The New York State Get Bill and its Halachic Ramifications
Rabbi Chaim Malinowitz

Apart from the bill's flaws with respect to the validity of Gittin, there are three other anti-halachic effects. In the opinion of this writer, these effects are so manifest, so incontrovertible, that it is mystifying that any Orthodox Rabbi, much less any rabbinic institution, can be in favor of it.

I. The first basic flaw in the Get Bill is that it is intended to aid in procuring a Get -- even if there is no reason according to Jewish law to assume a Get to be appropriate.

Halacha does not sanction a Get on demand. True, by biblical law, a man can divorce his wife against her will, without giving any reason whatsoever (although it is "religiously forbidden for him to do so until he has "due cause").⁶ The woman, on the other hand, cannot initiate the act of divorce, although she can claim to have certain specific grounds for a divorce. In other words, she can become the plaintiff in a Din Torah (a legal suit before a Bet Din), claiming that a Get is due her. If she wins her case, the Bet Din will order the husband to give a Get.

However, about one thousand years ago, the famous Cherem (a decree under penalty of ban) of Rabbeinu Gershom was instituted, stating that a woman cannot be divorced without her consent. Thus, the "playing field" was evened. As Rabbeinu Aher states in his famous dictum,⁸ "The Rabbis acted to equalize the woman's power with the man's." Now, for all practical purposes, neither side in a marital dispute is entitled to a Get unless there exist very specific grounds for one. To procure a Get without mutual consent, a litigation process has to be undertaken -- a Din Torah -- and the Bet Din ultimately rules if a Get is legitimately "deserved," and whether or not there is a basis for obligating or, at times, for compelling, the husband/wife to give/receive a Get. The parties have the right, indeed the obligation, to bring their proofs, testimony, claims and counter-claims to the Bet Din. They may want to submit "legal briefs" -- halachic responsa -- why their "case" calls for a Get. This is usually done through a rabbinic lawyer. This article is not intended to explore those grounds: they can be as varied as non-support, social behavior which adversely affects the spouse, or lack of fulfillment of other marital obligations.⁹ The halacha is not uniform in respect to all of them. Sometimes the halacha is merely that a divorce is appropriate; at times it describes divorce as a mitzva; sometimes as an absolute obligation - and, at times, even calls for forms of coercion to be used, or a "Heter Meah Rabbonim" to be obtained by the husband.¹⁰ Thus, at the present time, the lack of "Get upon demand" is true both for the wife demanding a divorce and a husband wanting his wife to take one.

Without this halachic process, no one is justified in assuming that a Get is obligatory or even appropriate. Halachically, the marital state cannot be rent asunder on a mere whim, or because of boredom or lack of excitement or inconveniences. Rather, there must be halachic grounds for a Get.

[The above is true in the absence of mutual consent. If there is mutual consent, halacha always allows for a Get, although Judaism traditionally frowns upon divorce. This is in contrast to many other legal systems, Western ones included, where a long, often costly process to establish responsibility for the dissolution of a marriage is the norm.]

These laws which govern the grounds for a Get are the same as all Torah laws which govern our lives: Just as the laws governing Tzitzit, Tefillin, Shabbat, Lulav and business dealings are those dictated to us by Shulchan Aruch, so, too, are the halachic rules which concern grounds for divorce. Anyone purporting to live a life governed by halacha must orient his/her thinking in this direction. Therefore, action taken by anyone to facilitate a Get for a man/woman if the Get is halachically unjustified, even if that action does not halachically invalidate the Get, is anti-halachic. [This does not refer to friendly persuasion. Surely an outsider, considering it irrational for a spouse to continue a marriage when the other spouse wants a divorce for any reason, would consider it correct to advise a partv to take/receive a Get. But any action beyond such friendly persuasion is morally wrong.]

Lack of appreciation of this basic premise -- that a Get is not to be obtained merely because one wants one - explains much of the erroneous thinking of the proponents of the Get Bill. Nothing in the bill limits its effects to where a competent halachic authority -- a Bet Din -- has found a Get called for. Surprisingly, the proponents of the bill have not felt a need to address this issue, although it seems that it is a call for "Get-on-demand" -- an anti-Halachic statement! (Try to imagine a bill passed in the New York State legislature which mandates that A pay B money, even when their monetary dispute is unresolved -- and A maintains vehemently that he owes no such money!)

