Wednesday, July 4, 2012

Marriage: Man takes - Wife doesn't give herself

Torah Temima(Devarim 24:1.3): If she gives him something and she says I am betrothed to you because of what I gave you - then it is not a valid marriage (Kiddushin 4b). Rashi explains that she says to him “You are sanctified to me.” But Tosfos questions this since the language of kedusha doesn’t apply to a man since marriage doesn’t prohibit him to other women [See Kiddushin (2b), What is the connotation of the term kiddushin? It means that she is prohibited to the whole world like hekdash.] Therefore Tosfos explains that it means that she says to him, “I am sanctified to you.” However in my opinion the language of “kidashto” does not indicate that she is saying,” I am sanctified to you.” If it did mean that then the gemora should have said that she sanctified herself to him. But in general it is not clear where you learn that a woman can sanctify herself to him - since it is well known in many places in the Torah that in marriage the husband is the acquirer or purchaser! It would appear according to Kiddushin (9a), “How is a woman married through a document? The husband writes to the father, Your daughter is sanctified to me – then it is a valid marriage.” Thus we see explicitly that even though in commercial documents the seller writes, I am selling you my field, but here the husband is writing, Your daughter is sanctified to me - and the father doesn’t write, My daughter is sanctified to you. That is because in commercial documents the seller writes that he is selling his property because the Torah makes everything dependent on the seller. In contrast concerning marriage, it says, When a man will take a wife and thus the Torah makes marriage dependent on the husband.” Thus it is clear from this gemora that if the Torah hadn’t stated “when a man will take” the Torah would be understood and logic would support this - that in truth a woman could betroth herself to her husband because it would be equivalent to her selling herself to him – as it states, “And he will rule over you” and well as Tehilim (45), “Because he is your master...” In fact the Rashbam (Bava Basra 48b) explicitly writes that the betrothal of a woman is equivalent to the case of the seller selling himself to the purchaser. [see my explanation in ohs 6]. The normal way of acquisition is that the seller indicates what rights he is transferring to the seller. However since the Torah added in the case of marriage, “When a man acquire a wife” - the husband is the one who has to be described as acquiring rather than the seller writing that he is selling his rights to the purchaser. This point is the intent of the gemora before us. That if the wife says she is giving her rights to herself to him and she says that he now possesses the rights to her in the normal manner of commerce where the seller says to the purchaser, Go and establish possession – the marriage isn’t valid. Since the Torah states, “when he will acquire a wife,” that makes the validity of marriage totally dependent on his taking the initiative in what he says and his act of acquisition.

36 comments :

  1. Would this imply that her consent is not necessary, since it is a transaction between her father and the bridgegroom?

    If her consent is necessary - where does it come in?

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    1. שולחן ערוך אבן העזר הלכות קידושין סימן מב סעיף א

      אין האשה מקודשת אלא לרצונה. והמקדש אשה בעל כרחה, אינה מקודשת. אבל האיש שאנסוהו עד שקידש בעל כרחו, הרי זו מקודשת, וי"א שאינה מקודשת, הילכך הוה ליה ספק. הגה: אמרה תחלה: קדשיני, וזרק קדושין לתוך חיקה ואמר לה: הרי את מקודשת לי, וניערה בגדיה תוך כדי דיבור להשליך ממנה הקדושין, ואומרת שלא כיוונה מתחלה רק לשחוק בעלמא, אפילו הכי הוי מקודשת (תשובת מוהר"ם סוף ספר נשים). ואין הולכים בענין קידושין אחר אומדנות והוכחות המוכיחות שלא כיוונה לשם קדושין (שם). לקח יד האשה בחזקה שלא ברצונה וקידש, והיא לא זרקה הקדושין, הוי מקודשת. אף על פי שמתחלה באונס היה, ונתן לה סתם ולא אמר לה כלום, הואיל ובתחלה דבר עמה מקדושין (הגהות מרדכי סוף גיטין). היה חייב לה מעות ואמרה לו: תן לי מעותי, וכאשר התחיל ליתן אמר לה: הרי את מקודשת לי, וזרקה היא המעות מידה, אינן קידושין (טור בשם תשובת הרא"ש).

