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+{
+ "title": "Rabbinic Authority V",
+ "language": "en",
+ "versionTitle": "merged",
+ "versionSource": "https://www.sefaria.org/Rabbinic_Authority_V",
+ "text": {
+ "Preface": [
+ "The present volume is the fifth in a series of volumes intended as an introduction to a subject perhaps unfamiliar to many – the dynamics of rabbinic authority in our halakhic tradition. The subtitle, “The Vision and the Reality,” points to the themes being addressed in this work.",
+ "This volume, following in the footsteps of volumes three and four of our series entitled Rabbinic Authority, deals with halakhic divorce in general and with the varying solutions offered throughout the centuries by rabbinic authorities dealing with the plight of the modern-day agunah, the married woman who is unable to receive a get, a Jewish writ of divorce, from her husband, in particular. In our earlier presentations we have not only examined techniques which have been advanced for centuries for voiding a marriage, we equally exposed the reader to the halakhic authorities who opposed these solutions for varying reasons. Whereas in the previous two volumes we have advanced argumentation to validate these solutions, this volume is devoted primarily to demonstrate how a beit din or a rabbinical authority (ies) may void a marriage based upon those decisors who reject the varying options to void the marriage in principle. By factoring into the consideration those who oppose voiding a marriage, we may invoke, under certain conditions, a double halakhic doubt (a sefeik sefeika de’dina) which may serve as the vehicle to free a wife to remarry without the execution of a get.",
+ "For example, there is a halakhic debate whether, if a get-recalcitrant husband fails to disclose prior to marriage that he has a major defect such as being impotent, gay or mentally dysfunctional, under certain conditions one may void the marriage. Consequently, we have a doubt as to what the Halakhah ought to be. Furthermore, the same husband may have acted inappropriately during the marriage, such as being physically and emotionally abusive towards his children. And there is a halakhic dispute as to whether one can void the marriage based upon the clear expectation that had his wife known that that such behavior would transpire, she never would have married him. As such, we have a second doubt as to what the Halakhah ought to be. In short, we are dealing with a double halakhic doubt, known in rabbinic parlance as sefek sefeika de’dina. As such, the question is whether one can void the marriage by invoking a double halakhic doubt.",
+ "Prior to focusing upon this concept of a double halakhic doubt regarding kiddushin (loosely translated: marriage), we first need to understand the emergence and ramifications of the notion of a doubtful marriage (a safeik kiddushin). To state it differently, prior to examining the notion of a double halakhic doubt, one needs to briefly introduce the notion of a single halakhic doubt as it relates to the act of kiddushin.",
+ "Both the acts of kiddushin (betrothal) and nissuin (marriage) which transpire under the wedding canopy (the hupah) entail a consensual agreement between a Jewish man and a Jewish woman. It is a very special agreement that establishes a personal status between the parties, namely that the betrothed woman (the mekudeshet) is designated for a particular man (the mekadesh) and prohibited to all others. The presumptive status of a married woman (hezkat eishet ish) renders both the man and woman subject to various prohibitions - e.g. sexual relations with various relatives become prohibited.",
+ "What happens if a halakhic doubt emerges regarding the kiddushin? For example, if the man betroths the woman with a stone-embellished ring or is coerced to betroth her, such conduct is deemed a doubtful kiddushin. One might have thought that the presumption of personal status (hazakah) of her being a single woman is determinative since in a case of a doubt on a biblical level we do not deviate from her status of being a single woman.",
+ "However, in the wake of a halakhic doubt regarding the kiddushin, when the wife wants to be divorced and her husband refuses to give a get, we coerce him to give a get. In other words, in the absence of receiving a get, she is prohibited to others on rabbinic grounds.",
+ "In other words, should the husband be intransigent regarding the get, a beit din may coerce him to give a get. In the event that the beit din isn’t legally empowered to issue a get compulsion order or the husband is recalcitrant regarding the get and who intentionally or unintentionally fails to disclose to his wife a major defect prior to their marriage a get under certain conditions should not be required, nonetheless some will argue that on rabbinic grounds we coerce a get for a matter of stringency (get le’humra) due to the fact that we are dealing with a doubtful marriage. In other words, in the wake of a doubtful marriage (safek kiddushin), under certain conditions such as a husband’s failure to disclose a major defect prior to the marriage such as impotency, we can coerce a get but we cannot void the marriage. The rationale for permitting get coercion is that we do not mandate that the wife to remain married under such circumstances, and should she want to be divorced we empower her by compelling her spouse to give a get.",
+ "In short, a doubtful halakhic marriage may serve under certain conditions as a basis to issue a get compulsion order. However, in the wake of a doubtful halakhic marriage, some say one cannot void a marriage.",
+ "However, others argue once we move out of the world of a doubtful marriage and traverse into the universe of a double halakhic doubt, under certain conditions a marriage may be voided. In addressing the “halakhic vision” of rabbinic authority, we examine various issues which emerge from the concept of the double halakhic doubt as it relates to marriage and divorce matters. Firstly, we will explore the two opposing conceptions of halakhic doubt crystallized in the Mishnah, Talmud and post-Talmudic authorities and thinkers in order to understand conceptually what constitutes a halakhic doubt, and then briefly explore the implications of dealing with halakhic doubt as it relates to the prohibitions (issurim) involving marriage and divorce. In chapter two, we offer a detailed analysis of the foundations which establish the basis for a double halakhic doubt to serve as the avenue to free a wife to remarry without receiving a get from her spouse, i.e. voiding a marriage (bittul kiddushin). We then deal with how a double halakhic doubt may serve as a vehicle to void a marriage in the context of get coercion.",
+ "In addressing “the reality” of rabbinic authority, we have included ten presentations inspired by the reasoned opinions handed down as a dayan serving on a beit din or as serving as a rabbi on a panel of three rabbis engaging in resolving ritual Halakhah (mo’reih horo’ah) such as a matter of divorce. Many of these decisions were handed down while serving at the International Beit Din located in New York City.",
+ "Emerging from these presentations, the reader will encounter four techniques which may be implemented under certain conditions which may serve to void a marriage (mevateil kiddushin): the discovery of a halakhic impropriety(ies) in the marriage ceremony, a husband who intentionally or unintentionally engages in misrepresentation and/or fails to disclose prior to the marriage a major defect (“kiddushei ta’ut”), a major expectation that the wife desired at the time of the marriage (“umdana de’mukha”) which failed to materialize during the course of the marriage and the application of a double halakhic doubt (“sefek sefeika de’dina”).",
+ "Implicitly in adopting one of these techniques is that we ought to refrain from being stringent regarding halakhic engagement (kiddushin) lest “the stringency would lead to a leniency” resulting in the promiscuity of the wife due to her being a victim of her husband’s get recalcitrance.",
+ "In each presentation, we offer a rendition of the facts followed by a discussion of the halakhic issues emerging from the claims, followed by a decision rendered by the beit din panel. To preserve the confidentiality of the parties involved in these cases, all names have been changed, and some facts have been changed and/or deleted. Any changes or deletions of the facts do not impact upon the integrity of the beit din’s analysis and the actual decision. Appended to some of the decisions is a section entitled “final afterthoughts” in which we offer an alternative approach to voiding the marriage and/or present additional information regarding the decision.",
+ "Hopefully our discussion will educate our community on the parameters and scope of rabbinic authority in general and “shatter the silence” surrounding the solutions which may be implemented under certain conditions in order to deal with the plight of the modern-day agunah in particular. For those who avail themselves of the services of a beit din, it may be a life-defining moment. Consequently, it behooves our community to understand the institution, to become attuned to the dynamics of its decision-making process, and to perform due diligence in deciding in which beit din to pursue one’s matters."
+ ],
+ "Part 1; Rabbinic Authority; The Vision": {
+ "Chapter 1; The varying definitions of a halakhic doubt": [
+ "The varying definitions of a halakhic doubt",
+ "The Hebrew word safek means doubt. Halakhah distinguishes between an uncertainty as to what the Halakhah ought to be (safek de’dina) and a doubt concerning the metzi’ut, a factual uncertainty. In addressing issues relating to marriage, in the Mishnah we already encounter the need to focus upon factual uncertainties. For example:",
+ "How is it that kiddushin (lit.: betrothal – loosely translated: marriage) is called into question? (If) he threw a token of betrothal to her (his prospective spouse) (in a public place), and there is a doubt whether it was closer to him or closer to her – this is a doubtful betrothal.",
+ "If one is standing in a public domain, the halakhah is that one can acquire ownership of an object which falls within four cubits of where one is standing. Our Mishnah refers to a case where the man and woman were standing exactly eight cubits away from each other. Clarifying the precise location of the object determines who is deemed the owner of the object. If the object is within four cubits of the man, he remains the owner and the betrothal is invalid. If the object is within four cubits of the woman then the betrothal is valid.",
+ "On the other hand, the same Mishnah addresses a parallel issue that of divorce, regarding a second type of uncertainty or halakhic doubt. For example, if a husband writes a writ of divorce in his own handwriting and it bore no signatures or witnesses, or if it bore signatures but no date, or if it bore the signature of only one witness, this is a case of doubtful divorce.",
+ "The implicit premise is that a Jew who possesses no rabbinic education, or whose learning skills in studying and determining Halakhah is limited, can never apply these principles out of ignorance. Thus, for example, one who is ignorant of the halakhot of blessings and who therefore has a doubt what blessing ought to be recited, cannot rely upon the rule that one acts leniently in a case of doubt regarding blessing recitation. Rather, he must seek rabbinic help to educate him in the halakhot of blessings. In other words, doubt which emerges due to the absence of knowledge cannot be construed as a halakhic doubt. Doubt stems from a comprehensive understanding of Halakhah by an individual who is proficient in Halakhah and yet concludes that there is a doubt as to how the Halakhah ought to be resolved concerning a particular issue.",
+ "The threshold question which must be asked is: why did halakhic controversy arise? After all, given that we are dealing with a religious legal system, are we not engaging in the deliberation of divine truth? As such, ought such matters evoke unanimity rather than debate?",
+ "Explicitly or implicitly relying upon various exegetical interpretations of the Torah (Midrashim) and Talmudic passages, we may conclude that the controversies emerged due to the fact that many halakhot were lost or forgotten. Consequently, doubts as to what the Halakhah ought to be, arose due to controversies between arbiters. As Talmud Temurah 16a states:",
+ "R. Yehudah said in the name of Rav: When Moshe was about to depart this world . . . he told Yehoshua: Ask me about any uncertainties you have. Yehoshua responded: Have I ever left your presence for a moment? . . . Immediately, Yehoshua grew weak; he forgot 300 halakhot and 700 doubts arose in his mind . . . Hashem informed him: For Me to communicate the halakhot is impossible. . . .",
+ "To state it differently, doubt arose in the universe of the halakhic-legal system due to forgetfutlness, and it was a Jew’s rather than Hashem’s responsibility to reconstruct the traditions transmitted from the time of Moshe and divine revelation at Sinai.",
+ "Rambam vehemently attacks this notion that attributes halakhic dispute to forgetfulness, categorically stating:",
+ "But as for their saying that when the students (of Hillel and Shammai) who had insufficiently studied increased, dispute increased, this matter is crystal clear, for when two individuals are similar in comprehension and in learning and knowledge of the principles based upon their study, there will not be any disagreement between them in what they study in one of the hermeneutic principles (13 middot that one expounds the Torah) . . . just as we have encountered controversies between Hillel and Shammai other than a few halakhot, for their methodologies of study in all that they would learn by one of the principles were similar to one another, and also the correct principles which were espoused by one were endorsed by the other.",
+ "In contrast to the previous approach, for Rambam, accompanying the tradition which was received from Moshe and transmitted to future generations, arbiters were halakhically authorized to introduce new interpretations of the Torah. Consequently, due to the emergence of new interpretations, doubt arose which led to halakhic debate. As Rambam observes:",
+ "And when the study of their students (Hillel and Shammai) diminished and the methods of (halakhic) reasoning became weakened for them in comparison to Hillel and Shammai their teachers, controversies transpired during the exchange on numerous matters, due to the fact that each reasoned according to the level of his intellect and in pursuance to the principles known to him. . . . And in this fashion disagreement emerged, rather than that they erred in their receiving of tradition and one’s tradition is true and the other’s false. . . .",
+ "Contrary to both the above views, Rabbi Avraham Ibn Daud, in his introduction to the classic medieval work, Sefer ha-Kabbalah, writes:",
+ "Now should anyone infected with heresy attempt to mislead you, saying: “It is because the rabbis differed on a number of issues that I doubt their words,” you should retort bluntly and inform him that he is “a rebel against the decision of the court;” and that our rabbis of blessed memory never differed with respect to a commandment in principle, but only with respect to its details; for they heard the principle from their teachers, but had not inquired as to its details, since they had not waited upon their masters sufficiently. As a case in point, they did not differ as to whether or not it is obligatory to light the Sabbath lamp; what they did dispute was “with what it may be lighted and with what it may not be lighted”. . . . This holds true for all their discussions.",
+ "Implicitly rejecting Midrash Shemot Rabba 41:6, Midrash va-Yikra Rabba, be-Hukkotai 19:6 and Talmud Yerushalmi Pe’ah 1:1 which inform us that the details of Halakhah were not revealed to Moshe, Rabbi Avraham Ibn Daud argues that both the details as well as the principles were transmitted by Moshe. However, controversy emerged due to the fact that, in the words of seventeen century author Rabbi David Nieto:",
+ "They studied insufficiently. They didn’t remain with teachers who had ample time to receive the interpretation of the principles and therefore disagreement emerged.",
+ "Whereas for Rabbis Nieto and Ibn Daud, the arguments in the Mishnah and Talmud could have been avoided had the students been attentive to their masters, for Rambam the debates stemmed from their differing mental capacities and methods of interpretation.",
+ "On the other hand, Rashi contends:",
+ "It is plausible to say, “these and those are the words of the Living Hashem” – sometimes this consideration is applicable and sometimes another consideration is applicable. For the relevant consideration reverses itself according to a change of things and situations . . .",
+ "For Rashi, controversy is determined by the times.",
+ "In short, forgetfulness and loss of halakhic tradition (mesorah), details of halakhot were not revealed to Moshe, differing times and differing mental capacities and methods of interpretation have all been advanced as reasons for the emergence of controversy.",
+ "The underlying premise of the varying positions is that there is only one answer to a halakhic issue. The fact that there is debate is due to extraneous reasons, e.g. forgetfulness and loss of mesorah, differing mental capacities and methods of interpretation.",
+ "Construing the halakhic system as monistic in character already was alluded to in medieval times by the author of the Sefer ha-Hinnukh, who explains the rationale for preferring the adoption of the majority view rather than the absolute truth. As he observes:",
+ "It is better to suffer one error and all to be subservient to the understanding of the rabbis rather than for each of us to act as he thinks, for in that direction lays the destruction of religion . . . and the anarchy of the nation.",
+ "However, it is Rabbeinu Nissim (known by the acronym: Ran) who drives the point home, positing that one position in a particular debate reflects divine truth. As Ran teaches us:",
+ "Once Hashem transferred the power of decision-making to the Sages, whatever they would agree upon, that is what Hashem commanded regarding that issue . . .
