Sunday, August 13, 2023

Rav Ovadiya Yosef: Forcing husband to divorce moredes

 It basically says that while in previous times a moredes was just left an agunah but that in modern times there is a major problem of them going off the derech and so therefore we force the husband to divorce them before allowing the husband to remarry. This is not considered get me'usa since the husband doesn't have to give a get - if he doesn't want to remarry. There is no mention of public demonstrations and a major campaign in the secular press to pressure the husband.


Rav Ovadiya Yosef (Yabiya Omer 8:2.2): In previous generations the husband was given permission to take an additional wife if his first wife was declared to a moredes (rebellious wife). The first wife would remain an agunah for the rest of her life until she became an old lady with white hair as punishment for rebelling against her husband. An example of this is found in Shut Mishpat v’ Tzedaka b’Yaakov (2:36).... Similar cases are  found in other Achronim. Nevertheless our contemporary society has weakened and there is now a strong possibility that the agunah will deviate from religious observance because of her aguna status. This is a dissolute generation and people do not obey authority. And if the woman makes up her mind later to accept the get from her husband there is a clear concern that her husband will refuse to give her a get out of spite because he is already married to another woman and it is impossible to force him to give a get to his first wife and therefore she will just reject religion and go on a bad path. Because she is still married however, any children she subsequently has with another man will increase the number of mamzerim in the world. A possible solution is that before he can remarry he needs permission from the beis din and thus it is relatively easy to use that to influence him to deposit a get for his first wife with beis din. Only when he has deposited a get then can we give him permission to remarry according to halacha. After I thought of this, I saw that Rav Masas wrote in  his sefer Tevuos Shemesh (E.H. 30), “Even though in all the seforim of the Achronim concerning previous rabbinic courts (beis din), the beis din ruled that in the case of moredes she remained an agunah her entire life until she became an old lady with grey hair and the husband was allowed to marry another woman if he wanted – without first divorcing her. This was a common ruling and the first wife remained unable to remarry until the day that she died. However this approach was appropriate in previous generations when the spirit of Judaism permeated the people and there was no one who would dare do a serious sin – in particular not to openly transgress the serious sexual sins. But it is no longer true true in our day which to our great sorrow the spirit of individual freedom has become dominant and faith has weakened. We no longer have the power to have people properly comply with religious rulings and there is a great concern that people will go off the path of religious observance. There is no question that all our rabbis acknowledge that all efforts need to be made to have the get deposited with beis din...He concludes his words by saying that in the year 1950, all the rabbis of Morrocco gather together and they made a decree through the official rabbinical confederation – that no man could remarry until he divorced his first wife who was a moredes and had declared that she couldn’t stand living with him (ma’os alei). This decree was accepted and it became a regular occurence for the beis din to rule accordingly. This get that the husband was required to give before remarrying was not considered get me’usa ( a coerced get). That is because he had the choice of not remarrying and therefore he didn’t have to give the get. However with a moredes who simply wanted to afflict him and torture him and consequently refused to accept the get – there was no choice but to require that the get be deposited in beis din as we mentioned before....

The rest of this section was translated by Shaul Shapira in the comments section

37 comments :

  1. Is there a reason that the second half of this seif was left untranslated?

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  2. I just didn't have time - you want to finish the translation?

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  3. I'm game to translate the rest if no one is planning to. If no one says anything by tommorow I'll B"N start.

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  4. I thought mr tzadok was stopping to post. nowhere does it say that after 12 months m'zonos are given. How does this tzadok come up with his delusions?

    Is it in the second half?

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  5. Second half stan:

