Judge M. Elon: Prison to force a Get

Judge Menachem Elon (The Status of Women  2005 page 299-301): [translated by Daniel Eidensohn] In Israel there is a legal procedure which had been ratified by Kenesset in 1953 which is a potential solution [to the case of Aguna where the husband refuses to give a get]. According to section 6 of the law concerning rabbinic courts dealing with marriage and divorce of 1953 – “A rabbinic court can rule that a husband can be forced to give his wife or the wife can be ordered to accept a get from her husband. After 6 months the district secular court has the ability - with the request of the legal adviser of the government - to use imprisonment as a means of getting the husband to comply with the beis din’s ruling.” Without question this seems to be a very powerful tool that the secular government has given to the rabbinic courts in order to solve the problem of a husband refusing to give his wife a get – after the beis din issues a ruling requiring him to do so.

In reality however this almost never happens. Let me explain my words. According to the section of the law, it is possible to imprison the husband in a case where the beis din has ordered that the husband be forced to give a get. However if the beis din only issues a ruling that the husband is obligated to give a get - and sometimes the language is even weaker and they simply say that it is a mitzva to give a get or that it is proper to give a get – then it is not allowed to imprison the recalcitrant husband. The reason that the law requires that the beis din specifies that the husband is to be forced before he can be imprisonedis in order to avoid the possibility of a get me’usa. A get me’usa is a get which is coerced against the will of the husband and is thus invalid. There are only a limited number of cases where force can used in giving a get according to the halacha. Thus it is understandable why the secular law included a clause that a husband can not be imprisoned when he refuses to give a get except when the rabbinic court rules that it is necessary to force him to give a get.

In fact the rabbinic courts very rarely issue a psak which says to force get. In the overwhelming majority of cases it simply says that there is an obligation to give the get or languae which is even milder. That is consistent with the view of those religious authorities that one does not psaken to force a get except in a small number of rare cases which are explicitly mentioned in the Talmud.

This issue is in fact a dispute amongst halachic authorities. According to the Rambam and those authorities who agree with him – not only can a get be forced in the cases in the Talmud and other classic sources – but also in the case where the wife claims “ma’us alei” - that she says he disgusts her and therefore she can not have sexual relations with him. Therefore the husband can be forced to divorce her because “she is not like a captive who is forced to have sexual relations with somone she despises.” However many halachic authorities – led by Rabbeinu Tam- disagree with the Rambam. According to their view when the wife claims “ma’us alei” this is not a justification to force the husband to give his wife a get. The acceptance of the view of the Rambam as the normative halacha – which in fact happened amongst certain Sefardic poskim and the Yeminite community – has the potential to be a major solution to the issue of aguna which results when the husband refuses to give a get. It enables the utilization of prison which was established as law for the rabbinic courts.

However the refusal of the rabbinic courts to utilize the view of the Rambam and because of that the refusal to write in their rulings that the husband is to be forced - causes at times a difficult tragedy for the wife. She remains an aguna for many years and she is vulnerable to extortion and revenge from the husband. It is important to note that this tragic suffering is basically only for the wife when the husband refuses to give a get. The cases where the wife refuses to accept the get to extort money from the husband or for revenge can be solved by the procedure called heter me’ah rabbonim. Upon receiving this heter the husband is able to remarry even if the wife hasn’t accepted the get. However as is well known, such a solution doesn’t exist to free the wife when the husband refuses to give a get.