Thursday, February 4, 2016

Rav Landesman and Rav Malinowitz on the Aguna Crisis

EDITOR'S NOTE: Rabbi Leib Landesman is the rosh beit din of the Kollel Horabonim Beit Din, in Monsey, NY. His beit din has presided over cases involving some of the most complicated halachic issues, specially in the field of matrimonial law. Rabbi Landesman has been invovled with thousands of divorce cases, and has personally administertd approximately 500 gittin, In an interview with the Jewish Homemaker's managing editor, Avraham, M. Goldstein. Rabbi Landesman responded to a variety of points raised by the directors of Agunah. Inc. in their article.[October 1992]

Agunah Inc's primary contention is that a "crisis" exists today regarding matter of Jewish divorce. Rabbi Landesman disputed this claim. He challenged the statistic printed by the Jerusalem Report that there are 10,000 agunot in Israel, and the extrapolation from that figure by Agunah, Inc. to the effect that there are thousands in the U.S as well. [The Jerusalem Report's figure comes from a film by the Israel Women's Network-Ed.]

Rabbi Landesman questioned the premise that there are more agunot today than say  twenty years ago. He attributed this perception to "individuals and organizations that have made all this into an issue, so there's more  exposure. It doesn't necessarily mean there are more cases now."

A critical area at issue, he noted, is how to define an agunah "It's a colloquial phrase," Rabbi Landesman said, "that's used  today for someone who wants a get but doesn't have a get.But it's  used in very broad terms. It's used to describe someone who has followed the proper procedures and after a certain amount of time still doesn't have a get. But it's used as well for someone who hasn't done things right. It also is used for someone who wants a get on demand and it's not forthcoming instantly. She decided last wee: that she wants a get, and she doesn't have it within a day or a week."

   Pressed regarding the figure given by the Jerusalem Report, Rabbi Landesman pointed out that there is a great difference between the Israeli system and ours. In Israel, batei din have jurisdiction over matrimonial matters. If the problem between the couple is limited to financial support, the batei din are on an equal footing with the secular court system. If a get is involved, then the beit din has sole jurisdiction over all matters, however ancillary, which are related to the get, including but not limited to custody, child support, and property. 

   He continued that, just as with the secular courts in the U.S., the beit din system in Israel suffers from overload, which has created a backlog. A contested divorce may take from two to five years. Rabbi Landesman added that lawyers and to'anim (client representatives before a beit din) often have no desire to expedite their cases, since the more time is spent, the greater is their fee. 

   Rabbi Landesman stated that, if there is any truth to the 10,000 figure, it refers to all cases currently within the beit din system, regardless of their status, and that it is improper to categorize a woman whose case is going through the process as an "agunah. 

   He added: "In almost every case I've known about, when there are major issues at stake, where they're really fighting, it takes a few years until it's resolved· But once everything is resolved, the issue of the get is resolved too. The get is one of twenty issues that have to be resolved." 

Rabbi Landesman said that he would be very surprised if one could compile a list of 50 women in the U.S. at any given time who have followed the proper procedures and not received a get.

According to the rabbi, a critical error is the failure to follow these procedure at the outset. It often takes a long time until the wife takes her estranged partner to belt din. While she may consider herself an agunoh even before instituting a get proceeding, he believes this is an inaccurate appraisal.

As an example, he says that he once remarked to an agun (a man whose wife refused to accept a get), ''Whose fault was it that your problems of eight years have first been brought to the beit din's attention twenty minutes ago?"

  Rabbi Landesman emphasized that he holds in great esteem organizations which exist for the purpose of helping agunot. "Even if they help one person who is truly in need, it is worth all their efforts,"he noted. Moreover, "The fact that these organizations exist does at times speed things up. For example, . instead of taking a year or two until the recalcitrant spouse realizes it's over, it may speed things up by a few months." He said that the number of agunah cases may have decreased in  recent years because of the efforts of groups such as Agunah, Inc.

Rabbi Landesman took strong exception to the allegation that batei din are unfair to women. He emphasized that, at least in his own beit din, both parties are treated equally. He rejected the idea that the woman is made to reel uncomfortable or cannot compete on an equal footing in the halachic arena, and stated that a female to to'en would be welcomed at the Kollel Horabonim Beit Din. (There are, to his knowledge, no female to'anim in the U.S. His beit din generally disdains to'anim, believing they do little to advance the case of the party they are representing, and that they will often resort to impressive-sounding but halachically vacuous arguments in order to justify their fee.)