    ע' בשו"ת מהר"י קולון (שרש סג), שכתב, שהממון שהושלש מתחלה על דעת שלא יוחזר לו אא"כ יגרש, אם עשה כן הבעל מתחילה מדעתו, פשיטא שאין זה אונס, שאין נקרא אונס אלא כשבא לאדם מחמת אחרים זולתו, לאפוקי זה שהביא האונס עליו. ע"ש. וכ"כ בתשובת התשב"ץ ח"ב (סי' סח), הובאה בב"י (סי' קלד), במי שקנס עצמו לאדון העיר במאה זהובים אם יחזיר את אשתו ולא יגרשנה, וגירשה ברצונו בביטול מודעי וכו', והשיב, דלא אמרינן גט מעושה אלא כשכפאוהו לעשות שלא מדעתו, דבר שאינו רוצה לעשות מרצונו וכפאוהו עד שעשה, אבל בנ"ד שהוא חייב עצמו במה שהוא רוצה לעשות, אין זו כפיה, שהרי ברצונו מגרש, והקנס שעשה ברצונו עשאו לחזק עצמו לגרש, ולא חשיב גט מעושה. ע"ש. ואל תשיבני מתשובת הרשב"א ח"ד (סי' מ), שהביאה מרן הב"י (סי' קלד), שרב המרחק ביניהם. וגדולה מזו ראיתי להגאון יש"א ברכה בשו"ת בני בנימין (סי' לד), בשאלה שהובאה מאלג'יר, בדבר מי שהשיא בתו לראובן, וישבה עמו שלשה חדשים, ואח"כ הכה אותה וגירשה מביתו ושבה לבית אביה, והבעל נסע לעיר אחרת ונשא שם אשה אחרת עליה, והביאה אל ביתו, והלכו להתדיין בערכאות, ופסקו שחייב ראובן לתת לה גט, ואם לא יחפוץ האיש לגרשה בגט, חייב לתת לה עשרת אלפים פראנק למזונותיה וכו', ורבני העיר אלג'יר לא רצו לסדר לה הגט מפני שחששו לגט מעושה, והגאון יש"א ברכה האריך הרחיב להוכיח שאין בזה משום גט מעושה, ופלפל בדברי הרשב"א והרשב"ץ הנ"ל, ובדברי הריטב"א בתשובה שהובאה בב"י (סי' קנד), ובדברי הרמ"א בהגה (סי' קלד), ובמ"ש מהר"א יצחקי בס' אורים גדולים (לימוד פו) ובשו"ת זרע אברהם (חאה"ע סי' יג), והרב גינת ורדים (באה"ע סי' ה) ושאר אחרונים. וסיים, העולה מן המקובץ, שהבעל חייב לגרש את אשתו הראשונה בגט כריתות כדמו"י, ואין בזה שום חשש גט מעושה כלל. ע"ש. והגאון הראש"ל רבינו אברהם אשכנזי בתשובה שם (סי' לה) כתב לסייעו מתשו' המבי"ט ח"ב (סי' רו). וכן העלה לדינא שכיון שמה שחייבוהו בערכאות על מזונותיה כדין עשו, כי הוא איש אמיד ועתיר נכסין, ועולה עמו ואינה יורדת עמו, והלואי ויספיקו לה לכל ימי חייה למזונות ולמדור ולמשרתת וכו', ואם ירצה לפטור עצמו ולגרשה אין בזה חשש גט מעושה כלל. ויפה הורה רב אחאי יש"א ברכה בכחא דהיתרא, ונתן טעם לשבח להקל, ואף ידי תכון עמו וכו'. ע"ש. [ועתה תשובה זו היא לו נדפסה בשו"ת מהר"א אשכנזי סימן יח עמוד ר"ה. ע"ש]. ויש לדון מזה במכל שכן לנ"ד. ומה שהקשה בזה בספר אבני האפוד (סי' קלד), לק"מ, כאשר עיני המעיין תחזינה מישרים. וע"ע בשו"ת נושא האפוד (סי' ח). ובמשפטי עוזיאל (אה"ע ס"ס ט וי"ד). ואכמ"ל

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  6. Or if you prefer Rav Pealim 4:9

    למע' הרבנים הב"ד יכב"ץ. ראיתי את השאלה בענין הגט ואני היום +זה היה קודם סילוקו של צדיק בכ"ו יום+ איני בקו הבריאות לעיין בה כראוי. אמנם בהשקפה הראשונה נזכרתי שיש חלוק בדין גט מעושה דכל שאנו מחייבין אותו בדין על דבר אחד וכדי לפטור עצמו ממנו הוא מגרש אין זה נקרא גט מעושה. ונזכרתי החלוק זה הסכים בו וסמך עליו הרה"ג מהר"א אשכנזי ז"ל בספר בני בנימין ח"א סי' ל"ה. וכתב שם המקור חלוק זה הוא בתשובת הרב המבי"ט ז"ל והדברים יצאו מפה קדוש התשב"ץ ז"ל בח"א סי' א' וכאשר תמצא מסקנת דברי הרב מהר"א הנז' שם בדף ס"ג ע"א בד"ה איך שיהיה וכו' ע"ש ומפורש בדברי המבי"ט אף על גב דאונס האחר אינו בדין מ"מ אם הוא ברשות ב"ד ומגדר מילתא כדין קרינן ביה. ועי' למהר"ם גלאנטי ז"ל בס' גדולת מרדכי סי' ט"ז דף קמ"ד ע"ד ודף קמ"ה ע"א שהביא דברי הרב המבי"ט ז"ל הנז' ולא הביא חולק עליו בזה ע"ש.

