Random thoughts:
It seems to me that there might be three sets of issues preventing the non-chasidic rabbonim in the US from addressing the issues:
1. As you have noted, they are not willing to do anything that would involve subjecting R' Shmuel to any amount of criticism. I think these people could be divided into two groups.
a. There are some who want to protect R' Shmuel because they believe that anything he does is necessarily correct and that to question him is to question Hashem. Therefore, if R' Shmuel was involved in the heter, no one has the right to question the heter.
b. There are some who want to protect R' Shmuel because they believe that he is an important gadol who has devoted 70 plus years to serving the Jewish People. They are incapable of accepting the possibility that R' Shmuel did anything wrong. They believe that R' Shmuel (1) either has absolutely nothing to do with the heter or (2) at most they are willing to accept that R' Shmuel made an honest good faith mistake in being very peripherally involved in the heter. But they are unwilling to even entertain the belief that R' Shmuel either (1) was substantially involved in the heter, (2) would have any part whatsoever in advancing the heter in any possible fashion (including not objecting to the heter) if R' Shmuel had any doubts about the heter's validity [in other words, they believe that R' Shmuel was at most, peripherally involved in the heter, and that if so, he honestly believes that the heter is completely justified], or (3) wrongfully intervened in this matter in any fashion on behalf of a family with whom he has longstanding and extremely close personal and financial ties. It appears to me that even Rabbi Feldman and Rabbi Miller fall into this category.
2. Even if R' Shmuel did something wrong, exposure of this fact would somehow degrade respect for "Daas Torah" and respect for the "system." In short, they fear that transparency itself is harmful.
Within this category, (a) some believe that exposure of any wrongdoing or misconduct of whatever sort is generally bad, and (b) there are some who have a vested interest in a system whereby insiders, in which those who are wealthy, related or just well-connected, receive favorable treatment from the system - which in many cases doesn't involve other parties necessarily ending up on the losing end. They are unwilling or unable to disconnect the concept that a rich donor will receive attention and honor for no real reason other than that person being a rich donor (which is a reality, and oftentimes completely innocent, but something they might not want to acknowledge), from that bleeding over into such type of person getting an unfair advantage from the "system" when such person is involved in a dispute with a "plain" person.
3 - a Those who believe from a moral perspective that a woman is necessarily entitled to an unconditional no-questions asked get upon demand no matter the circumstances. They are therefore extremely uncomfortable with a situation where halacha results in a woman not being able to get remarried under halacha, and therefore willing to try to "bend" halacha in order to achieve what they see as the morally correct result. These people have adopted the general moral norms now prevalent in the U.S. that have their origins in the radical counter-culture of the 1960s. Some of these new moral norms generated by the counter-culture have seeped into even the most yeshivish parts of the Orthodox world. No-fault divorce against the will of either spouse was not available in any U.S. state before the counter-culture, but is now available in every U.S. state - and now seems, at least to many in the Orthodox community, to be the obvious morally right answer. Other norms of the counter-culture may not have yet been adopted by the yeshivish, but have started seeping into more left-wing parts of the Orthodox community as well, such as the Open Orthodox attitude towards gay marriage.
3-b There are also many who believe that 3-a is the position of the masses and that the rabbonim have no choice but to go along.
Rabbi Eidensohn, why don't you just rename the blog "cognitive dissonance" and be done with it. I'm not sure a better example is going to occur prior to the moshiach's arrival. If no real logical argument as to why RSK is correct, assuming his involvement in the heter has come, it will never come.
ReplyDeleteWho signed the siruv against AF? Who was at that meeting?
ReplyDeleteThere’s an interesting parallel to this discussion in the Noda Biyhuda’s approach to R. Yonason Eybeschutz. As Dr. Dovid Katz discusses in his thesis, on a private level, the Noda Biyuhuda severely disapproved of R. Yonason.
ReplyDeleteTo quote Dr Katz, in a private letter in which he sought to dissuade the Hapsburg authorities from granting R. Yonason permission to move
to Prague, “Landau also declared that Eibeschutz was not a man of good
character, that he pursued a disgusting lifestyle and was morally unclean. Most importantly, Landau accused Eibeschutz of being a Sabbatian, a religious heretic who had been placed under the ban by the leading rabbis in Germany and Italy”.
