequences ("Shaat Hadechak"), allow for leniency in this very serious situation.

As to the objection raised that the amended get law would give power to the secular courts directly to coerce a husband to give a get, it has been pointed out by legal experts that the language of the statute states that the removal of a "barrier to remarriage" is by the voluntary act of the husband. The court will not directly coerce the husband to give a get, especially if a Bet Din has ruled for whatever reason that he is being denied a get.²⁵

As in the past, nowadays every competent and qualified mesader gittin in the Bet Din setting is careful to rule on the cooperation and willingness of the husband in following the get process. One has to remember that even absent the existence of the Get Law, every Bet Din is faced with the need to determine the husband's free-will cooperation. Who knows what type of pressures or threats may exist for each participant in the get procedure? It comes down to the principle of "Ain L'dayan elah ma sh'einov ro'ot," it is up to the perception of the judge. Consequently, the Get Law does not serve as a vehicle of non-halachic issuance of gittin. Rather, it is concerned with the plight of agunot who have been placed in an untenable position in regard to their family life and financial stability. Any alleviation of this situation is an important constructive step.

A competent Bet Din, alert to all possibilities of a possible get me'usseh will continue to function in supervising get procedures, since the get law does not provide for direct coercion by the secular courts. Placing financial responsibility on the husband when not terminating the marriage does not, as illustrated above in the Iggerot Moshe, cause concern for a get me'usseh. Consequently, the Get Law will serve as a facilitator in many cases of igun.

In conclusion, the controversy engendered by the law serves as a continuing reminder to every qualified Bet Din to be aware of the demands of the halachic standards of proper get procedure and to heighten consciousness for its legitimate and complete implementation.

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