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    2. שולחן ערוך אבן העזר הלכות קידושין סימן לז

      האב מקדש את בתו שלא לדעתה, כל זמן שהיא קטנה. וכן כשהיא נערה, רשותה בידו וקידושיה לאביה. וכן הוא זכאי במציאתה ובמעשה ידיה ובכתובתה, אם נתאלמנה, או נתגרשה מן האירוסין, הוא זכאי בכל עד שתבגר. לפיכך מקבל האב קידושי בתו מיום שתלד עד שתבגר, ואפילו היתה חרשת או שוטה וקדשה האב, הרי היא אשת איש גמורה. ואם היתה בת שלש שנים ויום אחד, מתקדשת בביאה מדעת אביה. פחות מכאן, אם מסר אביה לקידושי ביאה, אינה מקודשת. הגה: י"א דאין קדושין תופסין בנפל, ואם קיבל אביו בו קידושין והמקדש קידש אחר כך אחותו, צריכה גט (א"ז).

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  2. So this would imply that her consent is required from the age of 12, but not before?

    If her father married her off against her will before she is 12, she would be considered married? And if he had someone marry her through rape, she would be considered married too?

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    1. what do you mean through rape? If the father gives a 10 year old girl in marriage - she's married - that's not called rape - what you think the din should be - and what the definition of rape should be is not whAT THE TORAH AND THE REBONO SHEL OLAM SAYS IT IS.
      TORAH IS MI-SINAI AND WHAT EVER IT IS - IT IS - EVEN IF E DON'T LIKE IT -
      WE MIGHT LIKE IT THAT WOMEN CAN'T GET ALIYOS - THAT GOYIM (and jews in some cases) CAN BE BOUGHT AND SOLD AS SLAVES - THAT A WOMAN IS OBLIGATED TO HER HUSBAND (AS WELL AS A HUSBAND HAS CERTAIN OBLIGATIONS TO HIS WIFE) THAT A WOMAN CAN'T DEMAND A GET JUST BECAUSE SHE HATES HER HUSBAND - THAT ONE HAS TO GIVE AWAY 10 PERCENT OF HIS EARNINGS TO TZADAKAH - THAT MEN HAVE TO GET UP EARLY TO DAVEN - CAN'T HAVE CHEESE BERGERS - TAKE YOUR PICK OF WHat u don't like
      zos chukas hatorah - don't like it - tuff

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    2. Well that's one way that you can answer that. Another is to say that the Torah forbids us from marrying a girl off before she is thirteen as is cited in the Gemarra Kiddushin 29b Yevamot 65b, brought by the Tur and Shulhan Arukh Eh"E 1:3.

      As far as marriage via rape I believe he is talking about the Pssuk in Parashat Ki Sitzey. The whole subject is dealt with decently here. Though I think he leaves out some key points, it ought to suffice to the moment to get an idea of what is really going on.

      We do try not to turn people off from Torah.

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    3. This is the Shulchan Aruch you cited

      שולחן ערוך אבן העזר הלכות פריה ורביה סימן א

      מצוה על כל אדם שישא אשה בן י"ח, והמקדים לישא בן י"ג, מצוה מן המובחר, אבל קודם י"ג לא ישא דהוי כזנות. ובשום ענין לא יעבור מעשרים שנה בלא אשה. ומי שעברו עליו כ' שנה ואינו רוצה לישא, ב"ד כופין אותו לישא כדי לקיים מצות פריה ורביה. מיהו אם עוסק בתורה וטרוד בה, ומתירא לישא אשה כדי שלא יטרח במזונו ויתבטל מן התורה, מותר להתאחר. הגה: ובזמן הזה נהגו שלא לכוף על זה. וכן מי שלא קיים פריה ורביה ובא לישא אשה שאינה בת בנים, כגון עקרה וזקנה או קטנה, משום שחושק בה או משום ממון שלה, אעפ"י שמדינא היה למחות בו, לא נהגו מכמה דורות לדקדק בענין הזיווגים. ואפילו נשא אשה ושהה עמה עשרה שנים לא נהגו לכוף אותו לגרשה, אף על פי שלא קיים פריה ורביה, וכן בשאר ענייני זיווגים. (ריב"ש סימן ט"ו), ובלבד שלא תהא אסורה עליו.



