Tuesday, January 20, 2015

Problem of Get on demand and Stealing money through secular courts: Rabbi Chaim Malinowitz

JLaw     Section One
Apart from the bill's flaws with respect to the validity of Gittin, there are three other anti-halachic effects. In the opinion of this writer, these effects are so manifest, so incontrovertible, that it is mystifying that any Orthodox Rabbi, much less any rabbinic institution, can be in favor of it.

I. The first basic flaw in the Get Bill is that it is intended to aid in procuring a Get -- even if there is no reason according to Jewish law to assume a Get to be appropriate.

Halacha does not sanction a Get on demand. True, by biblical law, a man can divorce his wife against her will, without giving any reason whatsoever (although it is "religiously forbidden for him to do so until he has "due cause").6 The woman, on the other hand, cannot initiate the act of divorce, although she can claim to have certain specific grounds for a divorce. In other words, she can become the plaintiff in a Din Torah (a legal suit before a Bet Din), claiming that a Get is due her. If she wins her case, the Bet Din will order the husband to give a Get. [...]

Without this halachic process, no one is justified in assuming that a Get is obligatory or even appropriate. Halachically, the marital state cannot be rent asunder on a mere whim, or because of boredom or lack of excitement or inconveniences. Rather, there must be halachic grounds for a Get.[...]

These laws which govern the grounds for a Get are the same as all Torah laws which govern our lives: Just as the laws governing Tzitzit, Tefillin, Shabbat, Lulav and business dealings are those dictated to us by Shulchan Aruch, so, too, are the halachic rules which concern grounds for divorce. Anyone purporting to live a life governed by halacha must orient his/her thinking in this direction. Therefore, action taken by anyone to facilitate a Get for a man/woman if the Get is halachically unjustified, even if that action does not halachically invalidate the Get, is anti-halachic. [This does not refer to friendly persuasion. Surely an outsider, considering it irrational for a spouse to continue a marriage when the other spouse wants a divorce for any reason, would consider it correct to advise a partv to take/receive a Get. But any action beyond such friendly persuasion is morally wrong.]

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!) [...]

III. As we have noted, the prohibition of resorting to the secular courts holds true even if every court action happens to follow all the rules of the Shulchan Aruch. If there are any differences, the additional issue of out-and-out theft arises, if the courts award money or privileges to either party.21 (Even in circumstances where one had received permission from a Bet Din to "use the courts" one is prohibited from keeing any monies he is not entitled to according to halacha.)

The Get Bill encourages a woman to use the civil courts to set rates of maintenance and "equitable distribution despite the fact that she might not be entitled to that money according to Jewish law. For example, let us say a woman has no due cause (halachically) for a Get, but has opened a case as the plaintiff in the civil courts for a divorce. Rabbi Akiva Eiger discusses just such a case, and compares this woman to a classic Moredet (a rebellious wife) who is not entitled to receive any support whatsoever. Certainly, too, "equitable distribution" has no halachic equivalent, but is merely the transference of property from one party to the other by state fiat; this money, then, does not belong to the acquiring party al pi din.24 (The chances of "equitable distribution" being covered by the rule of Dina D'malchuta Dina are almost nil. [...]


  1. Has the law remained unchanged since the date of that article (which clearly was written some time ago)? Has doubt indeed been cast on all gittin emerging from NY State? In short, have R' Malinowitz's predictions been proven correct?

  2. HaGaon Reb Yosef Shalom Elyashev zt"l was very much opposed to those Beth Dins or secular courts that don't follow the Shulchan Aruch and coerce Gittin. He told me that any Beth Din that coerces a GET not according to the Shulchan Aruch that he takes away from the Beth Din Chezkas Beth Din, meaning, all Gittin that it makes are not accepted, and the woman who had a GET from such a Beth Din must have another GET from a proper Beth Din. Recently, this has been taught in a letter from Gedolei haDor in israel Reb Chaim Kanievsky, Rav Shmuel haLevi Wosner and others, that any GET produced by the coercing Beth Dins in violation of Shulchan Aruch are invalid and the wife must have another GET. See Mishpetei Yisroel (call to get one at 845-352-0532) Incidentally, if the wife remarried and has children, she is possibly forbidden to her first and second husband, and her children may be mamzerim, if her GET was invalid.