Nevertheless, on a public level, the Noda Biyhuda defended R. Yonason, because, to quote Dr. Katz, “a man whose public life was so exemplary, who was a gadol ba-Torah, a first-rank rabbinic scholar, communal rabbi, rosh yeshiva, and pietistic preacher, could not be a heretic because if he were, the consequences would be too horrific to contemplate”.
RDE said Rav Ahron Schechter shlita wrote a good letter after Sunday's meeting.
ReplyDeleteWhy do you assume that no fault divorce is not the true torah way?
ReplyDeleteJust because there is no specific halacha forcing a man to give a divorce on request does not mean it isn't what the torah demands of him.
There are mitzvos aseh to 'walk in God's ways', 'Love your brother', 'don't bear a grudge'...
The torah doesn't force someone to be a decent person which is why there is no halacha to force a man to divorce (without abuse). But to try and claim that being decent is a modern moral invention?
Don't argue that a woman should just stay in an unhappy marriage. I am talking about after counselling and one party is adamant that is time to go. You think the torah way is for a man to keep a woman living in misery?
Halacha works on technicalities. What is 'bending halacha'? It is law system with built in loopholes. You think rabbonim have been tricking God by working out ways to ease life whilst still adhering to the strict letter of the law? Look at eruv, selling chametz, prosbul... 'Bending halacha' is built into the system to allow for special circumstances. That is why you have 'gedolim' - because they have the knowledge and experience to judge when it is appropriate.
unfortunately it only deals with part of the problem
ReplyDeletePure ignorance. Not even worth a response. You go on with what you think the true Torah way is, and religious Jews will continue to follow halacha.
ReplyDeleteWhich part of the problem does it deal with and which part doesn't it deal with?
ReplyDeleteYou are category 3a.
ReplyDeleteAs Hillel said "What is hateful to you, do not do to your fellow: this is the whole Torah; the rest is the explanation; go and learn."
ReplyDeleteGo and learn and maybe you will not think people who follow halacha are so ignorant.
Oy, let's see it already!
ReplyDeleteIt's all about who's friends with whom and who identifies with whom.
ReplyDeleteLook at it this way:
Had the hetter instead come from Open Orthodoxy, everyone from Cross Currents to Matzav to the Mo'etzes to the RCA would have been tripping all over one another to condemn it (endlessly). One would have thought that the world as we know it was coming to an end.
Had the hetter instead come from The RCA, everyone from Matzav to the Mo'etzes would have been tripping all over one another to condemn it (endlessly). One would have thought that the world as we know it was coming to an end.
Had the hetter instead come from Lakewood or from a posek in the Chassidishe world or Eida Chareidis, no Rabbonim from anywhere would dare say a word. (And that includes those who self-righteously condemned the Kaminetsky hetter.)
So, it's not about the Torah, but supporting those you identify with and fearing those who play very, very rough, should you cross them.
The sages who made those were called takanos. They were true accommodations. They had the 1) wisdom to know what is a takanah and what is Reformation or abrogation of The Halacha and 2) they had the authority to do so. To illustrate this gross error: did Rabbeinu Gershom have the wisdom and authority to take away a man's right to forcibly divorce his wife?
ReplyDeleteThere are many circumstances where halacha specifically states that a man needn't give his wife a divorce when she asks him for a divorce.
ReplyDeleteThere are many circumstances where halacha specifically states that a man needn't give his wife a divorce when she asks him for a divorce
ReplyDeleteI'd like to see it first
ReplyDeleteYou mean B'nai Torah will continue to follow halacha. ...
ReplyDeleteBut there is a big difference. Try to bribe the Eida Hachareidis. No such thing as buying a Get, e.g. 60G a pop.
