Enforced GET Can Make Mamzerim – Sources

Rabbi Dovid E. Eidensohn/Monsey, NY 10952/845-578-1917                        12/20/13

Coerced Gittin Make Mamzerim – Sources

Somebody asked for my sources that coerced Torah divorces almost always produce mamzerim, even if a Beth Din decreed the coercion. Most of this article is about sources and producing mamzerim, but at the end we do two things very briefly. We review the sources that it is forbidden to humiliate a husband to coerce a GET even if he is not a man and the Talmud demands a GET. Certainly humiliation is forbidden with MOUS OLEI where there is no obligation to divorce, as we will show. I also have recently been talking at length with husbands who have not given a GET for  years and that is a whole story of its own that I hope to talk about soon. If anyone wants to talk to me about  a husband coerced into giving a GET or otherwise treated unfairly  or a woman who wants a GET may contact me at writeus1@verizon.net or 845-578-1917.

To understand the halacha of producing mamzerim, we must do two things. One, we may explain how coerced Gittin produce mamzerim. Two, we must prove that the greatest authorities consider a coerced GET invalid and that if the woman remarries without another, kosher, GET, her children from the new husband will be mamzerim.

First, how do coerced Gittin produce mamzerim? We could say that the Torah does not recognize a coerced GET, but that is not true. The Torah does recognize a coerced GET if the Torah commands that the GET be given. But if the Torah does not recognize the obligation to coerce the husband to divorce, the GET is invalid. But how does any forced GET gain validity? And why does that validity not work when the Torah does not command the forced GET?

The gemora and the Rishonim explain that sometimes the Torah does command a forced GET, such as when a man is living with a woman he is forbidden to marry, even if the sin is only of rabbinical authority and permitted by the Torah.[1] But even if a person lives in sin, and the rabbis force him to divorce his wife with a GET, how is the GET valid if it was forced? The gemora and rishonim explain that a Jewish husband who believes in Judaism accepts in his heart that as a Jew he must obey his rabbis. Thus when his rabbis coerce him to give a GET even though he refuses until he is coerced, he finally accepts the inevitable, that he must obey his rabbis, and he gives the GET willingly. Therefore, even if he only agrees to give the GET after being beaten, we assume that he finally consented to give the GET willingly.[2] The idea is that “it is a mitzvah to listen to the sages.” But if the sages do not command that a GET be forced, a forced GET is invalid.

Now, if the GET is invalid by Torah standards, the children born from it in the second marriage are mamzerim by Torah law, not just rabbinical law. That is, a GET invalid by Torah standards is a GET with no capacity of a GET. It is just a piece of paper. Therefore, it has no capacity to divorce the woman in any way. And if she remarries without a GET, her new children are mamzerim by Torah law.

Because the Torah gives very few exceptions to the rule that a husband cannot be coerced to divorce his wife, most coerced Gittin are invalid. Children born from this GET to another husband are mamzerim by Torah law and standard.

The poskim are very clear that it is forbidden to coerce a husband even if the wife claims that he disgusts her so much she cannot live with him in marriage. Certainly if she is merely angry at him for his failings or mean acts we do not coerce a GET.

We now quote sources that invalid coerced Gittin such as in MOUS OLEI are invalid by Torah ruling and produce mamzerim diorayso that is, the children born from the second marriage are mamzerim by Torah standards, not just rabbinical standards.

In Even Hoezer 134:10 the Beis Shmuel says that a GET coerced without the permission of the Torah is invalid by Torah standards. In 134:13 he says that the Torah invalidates a GET coerced by Jews if the coercion was not legal by Torah standards. A GET coerced by non-Jews is invalid by Torah standards, not just rabbinical standards, even if the husband deserved coercion by Torah standards.

The Beis Shmuel is a major commentator on the Shulchan Aruch, but the problem is that the Shulchan Aruch itself disagrees and says that a GET forced by Beth Din in error on someone who did not deserve coercion, the GET is kosher by Torah standards and invalid by rabbinical standards. This is based upon the Rambam. We thus turn to a giant in laws of Gittin, the Kovneh Rov, Reb Yitschok Elchonon Spector zt”l. He says that any GET coerced by a Beth Din respected by the husband is valid by the Torah and invalid only by the rabbis, because the husband respects its authority and agrees to divorce in his heart. “It is a mitzvah to listen to the sages.” However, the GET is invalid by rabbinical decree because it was a mistake to force the husband in the first place. But if the husband does not consider the coercion the decision of his rabbis or rabbis he accepts as Torah authorities, he never accepted the GET. Thus, even if he says that he agrees to give the GET after the coercion, it is worthless. The GET is invalid by Torah standards.