    הנה כי כן בנידון השאלה אשר מעלתכם מטילין עליו חיוב מזונות לארוסתו ע"י הממשלה חשיב זה בדין יען שאתם עושים זאת בעבור תקנת בנות ישראל וכבר נוהגים אתם בדבר זה לעשותו מהאי טעמא ולכן נראה אם אחר שראה זה שהוא מתחייב ליתן מזונות לארוסתו נתרצה מאליו לגרש כדי לפטור עצמו ממזונות אין זה נקרא גט מעושה דהא אין אתם אומרים לו או תן מזונות או תגרש אלא אתם נותנים לארוסה אעלא"ן לחייבו במזונות בעבור תקנת בנות ישראל שאתם נוהגים בה והוא מאליו יהיה מוכרח לגרש להציל עצמו מן חיוב המזונות. כ"ז אני כותב בנחיצה רב'א /רבה/ כחותה על הגחלים ואין לי שעת הכושר לעיין בספרי הפוסקים ולראות אם יש חולקים על חלוק הנז'. ואיך שיהיה מעלתכם תכתבו להממשלה חיוב מזונות עליו להשקיט צעקת הארוסה ותראו איך יפול דבר אח"ז ומה דביני וביני תעיינו בזה הענין. והשי"ת יאיר עינינו באור תורתו אכי"ר.

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  7. What you do not have is any of the claimed justification for Rav Shachter's actions.

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  8. Well here goes. (I hope R Tzadok has posted the whole rest of the Teshuva because that's what I'm translating.)
    Pt 1:
    ע' בשו"ת מהר"י קולון (שרש סג), שכתב, שהממון שהושלש מתחלה על דעת שלא יוחזר לו אא"כ יגרש, אם עשה כן הבעל מתחילה מדעתו, פשיטא שאין זה אונס, שאין נקרא אונס אלא כשבא לאדם מחמת אחרים זולתו, לאפוקי זה שהביא האונס עליו. ע"ש. וכ"כ בתשובת התשב"ץ ח"ב (סי' סח), הובאה בב"י (סי' קלד), במי שקנס עצמו לאדון העיר במאה זהובים אם יחזיר את אשתו ולא יגרשנה, וגירשה ברצונו בביטול מודעי וכו', והשיב, דלא אמרינן גט מעושה אלא כשכפאוהו לעשות שלא מדעתו, דבר שאינו רוצה לעשות מרצונו וכפאוהו עד שעשה, אבל בנ"ד שהוא חייב עצמו במה שהוא רוצה לעשות, אין זו כפיה, שהרי ברצונו מגרש, והקנס שעשה ברצונו עשאו לחזק עצמו לגרש, ולא חשיב גט מעושה. ע"ש. ואל תשיבני מתשובת הרשב"א ח"ד (סי' מ), שהביאה מרן הב"י (סי' קלד), שרב המרחק ביניהם

    See Shu't Mahari Cologne who writes that money that was deposited originally (before marriage s.s.) on the assumtion that it won't be returned unless he divorces, if the husband did so originally willingly, it's obvious that it's not an oness (coercion) because it is not called oness unless it comes because of others- not someone who brought the oness on himself. see there. And so wrote the Shu't Tashbetz brought in Bet Yosef, about someone who fined himself to the city riuler if he doesn't divorce his wife, and he divorced her willingly with a declaration of willingness (bittul modaah). and he [tashbetz] replied that we don't say get meusah except where they forced him against his will. [i.e.] something that he doesn't want to do willingly just they forced him. But in our case, that he that he obliged himself with what he wants to do, that's not coercion for he's divorcing willingly and the fine that he obliged himself in was done willingly, just to spur himself to divorce her and it's not considered a Get Meusah. See there.
    And don't refute me from the Shu't Rashba brought by the Bet Yosef, because they're very different cases.

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  9. וגדולה מזו ראיתי להגאון יש"א ברכה בשו"ת בני בנימין (סי' לד), בשאלה שהובאה מאלג'יר, בדבר מי שהשיא בתו לראובן, וישבה עמו שלשה חדשים, ואח"כ הכה אותה וגירשה מביתו ושבה לבית אביה, והבעל נסע לעיר אחרת ונשא שם אשה אחרת עליה, והביאה אל ביתו, והלכו להתדיין בערכאות, ופסקו שחייב ראובן לתת לה גט, ואם לא יחפוץ האיש לגרשה בגט, חייב לתת לה עשרת אלפים פראנק למזונותיה וכו', ורבני העיר אלג'יר לא רצו לסדר לה הגט מפני שחששו לגט מעושה, והגאון יש"א ברכה האריך הרחיב להוכיח שאין בזה משום גט מעושה, ופלפל בדברי הרשב"א והרשב"ץ הנ"ל, ובדברי הריטב"א בתשובה שהובאה בב"י (סי' קנד), ובדברי הרמ"א בהגה (סי' קלד), ובמ"ש מהר"א יצחקי בס' אורים גדולים (לימוד פו) ובשו"ת זרע אברהם (חאה"ע סי' יג), והרב גינת ורדים (באה"ע סי' ה) ושאר אחרונים. וסיים, העולה מן המקובץ, שהבעל חייב לגרש את אשתו הראשונה בגט כריתות כדמו"י, ואין בזה שום חשש גט מעושה כלל. ע"ש