ReplyDeleteHe is not wrong, most of us reading this blog agree with David but don't bother responding. You dismiss him too quickly. Lo Ba Shamayim He means something. Torah is here, not in Shamayim. and that is why the Rabbanim have not spoken out loudly, even if they may disagree with the heter, other Rabbanim have interpreted the circumstances to allow this women to be free. And we can accept that, even if we don't agree. The poll in the upper right corner is very telling, I'm surprised the moderator is letting it stand and not trying to change the numbers or take it down. The question, although posed in an extremely prejudicial manner calling it an "adultery heter" but still the vote is that it is this very blog that is detrimental to yiddishkeit, not the heter. The heter is a reality, what is done is done. Once Bais Din makes a decision it stands, right or wrong, it stands. Lo Ba Shamayim He. I have been quietly reading the back and forth from the same people on this blog. As a person who reads mostly, rarely comments, I will tell you what I see in the comments on this blog visa vi this case . I see nastiness and hatred. I see people who have an axe to grind, who must have gone through their own nasty divorce and bring their baggage to this blog. I don't see objective rational thinking. And I see a lot of name calling. But mostly from just a few of the regulars who don't seem to have a real purpose in life. There is a very clear historical precedence for Mekach Taos, and if the Rabbanim believe this case fits then without any real knowledge of the facts, we must accept that. It doesn't mean you have to agree, but whats done is done. I read somewhere that the Lubavitcher Rebbe gave a heter to a women retroactively after she had already received a get, but he declared a Mekach Taos and allowed her to marry a Cohen. To make sure the olem didn't think it was because the new husband was disqualified as a cohen he also made sure he had the cohen aliyah by kriat hatorah. I am looking for the source, I came across this a while back. If anyone out there can source it for me, please do. And for those hatefilled and spiteful commentators out there, get a job, or do some volunteer work, make your life more meaningful!
ReplyDeleteAccording to the Torah, no such thing as default Get. Unless umotso ba ervas dovor, no get on demand. You forgot to mention horo'os sho'o. All these exceptions are not for loopholes, in any case they are given for ne'emonei laH' ultoroso, and not for crooks e.g. OO. This fiasco is poked with holes of lies, and which should have never been touched by those people that mishandled it from A to Z.
ReplyDeleteDid Hillel mean that I cannot own a slave? Jewish or a goy? After all, I don't want to be a slave. In fact it is forbidden to free a goyasha slave. So where is the morality.
ReplyDeleteTorah has its laws and in 2016 some people consider them moral and some consider them immoral (Slaughtering meat, wearing leather, eating milk and eggs, owning slaves)
So too, there are laws as to when I have to free my wife - just as there are laws when I have to free my slave. Not to sound like a male chauvinist, forcing me to free my wife when it is not required by the Torah is taking my property rights away (HaIsha Niknas) equal to forcing me to free my slave..
Had it come from Lakewood, the Chassidishe" world or the Eidah HaChareidis, Reb Daniel and his brother Reb Dovid would condemn it and I would have publicized it.......
ReplyDeleteAs in all human endeavor, politics are always a factor, but it's not all about that.
ReplyDelete"Need not" is not the same as "should not." David is arguing for "should" even where there is no obligation. You are not addressing his point.
ReplyDeleteMoe, perhaps it is time to focus that noar only from the halachic standpoint is that correct, but also from the Torah outlook, it is morally and ethically absent any notion to compel a get on demand. .....
ReplyDeleteYes, Hillel's golden rule of V'ahavta l'rai'acha komochoh", the foundation of Torah with the rest of the Torah its explanation. Abrogation of vahavta l'raiacha komochoh in its details ruins the essentials and ultimately, the essence of this mitzvah. .....
ReplyDeleteYet the question would beggars to be asked is, why don't the leaders of the ultra orthodox realize that they practically don't have a choice but to come out strongly even for their own standing in their own community , it might not be obvious right away but this will definitely be a watershed event which for years to come will show them to be paper tigers who really won't stick up for anything. since no one yet has given any argument to justify this , hence is no justification to keep quiet.
ReplyDeleteeven worse will be a half-baked letter which will clearly show their hesitation to do the right thing, all the world will have a document signed by ultra orthodox leaders defining themselves , as people who talk the talk but don't walk the walk
You sound like a conservative rabbi I once knew years ago, who told me that he won't teach the story of Purim to his students because the story contains violence. And violence is not a true Jewish value. To him the most important of all holidays was Tu b'Shvat because it was "green" and non-threatening. Truly Jewish. He also didn't deserve a response.
