Thursday, May 10, 2012

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.


  1. Who is this secular judge to be making halachic opinions.

    1. he is describing what is happening regarding Israel. Rabbi Micha Berger asserted that the threat of prison is a common event in Israel - that is clearly at variance with what is stated here.

    2. 1) I would have thought the black velvet Yarmulke was a dead give away that he was religious.

      2) Where did R' Berger make that statement?

    3. This is a letter recently posted on the Avodah discussion group that is run by Rabbi Berger:
      On Wed, May 09, 2012 at 01:02:33PM -0400, wrote:
      : Letter from R' Dovid Eidensohn warning that certain types of activity that
      : are becoming more common in the US, actions intended to help agunos --
      : namely, certain kinds of public pressure on husbands to give a GET (including
      : ostracizing and public humiliation) -- may result in gitten that are
      : halachically invalid, may be halachically forbidden...

      But he is at the least pushing a daas yachid against how the entire world
      holds, and at the worst totally wrong.

      He notes that he is taking on RHS and RMJBroyde, but list rules don't allow
      me to go into detail about how he dismisses not only their opinion, but their
      entire ability to pasqen and remain loyal to Torah. His opposition alone
      should tell you that there is something amiss in his position.

      This is also against Israeli norm, where many gittin are given under the
      threat of imprisonment.

      And as Batmelech noted in a blog comment:
      So what happens if his mother, or worse: mother in law, insists he
      give a get???

      This would be a forced get in any case, because nothing is more
      fearsome than an angry mother, or worse, mother in law!!!

      I went through the literature -- Otzar haPosqim and the Bar Ilan web
      site. I also asked two friends who are dayanim. Consensus appears to be
      variations of what we see in the SA and Rama, EhE 154:21. Yes, there
      are some Israeli acharonim, really starting with the CI, who are more
      machmir, but as noted above, not to the extent R Dovid E is advocating,
      allegedly besheim RMShternbuch (5:344) and RYSE -- not that I think
      either say what he thinks they do.

      Both the SA and the Rama say that iqar hadin is like the Rambam and
      we may use kefiyah even when the gemara doesn't explicitly require a
      divorce. However, the SA has a "some say" not to, and the Rama lauds
      the minhag of some areas not to allow kofin oso ad sheyomar "rotzeh
      ani", and avoid the dispute. Where the gemara *does* require a divorce,
      which I am not insisting is our case, there is not even a "yeish omerim"
      against the Rambam. So yes, we do hold like the Rambam -- we just
      prefer lemaaseh not to rely on him lekhat-chilah for beyond iqar hadin

      Second, the Rama says that bedi'eved (post facto) the gett is kosher
      according to both, since it's only an opinion we try to avoid violating,
      it's not going to create eishes ish problems or mamzeirus.

      The Rama continues that all (even those who follow his "ra'ui lehachmir")
      can implement harchaqos Rabbeinu Tam, and then gives a very broad
      definition of what that includes. Including banning all Yisrael from:
      doing him any favors, doing any business with him, give his sons a beris,
      bury him ... "any chumera which BD desire they can be stringent in this
      way, as long as they don't put him in nidui."


    4. this is comment he made on Rabbi Bechhofer's blog

      Blogger Micha Berger said...

      I wonder what RDE would think of gittin done in EY, where the batei din have the authority to jail mesoravei gett. Even when the guy isn't jailed, how can he explain the validity of gittin granted under the threat of literal "kofin oso"?

      In one famous case, Seymore Klagsbrun had his passport confiscated at Ben Gurion Airport when he and his heter-mei'ah-rabbanim 2nd wife came for a visit. Batei din in two continents didn't think it would invalidate the gett, had it worked. (The State Dept made a big deal about US sovereignty, and the ACLU defended the guy (?!) and they gave the passport back without securing a gett.)

