Rabbi Dovid E. Eidensohn/Monsey, NY email@example.com
Marriage and the Fear of Divorce
Someone asked me if the prevalence today of Gittin and Agunoth make marriage a threat. And if marriage has become a threat, should we avoid marriage?
If our answer is that marriage is a threat, and therefore we should avoid marriage, what will happen to the Jewish people? But if your answer is that despite the problems we should marry, are people ready for the suffering? If they are not ready for the suffering, and will go to the rabbis who have invalid solutions for Agunoth, we produce mamzerim. Is that better than Agunoth? Indeed, a mamzer is even worse off than an Agunah. So what has been achieved?
The answer to the above questions is this: You may not marry with Kiddushin, a valid Jewish marriage, unless you are ready for the consequences, whatever they are. But if you insist on your eventual freedom from a bad marriage, by hook or crook, you may have offspring mamzerim or doubtful mamzerim or even children that people talk about, which nobody wants.
Better, says Rabbeinu Tam, to live an entire life an Agunah, than to accept a forced GET and produce children with questions of Yichus, doubts if they are mamzerim. Are we, and are our children, told this? Or are they encouraged to believe that if there is a problem, some rabbi will permit coercions or, annulling marriages and other hideous “solutions” that produce mamzerim? Or do we just not face reality?
Recently, the senior rabbis in the world, Gedolim HaGedolim Rav Chaim Kanievsky, Rav Shmuel HaLevi Wosner, Rav Tuvia Weiss of Jerusalem, Rav Nissim Karelitz and his Beth Din, signed a letter prohibiting any coercions through humiliations or loss of money when the wife demands a GET saying, MOUS OLEI, my husband repels me, the common reason for divorces. But there are rabbis in Lakewood and elsewhere who openly encourage people to coerce a GET not only in MOUS OLEI, but even when there is not yet the stage of MOUS OLEI. In the coming generation, many children will be born of suspicious or invalid Gittin.
Lest people think that this is the opinion of extreme people, and is not pure halacha, I have written on this blog many times the sources for this in Shulchan Aruch EH 77 paragraphs 2 and 3, whereby all commentators forbid coercion with MOUS OLEI. The Vilna Gaon writes there #5 that there is not a single opinion (meaning of the Shulchan Aruch Era) that permits this. And yet, the major rabbis of Lakewood Yeshiva encourage people to defy the Vilna Gaon, defy the Shulchan Aruch, Ramo, Beis Shmuel, Chelkas Mechokake among others, because one Rosh Yeshiva wants to help his cousin. And if this cousin gets a GET through the terror unleashed by the Lakewood rabbis, her children will probably be mamzerim, unless there are major revisions to the situation. But the Lakewood rabbis are part of the new generation of rabbis who want to help women in defiance of the great rabbis and the great authorities in the Shulchan Aruch and elsewhere. There will be many mamzerim and doubtful mamzerim in the coming generation. Our question is, do we marry with the hope that if there is a problem these rabbis will invent halacha and force a GET or annul the marriage, or do we realize what Rabbeinu Tam said, that if there is no solution recognized by the great authorities and rabbis, the woman must remain an Agunah all of her life?
We thus present two terrible thoughts. One, that marriage can destroy our lives with no halachic solution. Two, the rabbinate is badly split over this issue. Some say that helping a cousin or the daughter of someone who helped the Yeshiva allows us to override clear halacha. Others consider such “helping” the producing of mamzerim. The children will be in the middle of this struggle.
Therefore, it looks pretty bad for marriage. Those stuck in bad marriages suffer hideously. And those who opt for “solutions” that lead to invalid Gittin and mamzeruth, also have a horrible problem. What are we and our children to do?
I have a positive answer to the above. Yes, marry, but only if you have a good chance of succeeding. How do you make your marriage better? I have a way that will vastly increase your chance of having a good marriage and escaping being an Agunah. I have discussed this with leading Rosh Beth Dins in Gittin throughout the world and they have all agreed that it is a good and kosher idea that could go a long way to solving the broken marriage and Agunoth problem. But to maintain the suspense a moment longer, one thing must be said here.