ReplyDeleteI'll spell it out for you. When a man (or a woman) has rights under din Torah, there is no reason they should forfeit those rights, whether it's a din Torah over a broken partnership or a marriage. If the party wishes to be nice, that's up to them, and they may get extra credit.
Again, nobody on this blog wants people to be mean just to be mean. I'd like to see how you behave when your wife takes your kids away from you and moves out of town, and demands a get immediately. I suspect that all your tzidkus will be k'tzel oveir.
Many great rabbonim have spoken out very loudly against this. The reason some rabbonim have not is either because they respect and revere Rav Shmuel, or because they know that Rav Shmuel is a formidable foe to have. Not one rov has come out to say that this hetter is valid. Not one. And there won't be any coming out to back the hetter, because everybody knows it's baloney.
ReplyDeleteTalking about not being rational. You wish things could be different, so in your fantasy land they are. I'll stick to halacha.
Which RDE? And where/when did he say this?
ReplyDeleteHow do you know who most people agree with? You took a poll? One thing I certainly see is that the people who advocate for get-on-demand, be it halachically, be it morally, it isn't just lacking in Torah knowledge, it is a lack in hashkafos HaTorah. Those who think they have sources, if they can sit down or hear others out, they would realize what they have gained and realize that they have become changed people, not just in knowledge, but in the important realization that to know what is RIGHT, (not just what is legal,) we there too need to consult the Torah.
ReplyDeleteSpeaking about volunteering, Rav Moshe Feinstein zt"l, said that just as a person must donate a tenth of his earnings to tzedakah, so must a person volunteer a tenth of his time to help others.
Speaking about a meaningful, there's is nothing greater than taking out some time to meaningfully educating others in the derech HaTorah, if they wish to honestly hear you out, and if not, at least others who will see the post will discern the truth about important tenets in Yiddishkeit.
Please see the first mishna in the tenth perek of Yevamos where a psak of bais din is overturned by the fact they were mistaken. Also please see Maseches Horuyos which deals with mistakes in Psak. Also see Bava Kama 100a which discusses the situations the dayan has to pay to the person he damaged with his mistaken ruling. The ketzos on the tosafos there writes that the reason that false witnesses are only called Garmi is because the dayanim are the most direct damagers. These are some of the sources which occur to me at the moment. I think you are confusing the Halachos of Kidush Hachodesh where Bais Din's decision stands( the Gemora in Rosh Hashona learns this out from pesukim; none of them are the one you quote) even if they were mistaken. This rule doesn't apply to any other function of Bais Din. Please correct your mistaken post.
ReplyDeleteAgreed. Perhaps I am making a somewhat different point than david. Part of what I am attempting to convey is that if a spouse foolishly insists on remaining married often he/she has that halachic/legal right. It may be wise as a friend to advise giving a Get, but if he/she stubbornly insists on invoking their legal right to remain married, the exercising of that halachic right when it exists must be honored.
ReplyDeleteAgreed.
ReplyDeleteI would add a 1(b)4, these rabbonim want to reserve themselves (or see this as an opportunity to do this) to issue outlandish psakim (leKula or leChumrah) that would never fly otherwise.
ReplyDeleteIf this matter is accepted, their power now increases exponentially. Their newer psakim, whether motivated by category B, or motivated by other considerations. (I'm not talking about 'eishet ish', but if RSK can get away with it, imagine what they can get away with now.)
The blog host here. He posted a comment the other day that RAS wrote a letter that he was waiting to procure a copy of.
ReplyDeleteWouldn't we all? Are you sure it exists?
ReplyDeleteDefinitely do not agree. A one-sided marriage is not a marriage but a prison. At some point, when it is clear that the marriage cannot continue, a get must be given. The dealings must be done fairly and in good faith, through bais din, but it is utterly wrong to make another person a prisoner by invoking a legal right to remain married when the relationship is over and one party refuses under any circumstances to remain married to the other. Where the dissatisfied partner is prepared to submit to bais din's ruling, such stubborn insistence on the part of the other is nothing but vindictiveness and rishus of bein adam lachaveiro to my way of thinking.
ReplyDeleteAre you disagreeing on the halachic level? Because the point I am making is that if the spouse has a halachic right to insist that a divorce not take place despite the other spouse insisting on it and despite the fact the neutral observers agree it would be wise for both parties to agree to divorce, his or her exercising that legal (halachic) right to decline to divorce, by Jewish Law, needs to be recognized.