There is no other alternative fashion to understand this matter. For since the words of those who opine something ritually impure and those who rule it ritually kosher are contradictory, it is impossible for both parties to the debate to be conforming to the truth . . .",
+ "Though there is no explicit mention that a halakhic resolution reflects truth, Rabbi Yisrael Salanter claims that halakhic disagreement entails arriving at the truth. Focusing upon the disputes between Beit Hillel and Beit Shammai, Rabbi Salanter states:",
+ "The Heavenly Voice told the people that each side genuinely felt objectively correct, and therefore even the rejected words of Beit Shammai are the words of the living Hashem, and one who studies them is studying the Torah of Hashem.",
+ "However, Rabbi Salanter observes:",
+ "Man does not have the power to arrive at the true intellect, totally dismembered and separated from the subliminal forces of the psyche.",
+ "Finally, given that in the context of a beit din proceeding we resolve matters in accordance with the majority, the underlying assumption for certain authorities (Poskim ) is that their psak din, decision, reflects the truth and the minority view embodies falsehood.",
+ "In contradistinction to this monistic perspective of Halakhah, there are authorities who advocate for the notion that the system is pluralistic in character, and therefore the presence of controversy entails a debate of multiple halakhic truths. Rashi expounds:",
+ "When two Talmudic scholars are arguing whether a matter is permitted or prohibited . . . then there is no falsehood. . . . Each one is arriving at his own conclusion. This individual submits the reason that it should be permitted while the other one gives the rationale that it ought to be prohibited. This person analogizes (hekesh – AYW) to a particular subject and this individual analogizes to another matter. Here we may state, “These and those are the words of the living Hashem.”",
+ "Subsequently, the Rabbis of medieval France query: How is it possible for contradictory views to both represent the truth? Relying explicitly or implicitly upon midrashim and the Tosefta and the Talmud, their reply was the following:",
+ "When Moshe ascended to receive the Torah, it was proven to him that every issue was subject to forty-nine leniencies and forty-nine stringent approaches. When he questioned the matter, Hashem responded that the arbiters of every generation were empowered to decide among these views in order to establish the normative Halakhah.",
+ "A few centuries later, adopting the model of multiple halakhic truths, Maharshal argues:",
+ "When a debate centers upon the attribution of a position to a particular person, there is only room for one truth. However, when two Talmudic sages participate in a halakhic controversy, each one claiming the merits of his view. . . . there exists no absolute truth and falsehood. Regarding such matters, one can state that both reflect the view of the living Hashem. Sometimes one approach will prove to be more authentic while under other conditions the other view will seem to be more persuasive.",
+ "Others have endorsed this model of multiple halakhic truths.",
+ "Whereas Rashi, the French rabbis and Maharshal contend that the truths are equal, Maharal of Prague claims that they are unequal:",
+ "Each understood the Torah from his own vantage point according to his intellectual capacity as well as the . . . character of his individual soul. This accounts for the difference in comprehension, as one concluded that a thing was tame (ritually impure - AYW) in the extreme, another viewed it as clearly tahor (ritually pure – AYW), while a third person contends the ambivalent state of the object is in question. . . . Consequently, the learned men stated that in a controversy amongst true scholars, all views represent a form of truth . . .",
+ "In his classic essay regarding this issue, Rabbi Michael Rosensweig eloquently formulates his analytical understanding of Maharal’s position, elucidating the following:",
+ "There is often no one decisive response to the issue of tahara or tuma, for example, since overall proximity to the ideal form represented by the classic case rather than a specific combination of components determines this status. Thus, one may speak of approximately the ideal sufficiently but not fully, and by the same token substantially but not sufficiently, and consequently, a whole hierarchy of truths would emerge. Dilution of some components and combination with competing and undermining characteristics may also contribute to the creation of a quasi-status, whole ultimate fate in the realm of practical halakhah is likely to be debated.",
+ "Utilizing an analogy, Maharal notes:",
+ "The tree, for example, is composed of four elements (water, earth, fire and air) but the principal component is air. . . . Likewise, though any single matter has various halakhic aspects associated with it – all endowed by Hashem – one of them is the most paramount, and that is the determining component, and that is the Halakhah.",
+ "In short, halakhic controversy is either a representation of multiple halakhic truths, or exists due to extraneous reasons such as forgetfulness and loss of halakhic tradition.",
+ "The emerging question is: how do these two diametrically opposing perspectives regarding the nature of halakhic controversy impact on how one perceives halakhic doubt (safek de’dina)? If we adopt the notion that there is only one position in a halakhic debate which represents truth, then the opposing view is false, as it emerged by dint of extraneous factors such as forgetfulness or a loss in transmission of the mesorah. On the other hand, espousing the doctrine of multiple halakhic truths inexorably leads one to the conclusion that all the positions in a particular halakhic disagreement represent halakhic truth. Consequently, it is unsurprising to encounter Rabbi Yitzhak Yosef, a contemporary authority, citing the following in the name of Rabbi Refael Hazan of eighteenth-century Izmir:",
+ "Hashem gave the determination of Halakhah to the scholars of Yisrael which Hashem showed to Moshe forty-nine leniencies and forty-nine prohibitions. . . . Therefore, if the decisors are in debate and the Halakhah was not decided, whoever practices in accordance with one of these opinions has whom to rely upon. . . .",
+ "As such, even if one subscribes to the notion of the existence of multiple halakhic truths concerning a particular issue, lest one assume that a decisor (a posek), may refrain from performing due diligence in deciding which view to accept and choose the stringent view, Talmud Yerushalmi exhorts us:",
+ "Just as one is prohibited to purify the impure, similarly, one cannot declare that the pure is impure.",
+ "For example, one of the techniques to void a marriage is labeled “kiddushei ta’ut” (loosely translated: a marriage in error). Prior to invoking the tool of kiddushei ta’ut and claiming there was an error in the creation of the marriage, one of the preconditions that must be obtained is that the husband’s defect must be a major defect (a mum gadol) such as sexual impotency, refusing to have children, insanity or homosexuality which preexisted the marriage, and that the husband failed to disclose this defect to his prospective wife prior to their marriage. A review of our halakhic tradition will indicate that the classical restatements of Halakhah such as Alfasi, Rambam, Rosh, Tur, Shulhan Arukh and Rema do not address the propriety of utilizing this technique as a vehicle for voiding a marriage concerning a husband’s defects. However, there are over 90 responsa (teshuvot) which address the propriety of employing this tool. A review of these responsa will demonstrate that over 50 authorities endorse this approach and more than 25 decisors prohibit it. In light of the fact that the classical legists did not address this matter and there does not exist normative Halakhah addressing the legitimacy of utilizing this technique, decisors teach us that the arbiter is empowered to employ his knowledge and skills to address, deliberate upon this matter and arrive at a decision. Clearly, arbitrarily choosing to align with one position is in contravention to the aforesaid Talmud Yerushalmi’s dictum.",
+ "An authority’s failure to adhere to this teaching entails a commission of malfeasance regarding the rendering of a ruling. If he was remunerated for his ruling, he has transgressed the sin of theft and may be obligated to compensate the party for any ensuing damages incurred due to his judgment.",
+ "Regardless of whether we endorse the view that there are multiple truths concerning an issue or only one truth, the question is: how does an authority resolve a matter which is, an uncertainty as to what the Halakhah ought to be (a safek de’dina)? As we know, Halakhah consists of both financial matters (dinei mamonot) and ritualistic issues (issur ve-heter). At first glance, giving that monetary matters such as theft or injuring a fellow man entail the violation of prohibitions (issurim), the matter of a halakhic doubt ought to be dealt with in the same way in both realms. Namely, such issues ought to be resolved like a matter of dietary laws (kashruth), marriage and divorce and other ritual questions where we act le’humra, stringently. Thus, can we derive the halakhot of monetary matter from a ritual issue?",
+ "Implicitly relying upon the position of Rabbi Shimon ben Tzemah Duran (known by the acronym: Tashbetz), Rabbi Shimon Shkop, the dean of the early twentieth century Yeshiva in Grodno, Lithuania replies:",
+ "Civil laws (loosely translated: mamonot – AYW) which govern the relations among people, operate differently from the other commandments of the Torah. In respect of all other commandments. . . . our obligation to fulfill them rests on the duty to obey God’s command. Matters of mamon . . . however, are different; there must be a legal duty before a religious obligation arises to pay damages or make restitution . . . When we deal with a legal right in a chattel or with a lien, the focus of our concern is not the observance of a religious commandment but rather the objective circumstances, who has the legal ownership of the object or is legally entitled to its possession.",
+ "In other words, the initial step is the need to determine who the owner of the object is or who has to pay damages, i.e. the legal right. Once that fact has been established, and then we can proceed to identify the party who violates the prohibition associated with this legal right, either by stealing from the owner or causing injury to the owner. Consequently, it is unsurprising that in a case of a halakhic doubt regarding a monetary matter, we do not remove the object from possessor (the muhzak). In fact implicitly relying upon two Talmudic precedents emerging from Rabba’s ruling, citing the responsum of Maharam of Rothenberg, Rabbi Asher ben Yehiel (known by the acronym: Rosh) states the following:",
+ "This is what I received from our Rabbi Meir z”l, in a case where there is a controversy what the Halakhah ought to be, we do not extract a monetary asset out of doubt and it remains with the possessor.",
+ "To state it differently, there is a a presumption of the rightful possession by the defendant (hazakah) the possessor of the object. Pursuant to beit din procedure, a party in a dispute regarding a monetary matter may argue as follows: “I want the court to rule in my favor, which is based on the position of Rabbi X who affirms my claim.”",
+ "Under certain prescribed conditions, we will accept his position even if Rabbi X’s view represents the minority, and the majority rule differently. Such an argument, “he sides with me” (known as “kim li”) can be invoked either by the muhzak, who is in possession of the disputed item or by a beit din. In short, in monetary matters, we do not follow the majority, and the governing rule is that the plaintiff has the burden of proving his claim is (ha-motzi mi-havero alav ha-re’ayah) . The claim of “he sides with me” reinforces the defendant’s presumption and is memorialized by Rema with the caveat that a dayan who has expertise in dealing with halakhic doubts ought to render his independent decision. In sum, the recognition of the plea “he sides with me” reinforces that in a case of a double halakhic doubt regarding a monetary matter, we do not remove the object from the possessor. In fact, “even 1000 doubts (halakhic) will not extract money from the possessor.”",
+ "On the other hand, when dealing with prohibitions (issurim), such as whether a beit din may obligate a husband to give a get, a party to the divorce or the beit din must refrain from advancing an argument of “he sides with me.”",
+ "Moreover, it should be no surprise to find that the Talmud exhorts us to refrain from drawing an analogy (a hekesh) between the two realms of monetary matters (mamon) and ritual issues (issur ve-heter): “no analogy in a matter involving ritual law may be established from a monetary matter,” and conversely, “no analogy in a monetary matter may be established from a matter concerning ritual law.” For example, we cannot invoke a plea “he sides with me” (kim li) regarding child placement because we are dealing with issurim, namely obligations between man and God as well as potential child endangerment.",
+ "Comparably, in a monetary matter (mamon), the contentious parties may choose to engage in compromise (pesharah), such as apportioning an asset between the two parties, while concerning a safek in an issue of issura, ritual law, one cannot raise a compromise between two parties. Moreover, whereas in matters of ritual law, an hour of emergency (a she’at ha-dehak), we may rely upon a minority opinion, in issues of monetary matters, we may invoke the rule that the plaintiff has the burden of proving his claim rather than relying upon a minority view. Finally, the systemic rule is that in a case of doubt regarding a monetary manner we act leniently, while in a situation of prohibitions we act stringently. The corollary to this rule regarding matters of prohibitions is that if the doubt emerges from an issue that is of a biblical nature (is de-oraita) we resolve it stringently, whereas in a matter of doubt that arises from a matter of a rabbinic nature (a de-rabbanan) we act leniently. As such, given the distinction between monetary issues and ritual matters, we cannot derive the halakhot of ritual issues from the halakhot of financial matters, and conversely we cannot derive the halakhot of monetary issues from matters of ritual law.",
+ "In sum, halakhic doubt may reflect the notion that both opinions are true or that only one view is true. In cases of halakhic doubt regarding prohibitions which is the subject of this study, there exist specific halakhot which teach us that this realm of Halakhah is readily distinguishable from halakhic doubt concerning monetary matters.",
+ "The implication of our presentation is that the emergence of a doubt is interrelated with the issue being examined. In other words, should an individual be bereft of knowledge of Halakhah, a personal doubt arises as to how he should conduct himself. His ignorance of Halakhah does not constitute a halakhic doubt. The halakhic doubt emerges from the differing understandings of credentialed and educated authorities who attempt to resolve what ought to be the Halakhah regarding a particular question."