The solution I will provide will help a lot, but it is probably not perfect. And if it is not perfect, even with this program, there is a chance that a woman could be an Agunah. And if a woman does not want to take a chance on being an Agunah, any chance, she must think carefully about getting married with Kiddushin in the first place. I believe that with my program the chances are right that things will work out, and most people will be safe in marriage, at least, even if the marriage fails, there is a small chance of the woman being an Agunah, as we will explain. But taking Kiddushin is a serious step, and one who takes it must accept its full consequences.
When I was young, the Conservative Seminary in New York City was staffed by Yeshiva graduates, many of them brilliant and Orthodox Talmudists. They were no longer the same as the Talmudists in regular Yeshivas, but were basically Orthodox. Then, with feminism, changes came about, and with these changes, it was no longer possible for an Orthodox person to remain in the Seminary. So many Orthodox people in the Seminary made a new organization and left the Seminary.
I went to this group and spoke to them. I said that on the one hand they will make Orthodox marriages, or Kiddushin. But on the other hand, they have no control over the people who get this Kiddushin. Surely, because they are not Orthodox, many of them will not honor Kiddushin marriage and will divorce without a GET and remarry and have children who will be mamzerim. I told the group that I know they were professional synagogue rabbis who had to perform marriages, so how could they do this? I suggested that they make marriages that are partnerships, husband and wife equal. This is not Kiddushin, which means that the wife comes under the influence of the husband and he is the major partner in the marriage. But because it is not Kiddushin even if the wife does not get a GET there are no mamzerim. The group evinced interest in my proposal.
Around that time, the senior rabbi of a major Israeli city announced that he was opposed to the rabbinate in Israel marrying everyone, including irreligious people. These non-Orthodox people had no intention of honoring marriage in an Orthodox way, and would eventually relate to men without a GET divorce from the first husband. Therefore, the rabbinate produced mamzerim. There was an uproar, because this threatened the entire power of the rabbinate and many rabbis had jobs in the rabbinate. The rabbi withdrew his proposal when he saw the uproar it had made. But the mamzer problem is still there.
There is much to discuss along this line, about the practical world and mamzeruth, but it is not our main topic. We mention it only to show that we have problems because we perform Orthodox marriages. I am not here talking about solving that problem, although it certainly must be discussed. I mention this only to show the great danger of producing thousands of mamzerim because of good intentions, to marry Orthodox. Of course, an Orthodox person who knows about this problem will have to deal with it.
What is the solution I propose?
Years ago, somebody told me he was upset with his wife. He had no specific complaint against his wife, but he was very upset. Finally, I asked him who he was talking to that got him in such a mood. He told me so and so. I asked, isn’t that person recently divorced? He said yes. I told him, “Get that person out of your house.” After that it was quiet.
There was an article in the New York Times about an apartment building in Manhattan peopled by the up and coming. Those people had the good jobs, great futures, and wonderful marriages. One day, people in the building were shocked to discover that a couple divorced. After a while, a neighbor of that couple divorced. And so it spread like a contagion. Those near a divorced person began to divorce, until the entire building was shaking with divorce. The purpose of the article obviously is to describe the poison that emanates from a bitter person who wants to spread the salvation that divorce brought to them. But this is wrong. If you talk to somebody filled with hate, you are going to learn hate. Never talk to such a person. Your marriage and your life hang in the balance.
Now let’s talk about the average couple in the Torah world who have a problem. The husband or wife is very angry, but who can they talk to about it? Well, the closest people to them such as parents soon are brought into the secret. Maybe the way the complaint is expressed, filled with bitterness, influences the parent or close friend. Somebody has just lit a match in a very sensitive area. Eventually, the bitterness becomes open and both parents jump in and the marriage is over with.
I spoke with a major rabbi in Israel not long ago and told him that telling parents of your problem with your spouse is very dangerous, because parents have no balance and can really mess up a marriage. He agreed enthusiastically.
Now let us go to the solution.