      I assume you are familiar with the Tosfos at the beginning of the second chapter of Kiddushin?

      תוספות מסכת קידושין דף מא עמוד א

      אסור לאדם שיקדש את בתו כשהיא קטנה - ואף על גב דאמר לעיל דאיסורא ליכא משום דטב למיתב טן דו ה"מ בגדולה שהיא מתקדשת ע"י עצמה דכיון שנתרצית ליכא למיחש שמא תחזור אבל קטנה שמתקדשת ע"י אביה איכא למיחש שמא אם היתה גדולה לא היתה מתרצית ועכשיו שאנו נוהגים לקדש בנותינו אפי' קטנות היינו משום שבכל יום ויום הגלות מתגבר עלינו ואם יש סיפק ביד אדם עכשיו לתת לבתו נדוניא שמא לאחר זמן לא יהיה סיפק בידו ותשב בתו עגונה לעולם.


      and the Rambam

      רמב"ם אישות ג:יט

      מצוה שיקדש אדם אשתו בעצמו יתר מעל ידי שלוחו, וכן מצוה על האשה שתקדש עצמה בידה יתר מעל ידי שלוחה, ואף על פי שיש רשות לאב לקדש בתו כשהיא קטנה וכשהיא נערה לכל מי שירצה אין ראוי לעשות כן אלא מצות חכמים שלא יקדש אדם את בתו כשהיא קטנה עד שתגדיל ותאמר בפלוני אני רוצה. וכן האיש אין ראוי לו שיקדש קטנה ולא יקדש אשה עד שיראנה ותהיה כשרה בעיניו שמא לא תמצא חן בעיניו ונמצא מגרשה או שוכב עמה והוא שונאה.

      and the Shulchan Aruch

      שולחן ערוך אבן העזר הלכות קידושין סימן לז סעיף ח

      מצוה שלא יקדש בתו כשהיא קטנה עד שתגדל ותאמר: בפלוני אני רוצה. הגה: וי"א דנוהגין בזמן הזה לקדש בנותינו הקטנות, משום שאנו בגלות ואין לנו תמיד סיפוק כדי צרכי נדוניא. גם אנו מתי מעט, ואין מוציאין תמיד זיווג הגון (תוספות ריש האיש מקדש). וכן נוהגין.

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    4. So we have to wait for moshiach, and then it will be permitted again to marry off daughters under 12 against their will??

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    5. I gather that you have problems with men - including fathers - and view them as predators at best. In contrast the general assumption is that a father wants to do what is best for his child. Halacha is concerned about the well being of people- it is not an arbitrary torture device.

      If the child refuses to accept the marriage she is in the halachic category of moredes - and she is not required to live with her husband.

      The alternative is that the child is given the freedom to decide whether to get married. She decides not to get married and ends up without a husband. She is not independently wealthy and her family has no money. What happens to a single girl in those circumstances? You think it is preferable to have the freedom to be a prostitute then to marry someone you don't like as a 6 year old?

      The halacha, however, is flexible in this matter depending on the nature of society. According to Torah law the father can marry off his daughter against his will. The gemora notes that such is prohibited by rabbinic decree. Tosfos notes however that such is still done because his society was unstable and that it was best for the daughter to marry her off when the father could afford a dowry - rather than take the chance of waiting a few years and not be able to afford a dowry and the daughter would never get married or not find a good marriage.

      Instead of searching for examples of how Torah seems to be unjust - you should try to understand how it is in fact just.

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    6. Why do you assume a girl's only option, if she isn't married is to become a prostitute. That is ridiculous. I, for one, would rather risk my daughter having difficulty finding a husband than subject her to sexual bondage to strange man as a six year old. That is perverse.