+ ],
+ "Chapter 2; The foundations for invoking a double halakhic doubt to void a marriage": [
+ "The foundations for invoking a double halakhic doubt to void a marriage",
+ "On July 29, 1999, the Beit Din ha-Rabbani ha-Gadol, the highest rabbinical court under Israel’s Chief Rabbinate, addressed the case of a person who was married Jewishly in the Soviet Union, where the rabbis who officiated at marriages and divorces were unfamiliar with the relevant halakhot. Subsequent to getting divorced, she remarried, sired a daughter and immigrated to Israel. Upon reaching maturity and desiring to marry, the child submitted her parents’ divorce papers to the Israeli rabbinate in order to be recognized as a member of the Jewish community and have her marriage recognized by the Rabbinate. As we know, in accordance with Israeli law, the Chief Rabbinate, accompanied by its institutions such as its network of battei din (rabbinical courts), has exclusive jurisdiction regarding matters of marriage and divorce. Consequently, we understand her request to receive recognition from the Chief Rabbinate.",
+ "Varying reasons were given by the beit din which allowed her to receive recognition. One of the arguments on behalf of recognition offered by Rabbi Shlomo Amar, a member of the panel, is the articulation of a double halakhic doubt (hereinafter: a double doubt/uncertainty or a sefek sefeika). The implementation of this technique allowed Rabbi Amar to engage in voiding the marriage (bittul kiddushin) as well as the divorce. In order to properly understand the halakhic background of his line of reasoning for voiding the marriage, we shall introduce the reader to a few concepts.",
+ "The establishment of a marital relationship between a Jew and a Jewess may be loosely said to be an agreement, albeit a very special one, which establishes “a personal status,” known in halakhic parlance as a presumption of being a married woman (“a hezkat eishet ish”), based upon the willing consent of the parties. One of the numerous consequences of being accorded this status is that a wife cannot engage in an extramarital affair with another man, and a husband cannot take part in an illicit affair with another woman. Such behavior is deemed an act of adultery (“ne’uf ”) and is a violation of Biblical law, i.e. an issur de’oraita.",
+ "However, if the execution of the marriage ceremony is not conducted in a proper halakhic fashion, under certain conditions there emerges “a safek kiddushin,” loosely translated as a doubtful marriage. In other words, her presumption (hazakah) as a married woman is placed into doubt, or, to state it differently, there is a doubt on a biblical level (a safek de’oraita) if she actually is married. In cases of doubt, under certain conditions, we apply the systemic rule: any doubt which emerges from a biblical matter is ruled stringently; a doubt which arises from a rabbinic matter we rule leniently (kol sefeika de’oraita le’humra, kol sefeika de’rabbanan le’kula).",
+ "As such, the question arises as to whether the application of the rule: any doubt which emerges from a biblical matter is ruled stringently (kol sefeika de’oraita le’humra) means that we rule stringently on a biblical level or on a rabbinic level? Is the presence of a doubt regarding the Halakhah (sefeika de’dina) to be distinguished from a doubt concerning factual reality such as a doubtful marriage (a safek kiddushin), such that it will be resolved stringently on a biblical level? Or is it to be resolved stringently on a rabbinic level?",
+ "A review of the responsa (teshuvot) of many later authorities (Aharonim) will show that it is their understanding that “the opinion of a few” (a da’at me’ut) is that under certain conditions a biblical doubt (a sefeika de’oraita) what the Halakhah ought to be is to be resolved stringently on a biblical level. Well-known and well-respected early authorities (Rishonim) and later authorities (Aharonim) alike such as Rashi, Tosafot, Ramban, Rashba, Ran, Tur, Rabbi Y.E. Spektor, Rabbi Ya’akov Reicher, Rabbi A. Eiger, Rabbi Ya’akov of Karlin, Rabbi Y. Orenstein, Rabbi Shalom Schwadron and Rabbi Shalom Messas align themselves with this position.",
+ "On the other hand, there is the majority opinion, including: Bahag, Rif, Rambam, Rosh (possibly), Ra’vaad, Semag, Ramah, Meiri, Ritva, Rabbi Yosef Karo (possibly), Rabbi David ibn Zimra, Rabbi Mordekhai ha-Levi, Hida, Rabbi Ya’akov Emden and Rabbi Ovadiah Yosef, who rule that under certain conditions (e.g. a doubt what the Halakhah ought to be), a biblical doubt (a sefeika d’oraita) ought to be resolved stringently on a rabbinic level.",
+ "Assuming that we are permitted to invoke a double doubt beyond those that are explicitly mentioned in the Talmud and among early authorities and it can be employed a priori (le-khatehillah), in pursuance to Rabbi Yosef Karo’s ruling, a double uncertainty (a sefek sefeika) can nullify a biblical prohibition. Assuming that “a biblical doubt ought to be resolved stringently on a rabbinic level” applies to a doubt as to what the Halakhah ought to be (sefeika de’dina). “If there exists a double doubt one must rule leniently” is to be understood as meaning that the first doubt is converted from a biblical prohibition to a rabbinic one and results in a stringent position (namely that the matter is prohibited rabbinically) which is compounded by the second doubt which creates a rabbinic doubt, and therefore, by dint of rabbinic Halakhah (“din de’rabbanan”) one may rule leniently. In other words, the ramifications of invoking a double doubt in a particular case is that the matter is permitted (“heter gamur”) without any taint of a prohibition (“issur”). As we have explained, this conclusion is based upon the fact that we adopted the position of Rambam and others that a biblical uncertainty (a sefeika de’oraita) ought to be resolved stringently on a rabbinic level. In other words, there is a correlation between recognizing the effectiveness of a double uncertainty and one’s posture regarding whether a biblical doubt is to be treated stringently on a biblical level or if it is to be treated as a rabbinic innovation. Until now, we have been arguing that in order for a “double doubt” to be effective resulting in a leniency, one must adopt the view that a biblical doubt is to be treated stringently as a rabbinic decree.",
+ "On the other hand, espousing the view that a biblical uncertainty ought to be resolved stringently on a biblical level does not necessarily mean that the application of a double doubt will be ineffective. The consequent leniency associated with the implementation of a “double uncertainty” is due the rule of “following the majority” (“aharei rabbim le’hattot”). The existence of one doubt creates a situation of a 50/50 uncertainty (“ke-mehtza al mehtza dami”), while the second uncertainty then creates a majority which results in treating the matter leniently on a biblical level. In accordance with many decisors (Poskim), this approach is the dominant understanding as to why the employment of a double uncertainty will be effective. That being said, it is unsurprising that some authorities who subscribe to the posture that a biblical doubt ought to be resolved stringently on a biblical level will understand the dynamics of a double doubt based upon the rule of the majority principle (“rov”). In other words, the effectiveness of a double halakhic uncertainty (a sefek sefeika) may be based upon the majority and is unrelated to one’s position regarding the debate as to whether a biblical uncertainty (a sefeika de’oraita) ought to be resolved stringently on a biblical level or by virtue of being a rabbinic innovation.",
+ "Assuming that one endorses the view that a biblical doubt ought to be resolved stringently by dint of being a rabbinic decree, and therefore the deployment of a double doubt is operative, or that a double uncertainty is effective by virtue of its own inner halakhic logic unrelated to the ramifications of the existence a doubt regarding a biblical prohibition, are there grounds to void a marriage utilizing the mechanics of a double doubt in cases of a halakhic controversy?",
+ "Some contend that when there is a presumption of a prohibition (it’hazek issura), such as when a piece of non-kosher meat mixes with two pieces of kosher meat, “even a thousand doubts” will be ineffective in providing a leniency, allowing the non-kosher meat to be consumed. On the other hand, numerous decisors claim that the application of a double halakhic doubt will be effective.",
+ "Clearly, there are decisors who will employ a double uncertainty in the case of a biblical prohibition. Moreover, as we mentioned earlier, the creation of a halakhic marriage establishes “a personal status,” known in halakhic parlance as a presumption of being a married woman (a hezkat eishet ish). As such, will the construction by an arbiter of a double uncertainty to permit an agunah to remarry be effective in the face of a presumption of a biblical prohibition (it’hazek issura), namely the prohibition of being a married woman? Implicitly or explicitly relying upon the view of Rabbi Mordekhai ben Hillel, some decisors contend that the construction of a double halakhic doubt (a sefek sefeika) under such circumstances will be ineffective.",
+ "On the other hand, assuming that we are dealing with a halakhic doubt concerning a biblical matter, one may act leniently on a biblical level while one must act stringently regarding rabbinic law. As such, numerous decisors, Ashkenazic and Sephardic alike, argue that in the wake of a “double doubt” or a series of doubts as to what the Halakhah ought to be (known in halakhic terminology as “sefeika de’dina”) regarding the halakhic impropriety of a ceremony of betrothal and marriage (seder kiddushin ve’nissuin), may, under certain conditions, nullify the presumption of a married woman and thus, in effect, will allow the woman to remarry without receiving a get from her get recalcitrant husband. Examples of this type of scenario may include under certain conditions the absence or the ineligibility of witnesses attesting to the establishment of betrothal (eidei kiddushin), witnesses failing to observe the prospective husband giving his prospective wife a ring, the propriety of utilizing a borrowed ring for the act of kiddushin or major flaws, either physiological or psychological, in the husband’s persona unknown to the wife prior to the wedding.",
+ "To state the above differently, as we mentioned, in the case of a double uncertainty, the first doubt converts the prohibition from a biblical prohibition to a rabbinic one, resulting in a stringent position by dint of rabbinic Halakhah. For example, if a doubt emerges regarding the validity of a kiddushin (loosely translated as marriage), one might have thought that the woman’s presumption of personal status as a single woman is determinative, since in a case of a doubt we do not deviate from her status as a single woman. However, though she may remarry on a biblical level, nevertheless rabbinically she is required to receive a get before marriage due to a concern for the prohibition of being a married woman. While a get is required by rabbinic law in this case, and therefore one cannot void a marriage based upon a doubt regarding the validity of the kiddushin, nevertheless, since on a biblical level the woman is permitted to remarry, we may utilize this ruling as a supporting argument (a senif) to act leniently. With the emergence of a second doubt based upon the dynamics of invoking “a double doubt” in accordance with certain preconditions, there may be a basis to void the marriage under certain conditions. In other words, the presumption of being a single woman allows for the employment of the double halakhic doubt to be effective and void the marriage.",
+ "On the one hand, according to the dominant approach of Rambam and others, the voiding of the marriage would be based upon the rule that we act leniently regarding a rabbinic doubt. On the other hand, pursuant to Rashba and others, even though we are dealing with a case of a prohibition (“it’hazek issura”), a double uncertainty will be effective due to the application of the majority principle.",
+ "Now that we conveyed the halakhic underpinnings of the well-trodden tradition to void a marriage based upon the employment of a double doubt in cases of a halakhic controversy regarding halakhically questionable aspects of a marriage ceremony or a husband’s flaws (mumim), we may better understand Rabbi Amar’s ruling in the case submitted to the beit din panel regarding his application of a double uncertainty. As we presented, the beit din addressed the case of a person who was married Jewishly in the Soviet Union, where the rabbis who officiated at marriages and divorces were unfamiliar with the halakhot regarding these matters. Subsequent to the person’s divorce, she remarried, sired a daughter and immigrated to Israel. Upon reaching maturity and desiring to marry, the child submitted her parents’ divorce papers to the Israeli rabbinate in order to be recognized as a member of the Jewish community and have her marriage recognized by the Rabbinate.",
+ "Rabbi Amar’s recognition of the child as a member of the Jewish community is presumably based upon the argument that she was not deemed to be a halakhic bastard (a mamzer, a child sired from an incestuous relationship). In a case of a woman who was betrothed in a ceremony which is characterized as a doubtful marriage (“kiddushei safek”) and subsequently sired a child from a third party, the child is “a doubtful bastard” (a safek mamzer). Though biblically a doubtful bastard can be a member of the Jewish community, however, rabbinically, the child cannot enter the community due to a doubt(s) concerning the act of kiddushin. Nevertheless, there emerges a debate regarding the legitimacy (the kashrut) of a doubtful bastard whether we rule stringently or leniently. Implicitly aware of this controversy and concerned for the stringent opinion, in a pithy three lines Rabbi Amar concludes that given that in our case we have a double uncertainty regarding the kiddushin, we invoke the ruling of Rabbi Akiva Eiger that there is no concern for halakhic bastardy. As such, she would be accepted into the Jewish community.",
+ "However, the primary thrust for her recognition is argued in seven pages by delineating a series of halakhic doubts in the kiddushin that transpired in her parents’ marital ceremony in Russia. His posture is predicated upon two foundations. Firstly, well aware that the establishment of a marital relationship between a Jew and a Jewess may be loosely said to be a contract, albeit a very special contract, which establishes “a personal status,” known in halakhic parlance as the presumption of a married woman (“a hezkat eishet ish”), Rabbi Amar aligns himself with the view that the employment of a “double doubt” will be effective to void the marriage in the wake of the existence of a presumption of being a married woman. As such, given that the marriage was halakhically invalid, the child that was sired by the couple was born out of wedlock. In other words, whereas in secular law she would be labeled as a bastard, in Halakhah, the child would be legitimate and bereft of any taint of halakhic bastardy (mamzerut) due to the absence of matrimonial ties of her parents.",
+ "Secondly, though absent from his presentation as well as from a responsum dealing with voiding a marriage as to whether a biblical uncertainty ought to be resolved stringently by dint of being of biblical origin or rabbinic decree, Rabbi Amar argues that we employ a double doubt by virtue of its own inner halakhic logic.",
+ "In light of the aforementioned foundations, Rabbi Amar meticulously reviews the doubts emerging from her parents’ wedding ceremony. Given that the marriage ceremony was performed by a rabbi who was ignorant of the halakhot of performing a kiddushin, there were various doubts concerning the propriety of the kiddushin. Firstly, the learned men in this community testified that the witnesses required for validating the marriage (“eidei kiddushin”) were either relatives who are invalid as witnesses or nonrelatives who were equally ineligible to serve as witnesses.",
+ "Furthermore, among the questions asked was whether the prospective husband gave his prospective wife a ring that he had purchased, was the recitation of the kiddushin formula, which may be loosely translated as the man’s designation of the woman as his wife (“harei at mekudeshet li . . .”) recited by the man before the giving of the ring, and did the witnesses observe the giving of the ring and hear the words of the kiddushin formula? Lest one challenge these issues by arguing that there is an assessed expectation (an “umdana”) that the ceremony was performed properly, invoking Rema, Rabbi Amar contends that with regard to matters of kiddushin we cannot rely upon an assessed expectation. Following in the footsteps of Maharam of Rothenberg, we may understand Rema’s posture due to his concern for the wife having the status of being a married woman as well as her desire to marry any man. Based upon the above, there was no intent to be married halakhically.",
+ "Lest one challenge his conclusion that there are ample doubts regarding the kiddushin by invoking the opinion that a double doubt regarding halakhic uncertainty will be ineffective when the double doubt as well as all the other doubts lead to the same result (“shem ehad”), namely the halakhic impropriety of the kiddushin, numerous legists support Rabbi Amar’s conclusion that it is valid.",
+ "Finally, Rabbi Amar addresses the contention that they lived together for many years as a husband and wife and consequently, their engagement in intimate relations should be viewed as marriage via intercourse (“kiddushei bi’ah”). While it is true that the Mishnah Kiddushin 1:1 teaches us that one may consummate a marriage via having conjugal relations, this ruling is inapplicable. Firstly, today we do not establish a halakhic marriage via this method. Secondly, the parties’ intent was to establish the marriage based upon the ceremony of kiddushin occurring under the wedding canopy (under the hupah). Since that ceremony was not performed in a proper fashion, consequently the marriage never materialized.",
+ "In conclusion, explicitly following the halakhic tradition (a mesorah) outlined above, Rabbi Amar utilizes the technique of discovering a series of doubts as a vehicle to transform the child’s mother from a married woman into a single woman, thereby eliminating the concern of halakhic mamzerut (halakhic bastardy) from the child’s status."