ReplyDeleteIf what you're asserting is that at some point if one of the spouses unilaterally demands a divorce and holds out long enough in his/her demand for it, and indefinitely refuses to reunite or attempt reconciliation, then that creates a halachic obligation on the other spouse (who is insisting on shalom bayis) to finally agree to give/accept the divorce, then I rask you for your source in Shulchan Aruch demonstrating this be the case.
Moe, you always gracefully prove that halachically there is no such a thing as get-on-demand. I think it is a dovor poshut. However, it would be worthwhile (IMHO ,anyhow) to prove that even al pi YASHRUS, as I have attempted to illustrate on my post, "Chanukah and a woman right to divorce on demand" (I think that's the title.), for some reason there is absent an ethical suggestion in any manner, shape or form for a get, EVEN WHEN IT DEFIES *OUR* LOGIC such as the marriage is not working.
ReplyDeleteIf that's your point, then I don't think anyone would disagree; there are many ways for an individual to be a נבל ברשות התורה.
ReplyDeleteI believed both David and Tzvi are commenting on this aspect of the situation. I wanted to upvote them, but once they strayed into לא בשמים היא and comments about the 'gedolim', I think they went off the main point. Mr. Friedman (and I don't know him) is probably one of the few people who know TE best, and what she is capable of. I have no clue what he thinks he's trying to achieve by continuing this circus, but I think many of us on the sidelines are left scratching our heads wondering why he wants to stay married to this woman. You're right, Moe, Halacha allows him to make that choice, but if he hasn't figured out that he reached the point of יצא שכרו בהפסדו long ago, then his own mental capacity is definitely suspect.
You are superbly advocating for AF as they both obligated themselves to follow the rulings of the Baltimore BD which didn't obligate a get until/unless TE settles appropriately (visitation etc.).
ReplyDeleteHER behavior is thus "Where the dissatisfied partner is prepared to submit to bais din's ruling, such stubborn insistence on the part of the other is nothing but vindictiveness and rishus of bein adam lachaveiro to my way of thinking." Especially considering how hard she tried to destroy him as a person with the demonizing compain.
Besides, as far as she is concerned, she's not married to him any more and thus not committing adultery. Again, "stubborn insistence" to do things her way, no matter what the greatest poskim say.
David, I agree that if I'd make up a religion, I'll do it your way, but with the Torah in place, I would consult it first. R o determine both: halachic AND moral standpoints...
ReplyDeleteAharon Friedman is eligible for a heter me'ah rabbonim. He doesn't want to stay married to TE, especially if he's not allowed to. I have read the 'volleyball game' between you and Rabbi Eidensohn a while ago. No point in rehashing (in case you were going to). To be sure, you can ask him, but I think it is basically parenting time with his daughter that would conflict with his Friday work schedule.
ReplyDeleteDavid and Tzvi need to know that we consult Torah to determine not just halacha, but to know what is moral. Of course, we were given seichel to determine that, but. ......as long as it doesn't go against hashkafos HaTorah which unfortunately they unwittingly do regarding the *ethical* right of withholding a get.
Tzvi, Thinking further about your comment, why do you find it meaningful and worth your time to read as you say, hatefilled" and spiteful comments, if you wouldn't find them to have content?
ReplyDeleteSo please correct me if I'm wrong: to get the heter meah, he needs to have the get done anyway. Is that correct? Aren't we back to the original point then?
ReplyDeleteI was not discussing the AF/TE case at all. I answered a question as to general principles.
ReplyDeleteI am not saying anything about a halachic requirement within the framework of gittin. I am discussing what is proper and required from the perspective of bein adam lachaveiro, which applies no less in such matters than in any others. That's what I understood the discussion to be about.
ReplyDeleteDo you believe that there typically are bein adam lachaveiro requirements to give/accept a Get when the halacha itself permits the spouse to decline giving/accepting a Get that the other spouse desires?
ReplyDeleteYou're not wrong. But there are unscrupulous batei din that play hide-the-get with the wife. It's not uncommon.