    Pt 2:

    And a greater [chiddush] than this I saw brought by the Gaon Yisah Brachah in Shu't Bnei Binyamin regarding a question brought from Algiers about someone who married his daughter of to Reuven, and they lived together for three months, and afterwards he beat her and drove her from his home and she returned to her father's house. He then went to a different city and married a second women (in addition to the first,) and brought her to his home. And they went to court [arkoyos] and they ruled that Reuven must give her a Get and if he doesn't want to to divorce her with a Get, he must give 10 thousand francs for her mezonos [food] and the like. And the Rabbonim of Algiers didn't want to arrange the Get because they feared for a Get Meusah. And the Gaon Yisah Brachah elaborated at length to prove that there is no concern of a Get Meusah and he dealt {how on earth do you translate pilpul? S.S.} with the above mentioned Rashbah and Tashbetz and with the words of the Ritva brought in the Bet Yosef and the Rama in his gloss and with what the Mahari Yitzchaki wrote in the sefer Orim Gedolim, and Shu't Zera Avraham and the rav Ginas V'radim and other acharonim. And he concluded, that what emerges from all the releveant sources is that the husband must divorce his first wife in accordance with Jewish law, and there is no concern whatsoever for a Get Meusah.

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    1. The mishna gemara and poskim are all expilicit that a get which was forced by non-jews, even in accordance with halacha, is not valid. And that was the case here.

      How can he possibly conclude that there os no possibility of get meusseh?

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    2. The mishna gemara and poskim are all expilicit that a get which was forced by non-jews, even in accordance with halacha, is not valid. And that was the case here.

      How can he possibly conclude that there os no possibility of get meusseh?

      You really do need to learn to read things before you jump in to disagree with them. Why do I say this? Well:
      Apparently not all of the poskim say such a Get is not valid. In fact, Rav Ovadia at this point, in this seif, of his rather lengthy Teshuva, hasn't even given his opinion, he is simply quoting poskim who say that there are ways to force a Get in accordance with Halakha, and it WOULD be valid.
      Now if you want to know who the Benei Benyamin(you know that work you keep claiming is obscure but so far The Yaskil Avdei, the Ben Ish Hai, Rav Ovadia and Rav Feinstein have seen fit to quote it, so it can't be that obscure) came to that conclusion then I would suggest that you read what Rav Ovadia says is a rather long pilpul of all the previous sources there.

      Here is the thing I don't understand, you keep saying all the poskim say However, Rav Ovadia here lists quite a few that say otherwise. Likewise Rav Shternbuch, Rav Moshe Feinstein, the Ben Ish Hai, Rav Avraham Ashkenazi ect... all say otherwise and quote, at length earlier sources that say otherwise. So where are all the poskim that say this? Do you actually have sources, Teshuvot that can be posted here that we can discuss?
      Since you saw fit to ask this question previously I will hand it back to you, from whence do you get your delusions?

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    3. the mishna is in the last perek of gittin. You can find the rest from there.

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    4. I take that to mean that you don't actually have a source, just an opinion that you know better than ALL the major poskim quoted.

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    5. I did find this list of sources that seems to dispute your "all" poskim quite strongly.
      http://www.daat.ac.il/daat/mishpach/agunot/perek2-2.htm

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    6. Don't understand what this list has to do with anything. It is obviously recognized that major efforts need to rescue and agunah - what else does this list say that is relevant to the discussion regarding get me'usa?

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    7. Binyamin has insisted that Mishna, Gemarra and all the poskim were against rescuing an aguna because it would,"Undermine the institution of marriage."

      The point of that list was to show that such was not the case.

      Admittedly it would have done better at the bottom of the thread, where that discussion is ongoing then here. My mistake.