  Rabbi Landesman also took strong issue with Agunah, Inc.'s insinuations that the secular courts are fairer than batei din. He said: "The article gives a very rosy picture of the court system and a very shoddy picture of the beit din system. This is very misleading. People think the court system is the epitome of righteousness, but being privy to many confidential matters, I can clearly state that I know more than one judge who belongs in jail. And I know of cases which have been 'fixed' between the judge and one of the lawyers."

He did acknowledge that in many batei din -although not in the Kollel Horabonim Beit Din - there is a lack of decorum, which may lead to the perception that batei din are not as meticulous as the secular courts. Yet this a "a Problem of color, not of substance," he declared, saying that batei din are much more scrupulous than secular judges, and that 'judges and lawyers are much more corrupt than any beit din or dayan can be subjectively perceived to be, even in the worst possible case." The rabbi agreed with Agunah, Inc. that different batei din have different halachic standards. He stressed that it is up to the litigants to do their homework before selecting a particular beit din.

Rabbi Landesman pointed out that American batei din do not have the power to force compliance with their decisions. Therefore, what Agunah, Inc. sees as beit din problems are almost all implementation problems. For example he insisted that the fact that it is the husband who has to give the get does not put the wife at a disadvantage as far as the psak is concerned. He declared that a beit din decides its cases based solely on halachic criteria. It is in cases of noncompliance (which, he says, when taking all differences, not just the get, into account, happens about equally between husbands and wives) where implementation of the psak becomes difficult. He said that almost all recalcitrants eventually comply, and that in many cases the husband's tactic is merely to wait the wife out, hoping she will compromise on some of the areas where the psak was favorable to her.

While this is certainly an example of the get being used as a weapon, Rabbi Landesman explained that, if a woman is patient and is unwilling to be defeated by the husband's tactic, the entire psak will eventually be implemented in almost every case.

Rabbi Chaim Malinowitz. who sits on the Kollel Horabonim Beit Din, opined that, if all methods short of physical coercion were properly applied. any husband in his right mind would give a get. These methods include ostracism from the community and using all legal devices available to make the husband support his estranged wife financially. as he must do according to halacha. According to Rabbi Malinowitz. the financial strain alone is usually enough to bring about compliance.

Commenting on Agunah. lnc.'s assertion that a man has the option of a heter me'ah rabbanim, Rabbi Landesman said that such a heter is rarely issued. Therefore. the husband is just as stuck by the lack of a get as the wife The exception to this is, he said, where the parties are not strict about religious observance. Since the woman's sin would be much greater than the man's, the lack of a get may not prevent the husband from finding an outlet for his desires. This, however, is a commentary not on Jewish law. but on the lack of observance in some circles.

Rabbi Landesman noted that he knew of one case where the husband had to pay over a million dollars to convince his wife to accept a get. No heter me'ah rabbanim was granted him.

 Rabbi Landesman said that a matter often glossed over is the difficult some husbands find in exercising the visitation rights which have been accorded them. He said, "I would be inclined to think that there are as many problems with fathers' visitation rights as there are with gittin for women." He cited cases where ex-husbands have rarely or never seen their offspring after having given a get, including a case where a man spent $32,000 in court in an unsuccessful attempt to have his rights enforced. Asked what can be done, he replied, "I don't know; I am baffled. Most people don't have the thousands of dollars it costs to go to court, or they don't have the mental endurance needed."

Are Orthodox divorces rising in number? And what can be done to avoid divorce?

Rabbi Landesman disputed recently published statistics that say divorce in the Orthodox community is rising. He said that. at least in proportional terms, the incidence of divorce has declined over the last two decades.

   In his opinion, the primary reason for this trend is that "people now realize divorced life is not all that rosy, especially for the woman. The second tine around, it's basically a man's market. Women have friends who are divorced. They speak with them and see that it's difficult financially and in other respects." According to the rabbi, people today "don't rush for a get like they used to," a phenomenon he applauds. He said: "If there is an unbearable situation involving health, religion. or physical abuse, where objectively one just cannot remain in the marriage. divorce is an alternative. But if there's a personality clash, including disliking one's character or just not liking the person, these are subjective tastes. and they are things one can learn to change ...