ReplyDeleteI cannot answer as to what is "typical." But there's no doubt in my mind that a bein adam lachaveiro requirement to give a get can exist even if there is no obligation within the framework of hilchos gittin.
ReplyDeleteI determine a bein adam lachaveiro obligation by whether the marriage is definitively over for a significant period of time, with no reasonable hope of being revived. An example of such would be where one partner despises the other, and will not ever consider reconciliation.
I leave decisions as to publicity and pressure to qualified poskim, of which I am not one.
So when the Torah/Halacha says a husband does not have to give a Get per his wife's request, or when the Takana of Rabbeinu Gershom says the wife does not have to accept the Get that her husband wishes to give her, it is your contention that if the spouse wanting the divorce simply holds out long enough by refusing to reconcile the he/she created a bein adam lachaveiro obligation on the other spouse to give/accept a Get even though there is no obligation for it within the framework of hilchos gittin?
ReplyDeleteTo overcome the Halacha or R"G's takana the divorce-seeking spouse simply needs to hold out for enough time?
Yes, but she can pick it up when she complies with all the other halachos(ex.parenting time). PH, of course many, if not most, will tell you that the woman must be able to pick it up immediately without any strings attached, (they may even cite the Igros Moshe to back up their word,but nonetheless, there are those that will only release it to her, once she stops with the games...
ReplyDeleteLike which botei din?
ReplyDeleteRDE posted a teshuva on this blog from Rav Moshe Sternbuch shlita about a year or two ago that had a situation where the psak halacha was that the husband should be given a heter meah and then the beis din held unto the Get, but would not give it to the wife until she undid her wrongful actions in secular court.
ReplyDeleteSo, are you saying that the the Baal is done with it after a heter, and it is only the BD that plays further games if the wife doesn't jump through whatever hoops they have set for her??
ReplyDeleteIf that is the case, then this entire discussion is no longer an issue against the husbands, in any situation. It has become a taanah against the various batei din that would hold up a get that has been deposited with them.
As I said, if the marriage is definitively over, and assuming such matters as finances and custody are worked out, then forcing either party to remain in the marriage is cruel and thus a bein adam lachaveiro violation. The willingness of either party to hold out for what you term "long enough" is simply proof that the marriage is indeed over, and cannot be revived.
ReplyDeleteFrom the description you give, it appears that your position is that, effectively, either spouse has the ability to unilaterally create a condition where the other spouse is obligated to give/accept a divorce even if hilchos gittin unambiguously states that there is no obligation to give/accept a Get that the other spouse is requesting.
ReplyDeleteI don't believe this position is tenable.
I utterly disagree. There's no question that some marriages are unfixable, and calling it an obligation will not change that. At that point, forcing a person to remain bound in a marriage that has collapsed is cruelty. This is a davar pashut. Your position is as radical on one side as is Rabbi Behhofer's on the other side.
ReplyDeleteIt is very interesting what you were saying. However I would like to know the parameters regarding your idea. Did you ever consider a concept that a marriage is beyond fixable. As in there is been already ate few years or several years of separation? Is civil divorce has already been processed?
ReplyDeleteSee שו״ת חיים ושלום אבן העזר ס׳ קיב
Rav Chaim Palagi seems to inherently accept that there is such a possibility.
I don't disagree that sometimes a marriage is unfixable and needs to be ended in divorce. But for one thing, that type of situation is far less frequent than popularly assumed and even less frequent than when one of the spouses self-determined it is unfixable.
ReplyDeleteSecondly, it is not determined to be unfixable simply because a spouse unilaterally separated and held out for X amount of time (fill in X with your preferred set of time.)
Otherwise what you're creating is a tool for one spouse to unilaterally be able to create an automatic condition where he/she can obtain a divorce, even in contradiction to Hilchos Gittin which states unambiguously that certain conditions warrant the denial of one spouses divorce petition.
But, again, yes I agree that certain times a marriage indeed is beyond repair and should be gracefully closed with a divorce. But note that even in such circumstances, Hashem for His own reasons established that the Halacha is that a spouse cannot be told he is obligated to divorce if he wishes not to, but could only be advised that it is a good idea to choose to do so.