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  10. והגאון הראש"ל רבינו אברהם אשכנזי בתשובה שם (סי' לה) כתב לסייעו מתשו' המבי"ט ח"ב (סי' רו). וכן העלה לדינא שכיון שמה שחייבוהו בערכאות על מזונותיה כדין עשו, כי הוא איש אמיד ועתיר נכסין, ועולה עמו ואינה יורדת עמו, והלואי ויספיקו לה לכל ימי חייה למזונות ולמדור ולמשרתת וכו', ואם ירצה לפטור עצמו ולגרשה אין בזה חשש גט מעושה כלל. ויפה הורה רב אחאי יש"א ברכה בכחא דהיתרא, ונתן טעם לשבח להקל, ואף ידי תכון עמו וכו'. ע"ש. [ועתה תשובה זו היא לו נדפסה בשו"ת מהר"א אשכנזי סימן יח עמוד ר"ה. ע"ש]. ויש לדון מזה במכל שכן לנ"ד. ומה שהקשה בזה בספר אבני האפוד (סי' קלד), לק"מ, כאשר עיני המעיין תחזינה מישרים. וע"ע


    Pt 3 (final part):

    And the gaon, the Rishon Letzion Rabeinu Avraham Ashkenazi in a teshuva there, brings support from a teshuvas Mabi't. And he in fact rules that that since the penalty imoposed by the courts was something proper- since he was a rich man and his wife is {halachicaly s.s.} entitled to share his higher standard of living, and hopefully this will be enough to supply her with a lifetime supply of food, as well as assisant, etc. And that rav Achai Yisah Brachah ruled well with his abilty to find a heter and he provided an excellent reason and I also agree with him. See there. (Now, this teshuva is printed in Shu't mahari Ashkenazi- see there) And we can certainly apply this to our case via a kal ve'chomer.
    And that which the sefer Avnei Ha'ephod asked is not at all difficult- as someone who properly investigates will see.
    See Also Shu't Nosei Ha'ephod, and Mishpetei Uziel. And here is not the place to elaborate.

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    1. thanks - a quick reading indicates that you did a good job

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  11. And for the Ben Ish Hai Rav Pealim 4:9
    To the exalted Rabbis of the Beit Din. I saw your question on the matter of the Get and I am not currently in good health so as to fully review it as is necessary. Therefore at first glance I remembered that there is an opinion in the matter of a Get Meouseh that all accept that we obligate him in a separate matter and in order for him to relieve himself of that obligation he divorces(her) and this is not called a Get Meouseh. I recalled that his opinion was agreed with and relied upon by HaRav HaGaon Moreinu HaRav Eliezer Ashkenazi in the sepher Bnei Benyamin 1:35 and he writes there that the source of the opinion was the teshuva of the Marbit Z"L and the words came from the holy mouth of the Tashbetz in 1:1 and thus you will find the conlusion of Rav Ashkenazi that we mentioned there on page 63A Divrei Hamatchil How it shall be ect. See there. And it is explained in the words of the Mahbit that any other form of pressure is not in accordance with halakha, in any case if he is under the authority of the Beit Din a judicial exception could be enacted that would be according to halakha. And see the Maharam Galanti Z"L in sefer Gadolet Mordechai Siman 16 page 144d and 145a who brings the words of the Mahbit that we mentioned above and brings no one to disagree with him, see there.
    Now as to the question you have raised, there has already been laid upon him the necessity of support(מזונות) to his wife by means of the government, this is considered to be in accordance with halakha since you have done this in accordance with the Takanat Banot Yisrael and you have already been accustomed to act thus. And so it seems that if one will see that he is required to support his wife and he will want to divorce her in order to free himself from her support, this is not called a Get Meouseh, for behold you are not saying to him to either support her or divorce her, rather you are giving to the wife notification(at least I believe אעלאן is the arabic work for הודעה) of his obligation to support[her]in accordance with the Takanat Banot Yisrael which you are accustomed in and he will be required to divorce her in order to free himself of his obligation of support. I write this greatly ill and I do not have the necessary time to check in the books of the poskim if there are others who dispute the above mentioned position and so it is upon you to write to the government concerning his obligation to support his wife, and you will see how the matter falls out, and afterward I will privately look into the matter. May Hashem enlighten our eyes.

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  12. I have already responded to the Rav Poalim that Tzadok keeps quoting, here: daattorah.blogspot.com/2012/04/friedman-epstein-tamars-matrydom-r.html?showComment=1333921168852&m=1#c8193604674028506204
    that teshuva is entirely irrelevant to the topic under discussion and is also very problematic since it relies on a Tashbatz which cannot be used to justify his decision.

    i am done debating Tzadok and his Halachic dishonesty, but if any other reader feels there was any value to his response feel free to leave a comment and I will be happy to respond.