  3. "In point of fact, two gedolei haposkim of our generation--Rabbi Shlomo Zalman Auerbach and Rabbi Yosef Shalom Elyashiv--have opined that gittin issued pursuant to the provisions of the New York law are tainted with the stigma of get meusah and the law should be repealed or substantially reformulated.10 Indeed, Rabbi Elyashiv mentioned that the get would be invalid even if issued in conjunction with a bait din's compulsion order, since even here the secular court would not be imposing sanctions for the purposeof enforcing the bait din's decision."

    "Indeed, some have said that under Rabbi Elyashiv's reasoning, not only would a get be invalid if issued pursuant to a court's forfeiture order but every get issued in New York State is potentially invalid (even if no court proceeding was initiated), since the husband knows that if he would not give a get, the wife could have recourse under Section 236B."


  4. "(from JLaw article) The Rabbis acted to equalize the woman's power with the man's...action taken by anyone to facilitate a Get for a man/woman if the Get is halachically unjustified, even if that action does not halachically invalidate the Get, is anti-halachic" -

    One could therefore conclude both in regard to the "agunot" organizations such as ORA, and the MO prenup agreements, whose sole function is to force a GET only on a man, but never force a GET on a woman - they are attempts to dismantle a somewhat equalized halachic system, and replace it with a gender biased, anti-male, anti-Torah divorce on demand regime where all divorce power is vested in the wife.

  5. A living example of Beis Din rejecting a request for divorce and telling the couple to remain married even though one wanted a divorce:



  6. I have just posted to my blog a link to a series of articles surrounding the 1992 New York State Get Law. When one reads the articles in total it is obvious that the poskim do consider it unethical for a husband to withhold a Get in a dead marriage - even if the couple has not been to Beis Din. The biggest proof for this is that the entire discussion revolves only around the 1992 Get law. The poskim overwhelmingly supported the 1980 New York State Get law. The difference between the two laws was technicalities in halacha. But, all agree that when those technical issues are solved, the giving of the Get by the husband is a most desired result. Please take a look at all the articles in order to really understand the issues here.

  7. All you did was bring a couple of MO rabbis like R. Michael Broyde. The MO have for the most part eschewed Shulchan Aruch and normative halacha on divorce issues and replaced it with the egalitarian approach feminists have been demanding.

  8. The opinion of the Chareidi community has always been that we want the husband to give the Get, but we just have no way to force him to give it.

    That is why, many years ago when Rabbi Emmanuel Rackman came up with his halachic solution, the criticism was only on the halachic validity of his method, but no one criticized the desirability of the Get being given.

  9. Translation from JBlog's MO Feminist Doublespeak:

    "a dead marriage" - meaning we will support the wife when she wants a divorce for any reason regardless of halacha

    "poskim" - meaning politicized MO rabbis, who can't quote authentic Torah sources for their positions, and whose congregations will fire them immediately if they dare refuse to support divorce on demand

    "even if the couple has not been to Beis Din" - meaning we couldn't care less that the husband has been tossed out of the house on fake DV charges, is being denied any access to his children, and forced to pay CS and alimony much higher than required by halacha

    "the giving of the Get by the husband is a most desired result" - meaning the only thing that matters to us is meeting the wife's every demand

  10. "egalitarian approach feminists have been demanding" - You've taken the bait here. The MO feminists, like the non-Jewish feminists, are not "egalitarian" at all, they are totalitarians. Their prenup agreements and divorce regimes reduce men to sperm donors and ATM machines, and strip men of any equality with women. When was the last time you heard any MO feminists call for 50% shared parenting in divorce agreements?

  11. That's baloney. That never was and isn't the Chareidi community's opinion or position. You repeatedly attribute to the "Chareidi community" position and beliefs that are untrue and that the Chareidi community does not and did not believe. You also have a great misconception of what the Chareidi community does. You keep saying the Chareidi community usually uses arkapos, equitable distribution, etc., when these are in fact not what is typically done. You simply have your facts wrong.

  12. Please consider fully what I'm writing first because you are not understanding. The issue with the 1992 law is exactly as you explained. It may be problematic coercion according to halacha. But the 1980 law did not have this issue as you explained. But here is your error. The 1980's law was applauded by the poskim - even the haredi poskim - because it encouraged husbands to give a Get in a way that was not problematically coercive according to halacha. In other words, poskim were happy that husbands were being encouraged to give Gittin even though the couple had never visited Beis Din. Even Rabbi Malinowitz agrees with this as he himself writes that the 1980 law met with widespread approval. The only confusing point made by Malinowitz is at times he uses arguments against the 1992 law that imply that he might not be happy with the 1980 law as well - that is what Broyde points out. But, in any case, Malinowitz explicitly writes that the 1980 law was positive.