   Rabbi Landesman said that women who come to him seeking a divorce are encouraged to first speak with divorcees and remarrieds so that they will have a better understanding of divorced life. He asserted that women have to decide whether it may be better to remain in a non-ideal marriage. and that if there are children, the nachas derived from them often makes the marriage worth saving.

   Rabbi Landesman had other suggestions for reducing divorce among Orthodox Jews. He said that, in over half of divorce cases involving Modern Orthodox couples with which he has been involved, the parents of the woman were opposed to the match in the first place. He told one such wife:

"When you go to buy a fur coat, you first ask the opinion of someone else. But with something as important as marriage. you have the attitude that you don't need to inquire."

   The rabbi emphasized that potential mates frequently do not understand the commitment involved in a marriage. Were they to recognize that marriage is not a game," they would be more careful when selecting a partner.  He said that this deficiency can be found in all kinds of Orthodox shidduchim

Furthermore he noted that the Steipler Rav, Rabbi Yaakov Kanievsky zt"l voiced concern for the fact that yeshiva. students often have nor learned how to interact with others. Rabbi Landesman said that early problems in a marriage often occur because the husband needs time to learn how to act towards his wife - a difficulty that can be ironed out with time. patience. and hard work.

A further step toward reducing divorce, he said , would be if people realized that the beit din system can be used to resolve problems short of divorce.  The husband especially has certain obligations to his wife. and she can take him to beit din if he is not meeting those obligations. Were a small issue nipped in the bud, it might not become a larger one. leading to a divorce which, the Talmud says. the altar sheds tears.

The Ground Rules
When is a get called for? Is one entitled to a get upon demand? These and related questions were put to Rabbi Chaim Malinowitz. who sits on the Kollel Horabonim beit din with Rabbi Landesman. The following is a summary of his response.

According to the Shulchan Aruch (Code of Jewish Law), even when a get is desirable, there are varying ways in which the beit din's decision may be expressed. The kind of psak which will be issued depends upon the circumstances of each particular case.

At one extreme, the beit din will direct that there must be a get, and that the husband may be coerced, even physically. to divorce his wife. Grounds for this kind of psak may include physical abuse, financial non-support by the husband, and refusal to have marital relations.

At the other extreme, the beit din may advise the parties that a get is desirable, but will not declare that the husband is obligated to grant the get or that the wife is obligated to accept it.

There are varying degrees which lie between these extremes. A common on is a psak which obligates the husband to give a get and permits all forms of pressure, short of acts which would constitute coercion, for the purpose from implementing the psak. The types of pressure include total ostracism from the community and forcing the husband to financially support his estranged  wife.

    Grounds for this sort of psak are looser than for a decision which permits coercion. Examples are a lesser degree of financial non-support by the husband or a lesser degree of the wife being unable  to live with him.

Generally, if the beit din considers a marriage "dead", as determined through the rules set out by the Shulchan Aruch. a psak will be issued obligating the husband to give his wife a get and obligating her to accept it.

 Rabbi Malinowitz says he is convinced that in "99 out of 100 cases" proper implementation of steps such as ostracism and forcing the husband support his wife would result in a get. He says that "anyone in his right mind would give a get rather than paying thirty or forty thousand dollars a year to a woman with whom he is not living. Rabbi Malinowitz feels that the problem lies in the unwillingness of Jewish society to totally ostracize the recalcitrant husbands. and the difficulty of implementing a psak of financial support in a society where church and state are separate.

Rabbi Malinowitz sums up: "Not always when a woman decides she doesn't want to live with this man or vice versa is the marriage dead. The Torah views marriage as an obligation between two parties, and it can't be revoked just because one party wants out: there have to be certain safeguards.

"The Shulchan Aruch decides what a dead marriage is. If a marriage is practically dead from an objective viewpoint and can be seen by the beit din as being objectively dead, the halacha calls for a psak of obligation, with or without various types of pressure short of actual coercion." [...]

No comments :

Post a Comment

please use either your real name or a pseudonym.