I addressed some of your points in my response to @kishkeyum, but civil divorce has no bearing on the situation as either spouse can unilaterally obtain a civil divorce even against the other spouses desire, including circumstances where the Shulchan Aruch paskens that the Halacha is that a spouses petition for a divorce is denied.
ReplyDeleteDis you see the mareh makom I referenced?
ReplyDeleteThe fact that a spouse is ready to "hold out" for a very long time rather than reconcile with the other party is itself strong evidence that the marriage is unfixable and that divorce is called for. "Holding out" for such lengths of time is not some cute ploy, it's a painful and difficult thing to do, and the fact that the person is ready to put themselves throught that bespeaks a strong distaste for the spouse, and an absolute refusal to remain with him/her under any circumstances. This is not some sort of stratagem I am "creating"; it is the proof of a completely broken marriage.
ReplyDelete@kishkeyum, If a particular case occurs where the circumstances are directly ruled l'halacha in the Shulchan Aruch and elsewhere by the poskim that the petition for divorce is denied (i.e. she has an eye on marrying someone else, she claims to have cheated but her husband doesn't believe her, she claims her husband beats her but beis din determined it to be false, she claims her husband doesn't fulfill his marital duties to her but it is determined at trial otherwise, or any number of other cases that halacha clearly specify the request for a divorce is denied), she can then follow the "kishkeyum solution" to divorce and move out for X amount of time and then come back to beis din and say, "whew, now you have to approve my demand for a divorce, unlike the denial in my first petition for it, since it is X amount of time since I walked out of the marital home"?
ReplyDelete@kishkeyum, the Mechaber also paskens by ma'ol alei that the husband is not obligated to give a divorce, even though (to borrow your language) there's "a real distaste for the spouse". Obviously the Mechaber disagrees with your assertion that he has a bein adam lachaveiro obligation to give a divorce when the Mechaber paskens he does not have to give a divorce.
ReplyDeleteYou make the point that it might be possible in some case or another for someone to get away with something like above. That doesn't change the fact that in most cases such as I describe, what's behind the lengthy separation is a profound alienation of one of the parties, to the extent that the marriage has to be ruled unfixable.
ReplyDeleteCorrect me if I'm wrong, but you appear to be saying that b/c someone might get away with something we should make a "lo plug." This is precisely what Rabbi Bechhofer prescribes for gittin, that the husband must give it automatically even if he is being greviously wronged. This illustrates my above point: that you and he are equally radical at opposite ends of the spectrum.
V'HOVAIN ES ZEH.
ReplyDelete(kain nireh la'aniyas da'ati)
"The fact that a spouse can hold out for do long is evidence. .."
ReplyDeleteOr it can mean that ORA, JOFA , her/his family any such characters have gotten the better of him/her.....
Not just "it might be possible in some case or another for someone to get away with something like above", what you are claiming is sure way for anyone in any case where halacha denies their request for a divorce to do a runaround the halacha to get the divorce that halacha says is denied.
ReplyDeletekishkeyum, I believe this psak of Rav Elyashev, including his citations of Shulchan Aruch, Rema and Tosfos support what I'm saying and are further proofs against what you are claiming above without providing any sources to support your contention:
ReplyDeleteKovetz Teshuvos 174
http://daattorah.blogspot.com/2012/04/rav-eliashivmaos-alei-get-not-required.html
http://daattorah.blogspot.com/2013/10/rav-eliashiv-maos-alei-from-kovetz.html
"You should know that she is not able to force her husband to divorce her since a woman goes out of the marriage sometimes according to her desires and sometimes not according to her desires. On the other hand the man only leaves the marriage only when he want to leave it... From all these you see that when a woman claims ma’us alei we do not force the husband to give a divorce... That is her din when her husband divorces her according to his wishes after 12 months. But if the desire to divorce comes from her – as we said before – he is not forced to divorce her. The words of the Rashba imply not only is the husband not forced to divorce her when she claims ma’us alei but that he has no obligation to give her a get! This is also apparent from the words of Tosfos (Kesubos 63).... Shulchan Aruch (E.H. 77:2): If she says that he disgusts me and I can not have relations with him – if the husband wants to divorce her she does not get any money from the Kesuba at all. Rema (E.H. 77:2)... All of this is only when she doesn’t give a reason and justification for her words as to why she finds him repulsive. But if she does give a reason for her words... And we don’t force him to divorce her nor do we force her to remain with him. And if you want to claim that he must divorce her – it is obvious that since we don’t force her to remain with him then of necessity that there can’t be an obligation of the husband to give her a get. It is the same thing.