    All this means that even in cases where haredi poskim oppose coercion entirely, they still would like to see a Get given. To put it another way, if the husband would ask the haredi posek whether he should give the Get morally and ethically even though they never visited Beis Din then the posek would say yes - so long as the marriage is clearly over. But, if the query would be should Beis Din actively try to force the husband, then the stricter poskim may say that is problematic.

    What I am saying is clear if you actually read through the discussions back and forth with regards to the 1992 law. Rabbi Eidensohn pulls paragraphs out of context and readers are not necessarily aware that the discussion is only about coercion and only relevant to 1992.

  13. @JBlog Where do Rav Eliayshiv and Rav Sternbuch say that when the husband withholds the Get - not because of spite and hatred - but because of substantive issues such as that she went to secular court and was awarded payments which are against the Torah or custody which keeps him from his children or that she has falsely accused him of abusing her or the children - that he must give a get?

    You are mistaken in thinking that the only factor in giving a wife a get is that she has succeeded in waithing 18 months!

  14. You are dodging the issue. Focus on what everyone is saying in these exchanges. They are saying that the 1980 law was good because it encouraged husbands to give Gittin to their wives even though no one had visited Beis Din. In general, without hearing any sides of the issue, poskim felt that husbands should be encouraged to give Gittin to their wives in cases where the marriage was clearly over. The determination of clearly over based on common sense and not a hearing in Beis Din.

  15. That's probably because of how you phrased the question. If you asked, "Rav Elyashiv what is the status of batei din that do not follow shulchan aruch?" - such an answer makes sense. But, if you ask, "what is the status of the Beth Din of America - here is their teshuva explaining their position?" - and he read their actual argument, I'm sure he would at the very least consider it a legitimate beis din. He might have even agreed with the teshuva once he actually gets all the information in front of him.

  16. He also probably trusted the talmedei chachamim of Beth Din of America to adjudicate these issues.

  17. I wouldn't bet on that.

  18. http://www.politicsny.net/feature.php?id=271&c=1

  19. In brief summation:

    The '80 law was designed to only affect husbands who wanted to get divorced - but refused to give a Get.

    Those men, I think, everyone agrees should give a Get. They don't want to be married to their wife. Why are they refusing to give a Get even though they no longer want to be married and live with their wife? Out of spite, anger, revenge, blackmail, ransom, or whatever else.

    Everyone agrees those men are required to and should give a Get.

    All the '80 law did was say, Mister - if you want a civil divorce and be able to civilly remarry you'd better first give a Get. Otherwise you cannot get a civil divorce or civilly remarry.

    The only time the '80 law kicked in and came into effect was when a husband who did not give a Get came to New York Supreme Court (that's what New York calls its lower courts) and asked the court for a divorce. That's when the law kicked in and said - No, Charlie, No Get = No Divorce. If the husband did not petition the New York Supreme Court for the State to issue a divorce then the '80 law never had any effect.

    The '80 law did nothing more than that.

    And the '80 law did not affect anyone else. Notably, the '80 law did not affect, and was not designed to affect, husbands who desired to remain married to their wife despite the wife desiring a divorce.

    So various rabbis supported the '80 because it was limited to affecting only husbands who wanted to divorce but were not giving a Get out of spite.

    The '92 law is a completely different animal and incomparable to the '80 law.

    The '92 law effectively demands that all husbands whose wife wants a divorce to give her a Get. Even if he doesn't want to get divorced civilly or religiously and wishes to remain married civilly and religiously.

    A rabbi having supported '80 in no way, shape or form can be read as thus by default supporting '92. A rabbi who applauded '80 in no way, shape or form can be read as thus by default applauding '92. A rabbi who applauded '80 because it encouraged giving a Get when appropriate can in no way, shape or form can be read as thus by applauding '92 - which insists on a Get be given in many more cases than '80 did, including when inappropriate. And, thus, the '80 law does not demonstrate in any way, shape or form that its supporters believe that the husband should give a Get in all cases the wife wants a Get.

  20. jblog,
    I have just put a piece on my blog about you and your attack on the Eidensohns for following the Shulchan Aruch written by people of a bygone era. You are an apikores. Unfortunately, there is today a very small space between such people and the Modern Orthodox and certainly the Open Orthodox World. Since you won't reveal your name, I only judge you from your words, and you don't think the Shulchan Aruch and the poskim are right and you reject their opinions about Gittin. I'm sure you can dance around, but anyone who read your words from your blog that I quote will agree that you are not a frumeh Yid by Shulchan Aruch standards.