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    7. The fact that in modern western societies there is some sort of safety net - doesn't change the fact that throughout history and unmarried daughter without money from a poor family - had significant problems. Obviously in the more advanced societies where this is not a problem the halacha is different - and that is what you see in the Shulchan Aruch. When was the last time you went to a wedding of a minor?

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    8. To Daas Torah and your comment to Helas:

      "I gather that you have problems with men - including fathers - and view them as predators at best."

      That was a snide and inappropriate remark. Do you really feel that it's no big deal give your ten year old daughter to an unknown man as a wife, making her available for sexual intercourse at his behest. Would you be happy to oblige your own daughter. To say that someone who finds that repellent has problems with men demonstrates such a profound lack of consciousness about these matters it is shocking that you are the same person who has done all this work. People really do grown unevenly.

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    9. Yaakov your comment is evidence that you haven't been following this discussion. Helas has been consistently attacking the Torah - something which doesn't bother you?
      She has consistently insisted that women are victims and abused by halacha. The obvious reason is that she doesn't like men - or perhaps you agree with her that the men - fathers brothers and rabbis are collectively abusing and dominating women as a Torah value.

      Do you agree with her anti-Torah anti -male point of view?
      So no it wasn't inappropriate.

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    10. To Daas Torah: Am I missing something here? I bring Helas' quotes. What is anti-Torah or anti male about these comments? They are real questions. Perhaps the last comment was sarcastic but not out of line. I certainly do not read it as anti-Torah or anti-male.

      Helas' quotes:
      1) Would this imply that her consent is not necessary, since it is a transaction between her father and the bridgegroom?
      If her consent is necessary - where does it come in?

      2)So this would imply that her consent is required from the age of 12, but not before?
      If her father married her off against her will before she is 12, she would be considered married? And if he had someone marry her through rape, she would be considered married too?

      3)So we have to wait for moshiach, and then it will be permitted again to marry off daughters under 12 against their will??

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    11. Yaakov yes you are missing something. Please go back and read Helas' comments - they carry one message over and over again.

      Without bothering to be aware of the previous comments you really are missing the context of my letter and your condemnation of my comments are out of line and ill advised.

      Helas has commented for several years on the blog under different names - but the message is always the same. She is very intelligent and sensitive but she has an anger against Torah and the rabbis. I have been publishing her latest comments because it looked for a while like she was mellowing.

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    12. @yakov:

      the 3) remark was not really sarcastic. I am seriously trying to find out whether I should wish for the coming of Mashiach or not, so I am trying to gather information.

      If the coming of Moshiach means that we reintroduce the four kinds of death penalty, that we allow fathers to marry away their minor daughters against their will, that we kill people we consider witches or heretics, I am not quite sure that I want to pray for it.

      Contrary to what Daas Torah likes to state, it is not quite clear-cut what the jurisdiction of a state based on Torah would look like.

      so yes, I try to identify what would be considered "moral" and "lawful".

      I do not really understand why Daas Torah objects to this truth-finding mission, since he himself amply posts texts that make judaism look incompatible with our sense of morality.

      So, Daas torah, if it is right that a father should be allowed to marry off a minor daughter against her will, why should it be wrong to make that point?

      By the way, there recently was a case where a husband did marry off a minor daughter without her consent, just to spite his divorced wife (with or without get?)

      I think the Rabbanim ruled in the end that the marriage was not valid, since the father did not disclose who was the husband and who performed the marriage. but the question is not as "out of the world" as it might seem at first sight.

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  3. I would like to know whether the attitude toward women as property that is expressed in this text...does it pain you to read that. Or are you fine with the sentiment as well as its conclusions. Does it concern you that women might take offense at this kind of talk or do you feel that any difficulty they might have is because they are not Torah-true.

    I personally, even as a man, cringe at the attitude and its language. It is not the way I relate to my wife (or to women in general), and it pains me to think of my daughters in those terms.

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    1. I feel your pain, bro'! I really do...