+ ],
+ "Chapter 3; The employment of a double halakhic doubt regarding get coercion in order to void a marriage": [
+ "The employment of a double halakhic doubt regarding get coercion in order to void a marriage",
+ "Addressing the situation of a husband who failed to disclose to his wife prior to their marriage that he was convicted for child abuse, the Yerushalayim Regional Beit Din, a rabbinical court under Israel’s Chief Rabbinate explores the possibility of whether such a flaw, marked by deception, would be grounds to coerce a get. To understand the background of this decision and its implications for employing a double halakhic doubt concerning get coercion as a vehicle to void a marriage, let us present a few halakhot.",
+ "1. The nature of a get compulsion order",
+ "Unlike American law, where a civil divorce is a decree of a civil court, Halakhah requires the volition of the husband and wife to dissolve a marriage. That being said, one of the ramifications of marriage is the creation of the status of a married woman (an eishet ish) which means, amongst other matters, that the decisor (the Posek) must tread cautiously in releasing a married woman from the bonds of matrimony prior to ascertaining whether there are grounds for executing a get. Absent any grounds for permitting the divorce, should a get be executed it may be viewed as a coerced get (a “get me’useh”), and according to the majority of authorities that get would be null and void on biblical grounds. Therefore, should the wife rely upon this get and subsequently remarry and have children, her offspring would be halakhically stigmatized as halakhic bastards (mamzerim), children born from incestuous relationships and would be living in sin. In other words, the biblical prohibition associated with the presumption of being a married woman remains intact. As such, we can understand why the beit din panel understood that in the event that there is a halakhic doubt regarding whether one is permitted to coerce a get or not entails a biblical doubt. Should an arbiter err in mandating get coercion in a particular case, it results in the commission of a biblical infraction which produces a coerced bill of divorce.",
+ "The outstanding question which remains is if a beit din renders a compulsion order which is halakhically proper, what is the consequence of this ruling? Does a husband’s failure to comply with the compulsion order render the marriage annulled (hafka’at kiddushin) or not?",
+ "To reply to these questions, we need to address the basis for justifying a get compulsion order. Seemingly, the ongoing discussions and debates in Halakhah relating to the grounds to compel a divorce fly in the face of our conclusion that the execution of a Jewish divorce is a consensual process. How does a beit din compel a spouse to give or accept a get if the voluntary agreement of the parties is required?",
+ "Relying upon the Talmud’s validation of coercion regarding a sales transaction (“it is reasonable to assume that under the pressure he really resolved in his mind to sell”), numerous authorities, (Poskim) conclude that this reasoning also applies to matters of divorce. In other words, consent stemming from coercive measures is to be construed as acting voluntarily in giving a get and is in consonance with what constitutes a willingness to accept Halakhah.",
+ "One avenue to validate coercion is for a wife to pay for her get. As we know, concerning a sales transaction in a situation of duress, he resolved to execute the sale because he was paid for the item (“agav oneseh ve-zuzei gamar u-makneh”). Whether the coercing party must simply obligate himself to pay or must actually remit payment is subject to debate. However, the consensus is that the duty to pay or the actual repayment will bring finality to a sales agreement executed under duress. The same conclusion ought to apply to a divorce agreement executed under duress in order for it not to run afoul of the strictures of a coerced get. To date, once a beit din under Israel’s Chief Rabbi’s network of rabbinical courts obligates a Jewish divorce, in the light of earlier authorities, the panel will attempt to persuade the wife to remit money or other benefits to the husband in order that he would be willing to give a get.",
+ "One of the classic rationales given for this anomaly of being able to coerce a get, despite the fact that divorce must be based upon the parties’ consent, is briefly alluded to in the Talmud and is expanded upon by Rambam who writes:",
+ "A person regarding whom Halakhah indicates that we should force him to divorce his wife and who refuses to divorce, a beit din in every place and at every time beats him until he says “I am willing” and he writes a get and this get is valid . . . Why is this get not void, as it was the product of compulsion . . . ? Since we do not talk of compulsion apart from one who was pressured and coerced to do a thing that he is not commanded by the Torah to do—for instance someone who was beaten until he executed a sale or donated a gift. However, in the case of one whose evil inclination drives him to avoid doing a religious commandment or to commit a sin, and was beaten until he complied with his duty . . . this (subsequent conduct) is not compelled from him rather he compelled himself due to bad judgment. Therefore, someone who does not desire to divorce (when Halakhah states that he ought to divorce – AYW), it follows from the fact that he wants to be part of the community of Israel that he wants to perform the religious commandments . . . and it is his (evil – AYW) inclination that is driving him and because they beat him until his inclination was subdued and he stated “I am willing” he has divorced willingly. . . .",
+ "Aware of the doctrine of the consensual nature of halakhic divorce as well as the legitimacy of a beit din compelling divorce under certain prescribed conditions, Rambam introduces the notion that one must distinguish between “the real will” and “the actual will” of a Jew who is committed to Halakhah. The real will of this Jew is to comply with the dictates of our halakhic tradition (mesorah), including—but not limited to—delivering (or receiving) a get if Halakhah mandates such an action. However, his actual will, which may be driven by desires that are beyond his control, direct him (or her) to disobey the Halakhah. In such circumstances, by coercing the miscreant to obey the beit din by acquiescing to the divorce, we have not forced him (or her) to do what he does not want; on the contrary, we have enabled him (or her) to do what he (or she) really wants! As Rambam explains, the logic behind the legitimacy of a coerced get is that the husband does indeed want in his heart of hearts to obey the teachings of Torah scholars, mitzvah le’kayeim divrei hakhamim. And others have proffered the same reason for validating a coerced get. Clearly, the implication of staking out this position precludes the possibility of freeing a woman to remarry without the giving of a get. The raising of a doubt(s) regarding the validity of the marriage will not lead to the dissolution of the marriage without a get. In fact, whether our Torah scholars will mandate get coercion in a situation of what may be loosely translated as a doubtful marriage (safek kiddushin), such as a husband who fails to disclose to his wife prior to marriage that he has epilepsy or is impotent, is a matter of debate. According to certain decisors, the possibility of voiding a marriage under such circumstances is found explicitly or implicitly to be unacceptable.",
+ "One of the implications of adopting Rambam’s view is that the propriety of get coercion is predicated upon the fact that a husband must be a committed member of our covenant faith community. Should he be an apostate, one cannot posit that his real will is to comply with Halakhah and consequently validate the coercion of a get. As such, in dealing with a nonobservant Jew, some decisors have concluded that one cannot coerce a get. Hence, it is of no surprise that Rabbi Yosef Colon seeks another reason to validate get coercion, concluding that the imposition of coercion will annul the marriage (hafka’at kiddushin). Other authorities, such as Rabbi David ibn Zimra, argue that in a situation of a get recalcitrant husband who has a polypus (whose nose or mouth has a repulsive smell) and the like which engenders repulsiveness, it is incumbent to coerce a get which means for these decisors that the marriage is annulled. To state it differently, the solution of marital annulment is not only raised concerning a Torah nonobservant Jew but equally with regard to a Torah observant husband who possesses a major flaw(s) (mum gadol) physiologically, or for that matter psychologically, in his personality.",
+ "Adopting the notion that get coercion entails marital annulment, the emerging question is whether a get has to be executed, or if marital annulment suffices and she is free to remarry without receiving a get. Under what conditions can this annulment transpire?",
+ "A cursory review of its application in Talmudic times will provide an answer to these questions. Should a husband appoint an agent to deliver a get to his wife, as long as the get did not reach the wife, according to Biblical halakhah, he is authorized to cancel the get in the absence of the agent and without the wife’s knowledge. Given that she may marry someone else in the interim and her children from the second marriage would be halakhic bastards, Rabban Shimon ben Gamliel introduces as a rabbinic legislation (takanah) that the voiding of the get may only be done in the wife’s presence. What is the halakhic consequence of the cancellation of the get in violation of the legislation? According to Rabbi Yehuda ha-Nasi, the get is null and void even though the legislation was voided and consequently the wife could not remarry. However, in pursuance to Rabban Gamliel, the get is valid, although biblically the get is null.",
+ "A second Talmudic case where kiddushin was annulled at the time of divorce deals with a husband who gives a get to his wife on his deathbed but then recovered from his illness. Rabbi Huna claims that the get ought to be like a deathbed gift, which if he recovers ought to be invalidated. On the other hand, Rabba and Rava disagree, arguing that a deathbed get is to be distinguished from a deathbed gift which remains valid even after the husband recovers. However, they agree that on biblical grounds the get is invalid. Nonetheless, our Sages are empowered to nullify the kiddushin, permitting the wife to remarry another man.",
+ "The common denominator of these two cases recorded in the Talmud is that we are dealing with the authority of the rabbis to annul a marriage (hafka’at kiddushin) and that the annulment is accompanied by the husband giving a get to his wife against his will. Unlike the incident of the kiddushin executed under duress, where the annulment transpired at the time of the questionable kiddushin and without a get, the annulment in the other case happened after the kiddushin and a get was required.",
+ "Given that our case of the Yerushalayim Regional Beit Din deals with marital issues emerging a long time after the kiddushin, and as such is similar to the case of the cancellation of the get in the absence of its deliverer and a deathbed get, is annulment permissible? In the wake of the view that get coercion is based upon marital annulment in the beit din situation, are the grounds for authorizing marital annulment accompanied by the giving of a get today rooted in get compulsion on biblical or on rabbinic grounds? Prior to the fourth or fifth century C.E., rabbis received their authority to resolve matters from their immediate predecessors who “laid their hands” upon them, a process dating back to the time of Moshe who ordained Yehoshua. Given that there is the presumption of a married woman, according to Rabbi Yitzhak Lampronti, arbiters weren’t authorized to annul a marriage in the light of a double uncertainty or even a series of doubts. With the lapse of classical rabbinic ordination (semikhah), the Talmud teaches us:",
+ "Abaye once found Rabbi Yosef sitting in a beit din and compelling certain men to give a bill of divorce. He said to him: Surely we are only laymen (without the classic ordination where arbiters {dayanim} received their authority from their immediate predecessors who “laid their hands” upon them dating back to the time of Moshe - AYW). . . . He replied: We are carrying out their mandate.",
+ "Explicitly or implicitly relying upon this Talmudic passage, some authorities conclude that matters of divorce in general can be executed in contemporary times on rabbinic grounds. Whether one adopts the rationale of the reinstatement of the husband’s real will, compliance with rabbinic authority or marital annulment as the grounds for get coercion, clearly legally as well as halakhically today, the Israeli rabbinical courts under the Chief Rabbinate are empowered to coerce a get, and should the husband be recalcitrant he may be imprisoned. In other words, even if a beit din subscribes to Ridvaz’s view that get coercion entails annulment, the implicit assumption is that the annulment is accompanied by some kind of get (get kol de-hu). Which of the above rationales (Rambam vs. Ridvaz) serves as the grounds for get coercion is unclear from reading the Yerushalayim Regional Beit Din’s ruling. Given that even if the panel would have adopted Ridvaz’s understanding of get coercion that it entails annulment, a get would still be required to be executed. As such would there be any grounds to argue that given that the Beit Din advanced two bases for get coercion, one may void the marriage?",
+ "2. The parameters of the repulsion plea (mais ali)",
+ "Let us now understand the basis for the Yerushalayim Regional Beit Din’s ruling.",
+ "Two types of argument concerning rebellion are found in the Talmud (Ketuvot 63b) on the part of the wife:",
+ "(1) The rebellious wife by virtue of an argument (“she torments him and grieves him”) – a wife who does not wish to divorce but refuses to engage in marital relations in order to cause her husband grief due to an argument that she had with him. However, in accordance with Rabbeinu Tam, should the rebellious wife wish to be divorced without providing reasons, causing her husband grief in order that he divorce her and give her the value of her marital agreement (the ketubah), she is equally deemed a rebellious wife (a moredet) by virtue of an argument.",
+ "(2) The rebellious wife due to revulsion (“he is repulsive to me”– mais ali) – a wife who can no longer bear engaging in intimate relations with her husband.",
+ "In the present case, the wife’s reason for rebelling cannot be classified as the first type, for she has no interest in causing her husband grief, neither because of an argument nor so that he should pay the ketubah. On the other hand, the wife is not claiming that the husband is repulsive to her in conjugal relations, but rather she is repulsed by their life together, and does not wish to be married to him any longer. The question is, therefore, if the second type of argument regarding rebellion due to repulsion is limited only to cases in which the wife can no longer bear having intimate relations with her husband, or is it possible to argue that the same applies in circumstances in which the wife finds married life with her husband intolerable due to his general conduct towards her?",
+ "Rabbi A. Sasson struggles with this question, particularly in understanding Rambam’s view:",
+ "That which is written in the Talmud “he is repulsive to me,” i.e., that she alleges that she cannot have relations with him because he is repulsive, like the meaning of “repulsive” in relation to pork, etc. But if her allegation does not relate to intimate relations, then it will not be an allegation of “he is repulsive to me,” and even if she says, “I do not want him because I hate him,” or that “he will no longer be called my husband,” etc., as is written in this context, this language does not give rise to a claim of “he is repulsive to me,” because it is possible that the hatred is not due to repulsion, but only because of an argument and a fight or something else, and then her argument is not to be reflective of the plea “he is repulsive to me.” . . .