So, when the husband is coerced by people the husband does not respect as his rabbis, the GET is worthless. Thus, if the Beth Din the husband does not respect coerces the husband when the Torah does not require coercion, the GET is invalid by Torah standard, not just rabbinic standards.

Today many rabbis openly declare that everyone must humiliate the husband to force him to divorce his wife whenever the wife wants out of the marriage. But they have no source for this. Therefore, the husband has no need to respect them with their inventions. If he checks with his Torah authorities and they say he does not have to give a GET or he is not deserving of coercion, the husband does not accept the authority of rabbis coercing him who are not his rabbis. The husband does not respect them, and the GET that he gives with coercion is completely invalid. It is just a worthless piece of paper. Children born from such a divorce are children born out of wedlock to the new husband and are mamzerim.

Today, there are often two camps of rabbis, one backs the wife and promotes coercion to force a GET, and the other camp of rabbis support the husband and demand that he not give the GET. The husband’s rabbis tell him he is not obligated to divorce and certainly is not worthy of coercion. Therefore, if he gave a forced GET it would be invalid. So he should not give it.

Again, the Kovneh Rov declares that all coerced GETS done by rabbis the husband does not accept are worthless. Thus, when a husband is forced by rabbis of the wife or zealots who feel that a woman has the right to a GET every time she insists on one, and the husband does not accept their inventions nor does he consider them his rabbis, the GET he gives is worthless.

We come now to the Chasam Sofer.

The Chasam Sofer talks about a case where rabbis disagree. One opinion is that the husband should be coerced to divorce and one opinion is that the husband should not be coerced to divorce. Then somebody forced the husband to divorce. Is the GET kosher? Is it a doubtful GET?

The Chasam Sofer rules that the GET is completely worthless. By Torah standards, the GET is nothing[3].  The Chasam Sofer says two things there: “A GET coerced by mistake because the husband did not deserve coercion is invalid by the Torah.” It is completely invalid.

The Chasam Sofer adds that if there were two opinions whether to coerce the husband and he was coerced, “the children from the second husband are mamzerim.” The Chacham Sofer in EH:116 explains that all coercion succeeds because the husband, despite his refusal to divorce, is a Jew who accepts the authority of the Beth Din coercing him. But if the husband knows there are two rabbinical opinions, he sees no need to accept the opinion that says he must be coerced to divorce. Maybe the true opinion is that he should not be coerced to divorce. Therefore, the husband does not in his heart accept the GET. It is givens without the will of the husband and therefore invalid.

The expert on Rambam HaGaon Rav Yitschok Nunim  in his classic[4] work Shaar HaMelech[5] writes that when we have a doubt about the law and don’t know if the husband deserve coercion to divorce his wife, we don’t coerce him. If we do, it may be a forced GET and invalid. This agrees with the Chasam Sofer that we mentioned before that when there is a doubt about the halacha if a husband deserves coercion, we do not coerce him, and if we do, the GET is invalid

See Teshuva of the Rosh 43:1 about a wife who claims (MOUS OLEI) my husband repels me and I want a GET.  “Since there is an argument between the authorities, who will place his head between the great mountains to permit a married woman to remarry and to increase mamzerim in Israel..with MOUS OLEI?” It seems from the Rosh that when coerced with a doubtful coercion, because some forbid the coercion and some permit it, the child born of the second marriage is a mamzer, seemingly, a definite mamzer. But is the mamzer only a doubtful one? And if it is doubtful, is this only a rabbinical mamzer (see Sheb Shematsa 1:1)

But the Chasam Sofer has supplied the answer. Once the husband faces a doubt about the law, he definitely refuses to want to do the GET and it is invalid. If so, the children are definitely mamzerim, from the Torah.

The Chazon Ish says that even in a case where there is a mitsavh upon the husband to divorce, such as one who cannot be a man to his wife, and must divorce by the Talmud’s teaching, still, coercion is forbidden. One who coerces the husband in such a case to give a GET, the GET is invalid. Coercion does not produce a willing GET and an unwilling GET is no GET by the Torah, that is, the GET is completely worthless. If so, children born from a second marriage after such as GET are mamzerim by Torah standards.[6]

The Chazon Ish writes also that if a Beth Din of sages did nothing to coerce the husband, but merely ruled that he must give a GET, and he did so, the GET is worthless. This is because the command of the Beth Din is a coercion upon the husband that invalidates the GET.[7] Children born from such a GET are mamzerim diorayso, by the standards of the Torah, not just a rabbinical mamzer.

The Chazon Ish adds that even if the husband willingly gives the GET to obey the sages, it is considered a mistaken GET, because had the husband known the true halacha and that the sages erred he would not have given the GET. Thus, the GET is worthless for two reasons, it was given by the pressure of obeying the sages and it was given under false pretenses, because the husband did not know the true law that he was not to be coerced.