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    1. that teshuva is entirely irrelevant to the topic under discussion

      I disagree. It is a Teshuva that essentially goes hand in hand with the one under discussion, namely that of Rav Ovadia Yosef, and relies upon the same primary source, namely the Benei Benyamin, by Rav Ashkenazi.

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  13. Actually it does not rely on the Tashbetz it relies on Benei Benyamin who relied upon the Tashbeitz and others. The Sane Benei Benyamin that Rav Ovadiah Yosef relies upon.

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  14. Also it appears that he actually did not render a decision as much as to tell the Beit Din to wait and see how what they were doing, which was customary procedure, would work out. That in the meantime the Beit Din should write to the government to get them to support the wife(as per the minhag), and that when he was better he would look into the matter to see if there was anything else that could be done.
    I'm not sure which decision of the Ben Ish Hai's anyone is claiming was based(and erroneously at that) on the Tashbetz. He only quoted the Tashbetz as the source of Mahbit which was the source of another well accepted Teshuva written by Rav Ashkenazi who was a contemporary(roughly) of the Ben Ish Hai.
    To actually disqualify his entire Teshuva as problematic simply because he makes mention of the Tashbetz as the ultimate source for the Halakhic decision of Rav Ashkenazi is actually halakhic and intellectual dishonesty.
    You are making a counter-claim that is not supported by what is actually written in the text. Namely that the Ben Ish Hai relied upon the Teshuva of the Tashbetz.
    Rather the Ben Ish Hai, as he clearly states, relied upon the Teshuva of the Bnei Benyaim, and upon the custom of the Persian Batei Din regarding the Takanat Banot Yisrael.
    You will also find that Rav Ovadia Yosef quotes the same chain of tradtion in his Teshuva
    And the gaon, the Rishon Letzion Rabeinu Avraham Ashkenazi in a teshuva there, brings support from a teshuvas Mabi't. And he in fact rules that that since the penalty imoposed by the courts was something proper- since he was a rich man and his wife is {halachicaly s.s.} entitled to share his higher standard of living, and hopefully this will be enough to supply her with a lifetime supply of food, as well as assisant, etc. And that rav Achai Yisah Brachah ruled well with his abilty to find a heter and he provided an excellent reason and I also agree with him.
    Are we to believe that Rav Ovadia Yosef has also ruled erroneously since the Bnei Benyamin relied on the Mahbit who relied upon the Tashbetz?
    That a husband is required to support his wife if he has not given her a get, is halakhically a given. Even Rav Shternbuch in his protest against the use of secular courts makes an allusion to it, The reason for this is complex. 1) first of all since they are coercing him financially not in accord with the halacha regarding the support payments which are much higher than the halacha - that constitutes theft. For the payments to be much higher than the halacha requires that there be such as thing as support payments that are in accord with the halakha. Otherwise he simply would have said that they have no support at all in halakha.
    There is an opinion(though you have rejected it as non-mainstream and Daat Yachid) which says a man should not have to pay for the first twelve months after the wife leaves, but no one(that I know if) says that a husband is free to not support his wife, he is contractually bound to do so by his Ketubah.

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  15. This teshuva is a good example of why in a different thread earlier in the discussion here I asked for sources which predate the rabbanut. This teshuva sets out to figure out a way to work around the halacha since it is no longer convenient, while still observing the formalities which are accepted but not understood. Already at the outset the halacha has been challenged. The point here is not to understand the halacha but to change how it works in practice.

    My first substantial problem here is the authority for introducing changes, even when they are legitimate changes. This authority is only given to recognized community authorities sitting as a formal institution. Ovadia Yosef by himself has no authority to decide that women refusing to live by halacha is a problem which needs to be solved. The rabbanut, appointed by the government and not by the religious community, also does not have the authority. The only questions they should be answering are what the halacha is, not what they want it to be.

    The arguments given here are limited so it is hard to respond to them. Basically he asserts it is a good idea for the court to ensure a get even when there is otherwise no justification for it. A very problematic assertion as discussed, but for the purposes of this discussion I will not argue it. So the question is how can we require a get without forcing it (note my linguistic trick) ?

    The solution he gives is to deny the husband a natural need and right - getting married - until he does what we want. Why is this not forcing him? Because it is something he can choose to go without. He does not provide any source to show that withstandable force is not force. The various discussions of get meusseh recognize that beven force which can be handled is still force, for example, harchaka drabeinu tam where he cannot get away from it.

    More to the point - can also those people who cry about the terrible suffering of agunot turn around and say that doing the same to the man is not forcing him to do what they want?