And one can also say the opposite, that the meaning of “he is repulsive to me” is that “I hate him” and “I do not want him,” etc., i.e., he is repulsive to me, which means I hate him, and as we found in Rambam himself, who said at the end that “she is not like a captive that she should be forced to engage in sexual relations with one she hates, etc. .” From the fact that he said “hates” and not “repulsive,” we may derive that hatred and repulsion have the same legal status. And the reason that the Talmud did not use the expression “hatred” is not to exclude hatred, but in fact “repulsion” does include the pretext of hatred.",
+ "After discussing the various proofs for each side of the argument, he concludes:",
+ "All this causes me doubts on this subject, and I have not found anywhere in the writings of the Sages a firm determination, or even some kind of determination on either of these sides, and it is possible that they did not mention it because it is so straightforward, but in any case the thrust of my argument, any expression of “I do not want him, I hate him, he is no longer called my husband, etc.” will fall into the category of “he is repulsive to me.”",
+ "In any case, according to many other decisors, the claim of repulsion includes circumstances in which the woman is not interested in continuing to live with her husband, and a clear statement of repulsion is not required. In short, the halakhot that regulate the situation of a rebellious woman due to repulsion also apply when the woman claims that she no longer wants to live with her husband.",
+ "The evidence required to prove revulsion",
+ "Even though several authorities are of the opinion that acceptance of the claim “he is repulsive to me” is contingent upon production of proof of the circumstance which generates the repulsion, many decisors contend that there is no need for admissible proof for this purpose, and it is enough if it emerges either from the wife’s words, from the circumstances, or if the wife provides an explanation, a “pretext” (an amatla), for her claim of repulsion.",
+ "As for the “pretext,” most legists contend that it is not sufficient to provide just any explanation for the repulsion in order for the beit din to accept the claim. The explanation must be clear and convincing, and in their words, a “clear pretext” is required. The assumption is that despite the emotional and psychological aspects of “he is repulsive to me,” the wife who is suffering is capable of expressing her feelings to the court rationally, by clarifying the source or the reason for these feelings with a “clear pretext,” and it is incumbent upon the rabbinical court to determine whether the grounds are true and justified.",
+ "3. The application of a double doubt (a sefek sefeika) regarding get coercion as a vehicle to void a marriage",
+ "The aforementioned decision of the Yerushalayim Regional Beit Din focuses upon a suit for divorce filed by a woman on grounds of repulsion of her husband following a verdict in the civil court that convicted the husband of obscene acts carried out on minors. In its argumentation, the panel addresses whether there is a basis for coercing a get when a wife advances a plea of “he is repulsive to me” accompanied by a clear pretext. Though there were a few decisors who subscribe to get coercion under these circumstances, the majority reject this view. Moreover, some authorities would not even obligate a get in these circumstances. Secondly, the beit din explores whether there would be grounds to coerce a get due to the fact that the husband acted deceitfully when he refrained from disclosing to his wife prior to their marriage that he was a convicted pedophile. Here again, upon beit din review; it was found that the propriety of a get compulsion order was equally a matter of halakhic debate.",
+ "In the wake of this understanding of these two issues, what emerges from the decision of the beit din panel is that there are two halakhic doubts (hereinafter: double doubts): namely, whether one may coerce a get in light of a husband’s abusive behavior and whether one ought to coerce a get due to his deception. Without elucidation, the panel posits that since a doubt regarding the propriety of get coercion entails a biblical doubt, therefore we are dealing with a double halakhic doubt on a biblical level, where a get may be coerced. In light of a controversy whether we can permit a wife to remarry when there is a biblical double uncertainty, the panel aligns itself with the posture which would allow for this remarriage. However, since it presumes that each doubt has to be even (shakul), which means that there must be equal number of decisors who will coerce a get versus an equal number of decisors who reject this possibility prior to invoking the technique of a double halakhic doubt; this method could not be implemented. As we mentioned, the majority of authorities oppose get coercion vis-à-vis a husband who engages in pedophilia. And regarding the matter of misrepresentation, it is unclear whether the number of decisors who endorse get coercion that corresponds to the number of those who reject the implementation of get coercion.",
+ "In other words, in this particular case there were no grounds for get coercion due to the invoking of a double halakhic uncertainty.",
+ "As we mentioned, it is clear from reading the Yerushalayim Regional Beit Din’s decision that the fact that most authorities rule against the propriety of get coercion prevents the invoking of a double doubt, and said conclusion is also supported by other decisors. However, it is our understanding that Bahag, Rif, Rambam, Rosh (possibly), Ra’avad, Semag, Ramah, Meiri, Ritva, Rabbi Yosef Karo (possibly), Rabbi David ibn Zimra, Rabbi Mordekhai ha-Levi, Hida, Rabbi Ya’akov Emden and Rabbi Ovadiah Yosef all rule that under certain conditions (e.g. a doubt as to what the Halakhah ought to be), a biblical doubt (a sefeika de’oraita) ought to be resolved stringently on a rabbinic level. In pursuance to this tradition that we are dealing with a rabbinic matter, there is no requirement that the double doubt represent that the legists are equally divided (i.e. shakul) to determine whether one may coerce a get in order to free the wife without a get. Even if one side of the doubt reflects a minority opinion, the double halakhic doubt will be effective. Finally, given that the rule of “following the majority” is applicable only to resolving issues within the confines of a beit din proceeding, one cannot speak of a majority opinion and minority opinion concerning intergenerational disputes. As such, the requirement that the decisors be equally divided regarding a pending issue is not mandated regarding a double doubt.",
+ "Moreover, even according to Rashba and others that a biblical doubt ought to be resolved stringently on a biblical level, does not necessarily mean that the application of a double uncertainty will be ineffective. The consequent leniency associated with the implementation of a double uncertainty is due to the rule of following the majority (“aharei rabbim le’hattot”). The existence of one doubt creates a situation of 50/50 uncertainty (“ke-mehtza al mehtza dami”), and then the second doubt creates a majority which results in treating the matter leniently on a biblical level. In accordance with many authorities this approach is the dominant understanding as to why the employment of a double doubt will be effective. Given the above lines of reasoning, there is no prerequisite that the doubt must be even, namely that the arbiters would be equally divided concerning the propriety of the issuance of a get compulsion judgment prior to employing the rule of the double doubt. As such, relying upon a well-trodden tradition (mesorah) of Ashkenazic as well as Sephardic decisors that sanctions the employment of a double uncertainty concerning biblical prohibitions including prohibitions of nakedness (issurei ervah), the invoking of the double doubt regarding get coercion under certain conditions will trump the presumption that she is a married woman and will reinstate the original presumption of being a single woman (a penuyah).",
+ "As such, freeing a wife without a get may be based upon the employment of a double doubt relating to two different debates as to whether one can coerce a get concerning two different grounds for divorce. In short, in the wake of a get recalcitrant husband, we deem the matter as “an hour of emergency” (sh’at ha-dehak) and a priori (le-hatehillah) we can void the marriage based upon a double halakhic doubt."
+ ]
+ },
+ "Part 2; Rabbinic Authority; The Reality": {
+ "Chapter 4; Case studies of a wife's claim for voiding a marriage and levirate marriage (\"yibum\")": {
+ "a) The halakhic impropriety of a marriage ceremony": [
+ "A. The halakhic impropriety of a kiddushin ceremony",
+ "In the summer of 2000, Avraham (hereinafter: the defendant) married Sarah (hereinafter: the plaintiff). Subsequently, the couple separated in September 2010 and thereafter the plaintiff requested that the defendant give her a get. Years later, we summoned the defendant to resolve the matter of the get in our beit din, but he refused to comply with the summons. We set a date for the hearing and heard the arguments of the plaintiff, and in June 2017 we obligated the defendant to give the plaintiff a get. To date, he persists in his refusal to give a get.",
+ "Under the wedding canopy (hupah), standing near the officiating rabbi, groom and bride, were relatives from both families of the couple who are ineligible to give testimony concerning the kiddushin. Standing in the back of the canopy were three adult Jewish males who were nonrelatives. One was a rabbi who is known to be Torah observant, who “came and went” during the ceremony. Additionally, there was an adult Jewish male, and we were unable to ascertain whether he was Torah observant. There was a third adult male who was a nonrelative, whom, we are told, was secular. In fact, we spoke to the man and he informed us that he was non-observant. The three men were not designated by the officiating rabbi to serve as witnesses for the kiddushin. The ring set in diamonds given by the defendant to the plaintiff during the kiddushin was bought by the plaintiff and the defendant did not reimburse her for the purchase. No marriage agreement (ketubah) was executed at the wedding. Though the plaintiff brought a ketubah to the hall and offered it to the officiating rabbi, he declined to use it or any other ketubah.",
+ "As Rabbi Avraham Shapiro, former Chief Rabbi of the State of Israel observes in a case which did not entail a husband’s get recalcitrance (igun):",
+ "We do not work excessively hard to consider carefully all potential leniencies but in the case of an agunah, the beit din must work hard to identify a leniency in order that she not remain an agunah.",
+ "Accordingly, we have canvassed the halakhot to void the kiddushin (loosely translated: the marriage) of the above couple as it relates to the propriety of the marriage ceremony.",
+ "Discussion",
+ "A. Kiddushin conducted by a person without the requisite credentials",
+ "The Talmud states:",
+ "Rabbi Yehudah said in the name of Shmuel: Whoever is not well-versed in the halakhot of divorce and marriage has no business rendering decisions in such cases.",
+ "Moreover, the one who officiates at the wedding ceremony (the mesadeir kiddushin) must be ordained as a rabbi.",
+ "That being established, we will delineate some of the functions of the officiating rabbi, in general, and his halakhic responsibility in overseeing the kiddushin process, in particular. We will examine whether in fact in the case before us, the officiating rabbi performed his duties properly.",
+ "1. The groom must give the bride a ketubah, which is an agreement signed by two Torah observant Jewish males which outlines the obligations of the husband vis-à-vis his wife. The drawing up of a ketubah exists even in countries where Rabbeinu Gershom’s ban against divorcing a wife against her will was accepted.",
+ "In the present case, no ketubah was executed. Moreover, in our case the plaintiff purchased a ketubah and brought it to the wedding hall and handed it to the officiating rabbi, but he refrained from using it. He wrote something down on paper but did not give it to the couple.",
+ "Had a ketubah been executed, it would stand to reason that the fact that the bona fide halakhic document (the shtar) deals with a husband’s marital duties upon the inception of marriage, and it was signed by two witnesses, attests to the fact that there was kiddushin. However, given that usually the ketubah is executed prior to the kiddushin, one cannot submit it as proof that in fact the act of kiddushin transpired. Even if this panel would endorse the view that a properly signed ketubah can be construed as a document serving as proof that kiddushin occurred (a shtar ra’yah), or that the opinion which rejects the ketubah as a confirmation that the kiddushin was executed agrees that the wife retaining possession of the ketubah attests that the kiddushin took place, everyone agrees that if it is demonstrated that there were improprieties in the kiddushin, the marriage may yet be invalid.",
+ "Finally, even though some authorities argue that the witnesses are to sign the ketubah during the bridal ceremony after observing the act of the kiddushin, nonetheless, in our case, following the more prevalent opinion the witnesses signed the ketubah prior to the act of kiddushin, prior to the wedding ceremony. As such, how could the witnesses of the ketubah attest to the propriety of the kiddushin since the act did not transpire till later!",
+ "2. The officiating rabbi must establish that the groom purchased the kiddushin ring (i.e. was the owner of the ring), the wedding ring, in accordance with Halakhah. In our case, the plaintiff purchased the ring.",
+ "3. The groom must pay for the ring prior to the wedding in such a fashion that he owns it. According to Avnei Millium, if the wedding transpired prior the purchase of the ring by the groom, the marriage is valid under rabbinic law, though some disagree with his posture.",
+ "In our case, the defendant did not pay for the ring and the officiating rabbi did not inquire of the defendant if the ring belonged to him.",
+ "4. Kiddushin may not be established with something whose value is not commonly known, for it is possible to be mistaken as to its value, which would result in the absence of mental acquiescence to the act of kiddushin on the part of the bride (gemirat da’at). Consequently, the actual validity of the kiddushin will be in doubt.",