      Monday, May 07, 2012 4:16:00 PM

    5. Thanks I just wanted to see exactly what he said.

    6. So what I see from this is that the כל אלו part of the Mechaber is what R' Berger has somehow missed. As in the כל אלו is reflecting back on all the cases that he just brought in which כפיה is m'ikar hadin and meforash in the Gemarra. That the Rema then talks about cases that are not meforash in the gemarra in terms of R"T(so long as nidui is not declared) that the B"D can do as it sees fit(R"T wise) he is somehow thinking that the Rema is also supporting the Rambam... I just don't get his read of it.

  2. He is far from a secular judge. From Wilipedia

    Elon's family immigrated to the Palestine in 1935 from Germany due to the rise of Nazism. He studied Halakha (traditional Jewish law) in the Hebron Yeshiva. He received his law degree from the Hebrew University of Jerusalem, where he was appointed to teach and as a professor. He also served as a visiting professor at Harvard University's law school and at New York University School of Law. In 1963 Justice Elon was appointed Head of the Institute for Research in Jewish Law at the Hebrew University, and from 1968 to 1971 he served as Editor of the Division of Jewish Law of the Encyclopedia Judaica.

    A prolific author on traditional Jewish law (Halakha), Menachem Elon served as an Israeli Supreme Court Justice and his opinions often draw upon the principles of Jewish law. His judicial decisions include the prohibition to register the character of non-Orthodox conversions on Israeli identity cards and the return of a girl who had been transferred for adoption without her parent's consent.

    He played a pivotal role in the Mishpat Ivri (Hebrew Law) movement. Among his many works, he authored the foundation work (cited below) on Hebrew law for academic use and the training of Israeli law students. In 1979, Elon was awarded the Israel Prize, for Hebrew law.[1]

    Supported by the right-wing Likud party, Elon was nearly selected as President of the State of Israel, losing in a close vote (61-57) to Chaim Herzog in 1983. In 1993, he was elected President of the World Union of Jewish Studies.

    Amongst Elon's five children are Binyamin Elon, a member of Knesset and former cabinet minister and Rabbi Mordechai Elon, the former head of Yeshivat HaKotel

    1. Where do you see anything that he isn't a judge on a secular court? The Israeli courts are secular courts. And he isn't a rabbi, based on anything posted here.

    2. of course he was a judge on a secular court - the supreme court. You described him as a secular judge i.e., not religious.
      He is observant. He is very knowledgable about facts.

      He was not poskening. He was simply reporting the reality of the use of prisons. His pronouncements on these things carry much more weight than Rabbi Berger because this is his field of expertise.

    3. Dan: Devorah wasn't a rabbi either, yet was a shofet for all Israel!

  3. This man works in arko'oys. His opininions are very interesting in a university academic setting but have less than zero weight in halachik discussions. Anyone part of arko'oys is severely violating halochoh.

    By the way for the readers to note the pravda censorship continues in full force.

  4. I'd like to point out that Justice Elon and Rabbi Pruzansky) both make cogent and articulate presentations. In contrast, those to the 'right' often do the opposite, either out of ignorance or laziness, and do not lay out their reasoning in a consistent and clear manner. This is self-defeating, as it makes it much harder for those who are trying to follow along and could be swayed by their arguements.

  5. Over the years I have met folks like 'stan'. They can be very knowledgeable and can even have valid points on important issues. But they are just so 'twisted' inside and so full of venom/hate/disgust at those who they perceive to either have wronged them (directly or indirectly) or at those they consider to be "chutz l'machneh" that it is just impossible to have any kind of conversation with them. They never retract, apologize, or even seek to see the other side's view. It's not even that they won't do so, it seems that CAN'T do so -- it's just not in their DNA. Overall, it's a real tragedy and rachmanus on them IMHO.

  6. I am not sure Prof. Elon needs me to defend his Torah credentials but he is not just a graduate of Hebron Yeshiva. He was one of its most outstanding Talmidim and graduates and dedicated his life to developing Mishpat Ivri based on Torah principles.