    As to his initial argument justifying this change, "our contemporary society has weakened and there is now a strong possibility that the agunah will deviate from religious observance because of her aguna status", I ask how this differs by the arguments put forward by a different scholar who recognized the challenges of traditional Judaism in modern times: "Rabbi Abraham Geiger suggested that observance might also be changed to appeal to modern people. Geiger, a skilled scholar in both Tanach and German studies, investigated Jewish history. He discovered that Jewish life had continually changed. Every now and then, old practices were changed and new ones introduced, resulting in a Jewish life that was quite different from that lived 4,000 or even 2,000 years before. He noticed these changes often made it easier for Jews to live in accordance with Judaism. Geiger concluded that this process of change needed to continue to make Judaism attractive to all Jews." jewishvirtuallibrary.org/jsource/Judaism/The_Origins_of_Reform_Judaism.html

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    1. You should look at Rav Sternbuch's teshuva - he seems headed in the same direction as Rav Ovadiya Yosef

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    2. The solution he gives is to deny the husband a natural need and right - getting married - until he does what we want.
      This isn't a new invention by any stretch of the imagination, this was part of the Gazeira of Rabbeinu Gershom(which last I checked has been binding on all Ashkenazim for over 1000yrs).
      Sephardim on the other hand never fully accepted said Gazeira, but there were several Takanot within their own community that mimicked it. Namely it was written into the Ketubah, and in some communities it was also a vow given under the Huppa, that the husband would not take a second wife without the consent of the first and the local Beit Din. Effectively ending polygamy in the Sephardi world. The only substantial difference between this and GR"G is that Sephardim didn't need 100 Rabbis to sign off on it, just the local B"D.

      So your insistence on pre-Rabbinut(you do realize that the chief Rabbis is elected by that Rabbis of the nation, not appointed by the govt right?) source claiming some new innovation and "change" in the halakha is erroneous. The change of which you speak was made over 1000yrs ago and has been accepted practice ever since.

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    3. completely wrong about cherem rabbeinu gershom

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    4. Binyamin,

      You really do need to see the Teshuva of Rav Shternbuch which the blog owner referenced you to above:
      http://daattorah.blogspot.com/2012/03/rav-sternbuchmoredes-went-to-civil.html

      That is definitely how he understands the Cherem Rabbeinu Gershom. Also as the Rav Said above, his line of think goes in the same direction as Rav Ovadia and the Ben Ish Hai.

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    5. daastorah, perhaps you can ask Rav Sternbuch how he sees marriage as a viable institution if in practice women have no commitment.
      Ask him why men would be willing to marry when they realize they have all the traditional obligations while the women has none.
      Does he expect men to stay religious when religious marriage is a sucker's bet and the alternative is celibacy? How will men look at religion when they get married being told of our committment to traditional halacha and they get divorced being lectured on the need to accept modern attitudes and give women whatever they ask for?

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  16. as a side point, does anyone believe that when the moredet was prohibited from remarrying she still got a full pension from her husband for the rest of her life?? Not such a terrible punishment for her if she does, many women would find that arrangement very appealing.

    And yet again we realize that a husband has no contractual obligations to his moredet, ever.

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    1. And yet again we realize that a husband has no contractual obligations to his moredet, ever.
      Yet you accuse me of Halakhic dishonesty?

      Rav Shternbuch has said it. Rav Feinstein has said. The Benei Benyamin, in the name of the Marbit said. The Ben Ish Hai says it was the custom. Rav Ovadia Yosef says it. While the husband refuses to give a Get he is contractually obligated to support his wife.
      Once he gives a Get, or deposits one with a B"D if the wife is a true Moredet and refuses to accept a Get, then he is free from that obligation. If afterwards she tries to obligate her husband to alimony or some such through the courts, her Get is posul, and the husband has no contractual obligations to her(see here http://daattorah.blogspot.com/2012/04/minchas-yitzchok-going-to-court.html).
      Just because you don't like the accepted halakha doesn't mean it is not the halakha.
      So far you have tried every possible means to distort the words of the sages.
      1)You claim the Yaskil Avdei isn't mainstream despite having been the Av Beit Din of Jerusalem, and the Rosh Yeshiva of what is arguable the most influential Sephardi Yeshiva in the world.
      2) You try to dismiss the Teshuva of the Ben Ish Hai by claiming he is relying on a Teshuva that he clearly is not.
      3) You try to discredit Rav Ovadia's Teshuva by first claiming that he is an agent of the State, then claiming he's a feminist, and finally claiming he's a reformnik.
      4)You try to discredit Rav Shternbuch by claiming that he is undermining the institution of marriage.

      Really you have predetermined what the Halakha ought to be based on your own values and views of women and their place in the world, and you are not willing to be informed by the Gedolim as to the Torah outlook on these subjects.