+ "Even if there is no issue with mental acquiescence to the kiddushin such as in our situation, where the plaintiff bought the ring and therefore she is aware of its value, nevertheless, the officiating rabbi must ask the witnesses to the kiddushin prior to the act of kiddushin if the ring is worth one perutah. Indeed, even if the ring is set with a gem, she is considered married ex post facto, but ab initio, kiddushin may not be executed with a gem, even if its appraised value is known. In the present case, the officiating rabbi did not ask anyone who was standing under the wedding canopy (the hupah) who was eligible to be a witness to the kiddushin if the ring was worth one perutah. In the final analysis, a ring which was set with diamonds was used for the kiddushin.",
+ "5. The officiating rabbi must explain to the bride and groom the nature of kiddushin in general and the importance of giving a ring which belongs to him and the formulation of the kiddushin in particular.",
+ "In the present case, the officiating rabbi did not explain these matters to the bride and groom and failed to ask him if he owned the ring.",
+ "Implicitly following the understanding of marriage as establishing an exclusive conjugal relation between a Jewish man and a Jewish woman rather than an act of gifting, Rabbi Osher Weiss notes:",
+ "A husband’s act of kiddushin is different according to our Torah . . . from what is customary in the modern world. According to the Torah, the husband acquires his wife by giving her a ring as kiddushin of money . . . The kiddushin is effectuated by him but one requires her consent. . . . However, the modern understanding in the world is that we have a mutual obligation each for the other without any symbolic act of undertaking an obligation (kinyan – AYW) . . . it is a sign of endearment and love. Therefore, the practice is to exchange rings, and the primary validity of the betrothal according to their outlook is in their declaration . . . rather than money.",
+ "In the present case, the officiating rabbi did not talk to the couple about the act of kiddushin, and it is clear based upon the background of the couple that we are dealing with individuals who are infused with the modern outlook of matrimony rather than with the notion of a halakhic marriage where the parties intend that the act of matrimony is for the sake of kiddushin.",
+ "As Rabbi Moshe Feinstein aptly notes:",
+ "Even if he gives her a ring, the fact that she also gives him a ring proves that the ring that he gave was also a mere gift on account of them becoming man and wife, but it does not relate in any fashion to executing kiddushin.",
+ "6. The practice is that the officiating rabbi designates two witnesses to attest and establish that the act of kiddushin occurred in accordance with Halakhah. In this case, there was no designation of witnesses.",
+ "Under the canopy, standing near the officiating rabbi, groom and bride, were relatives from both sides of the couple who are ineligible to give testimony concerning the kiddushin. On one hand, there is a consensus that relatives of the father are ineligible based upon biblical law. However, on the other hand, some decisors claim that relatives of the mother are ineligible based upon rabbinic law. As such, if they are rabbinically invalidated, then we must be concerned that kiddushin was consummated and a get is required on rabbinic grounds. Nonetheless, most authorities concur that their testimony is invalidated on biblical grounds.",
+ "7. The witnesses must observe the ring being given by the groom to the bride in order to validate the kiddushin. They must see the bride holding out her index finger (the finger next to her thumb) of the right hand to receive the ring, and that the ring remains on her finger for a certain length of time. The three adult Jewish males who were nonrelatives were standing in the back at the time of the hupah, and therefore could not attest to the giving of the ring by the groom to the bride and to the placement of the ring on the bride’s finger.",
+ "8. Even assuming that that were two eligible witnesses to the kiddushin who observed the ring being given and who heard the words of the kiddushin, in the absence of the designation of the witnesses, does the act have any validity? Clearly, there is no obligation to designate as witnesses to the kiddushin.",
+ "Nevertheless, the practice in many communities is to designate them. Though some argue that the presence of an ineligible witness does not invalidate an eligible witness as it relates to the establishment of kiddushin, others argue that either the intent of the ineligible witness to testify or the observance of eligible witness along with the invalid witness invalidates the testimony for kiddushin. In the wake of these latter authorities who argue that an ineligible witness may invalidate an eligible one, the custom emerged to designate the two witnesses to the kiddushin. Notably, some decisors rule in accordance with Ritva who endorses this latter view. However, other arbiters regard his opinion only as a supporting argument for leniency (a senif). In our case, we take this approach as a supporting argument for invalidating the kiddushin.",
+ "Let us reinforce this point with the incisive ruling of Rabbi Yehoshua Ehrenberg who elucidates:",
+ "Since the witness was a transgressor of the Shabbat, there is a suspicion that the rabbi who performed the kiddushin for them also did not perform the kiddushin in a way that caused them to have effect . . . for the witnesses may not have seen the ring being given, or if the word “li” (to me – AYW) might have been omitted, which according to section 27:4 means that she is not married. . . . The officiating rabbi must make sure of this, and there is not a problem if the rabbi who is conducting the ceremony is a religious person and expert in the nature of kiddushin, we may rely upon his presumption of competence and we assume that the kiddushin were performed in a valid manner. . . . But so long as we lack witnesses regarding this particular matter, then particularly if the officiating rabbi is not established as an expert or as having performed the ceremony properly, the entire marriage is in doubt, and the woman reverts to her status as a single woman, even if we know that there were [other] eligible witnesses at the time of the kiddushin for the purpose of its validation.",
+ "In other words, even if the witnesses were eligible, according to Rabbi Ehrenberg, the woman is presumed to be unmarried because the officiating rabbi was not competent in the halakhot of the process of marriage and divorce!",
+ "In the issue at bar, the possibility of validation of the two witnesses to the kiddushin is absent. According to the plaintiff, we know that there were three adult Jewish males who were present under the bridal canopy who were not related to the groom and the bride. One was a rabbi who is known to be Torah observant, who “came and went” during the ceremony. We do not know whether he observed the giving of the ring and was attentive to the words of the kiddushin (“harei at mekudeshet . . .”). In addition to this rabbi, there was a Jewish man of Yemenite descent. We do not know whether he was Torah observant. There was a third man whom we were told was secular. In fact, we spoke to the man and he informed us that he was non-observant.",
+ "Even if all the witnesses had been eligible, as we noted, in pursuance to Rabbi Ehrenberg, the woman is deemed to be unmarried because the officiating rabbi was not versed in the halakhot dealing with kiddushin. Moreover, following in the footsteps of Ritva and others, the two eligible witnesses were invalidated due to the ineligible witnesses (relatives and a Jewish secular man who was a non-relative). The woman is deemed to be single due to the fact that the officiating rabbi was not versed in the halakhot of marriage.",
+ "Seemingly, even in the absence of two qualified witnesses in our case, we must adopt the rulings of Havot Yair, Hatam Sofer, Iggerot Moshe and others, whereby observant Jews who were amongst the audience and observed the wedding ceremony, without hearing the words “you are hereby betrothed to me . . .” and without seeing the ring being given by the groom to his bride, may serve as witnesses ( “we are witnesses”- anan sahadi ) to the kiddushin. Had we been dealing with invalid kiddushin due to an ineligible witness, and our intention was to validate the marriage by means of the observers from the audience, we would consider invoking the approach of Havot Yair et al. However, in the case before us, we are looking for a way to invalidate the kiddushin due to a husband’s get recalcitrance! Even though many authorities claim that traditionally, all strict views must be considered in matters concerning forbidden sexual relations, nevertheless, in a matter of a husband’s get recalcitrance, many hold that the lenient view ought to be adopted. As Rabbi Sinai emphasizes:",
+ "In dealing with such matters when the fate of agunot is involved, it is not proper to be stringent on the basis of critical and forced distinctions. It is preferable to apply the principle of leniency, since people’s lives are hanging in the balance.",
+ "In light of our lenient ruling, we should subscribe to the position of these authorities. Therefore, in view of the fact that most of the authorities reject the position of Havot Yair, Hatam Sofer, and Rabbi Feinstein, we have refrained from adopting it. Decisors in contemporary times who endorse a posture contrary to these decisors are Rabbis O. Yosef, Osher Weiss and Tzion Boaron.",
+ "Finally, resorting to implementing the concept of “we are witnesses” is contingent upon the fact that the officiating rabbi is a halakhically observant Jew and proficient in the halakhot of kiddushin, including executing a ketubah. The fact that the officiating rabbi did not designate witnesses for the kiddushin, was ignorant regarding various halakhot dealing with the wedding ceremony and was unaware of the problem that is liable to emerge as a result of Ritva’s view (and others), attests to the lack of halakhic proficiency on the part of the officiating rabbi. In short, even Rabbi Feinstein argues we cannot invoke “we are all witnesses,” which presumes implicitly that the expertise of the supervising rabbi can be relied upon. Consequently, the onlookers observing the ceremony cannot serve as witnesses to establish the act of kiddushin.",
+ "B. Owner of the Kiddushin Ring – the Defendant or the Plaintiff?",
+ "As we mentioned earlier, prior to the wedding, the defendant did not have a ring, i.e. he did not buy the ring. It belonged to the bride. At the wedding ceremony, the daughter of the plaintiff (sired from her first marriage), who was then six years old, brought the ring down the aisle to the wedding canopy and handed it over. According to the plaintiff, there is uncertainty as to who was given the ring by her daughter– the plaintiff or the defendant.",
+ "As such, two possibilities must be addressed: that the ring was given to the defendant and alternatively that it was given to the plaintiff.",
+ "1. The ring was given by the plaintiff to the defendant",
+ "A gift is the bestowing of an item without receiving benefit such as monetary payment (i.e. consideration). In our case, the plaintiff purchased the ring and the defendant did not reimburse her for the ring. However, the plaintiff claims that she did not state explicitly to the defendant that the ring is a gift (nor did she lend the ring to the defendant for use during the kiddushin). A gift is valid even when the owner of the item (i.e. the plaintiff) does not say specifically that she is giving the item to the recipient of the gift, provided that it can be inferred from the circumstances, via a presumption, that the donor wishes to give a gift to the recipient. In the present case, the plaintiff purchased the ring because she knew that a ring was needed for the wedding ceremony.",
+ "Secondly, the fact that she did not ask the defendant for money for buying the ring shows clearly that this was indeed a gift.",
+ "A prerequisite for transfer of ownership is that an act of acquisition (kinyan) of the ring was executed. In effect, the transfer of the ring from the plaintiff to the defendant’s hand entailed the execution of a physical act of acquisition by the defendant (a kinyan yad).",
+ "As we verified, the defendant was a convert to Judaism and was unfamiliar with the halakhot of acquisitions in general and the halakhot dealing with kiddushin in particular. As such, we are dealing with a situation of acquiring a gift by a physical act of acquisition without the knowledge of the recipient, the defendant. Accordingly, according to Rashi one cannot execute such an acquisition without intent to acquire the item. However, in pursuance to other authorities, this type of execution will be accomplished even without the intent to acquire by the recipient, i.e. the defendant.",
+ "On the other hand, though there are many decisors who argue that a woman does know how to halakhically facilitate the transfer of ownership to another individual, Beit Din ha-Rabbani ha-Gadol notes that the consensus among later authorities (Aharonim), is to follow the view of Rashba and Makneh that a woman does not know how to facilitate such a transfer. As such, this acquisition never materialized in our case, and therefore, the woman is not deemed married. Furthermore, expanding the scope of this halakhah, Rabbi Alfandri rules:",
+ "One cannot rely and say that a woman knows how to facilitate the execution of a symbolic act of undertaking an obligation (kinyan), and also regarding men there are some ignorant ones who know nothing. . . .",
+ "In other words, even if one would endorse the opposing view that a woman had intent to gift the ring, her husband in our case was ignorant of the halakhah that the ring had to belong to him.",
+ "Moreover, even those authorities who contend that a woman knows how to transfer ownership mandate that there must be a verbal communication that a transfer is going to transpire. In the present case, the plaintiff did not say, “I am giving the ring to the defendant,” and consequently the acquisition is invalid. He also did not say, “Give it to me,” and therefore it is construed as an “implied giving” (an umdana – an assessment of his expectations) which has no validity unless the donor explicitly states that the item is being given as a gift. As such, from the perspectives of the plaintiff (the donor) and the defendant (the recipient of the gift), the transfer of ownership never happened.",
+ "In short, the ring must belong to the person executing the marriage, namely the defendant, and must belong to him prior to the act of kiddushin. And therefore one cannot use a ring that does not belong to the groom, the defendant, such as one that is stolen. And even if she already accepted a ring that was stolen from her as kiddushin, in accordance with the view of Rema in the name of Ran, if the groom did not pay for the ring, she is not deemed married.",