(Emphasis' my own.)
a) The mechaber is speaking about an obligation within the framework of hilchos gittin. I am speaking about a bein adam lachaveiro issue.
ReplyDeleteb) A claim of ma'us alei does not necessarily mean the marriage is unfixable. They might be reconciled. I am speaking of a case where it is clear the marriage is unfixable.
See my response to you below, that was somehow posted as a response to Politically Incorrect's comment.
ReplyDeletea) With regard to the mechaber, I don't agree with your assessment. He's discussing hil. gittin, not hil. middos tovos.
ReplyDeleteb) With regard to sources, I have discussed this with a very senior and well-respected rav, who told me that R' Moshe gave him a time period of a year for when the marriage is deemed unfixable. As with all things, this is a general rule, but not an absolute one. It depends on circumstances (and that is how I meant it as well). Separately, I don't think I need a source to say that to be cruel to a person is a bein adam lachaveiro violation, and that forcing a person to a remain in an unfixable marriage is an act of cruelty. Do you dispute these general principles? If not, the question is only at what point a marriage should be deemed unfixable.
c) With regard to the teshuvah you quote above, he is talking about "forcing" the husband to give a get. I said nothing about forcing, but only about a bein adam lachaveiro requirement that falls upon the person. I don't think anyone claims כפייה for bein adam lachaveiro.
a) It is inconceivable the Mechaber would record a Halacha (in gittin or elsewhere) that is rendered moot by an opposite obligation in bein adam lachaveiro. Unless you are saying that this "midda tova" is not obligatory but something less than obligatory.
ReplyDeleteb) I respect that you spoke to a senior rov and his position, but nevertheless the position seems clearly contradicted by Rav Elyashev's written teshuva, including his cited sources. And the aforementioned teshuva specifically addresses the scenario where the separation has already been for an extended period.
I agree sometimes the marriage is unfixable (we may differ on what scenarios are unfixable) and in those cases he should give a Get from his own volition. But it appears from many poskim that even in such a scenario if he foolishly (foolish in my opinion) doesn't want to give a divorce, he not only isn't forced but he doesn't even have an obligation to. (Though he should be encouraged to give it.)
c) The teshuva, in addition to addressing the point about not being able to "forcing" the husband to give a get, specifically says in the teshuva that, additionally, he has no obligation to give her a get.
(From Rav Elyashev's teshuva: "The words of the Rashba imply not only is the husband not forced to divorce her when she claims ma’us alei but that he has no obligation to give her a get! This is also apparent from the words of Tosfos (Kesubos 63)".)
Sorry, Disqus didn't notify me about your reply here, as it often is acts like the 'neb secretary' that doesn't always give over messages. .....
ReplyDeleteUnfortunately, most botei din will not let a man go on with his life in the scenario that you have just mentioned. I am referring to the few that do.
If the wife is playing games with such things as going to court shelo 'din, then it would be appropriate for Bais Din to withhold the get untilthey secure her compliance.
Unfortunately the system in general that doesn't work that way, causes the husband to be in limbo much lowhich is the prime cause ( at least in my opinion) why women ending up as an "agunah".......
One final reply from me, and then I'll stop, since I don't think we are saying anything new at this point. The discussion in mechaber and poskim is about obligation within the framework of hilchos gittin -- what is required to order a husband to give a get and force him to comply. There is no hava amina that bein adam lachaveiro obligations fall into this category, and I never contended that they do. The point I am making all along in this discussion is that we all agree that some marriages are unfixable (however that is determined), and once it is so, it is cruel to compel the other party to remain in the marriage by preventing its dissolution. We all agree as well that a person is enjoined not to be cruel to others, estranged wives or husbands included. Ergo, there is a bein adam lachaveiro obligation to provide a get once other issues have been settled, even if no get is required under the laws of כפייה בגט.
ReplyDeleteIt's been a pleasant discussion on an unpleasant topic. All the best.