At first, the proponents of the "new Get Bill" claimed that a responsum from Rabbi Yitzchak Liebes sh'lita, the head of the Bet Din of Igud Harabbanim, justified and validated such a law: What was completely ignored was that this responsum is based on the premise there is a pre-existing verdict of a duly constituted Bet Din obligating the husband to give a Get.

The Get Bill is constitutionally suspect as well. By inviting civil courts to impose financial consequences for the failure of a spouse to remove a religious barrier to remarriage, the law usurps the substantial body of religious law concerning when and under what circumstances a Get is appropriate. This is an encroachment upon religious law, and represents an erosion of our religious rights. For example, the husband may be entirely justified according to halacha in not giving his wife a Get and withholding support if the wife left the household without due cause.¹² (This, then, is entirely different than the first Get Bill, which limited its effects to withholding the relief of the courts (i.e., a civil divorce) from a recalcitrant party who is himself or herself requesting it, an area obviously within the province and discretion of the secular courts.) Should a civil court judge be issuing a ruling designed to elicit an uncalled-for Get?¹³

II. Furthermore, resorting to the secular courts to resolve disputes is strictly forbidden in Jewish Law.¹⁴ This transgression is described by the Shulchan Aruch as akin to blasphemy and "taking up arms" against the Torah.¹⁵ The Rashba¹⁶ warns against confusing this prohibition with the dictum Dina D'malchuta Dina ("the law of the land is law").¹⁷ Even if both parties agree to go, and in fact stipulate in writing that they will utilize the civil court system, it remams forbidden by halacha.¹⁸ And this is true even if the secular courts would rule exactly as a Bet Din would -- that is to say, if their law exactly matched ours concerning the rules of evidence, procedural matters, and the verdict itself based on the particular circumstances.¹⁹ [There are certain circumstances which allow for utilizing the civil courts, but permission must be granted by a Bet Din which has ruled that these circumstances exist.]

This prohibition is a most severe one, no matter how lackadaisical an attitude people have towards it. It hardly behooves the Orthodox community, its institutions and its organizations, to take steps which encourage people to transgress this prohibition, which is, of course, exactly what this bill does. It approves of -- no, it prods -- people to utilize the civil courts for their monetary disputes and advises people how to turn this forbidden action to one's advantage in obtaining a Get. (A Get that one may not be entitled to according to halacha!)

This issue has not been addressed by the bill's proponents. It is the height of irresponsibility for anyone to advocate or even to implicitly approve of such actions.

III. As we have noted, the prohibition of resorting to the secular courts holds true even if every court action happens to follow all the rules of the Shulchan Aruch. If there are any differences, the additional issue of out-and-out theft arises, if the courts award money or privileges to either party.²¹ (Even in circumstances where one had received permission from a Bet Din to "use the courts" one is prohibited from keeing any monies he is not entitled to according to halacha.)

The Get Bill encourages a woman to use the civil courts to set rates of maintenance and "equitable distribution despite the fact that she might not be entitled to that money according to Jewish law. For example, let us say a woman has no due cause (halachically) for a Get, but has opened a case as the plaintiff in the civil courts for a divorce. Rabbi Akiva Eiger discusses just such a case, and compares this woman to a classic Moredet (a rebellious wife) who is not entitled to receive any support whatsoever. Certainly, too, "equitable distribution" has no halachic equivalent, but is merely the transference of property from one party to the other by state fiat; this money, then, does not belong to the acquiring party al pi din.²⁴ (The chances of "equitable distribution" being covered by the rule of Dina D'malchuta Dina are almost nil.

The Ramo refers to such "laws":

.....because that rule (Dina D'malchuta Dina) is only said when the King benefits, or when it is for the general welfare, but it was never meant to blindly follow their rules, for, if so, that would mean the end of Torah Law.

Many Poskim simply limit Dina D'malchuta Dina to matters concerning monetary relations between the authorities and the public.²⁶ In addition, the arbitrariness with which equitable distribution money is parcelled out probably would preclude its inclusion in this rule -- every single case involves thirteen factors which are quite objective and up to the individual judge. In addition, there is no law which mandates "equitable distribution" -- it is merely the state's distribution of property in the absence of any other arrangement. Surely that cannot be construed as permission to ignore Torah rulings on these matters! At the very least, it would take the jurisdiction of a duy-constituted Bet Din to conclude that Dina D'Malchuta applies in any particular individual's case.

Can the Jewish community accept a law which encourages a husband's being forced to give money to his spouse which she may not be entitled to according to Jewish law? Encouraging the use of "equitable distribution" or maintenance awards without a Bet Din ruling to that effect -- for any purpose -- is plainly wrong.