+ "In short, the plaintiff never transferred the ownership of the ring to the defendant, and therefore the kiddushin was consummated with a stolen ring!",
+ "2. The six-year old daughter gave the ring directly to the defendant.",
+ "For two reasons, one cannot draw the conclusion that the defendant indeed acquired ownership of the ring due to the item being handed to him by his step daughter.",
+ "Firstly, a minor child, such as a girl below the age of twelve, cannot give a gift. Even though a minor cannot give a gift under Halakhah on a biblical level, our Sages enacted a rule (a takanah) whereby a child who is a mature minor – one who understands the nature of transactions (attained onat ha’pe’utot) may transfer chattels via the medium of a gift, even a substantial one such as a diamond ring. The rabbinic enactment applies to a male child of six years and over on condition that he understands the nature of the transactions at the time of the transfer. This enactment equally applies to a minor female. In the present case, the plaintiff’s daughter was six years old but she did not understand the nature of transactions and therefore there is no basis for maintaing that she can give a gift to the defendant.",
+ "Secondly, even if we were to assume that the child possesses halakhic-legal capacity (i.e. knowledgeable in transactions), in our case the ring was owned by the plaintiff and therefore the only way the defendant could acquire the ring via the plaintiff’s daughter would be if the plaintiff appointed her an agent (a shaliah). However, a minor, regardless of gender, is not qualified to serve as an agent. Consequently, based upon the foregoing, in our case the wedding ring remained the property of the plaintiff.",
+ "C. Marital status as a benefit of intrinsic value (“a woman prefers to be together with her spouse”) serves as a medium for consummating the kiddushin",
+ "In relation to a woman who was married with a ring that belonged to her prior to the kiddushin, and therefore prima facie did not properly express her wish to be married, Rabbi Ya’akov Breisch states:",
+ "A woman’s desire to be divorced is not similar to her desire to be married, for “a woman prefers to be together . . .” (“tav le-meitav tan du”).",
+ "To state it differently, Rabbi Breisch’s implicit assumption that “a woman prefers to be together” expresses an abstract outcome of the desire of a woman for marriage, and one can therefore conclude that, from a halakhic perspective, this constitutes an example of a benefit, namely tovat hana’ah, which is a thing that possesses no real substance, a davar she’ein bo mamash.",
+ "Consequently, we must determine whether a benefit of intrinsic value (a tova’at hana’ah) constitutes something with a monetary value which can be considered significant for undertaking an obligation (a kinyan) for the purposes of creating kiddushin, since [the tova’at hana’ah of] the marital status is of intrinsic value to serve as a kinyan.",
+ "We read in the Talmud that there is a dispute between Ulla and Rabba as to whether a betrothal performed with a priestly tithe on produce (terumot) and other tithes (and gifts) which are a benefit is valid. Rabba is of the opinion that a benefit of intrinsic value is not considered to have monetary value and thus it is invalid, whereas Ulla is of the opinion that a benefit of intrinsic value is considered to have a monetary value and thus it is valid.",
+ "Post-talmudic decisors were also in disagreement about this matter. Some authorities agreed with Ulla that an intangible benefit is considered to have monetary value and the woman is considered married. On the other hand, there were numerous authorities who decided in accordance with Rabba that a benefit of no real substance has no monetary value and is not a means of acquisition and therefore she is not married.",
+ "In our case, therefore, in pursuance with the view that contends that such benefit does not have monetary value, we have determined that the Talmudic statement “for a woman prefers to be together . . .” (“tav le-meitav tan du”) does not constitute a means of acquisition for executing an act of kiddushin where the plaintiff gave her ring to the defendant in order that he marry her with it.",
+ "Based upon the foregoing, various doubts have emerged regarding the kiddushin. The first doubt is if the execution of kiddushin was in accordance with Halakhah. There remains a doubt as to whether in fact there were qualified witnesses for the kiddushin. Additionally, there exists a doubt if the couple understood that the transfer of money (e.g. the giving of a ring) is a symbolic act of undertaking an obligation (a kinyan) and was it understood by the prospective couple as integral part of the ceremony which established the act of kiddushin. An additional uncertainty is if the couple understood if the recitation of the formula of kiddushin (“harei at . . .”) is an introduction to the transfer of money which reflects that the couple’s intent is to marry for the purpose of kiddushin and that the ring transfer is not an act of gifting. When dealing with a doubtful marriage (kiddushei safek), there are numerous early authorities as well as other decisors who argue that we reinstate the original presumption of the wife, namely she has the presumption (hazakah) of being a single woman and she is biblically permitted to remarry without a get. Following in the footsteps of some authorities who arrive at the conclusion that she is permitted to remarry rabbinically without a get, we have decided to invalidate the kiddushin based upon the fact that the groom used a stolen ring, and given the various improprieties emerging from the wedding ceremony due to the halakhic incompetence of the officiating rabbi as per the view of Rabbi Ehrenberg.",
+ "Alternatively, we are dealing with a series of doubts concerning what the Halakhah ought to be (sefeika de’dina, halakhic doubt). As we know, if there exists a double doubt in regard to the wedding ceremony (seder kiddushin and nissuin), there are numerous authorities that permit her to remarry in a case of a husband’s get recalcitrance. A fortiori, when there are three doubts (or more) relating to doubts of what the Halakhah ought to be, it becomes effective to reinstate the presumption of being a single woman and thus nullify the presumption of being a married woman, in particular when dealing with get recalcitrance.",
+ "Therefore, for both reasons, the plaintiff is permitted to remarry, without a get, any Jew except a kohen.",
+ "Final afterthoughts",
+ "Even if the witnesses were eligible, as we have contended according to Rabbi Ehrenberg, the woman is presumed to be unmarried because the officiating rabbi was not competent in the halakhot of the process of marriage and divorce!",
+ "Should an arbiter reject his reasoning, seemingly we are left with validating the kiddushin based upon the presence of the Yemenite Jew under the canopy who may have been Torah observant or a rabbi who is known to be Torah observant, who “came and went” during the ceremony and either one may have observed the act of kiddushin . The question is can the act of kiddushin be established based upon the testimony of one witness? The Talmud teaches us:",
+ "Rabbi Yehudah said: If a man betroths in the presence of one witness, we disregard (lit. have no fear of) his kiddushin . . . Rabbi Nahman stated in Shmuel’s name: If a man betroths in the presence of one witness, we disregard his kiddushin even if both (the couple) admit it . . . Rabbi Yitzhak ben Shmuel ben Marth said . . . If a man betroths in the presence of one witness, we disregard his kiddushin even if both admit it. Rabbah son of Rabbi Huna said: If a man betrothes in the presence of one witness, the Great Court rules, We disregard his kiddushin. Who is the Great Court – Rav. Others state, Rabbah ben Rabbi Huna said in Rav’s name: If a man betroths in the presence of one witness, the Great Court rules, we disregard his kiddushin. Who is the Great Court- Rabbi (Rabbi Yehudah ha-Nasi).",
+ "In reliance upon these various Talmudic sages, the majority of post-Talmudic legists will refrain from validating the kiddushin which was executed in the presence of one witness. This position culminates in the Shulhan Arukh’s ruling, who states:",
+ "If a man betroths without witnesses, even one witness, the kiddushin is invalid even if they both admit to it.",
+ "Elucidating upon Shulhan Arukh’s posture, one beit din teaches us: ",
+ "The witnesses to the kiddushin are witnesses that establish (the kiddushin) rather than attest that the act of kiddushin transpired. In other words, the presence of the witnesses is part and parcel inorder to create the kiddushin and their validation. And if there are no witnesses who are eligible during the act of kiddushin, the kiddushin are not valid even if it is crystal clear that the act of kiddushin happened.",
+ "In the words of Rabbi Yehezkel Landau:",
+ "The qualitative majority (rov binyan) and the numerical majority (rov minyan) of the authorities argue that we disregard the kiddushin observed by one witness . . .",
+ "Yet, there is a minority of authorities (me’ut ha-poskim) who endorse Semag’s view that one winess may validate a kiddushin. As noted by others, for Semag we must regard the one witness’s presence to validate the kiddushin as a biblical stringency. Given that this view has been labeled by decisors as a rejected opinion, we may conclude that the kiddushin is invalid and therefore the marriage may be voided. Furthermore, given that Rema argues that in a case of get recalcitrance (igun), we do not endorse Semag’s posture, therefore in our case of get recalcitrance we would conclude that the marriage is invalid.",
+ "However, argues Rabbi Landau that in our case Semag would concur with the majority opinion that the marriage would be invalid.Given that he claims that Semag’s view is a rabbinic stringency, a position supported by numerous decisors, consequently should there be a basis for leniency, Semag would admit that we ought to be lenient and conclude that the marriage is invalid. Clearly, we have demonstrated that due to the halakhic improprieties in the wedding ceremony there is a mandate for invoking leniency. As such, given the circumstances of our case, in the light of Rabbi Landau’s understanding, Semag would agree that the presence of one witness would not validate the kiddushin.",
+ "Seemingly, in accordance with the minority of arbiters who understand the Semag’s position to be one of biblical stringency, the result would be that the kiddushin ought to be valid? Firstly, as we elucidated earlier in our decision, when dealing with a doubtful marriage (kiddushei safek), there are numerous early arbiters as well as other decisors who argue that we reinstate the original presumption of the wife, namely she has the presumption (hazakah) of being a single woman and she is biblically permitted to remarry without a get. Following in the footsteps of some authorities who arrive at this conclusion she is permitted to remarry rabbinically without a get. Moreover, there is the majority opinion, including: Bahag, Rif, Rambam, Rosh (possibly), Ra’vaad, Semag, Ramah, Meiri, Ritva, Rabbi Yosef Karo (possibly), Rabbi David ibn Zimra, Rabbi Mordekhai ha-Levi, Hida, Rabbi Ya’akov Emden and Rabbi Ovadiah Yosef, who rule that under certain conditions (e.g. a doubt what the Halakhah ought to be), a biblical doubt (a sefeika d’oraita) ought to be resolved stringently on a rabbinic level.",
+ "Assuming that “a biblical doubt ought to be resolved stringently on a rabbinic level” applies to a doubt as to what the Halakhah ought to be (sefeika de-dina ), “if there exists a double doubt one must rule leniently” is to be understood as meaning that the first doubt is converted from a biblical prohibition to a rabbinic one and results in a stringent position (namely that the matter is prohibited rabbinically) which is compounded by the second doubt which creates a rabbinic doubt, and therefore, by dint of rabbinic Halakhah (“din de’rabbanan”) one may rule leniently. In other words, the ramifications of invoking a double doubt in a particular case is that the matter is permitted (“heter gamur”) without any taint of a prohibition (“issur”).",
+ "On the other hand, espousing the position that a biblical uncertainty ought to be resolved stringently on a biblical level does not necessarily mean that the application of a double doubt will be ineffective. The consequent leniency associated with the implementation of a “double uncertainty” is due the rule of “follow the majority” (“aharei rabbim le’hattot”). The existence of one doubt creates a situation of a 50/50 uncertainty (“ke-mehtza al mehtza dami”), while the second uncertainty then creates a majority which results in treating the matter leniently on a biblical level. In accordance with many decisors, this approach is the dominant understanding as to why the employment of a double uncertainty will be effective. That being said, it is unsurprising that some authorities who subscribe to the posture that a biblical doubt ought to be resolved stringently on a biblical level will understand the dynamics of a double doubt based upon the rule of the majority principle (“rov”). In other words, the effectiveness of a double halakhic uncertainty (a sefek sefeika) may be based upon the majority and is unrelated to one’s position regarding the debate as to whether a biblical uncertainty (a sefeika de’oraita) ought to be resolved stringently on a biblical level or by virtue of being a rabbinic innovation.",
+ "Assuming that one endorses the position that a biblical doubt ought to be resolved stringently by dint of being a rabbinic decree, and therefore the deployment of a double doubt is operative, or that a double uncertainty is effective by virtue of its own inner halakhic logic unrelated to the ramifications of the existence a doubt regarding a biblical prohibition, are there grounds to void a marriage utilizing the mechanics of a double doubt in cases of a halakhic controversy?",
+ "Numerous decisors, Ashkenazic and Sephardic alike, argue that in the wake of a “double doubt” or a series of doubts as to what the Halakhah ought to be (known in halakhic terminology as “sefeika de’dina”) regarding biblical prohibitions including the halakhic impropriety of a ceremony of betrothal and marriage (seder kiddushin ve’nissuin), may, under certain conditions, nullify the presumption of a married woman and thus, in effect, will allow the woman to remarry without receiving a get from her get recalcitrant husband.",
+ "In short, even in light of the Semag’s view that we are concerned with the presence of only one witness at the kiddushin, given the circumstances of the case and the application of a double halakhic doubt this marriage would be voided."