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    2. I understand that you came into this conversation thinking that mezonos after 12 months is an accepted opinion, but it should be clear by now that it was never accepted, and in the AShkenazi poskim, never even heard of. Even from reading the Yaskil Avdi it is clear that it was never an accepted interpretation. He does not say that this was always done, and does not quote leading poskim on the issue. This should make it clear that before he wrote, even in the Sephardi world this idea was not recognized. As far as I know, it is still not accepted anywhere.
      The Yaskil Avdi relies on an obscure sefer he found, and the argument given is easily refutable.
      Yet you continue to present this as an accepted halacha. Also, the other sources you have been quoting do not support this idea, as they are discussing other issues.

      You should also read some earlier sources on Cherem Rabbainu Gershom - stan already posted some - and you will see that it is completely different than what Ovadia Yosef suggested. The Ben Ish Chai, again, is irrelevant, since in his case the man was married.

      The greatest sages have been known to make mistakes. I am willing to challenge the opnion of any recognized scholar when their decisions cannot be justified based on the earlier opinions or when there are clear logical objections.

      As to your first point, I never tried to discredit the Yaskil Avdi, only to say that his opinion did not make it into the mainstream halachic thought. In the Ashkenazi world he is hardly known, and we are discussing an Ashkenazi community here. My apologizes to Sepharadic mainstreamers.

      Your second point is incorrect.

      Feel free the respond to my arguments against Ovadia Yosef's teshuva - a negative characterazation of my arguments are not a response.

      If R' Shternbuch is trying to make divorce easier then he is undermining marriage, however unintentionally. Many people have undermined marriage since they did not understand the institutional functions of marriage, and that is why I have said that understanding why the halacha is what it is will allow us to undo some of the destruction of marriage.

      If you think that easy divorce does not undermine marriage, please explain how that can possibly be.

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    3. corection to my previous comment... I did not try to discredit the Yaskil Avdi as non-mainstream, which was a reference to his not being recognized in the Ashkenazi psak.
      As I wrote earlier, his psak on paying mezonos after 12 months means he was trying to ensure easy divorce, and I do not retract what I wrote there. He was clearly trying to work around the halacha in this area, as did many others who look for ways to force a get without calling it forcing a get.

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    4. and you will see that it is completely different than what Ovadia Yosef suggested. The Ben Ish Chai, again, is irrelevant, since in his case the man was married.

      Do you even read the opinions that you disagree with?

      Rav Ovadia isn't relying on Cherem Rabbeinu Gershom, he is going further back to the Takanat Banot Yisrael, which every posek has upheld(well probably because it is from the Gemarra) that a woman should be allowed out of a marriage if she is repulsed by her husband.

      In the Ben Ish Hai's case, where he says that the B"D operated according to the custom, he man WAS NOT married, the B"D had restrained him from remarrying. Again you try to twist the Teshuva to disqualify it because you do not like what it says.

      As far as the Yaskil Avdei, yes he quoted an obscure source... THAT THE MAN COULD WAIT 12 MONTHS. That was his Chiddush, that the support was not immediate, like Rav Shternbuch and Rav Feinstein have intimated, and Rav OVadia and the Ben Ish Hai have stated flat out.

      Your second point is incorrect. Really? Have you not tried to say that the Ben Ish Hai was relying on the Tashbetz, when any simple reading of what he says, shows that he was clearly relying on Rav A. Ashkenazi(in part) and the ACCEPTED custom in Persia.

      None of these Rabbanim are trying to make divorce easier. What they are doing is keeping marriage from being servitude. As soon as the woman has no choice to leave, she is not a wife, she is a Shifcha. That is most definitely NOT what the institute of marriage is about. Hence Hazal in their wisdom made a Takana(Takanat Banot Yisrael) that women should be able to leave the marriage if they so chose(much like a man can).
      The Torah gives a man absolutely no comittment to a marriage, he is permitted to divorce his wife for any fault he sees with her(that was until Rabbeinu Gershom came along). So a woman has a bit more of onus to prove something if she wants out. She could never claim that she was simply bored with her husband, there had to be an actual revulsion. However, Chazal saw fit to make that Takana, so that the institute of marriage as you call it, would be something more than a master and a slave.

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    5. Tzadok misuses the phrase takanas bnos yisrael, which does not refer to any takana.

      His false and heretical explanation should be sufficient to demonstrate that he is completely wrong.

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    6. An ad hominem (Latin for "to the man" or "to the person"), short for argumentum ad hominem, is an attempt to negate the truth of a claim by pointing out a supposed negative characteristic or belief of the person supporting it. Ad hominem reasoning is normally described as a logical fallacy.

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