  21. Two things to add to my previous comment to jblog. First, his name is not jblog. That is, there is another blog out there called jblog. His blog is thejblogreview.blogspot.com, that is, a "the" before the j.

    Also I just want to quote the apikorsus of jblog. As I mention in my comments, a lot of Modern and Open Orthodox believe that Haredi Orthodoxy is old fashioned. This opens the door for them to change the Torah, and they do change the Torah. But how many will openly state the kind of things blatantly like jblog or whatever he calls himself? Here is his text.

    "There is little doubt in my mind that deep in the recesses of this Daat Torah community lies some very misogynistic ideas. I believe that at their core they believe that women are less than men and that women should be subservient to men ... I think that this bias against women fuels them to search for halachic literature that supports them. And, make no mistake - it is not hard to find such halachic literature, especially considering that much of halacha was written hundreds of years ago when this view of women was prevalent. In fact, much of the "support" that they find is really just a reflection of the mores of the time, and not actually "halachic" strictly speaking."

  22. My point was that the gemara might say women are illiterate or lack knowledge etc. Those kinds of statements were true then when women were uneducated. Now, women are educated and those statements are no longer true. I apologize if that line implied that halacha no longer applies. That was not the intent.

  23. I have added a clarification to the post that you cite to make it absolutely clear what I mean when I say "times have changed". See the post again. I did not intend that line the way you interpret it.

    By the way, do you consider the MO Rabbis who disagree with your understanding of agunah as apikorsim?? Like those who support the 1992 NY Get Law (I think Rabbi Gedaliah Schwartz said it poses no problem) or like those who support the halachic prenup (all the MO Rabbis). I just want to know how far you take your position.

  24. jblog,
    Very good point you make about if I think all MO rabbis are apikorsim. And also i appreciate that you corrected your statement on your blog, although I didn't see it yet. I was impressed with you on another blog of yours when somebody disagreed with you as you attacked my brother, and you were honest and gave in. That was class. I have some posts on my website about these matters, but I am happy to make another post just for you and I hope to have it soon. I am 72 years old and can't do things as fast as I used to! I feel that it is important in these blog arguments to know where people's root believes in Torah are. It takes away the personal stuff that just makes hate.

  25. jblog,

    I just went to your site and saw that you added in the beginning of the post the following: UPDATE / CLARIFICATION: One portion of this post may have created the wrong impression which I would like to correct. When I write that much of the halachic literature was written long ago when the perception of women was different, I was referring specifically to times when the Gemara refers to women as lacking knowledge and understanding. My view (and that of many Orthodox Rabbis as well) is that such statements were made because in those times women were uneducated. Nowadays, women are educated and those statements no longer apply. I did not mean that halacha is outdated and therefore does not need to be followed. In other words, times and circumstances have changed and therefore the halacha now has to be applied to changing or new circumstances. I hope that clarifies this matter and I apologize for any lack of clarity. End quote.

    I told you this topic needs a post of its own, but right now I quote your remarks, and I would like to ask you: How does this resolve the problem that the Torah accepts a male marrying two wives, but does not allow a woman to marry two men. Also, the berochose "who has not made me a woman," recited by people like me every morning. Do you say that berocho? You don't have to answer these questions. I just want to point out to you that in all honesty, you can't resolve the problems of male versus female in the way you are doing. I have a solution on my blog torahhalacha.blogspot.com based upon statements in the talmud and Kabbabla. It is the post titled Rosh Chodesh, the diminishing of the moon Israel and women if my ancient memory is right..

    I once spoke about divorce laws and was challenged by the kind of things that you say, and I replied about the Rosh Chodesh diminishing of the moon women and Israel as it is on the blog. Everyone accepted it. But accept it or not, at least, at the end of the day, I am consistent with every part of the Torah, without putting women into combat or any such thing. I feel that your approach has it limits, as you may well understand what I am trying to say. I have four generations of male and female, and everyone thinks like I do, and if anybody would tell my female progeny the things that you think, well, I would be proud of them what they would say.

    And again, sounding off before I write my blog, the world today is splitting into those who believe like you and those who believe like me, although of course each of us have a huge differential of people who are on our sides. And as the world realizes that making women equal to men will never happen, people like me get strengthened. Just ask the woman who joined the Rangers and became sterile.


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