  7. Dovy I have answered you. I doubt my post will be allowed. Not sure why DT just does not have the guts to show his pravda nature and ban me outright as the truth hurts badly.

    1. Rabbi Dovid Eidensohn also told you, that you were crossing the line. Perhaps you should think about that.

  8. "Rabbi Dovid Eidensohn also told you, that you were crossing the line. Perhaps you should think about that."

    so you are now a co-author of the blog. but he never crossed the line and you haven't crossed the line and dovy never crossed the line and gil student on rav abraham never crossed the line?

    1. Huh? Co-author? I was referring you to the comment that Rav Dovid Eidensohn made to you:

      Dovid EidensohnMay 9, 2012 6:17 PM
      I understand your enthusiasm to battle for the truth, but there is a tradition that at this time of the year, the students of Rabbi Akiva died because they argued about Torah and forgot basic respect. I wonder if this is appropriate on this blog when two people are always fighting with each other. At least, this time of the year, we should try to show some respect and at least not to be too terrible. I come from a school that believed in murderous arguments all day in the study hall, but who got personal? In a second the argument time was over and people were the best friends.

      I cannot say what the blog owner's feelings are, but I do know that none of them ever insulted Rabbanim or resorted to racial epithets.

  9. "I cannot say what the blog owner's feelings are, but I do know that none of them ever insulted Rabbanim or resorted to racial epithets."

    I answered the utter hypocrisy of dovid eidensohn but my reply was pravda'd as this one most probably will be.

    I know you tzadok insulted both rav shach and rav menashe klein and made racial epithets yourself.

    1. No I did not insult Rav Shach, I said his opinion was wrong. I did not insult Rav Klein, I said his opinions on many things are universally rejected.

      In hilchot Shabbat, discussing Kameot, where the GR"A says about the Rambam's understanding of all things Kabbalistic, "The Rambam began the study of secular philosophy which lead him down the wrong path, so one should pay no heed to his opinions on these matters." Was the Gra(has v'shalom) insulting the Rambam? No, he was simply saying that he had erred. Yet you fail to grasp that.

      I employed no racial epithets.

  10. pretty pathetic tzadok that you believe in censorship especially when you and your fence sitter pal can't answer.

    1. I have no idea what you are talking about.

      I am sure that if you were to word your questions at all politely, like the vast majority of commentors seem to be able to, that D"T would put them through.

      As far as fence sitting. Not everyone needs to be an extremist Stan. In fact the Rambam, the Arizal, Rav Haim Vital(not in the name of the Ari), the Gra, Rebbe Nachman... and several more that I could mention state that the extremes are always in error, and that the middle path, what you seem to call fence sitting is the path of truth.

  11. Eabbi Eidensohn:

    May I suggest you start a new post for a discussion of "Is a civil divorce at all relevant in the Jewish divorce (Gittin) process?"

    The MO's constantly repeat - she got a civil divorce so now he must give her a GET. As if it is relevant. We know that a wife ia NOT always entitled to a divorce-on-demand. So in a case where she is not entitled to a Get, by filing for civil divorce that doesn't suddenly give her a new right to a Get.

    1. Rav Dov Briskman, AB"D of the Philadelphia B"D(I don't think anyone is going to accuse him of being MO) requires a civil divorce before he will sit a B"D to give a Get.

      Making it a part of the overall process. To me it seems that they are protesting the cessation in the middle.

  12. The MO are doing differently than that. They are saying if she obtains a secular divorce then the husband must give her a GET.

    1. Well that is just absurd and obscene. And yes my patience with this conversation in general is running out.

  13. Previously I was condemned by Tzadok for expressing severe reservations about p'sakim out of the rabanut le'kula.

    need i say more?

    1. 1) You actually read FailedMessiah.... need I say more?

      2) When this happens in a private B"D there is no recourse, as they are accountable to no one.