Let us assume that every marriage has its problems. The key to survival is to know what to do with these problems. We just described the folly of getting parents to back your hate, until both parents are firing away and the marriage is dead. So what should be done? Our solution is as follows.
First of all, marriage today is too delicate to wait until it falls apart to look for counseling. Then it may be too late. My idea is that before marriage and surely in its early phases the couple sign up with a Shalom Bais Beth Din. Now, this is not the ordinary Beth Din that enters the picture after all of the dishes have been smashed. This Beth Din does not deal with divorce or punishment for destroyed marriages. This Shalom Bais Din is only about Shalom. What is its function and how does it do its work to make Shalom?
The couple signs up with the Beth Din preferably before the marriage. A program of education is begun. Education covers those areas that impact upon Shalom Bayis, such as earnings, being tired or exhausted, unrealistic ambitions and expectations, etc. We straighten out the road before it is filled with potholes. We don’t ignore the basic problems that make pressures and confusion and disappointment in marriage, but we educate that they are here and must be faced and dealt with. And we educate the couple how to face and deal with them.
In other words, the Beth Din looks for trouble before it erupts. Most of the trouble is easily identified and can be dealt with, so we are far ahead of our program in the initial educating process. But yet, there can still be problems of personality, sensitivity, family, etc. So we come to phase two, not anticipating trouble, but leaning about it and dealing with it. As soon as husband or wife has a complaint, they are taught how to deal with it, and if they can’t settle it themselves, they must bring it to the Shalom Beth Din. The Shalom Beth Din will try to organize things, although this is easier said than done. Nonetheless, the fact that a Beth Din is involved, not in dividing up the children and money, but in settling things and making shalom, puts us far ahead of the usual process of problems in marriage.
We thus have phase one of pre-marital and early education, phase two of dealing with problems that erupt despite the education, and we come now to phase three, when one of the couple doesn’t listen to the Beth Din and the marriage is in trouble. Phase three is the power to fine, not to force a GET, because this Beth Din is not about divorce, but about Shalom Bayis. The fine is levied for violating Shalom Bayis. The couple signs a paper that is legal in Jewish and secular law that they will obey the Beth Din’s suggestions to make Shalom in the house. And if someone defies the Beth Din, the Beth Din has the power of fining the guilty party.
Now let us jump ahead to a marriage where the husband is tough and continues torturing his wife and refuses to listen to the Beth Din. He is fined, and fined again, and fined again. If it continues, and these legal obligations pile up, threatening his car, his house, his gulf clubs, his seforim, he may decide that he can’t afford this marriage and ask for a divorce. Note, he asks for the divorce to spare himself the fines. At least, this marriage will not make an Agunah. There is no problem of GET MEUSO a forced GET because the Beth Din is not interested in divorce; it wants Shalom and its fines are directed at creating Shalom not at creating Gittin.
In very rare cases a husband may be a candidate for a forced GET, but this is not the purpose of the Beth Din, whose purpose is Shalom. If the husband is a candidate for a coerced GET, which is extremely rare, the Beth Din can make recommendations how to proceed, but its basic function is to make Shalom, and if it makes a GET it is a failure and a wrong turn in the process. Thus, there is no problem of forced GET because the Beth Din does not want a GET. Preferably, if there is to be a coerced GET another Beth Din should be involved, and should be under the direct guidance of Gedolei HaDor, as a letter from Rav Wosner states.
To summarize, one should not marry with Kiddushin unless they are cognizant of the chance of being an Agunah and the sin of doing something in violation of accepted halacha to coerce a GET or to annul the marriage. My brother told me that this was the opinion of HaGaon Rav Moshe Shternbuch shlit”o head of the Beth Din of the Ado in Jerusalem.
Each community should establish a Shalom Bais Din and see that various procedures are implemented to improve the marriages and prevent broken marriages and Agunose.
Such a Beth Din should be founded with the guidance of senior Gittin poskim, although the purpose is not to make a GET but to make Shalom Bayis.
If anyone is interested in such a project they can contact me at 845-578-1917.
Musmach from Posek HaDor HaGaon Rav Yosef Shalom Elyashev zt”l to be Rosh Beth Din of Gittin