There is a sefer TESHUVOSE CHACHMEI PROVINSIA from Gedolim who lived in Southern France, including the Rashbo. Much of it is devoted to MOUS OLEI and coercion. In a question to the Rashbo by some of the rabbonim there they bring that many rishonim held that when the woman claims MOUS OLEI we do not coerce the husband “less we produce mamzerim in Israel.”[8] This opinion is ascribed to “all of the sages that we saw their words and their books reached us, such as Rav Yistchok bar Avo Mori (the ITUR), the Rayved, Baal HaMaor “ and others. “Everything depends on the will of the husband. And we never coerce him to divorce. And there is no room for coercion whatsoever.” The last statement seems to be superfluous as he already said “we never coerce him to divorce.” But “there is no room for coercion whatsoever” means besides beatings we may not apply any pressure. Rabbeinu Tam says that that the Beth Din may not even suggest to him that giving a GET is a good thing or a mitzvah. See the Rashbo teshuvose VII:414 that “if he wants to divorce he divorces, and if he does not want to divorce he does not divorce.” This means there is no obligation to divorce as Posek HaDor Rav Yosef Shalom Elyashev zt”l says. The wording of the Rashbo is brought down in Shulchan Aruch in the laws of MOUS OLEI EH 77:2 and accepted by the commentators. The Vilna Gaon there #5 says that nobody disagrees.

Another teshuva there, 80 towards the end, talks about this and concludes, “and if one explains differently [to permit coercion with MOUS OLEI] we declare him to be completely in error and one who makes many mamzerim.” Also, “Cholilo to be lenient in something that leads to Skila Chenek and mamzeruth.” Because the woman who remarries has committed a sin that is punished with death, Skila and Chenek, it is a Torah sin. Thus, we see that mamzeruth is of the Torah.

In teshuva 75 there it concludes, “If one is forced to divorce with this demand [mous olei] and she remarries, the children are invalid.  And one who renders Torah rulings with arrogance and twists the rules of the Torah … that we do not coerce the husband to divorce, increases mamzerut in Israel.”

Also at the end of teshuva 78 regarding one who is lenient to coerce with MOUS OLEI, “let us shout out against him because he increases the illegitimate children in Israel.” Also in teshuva 81 that one who coerces a GET in MOUS OLEI has sinned with “sins whereby one is killed for them by stoning and mamzeruth.” We see from this that coercion of MOUS OLEI is forbidden by the Torah and the woman is considered married to the first husband. If she remarries she is guilty of adultery and deserves SKILO. If the GET is invalid by Torah standards the children are mamzerim by the standards of the Torah.

This article has been for the purpose of answering a challenge by someone who does not know sources for my claim that a coerced GET can produce mamzerim. I believe that the above sources are adequate for this. But what remains is to define coercion.  But this requires another article. I say briefly here that in the coming article I hope to quote the sources I have written about often, the Rashbo in teshuva VII:414, Radvaz volume II:118, Beis Yosef  154 ד”ה  כתוב and Chazon Ish EH 108:12 that humiliation is forbidden not only with MOUS OLEI but even when there is a clear obligation to divorce, such as when the husband is not a man and commanded by the Talmud to divorce. Even he may not be humiliated to force a GET, certainly MOUS OLEI may not be coerced. Because the Rashbo and the codifiers say clearly that with MOUS OLEI coercion is forbidden. Rabbeinu Tam even says that Beth Din is forbidden to suggest that a GET would be a good thing (Shito Mekubetses Kesubose 64b). Rather, as quoted in the Shulchan Aruch EH 77:2 “If the husbands wants to divorce he may divorce. If he does not want to divorce, he does not have to divorce. And the Beis Shmuel, Chelkas Mechokake and Gro conclude from this that coercion is forbidden with MOUS OLEI. The Gro there #5 says that not a single posek [from the era of the Shulchan Aruch] permits coercion with MOUS OLEI. Rabbeinu Yona says that humiliation is worth than death. (Shaarei Teshuva 139)

 

 



[1] If a man marries his mother or sister, there was no marriage to begin with so no GET is indicated. But if he marries somebody forbidden to him by the rabbis, he is married by Torah law, and must divorce his wife forbidden by the rabbis. But the Torah considers him married and he needs a GET to divorce her. Such a GET may be forced, because the living in sin creates a situation whereby a GET is imperative and may be forced.

[2] The problem is if the husband is not religious, but that is another discussion.

[3] EH 28 see also 116

[4] The sefer has comments from Gedolei Oilom Reb Shlomo Kluger and Rav Shaul Natenzon zt”l.

[5] Rambam Isurei Biah 15: end of Halacha 3

[6] Gittin 99:1

[7] Gittin 99:2 ד”ה יש לעיין

[8] Teshuva72