      3) He also used to sit Rav Eliashiv's private B"D with Rav Eisenstein(of Leib Tropper fame) and Rav Zalman Kohen(leader of the Nahalaot pedophile ring).

      4) He was the Rav that Rav Eliashiv has been pushing to have installed as Rav HaIr of Yerushalayim.

      That there was one corrupt dayyan... so? That possuls everyone? The Sh"A was prepared for such a possibility, woe to him on the day of judgement, but to say that the actions of one man reflect back on every Dayyan that has sat that court... That is absurd... though normal for you.

  14. tzadok previously you accused me of falsely being unable to read hebrew. Well I am truthfully accusing you of being unabble to read English.

    this is what your feminist pal said in the article:

    "In the rabbinical courts," Sherman-Shani said, "there is no authority, no hierarchy. Those with the right connections in the rabbinical world get promoted. The strongest reflection of that is that some of the religious judges even ignore the rulings of the Rabbinical High Court and rule as they wish." Last year the rabbinical court system's 94 judges were hit with 70 complaints to Goldberg over alleged misconduct; the ombudsman found 14 complaints justified. Most involved what Goldberg deemed violations of the principles of fairness, or "natural justice."

    This is what she claims the rabanut is worth. hardly one man tzadok.

    1. Hmmm... to quote you, why should I believe a tzioni, a secular one at that?

      Beyond that, you mean that those with the proper Rabbinic connections outside of Rabbinut(say with Rav Eliashiv, or various Adurim) get promoted... How is that different from a private B"D in Israel? How is that different from say the Eda?

      If you use that as your criteria for possuling a B"D, you will find that there is no kosher B"D anywhere.

  15. correct. the only kosher B"D that I am aware of in the US are those of rav gestetner and rav abraham. they are for free and not business making machines and follow halochoh scrupulously.

    I still await clarification from you on Schachter and contempt and the fake geirus.

    1. Stan concerning the Seruv I have already answered you in its appropriate place.  I am sorry it has taken me so much time to get back to you on the Gerut, but I had a hard time finding out what you were talking about.  My web filter would not let me open the links you posted because of their inappropriate content(an issue I plan to address with D"T).    While I would have answered you in it's appropriate place, that would require necromancing a thread that is years old.  So here are my thoughts:

      1) That you read sites with such nevel peh and pritzus calls into question your morals and allegiance to Torah.
      2)That you would actually post them in the public sphere and ask other Jews to look at them put you over lifney iver and shows that you are mentally disturbed and morally depraved.
      3)  The gerut(I'm assuming you are talking about Ivanka Trump) was not performed by Rav Shachter as he only deals with Geirut at his own Yeshiva and does not get involved in other places nor is he on the panel of RCA Rabbanim that deal with Geirut.  Rather it was peformed by Rabbi Haskel Lookstein after she had studied with Rabbi Elie Weinstock.   I have not been able to find a single credibly news source that says Rav Schachter had anything to do with this.  So enough with your lies already.

      Forgive me if I do not take the word of a person who looks at pritzus regarding what is or is not a Kosher B"D.

      However concerning the use of protexia to get onto a Rabbanut B"D it is no different with any of the Edah Batei Din.  It is no different with any B"D.  What qualifies a person to sit on any of these Batei Din, including Rav Gestetner's is who you know not what you know.  None of them have oversight or hierarchy.

  16. by the way the way the chareidim in Israel manipulate appointments on the rabbanut shows the contempt the hold for this body. they are just trying to ensure parnossoh for a few of their mates.

  17. Sorry to drag this all the way back from cursing judges and holding teachers in contempt to questions/comments on the post...

    How does an aguna-state differ from a state of captivity?
    How does an aguna-state differ from a state of captivity when the one holding her is acting against the suggestion/request/appeal/ruling/order/demand/force of the B"D?
    Aside from the secular imprisonment aspect of certain wordings, what qualitative differences are there, in terms of refusing to comply with a B"D? What is the Halachic status of the offender at each state?


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