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    2. Stop cringing and be proud, and accept, the Torah. Period. The Torah is right and your feelings are wrong.

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    3. Ben Beno, I find it distasteful too. We're in luck, because we're not obligated to accept every hashkafic view! See Sefer HaEshkol, Rambam, etc. Even in the Gemara, if we don't like the hashkafic message, well look elsewhere, there are other interpretations by legitimate sources, both ancient and modern. There is no last word in hashkafa (beyond certain basic universally held beliefs as outlined in Rambam's ikkarim).

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    4. The act of marriage is a technical issue of kinyan. It is not a prescription for relating to your wife as a human being. It is not saying that a wife is to be treated like land or a cow because that also involves kinyan.

      The Torah says that the man must do the action of kinyan while the wife must be willing to accept.

      If the wife gives the husband a ring - they simply aren't married. Does that make you cringe?

      You are simply reading too much into the matter.

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    5. Yes, it is a kinyan, but what exactly is he acquiring? I was taught that it is not her person (he cannot sell her as he can other property) but her agreement not to enter into a marriage with someone else.
      Prior to marriage, she has the option of consenting to marry -- or refusing to marry -- any man she is halachically permitted to marry. She gives up that option by accepting a marriage.
      The option reverts to her upon his death or is returned to her by the get. Symmetry is preserved by the fact that the man must initiate the get and that she must consent to the reversion.

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    6. That should have read "cannot sell her as he does actual property"

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  4. Rabbi Avigdor Miller explains: "We realize that Adam was being prepared for a wife. The Creator employed the stratagem of having Adam search through all of the creatures that God had created to emphasize the great need for an appropriate mate. If Adam had been offered a wife without sufficient introduction, he may have considered her an encumbrance or a competitor. Every benefit is appreciated more fully if it arrives after its need is felt" (The Beginning, p. 78)

    This is why a man must acquire a wife for himself. It is so that he can treasure and appreciate her as in "Have joy with your wife....Be always occupied in your love towards her" (Mishlei 5:18-19). "Experience life with the woman you love" (Koheles 9:9).

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  5. A man wwho is married to a women can NOT force himself to have relations with her and if he does it is called rape in halacha too, and she caan ask for a divorce based on that.not saying that she should manipulate him with relations but if she says no then its no. If he doesn't like it then he should divorce her but he can not force himself on her if she says no. Its a very straight forward halacha.

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  6. It is all nice words, but the halachic reality is that even if he rapes her (and worse), she cannot acquire her freedom from him. She cannot annul the kniyan by disavowing her desire and willingness to be acquired by him. She cannot even purchase her freedom as can an ordinary slave. She remains his "property" until he decides to release her which may be never.

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    1. You keep insisting in ignoring the reality of the halachic literature. It is clear in abuse cases that the wife has the right to refuse to live with her husband and beis din will force him to divorce her.

      In the non-Jewish or secular world - there is also wife abuse. The difference is that according to Jewish law the marriage can only be ended by husband give a Get.

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    2. "It is clear in abuse cases that the wife has the right to refuse to live with her husband and beis din will force him to divorce her."

      Well the problem seems to be the burden of proof, and that it is not that easy to convince a beith din that abuse took place.

      I personnally know of a case where the wife was sent back to a psychotic husband, after several instances of beating, ("try to make shalom bayis, give him one more chance"), which resulted in him attempting to murder her.

      In the end, she got a get, but it was quite an ordeal.

      to put a long story short: even if there is abuse, it is by no means sure that beith din will rule that she can leave him and that he will be forced to give a get.

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  7. The bais din hears his claims that she is a moredes. Her claims that he rapes her. It's her word against his. Maybe they decide, because of the unclarity to not compel a get but rather that she should pay $100,000 to receive her get (this in fact just happened). And if if they do compel a get he can refuse to oblige and/or disappear.

    The question is how deeply the rabbinic system empathizes with her ordeal. If there is no empahy then it is as simple as you've expressed: "Sorry, this is what the Torah says...." If there IS compelling empathy and outrage with theses injustices which are not rare, then one searches hard for a solution, such as the proposal of mekach ta'ut.

