One factor to be considered is that the average Beis Din has very limited powers to enforce its orders. In Ontario, any power Beis Din had was stripped over 10 years ago by the government because Muslim Sharia Courts were starting to issue judgments and orders. There was protest from the Muslim community so the government took power away from all religious courts. So one could argue - what's the point of going the Beis Din if they can't do anything to back up their orders? One simple solution would be for the woman to go to Beis Din, point out they can't adjucate a divorce if the other party won't and get a heiter to go to a real court. This would help avoid the prohibition but it would also give the man some leverage as divorcing parties are allowed to arrange a deal outside of court and the Beis Din, with proper secular legal device, could arrange that.
“The Halachic Prohibition of Litigating In Civil Courts” Excellent, bravo. See https://www.jlaw.com/Articles/getart2.html “Furthermore, resorting to the secular courts to resolve disputes is strictly forbidden in Jewish Law.14 This transgression is described by the Shulchan Aruch as akin to blasphemy and "taking up arms" against the Torah.15” Also see http://www.jlaw.com/Articles/get_law3.html Hagaon R. Moshe Feinstein, zt'l, addressed the matter of mezonot (sustenance) being imposed by the secular court.
"With regard to your... question, if a secular judge imposes upon the husband, when he refuses to give a get, to make a payment of money to her for her mezonot and all her needs, is such a get considered a get me'usseh? Behold until he divorces his wife, he is responsible for her mezonot and all of her needs according to the Din (Jewish law) and she is even permitted to petition the secular courts for an order to compel him to provide her with mezonot and all of her needs. Even though the secular courts will order more than would a Bet Din, because those courts will compel him to support her even if she works and profits, when those courts order him to provide her with mezonot and with all of her needs under any circumstances, it is evident that if he divorces her in order to rid himself of this responsibility, that such a get is not considered a get me'usseh and that it is a "kosher" get, l'chatchilah. (Iggerot Moshe, Even Haezer Vol.4, 106. See also Vol.3, 44. For further discussion in regard to Ketuba and Mezonot in the case of a recalcitrant husband, see Chikrei Halacha (p. 261-282) by Harav Shear Yashuv Hacohen, Rav of Haifa.)
Allow me to talk of my case. Funny. See https://www.jlaw.com/Articles/getart2.html “Lack of appreciation of this basic premise -- that a Get is not to be obtained merely because one wants one - explains much of the erroneous thinking of the proponents of the Get Bill. Nothing in the bill limits its effects to where a competent halachic authority -- a Bet Din -- has found a Get called for. Surprisingly, the proponents of the bill have not felt a need to address this issue, although it seems that it is a call for "Get-on-demand" -- an anti-Halachic statement! (Try to imagine a bill passed in the New York State legislature which mandates that A pay B money, even when their monetary dispute is unresolved -- and A maintains vehemently that he owes no such money!)” I maintain vehemently that I owe no money to Susan, yet Judge Prus ordered me to pay forever 55% of my pension to Susan for moneys I owe Susan.
Not sure I would rely on this man's psak
ReplyDeleteOne factor to be considered is that the average Beis Din has very limited powers to enforce its orders. In Ontario, any power Beis Din had was stripped over 10 years ago by the government because Muslim Sharia Courts were starting to issue judgments and orders. There was protest from the Muslim community so the government took power away from all religious courts.
ReplyDeleteSo one could argue - what's the point of going the Beis Din if they can't do anything to back up their orders? One simple solution would be for the woman to go to Beis Din, point out they can't adjucate a divorce if the other party won't and get a heiter to go to a real court. This would help avoid the prohibition but it would also give the man some leverage as divorcing parties are allowed to arrange a deal outside of court and the Beis Din, with proper secular legal device, could arrange that.
I don't believe that the author was stating a peak. He was quoting an undisputed shulchan oruch.
ReplyDelete“The Halachic Prohibition of Litigating In Civil Courts” Excellent, bravo. See
ReplyDeletehttps://www.jlaw.com/Articles/getart2.html
“Furthermore, resorting to the secular courts to resolve disputes is strictly forbidden in Jewish Law.14 This transgression is described by the Shulchan Aruch as akin to blasphemy and "taking up arms" against the Torah.15”
Also see
http://www.jlaw.com/Articles/get_law3.html
Hagaon R. Moshe Feinstein, zt'l, addressed the matter of mezonot (sustenance) being imposed by the secular court.
"With regard to your... question, if a secular judge imposes upon the husband, when he refuses to give a get, to make a payment of money to her for her mezonot and all her needs, is such a get considered a get me'usseh? Behold until he divorces his wife, he is responsible for her mezonot and all of her needs according to the Din (Jewish law) and she is even permitted to petition the secular courts for an order to compel him to provide her with mezonot and all of her needs. Even though the secular courts will order more than would a Bet Din, because those courts will compel him to support her even if she works and profits, when those courts order him to provide her with mezonot and with all of her needs under any circumstances, it is evident that if he divorces her in order to rid himself of this responsibility, that such a get is not considered a get me'usseh and that it is a "kosher" get, l'chatchilah. (Iggerot Moshe, Even Haezer Vol.4, 106. See also Vol.3, 44. For further discussion in regard to Ketuba and Mezonot in the case of a recalcitrant husband, see Chikrei Halacha (p. 261-282) by Harav Shear Yashuv Hacohen, Rav of Haifa.)
Allow me to talk of my case. Funny. See https://www.jlaw.com/Articles/getart2.html
“Lack of appreciation of this basic premise -- that a Get is not to be obtained merely because one wants one - explains much of the erroneous thinking of the proponents of the Get Bill. Nothing in the bill limits its effects to where a competent halachic authority -- a Bet Din -- has found a Get called for. Surprisingly, the proponents of the bill have not felt a need to address this issue, although it seems that it is a call for "Get-on-demand" -- an anti-Halachic statement! (Try to imagine a bill passed in the New York State legislature which mandates that A pay B money, even when their monetary dispute is unresolved -- and A maintains vehemently that he owes no such money!)”
I maintain vehemently that I owe no money to Susan, yet Judge Prus ordered me to pay forever 55% of my pension to Susan for moneys I owe Susan.
Very interesting psak, thank you Gerald.
ReplyDeleteSo get m'usa is a bogeyman.