    If you believe that HaShem reviles against the misuse of power that was entrusted to men, that happens in such cases, then you decide that HaShem would welcome a solution like mekach ta'ut to release the woman from her bondage to a mr. hyde when she thought she was marrying a dr. jekel. If you don't feel compelling empathy then you cleave to the status quo and condemn anyone who bristles under the injustice as conservative or reform.

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    1. It is not a simple dichotomy of those who empathize and those who don't

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    2. One of those "empathetic" rabbis was Rabbi Rackman and he set up a widely condemned beis din to free women from marriage based on a very loose definition of mechok ta'us.

      It is important to know that years before this aggressive act he wrote a book called "One Man's Judaism" in which he notes the leniency of Rav Moshe Feinstein in the use of the mechanism of mechach ta'us. Ironically he notes that while this is admirable there is a problem of undermining the sanctity of marriage by making it easy to dissolve a marriage.

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    3. "If you don't feel compelling empathy then you cleave to the status quo and condemn anyone who bristles under the injustice as conservative or reform."

      well said! That's exactly what is happening here...

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    4. Daas Torah wrote:

      "It is important to know that years before this aggressive act he wrote a book called "One Man's Judaism" in which he notes the leniency of Rav Moshe Feinstein in the use of the mechanism of mechach ta'us. Ironically he notes that while this is admirable there is a problem of undermining the sanctity of marriage by making it easy to dissolve a marriage."

      Well it's certainly no shame to come around and agree with R. Moshe after all. ;-)

      But the question remains, did the rabbis who dismissed R. Rackman's strategy really try to give it a chance. Did they try to make it work. Do they have trouble sleeping at night because they know that they are (by their inaction) accomplices to so much suffering.

      I can't say that I have explored the halachic intricacies in depth. Perhaps you have. I would be interested to hear. But it is certainly true that many an aguna finds herself trapped by a Mr. Hyde when she thought she was marrying a Rav Jekel. That seems like it has the necessary elements of mechach ta'us.

      I must say that my experience in the "great halls of learning" makes it hard not to get cynical and to wonder how much of the "establishment's" resistance to mechach ta'us is because it would erode male privilege by leveling the playing field so to speak. I am sorry to say this but I definitely hear, sometimes explicitly and sometimes between the lines, that that is a real concern.

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    5. Beb beno - your commments indicate more of an emotional reaction to this issue than an awareness of signficant difference between mechach ta'us as understood by R Rackman and how Rav Moshe and the rest of the world understands it. so your statement of that you haven't explored the halachic depths is important to note and raises the question as to why you are passing judgment on the rabbis without understanding what the issues are?

      There is no question that there is suffering - but that doesn't automatically mean that there is a solution is available - no matter how empathetic the rabbi is.

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  8. It is naive to believe that there is also not a great deal of corruption in the secular courts. My daughter is a legal professional who volunteers helping women and children who are victims of domestic violence.

    There are countless cases of women and children who are literally starving without child support while the ex husbands are wealthy professionals living in luxury.

    In one case I am aware of, the doctor husband flies to the Bahamas every weekend to scuba dive even though he owes back child support of $16k. The mother went to court pro se and the judge ruled that the father should pay $40 per month until the back support is paid.

    Another mother who went through the secular courts is earning too much as a day care worker ($1600 per month) to qualify for Medicaid and food stamps but her hot shot ex-husband who supports two other households of his mistresses can afford to buy himself a new $80k car for cash. This mother is living off of the food bank so that she and her children do not starve.

    Offhand, I know of several cases like this. Overall, most women seem fare much better through the Batei Din than in secular courts. No system is perfect but the Jewish court system is the most compassionate to women and children in the world.

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    1. Rabbi Y.G. Bechhofer has remarked that it is understandable that women turn to secular courts because of corruption in batei din. Isn't it the case that many men demand many thousands of dollars for a get, and batei din go along with this?

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