+ ],
+ "b) A marriage conducted by one who is not an expert in the nature of kiddushin": [
+ "B. A marriage conducted by One who is not an expert in the nature of kiddushin",
+ "In the summer of 1993, the wife (hereinafter: the plaintiff) and the husband (hereinafter: the defendant) were married in a ceremony conducted by a Conservative rabbi. In March 2015, the couple separated. The plaintiff asked the defendant for a get.",
+ "We summoned the defendant to a hearing in our Beit Din, but he refused to comply with the summons. We set a date for a hearing at which we heard the arguments of the plaintiff, and in light of what was said, we ordered the defendant to give his wife a get. We also watched a video of the wedding ceremony of the parties.",
+ "The parties obtained a civil divorce at the end of 2016, but the defendant persists until today in his refusal to give the plaintiff a get.",
+ "Rabbi Avraham Shapira, a former Chief Rabbi of Israel and presiding dayan of the Beit Din ha-Rabbani ha-Gadol, rules that in a case in which there is no cause for concern that the wife will become an agunah, “there is no need to search for all kinds of leniencies,” but “where an agunah is concerned, the beit din must search for ways to release her so that she not remain an agunah.”",
+ "In keeping with this ruling, we too have endeavored to bring to light the halakhic grounds for invalidating the kiddushin (loosely translated: the marriage) of the plaintiff and the defendant, in order to release the wife from the chains of her aginut, being unable to receive a get from the defendant.",
+ "Discussion",
+ "A. The Validity of the Kiddushin Conducted by a Conservative Rabbi",
+ "The rabbi who conducted the wedding of the couple was a Conservative rabbi. This emerges from what he wrote in an article published in the Sun Sentinel: What are the rabbis supposed to do? They’re supposed to be like any ordinary human being: keep the commandments, observe the law, man to man.",
+ "In other words, observance of the Torah in his opinion is limited to the laws between man and man. Indeed, on the one hand, the officiating rabbi was ordained to the rabbinate in an Orthodox yeshiva, which at the time was known for producing graduates who were not conversant with Halakhah; on the other hand, however, the plaintiff told us that in a consultation with the Rabbi on the subject of marriage, he advised the parties that they must decide if they wish to observe Shabbat and the dietary laws. In this context, he told them that he himself travels by car on Shabbat because he has difficulty walking. Moreover, in a eulogy for him which appears on the web, his granddaughter said that her grandfather believed that all religions were valid.",
+ "We contacted a particular rabbi in Florida, and he informed us that the officiating rabbi was a Conservative rabbi, and this religious affiliation also appeared on Google. An additional important detail is that the officiating rabbi was a member of the Rabbinical Assembly, which is the official international organization of Conservative rabbis, founded in 1901 (see the website of the rabbinic organization: www.rabbinicalassembly.org).",
+ "Regarding the validity of the kiddushin conducted by a Conservative rabbi, Rabbi Moshe Feinstein expounds, on the basis of Rambam’s rulings, as follows:",
+ "Even if he was among the best of them, one who did not eat forbidden foods and did not desecrate Shabbat in public by coming to his synagogue by car, nevertheless, apart from the fact that he certainly cannot benefit from the presumption of eligibility and he is in any case ineligible on account of a doubt, because he is a member of the Conservative Rabbinical Assembly, according to whom it is possible to discount even scriptural laws, and most of the rabbinical prohibitions, which amounts to heresy, they are ineligible as witnesses even if they themselves have said nothing . . . and there is no better evidence of the fact that he follows the Conservative approach which denies many of the scriptural precepts, and possibly even denies the very fundamental principle of the Revelation on Mount Sinai, when he is a rabbi in one of their synagogues. And even if he does this only to make a living, he is deemed to be a heretic who is ineligible as a witness.",
+ "In another responsum dealing with a wife who was married by a Conservative rabbi, and was unfaithful to her husband, and she now wants to marry her lover, Rabbi Feinstein states:",
+ "Simply, in my view, he [the Conservative rabbi] is ineligible as a witness, even though he is reported to observe Shabbat and the dietary laws. Because the very fact of being a Conservative rabbi . . . is prohibited as a matter of heresy, and this disqualifies him as a witness.",
+ "Rabbi Ahron Soloveichik espouses the same view that the marriage ceremony that was conducted by a Conservative rabbi, whose denial of some of the main principles of faith is known and who belongs to the Conservative Movement do not constitute a halakhic marriage, because the rabbi is ineligible as a witness to the validity of the kiddushin.",
+ "As such, according to the rulings of Rabbi Moshe Feinstein and Rabbi Ahron Soloveichik, due to the rabbi’s affiliation with the Conservative movement, the kiddushin he conducted was invalid.",
+ "B. Kiddushin conducted by one who is not an expert in the nature of kiddushin",
+ "The Talmud states, “Rav Yehudah said in the name of Shmuel: Anyone who does not know the nature of divorce documents and kiddushin should have no dealings with them,” and the Halakhah was decided accordingly. The reason is that kiddushin that is conducted by one who is not expert in their halakhot gives rise to doubts and defects in the act of kiddushin. Below we will discuss the doubts and the defects pertaining to the kiddushin of the plaintiff and the defendant.",
+ "1. Failure to designate eligible witnesses for the kiddushin",
+ "In the present case, standing under the wedding canopy (hupah) were a quorum of relatives (men and women) together with the officiating rabbi and the cantor, who were not related to them.",
+ "At the time of the recitation of the words, “You are hereby betrothed . . .” by the groom and the handing over of the ring from the groom to the bride, the officiating rabbi and the cantor were both present; they both were members of the Conservative movement, and as noted, Rabbi Ahron Soloveichik’s view is that they are ineligible as witnesses.",
+ "But even if we assume that the officiating rabbi and the cantor are eligible witnesses, the practice in many communities is to designate the witnesses who will attest that the act of kiddushin transpired, and they are deemed as the only witnesses who can confirm the act of kiddushin. One of the reasons for this practice is the concern that arises from Ritva’s view, namely that an ineligible witnesse disqualifies eligible witnesses, and some authorities have endorsed his position. However, other decisors factor Ritva’s posture into consideration only as a supporting argument (a senif ) for ruling leniently. In the present case, we factored Ritva’s opinion into consideration as an additional ground for invalidating the kiddushin. In the case at hand, the officiating rabbi did not designate witnesses.",
+ "2. Lack of intention of the ineligible and the eligible witnesses to testify",
+ "Another basis for leniency is the view of Shakh, namely that if there were relatives and ineligible witnesses standing under the wedding canopy and none of the witnesses (including the eligible ones) intended to testify, the entire testimony is nullified.",
+ "Amongst the guests in the hall at the time of the wedding ceremony, there were three men who were religiously observant, but even so, the opinion of Shakh must be taken into consideration; therefore, the situation here is one of a double doubt (sefek sefeika) that disqualifies these three people, as Rabbi Soloveichik contends:",
+ "Even if it had emerged that amongst the guests in the hall, there were two men who refrained from desecrating the Shabbat in the presence of an ultra-Orthodox rabbi, even then there is a double doubt because we must adjoin the view of Shakh . . . whereby even though an eligible witness is fit to testify even if he did not intend to do so, in any case if amongst the witnesses there were relatives or ineligible persons then the eligible witness is fit to testify only if he had intent to testify. But if the eligible witness did not have intent to testify, then the presence of the relative and the ineligible witness disqualifies his testimony. And if so, even if we assume that amongst the guests there were two Jews in the category of tinokot shenishbu [this refers to those who sin inadvertently, but are not held accountable due to having been deprived of a Jewish education], who desecrated the Shabbat only in private, and they stood up in their places to watch the kiddushin – in any case, because the Conservative rabbi and the relatives who stood on the stage were certainly scripturally ineligible, therefore the fact that the Conservative rabbi and the relatives on the stage were watching, disqualifies the testimony of the two Jews who desecrated the Shabbat in private and were deemed to be tinokot shenishbu.",
+ "3. Validity of the kiddushin by virtue of “We are witnesses”– anan sahadi",
+ "Prima facie, even in the absence of two eligible witnesses for establishing the kiddushin such as in our case, seemingly we should adopt the rulings of Havot Yair, Hatam Sofer and Iggerot Moshe whereby halakhically observant Jews who sat amongst the guests and watched the kiddushin ceremony, without hearing the husband’s statement, “You are hereby betrothed . . .” and without seeing the passing of the ring from the groom to the bride, may serve as witnesses by virtue of the concept of “we are witnesses” (anan sahadi).",
+ "Our response to this posture is that in the wake of the ineligibility of the witnesses, the kiddushin would have been voidable, and if our intention was to validate the marriage by means of other people amongst those present at the kiddushin ceremony, we would have considered invoking the views mentioned above. However, in the present case, we are seeking a way to invalidate the kiddushin due to the husband’s get recalcitrance! Therefore, notwithstanding the argument that there is a tradition in relation to rulings concerning forbidden relations, whereby the authorities must take into account all the strict views, in a situation involving get intransigence many legists argue that the ruling ought to be lenient and in certain situations may rely upon a minority view.",
+ "As emphasized by Rabbi Sinai Sapir, a nineteenth century Lithuanian decisor:",
+ "In relation to the halakhot of being a chained woman (igun), it is not right to cobble together strictures on the basis of fine distinctions and subtle rejections of legal arguments; rather, we ought to prefer the superior path of lenient decision-making, for at the end of the day we are dealing with people’s lives. . . .",
+ "Since we rule leniently, it is appropriate that we follow the majority of the authorities concerning invoking “we are witnesses” as a means to establish the act of kiddushin. Owing to the fact that the majority of decisors reject the view of Havot Yair, Hatam Sofer and Iggerot Moshe, we have refrained from adopting it in the circumstances of this case, particularly in view of the fact that in addition to the above decisors, their view is rejected by several leading contemporary legists such as Rabbi Eliezer Waldenberg, Rabbi Ovadia Yosef, Rabbi Osher Weiss and Rabbi Tzion Boaron. Finally, in the wake of the designation of two witnesses to attest and establish the act of kiddushin which is a common practice today, there is no basis to endorse Havot Yair’s, Hatam Sofer’s and Iggerot Moshe’s posture.",
+ "Moreover, recourse to “we are witnesses” is conditional upon the fact that the officiating rabbi is halakhically observant in general, and is expert in the halakhot of kiddushin and marriage in particular, as stated above. The fact that the officiating rabbi did not designate witnesses to the kiddushin, was not expert in additional halakhot relating to the kiddushin and marriage ceremony, and was unaware of the problem that was liable to arise as a result of adopting Ritva’s position, attests to a lack of halakhic expertise. As such, in the case before us one cannot invoke “we are the witnesses,” which is based on the implied assumption that it is possible to rely on the expertise of the officiating rabbi; hence, guests amongst the invitees who watched the kiddushin ceremony cannot serve as validating witnesses to the kiddushin. Finally, even Rabbi Feinstein, who aligns himself with the posture of Havot Yair and Hatam Sofer, agrees that in the wake of an officiating rabbi who is not versed in matters of kiddushin, the application of “we are witnesses” will be ineffective.",
+ "4. Doubt as to whether the couple understood that the kiddushin was effectuated by the handing over of the ring",
+ "The Torah teaches us: “When a man taketh a wife . . .” and the Talmud explains exegetically, “When a man taketh a wife, and not when [a woman] taketh [a man].”",
+ "Moreover, at the beginning of Chapters 1 and 2 of Mishnah Kiddushin respectively, we read: “The man betroths” and “the woman is acquired.” In other words, as opposed to sale in which the money is handed over in consideration of the object that was acquired, here, in kiddushin, the money is given an act of undertaking an obligation(s) (a kinyan) of a prospective husband toward his prospective wife.",
+ "According to the literal interpretation of the Torah and the Mishnah, the man executes the act of undertaking a duty through kiddushin vis-à-vis the the woman, the prospective spouse is passive, and negates her mind and her will in the face of her husband and seemingly the wife is being acquired by the husband. This appears to be the case according to the well-known words of Ran who elucidates:",
+ "Since the Torah said, “When a man takes a woman,” and it did not say, “When a woman be taken to be with a man,” she has no legal capacity to transfer herself into his legal jurisdiction. Rather, in agreeing to be taken in marriage by the man, she negates her own will and mind and is then considered as ownerless property (hefker – AYW) vis-à-vis her husband. At that point, the husband transfers her into his domain, hence the act of “taking someone in kiddushin” can only be executed by a man and never by a woman.",
+ "However, if one examines closely the words of Ran and other authorities, one sees that an act is required on the part of the woman, whereby she negates her will with respect to the act of kiddushin. Lest one construe the Ran’s words as suggesting that the consummation of kiddushin entails that the man is acquiring a monetary asset, namely his spouse, nothing could be further from the truth. As Ran notes elsewhere:",
+ "The woman is not the asset of the husband . . .",
+ "The couple must be aware of the fact that the act of kiddushin is executed with intent for the purpose of kiddushin. In other words, the man’s intent is that his engagement in conjugal relations will be exclusively with his spouse, namely personal exclusivity (kinyan ishut). Rema rules: “But a man is not believed when he says that his intention was not for kiddushin.” Apparently, according to Rema, there is an assumption that a person executing the kiddushin intends for it to be for the purpose of kiddushin. What does this refer to? It refers to the situation in which the person executing the kiddushin is halakhically observant in general, and knows that there is an obligation to have intention for the act of kiddushin in particular. However, in the circumstances of the present case, the person executing the kiddushin was brought up in a Conservative family, and attended Conservative Talmud torah studies classes (during extra-curricular time) and confirmation classes from the age of eight until the age of sixteen. It is therefore unreasonable to assume that the person was knowledgeable in Halakhah and intended that the act be executed for the purpose of kiddushin. Moreover, in the absence of the witnesses hearing the kiddushin formula (“harei at mekudeshet . . .”), if it is crystal clear that the man and woman intended to consummate the kiddushin, then the kiddushin is valid.",
+ "In the present case, the couple exchanged rings. Although the plaintiff gave a ring to the defendant after the ketubah had been read, it is altogether extremely doubtful whether the plaintiff understood that the ring that had been given to her earlier at the time of the kiddushin entailed a man’s undertaking to accept certain marital duties rather than a merely ceremonial act. Even if the officiating rabbi understood the halakhic difference between the respective rings exchanged, and therefore arranged it so that the plaintiff would give a ring to the defendant after the reading of the ketubah, he did not explain to the couple the differentiated significance of this ring exchange. Therefore, a doubt arises as to whether the officiating rabbi was able to explain the difference between the giving of the kiddushin ring by the groom to the bride, and the subsequent giving of the ring as a gift by the plaintiff to the defendant after the reading of the ketubah. In relation to both rings, the intention may have been only to exchange gifts.",
+ "As Rabbi Moshe Feinstein aptly notes:",
+ "Even if he gives her a ring, the fact that she also gives him a ring proves that the ring that he gave was also a mere gift on account of them becoming man and wife, but it does not relate in any fashion to executing kiddushin.",
+ "5. Giving a ring before saying, “You are hereby betrothed”",
+ "The groom must recite the statement of kiddushin – “You are hereby betrothed to me . . .” prior to giving the ring, and if the bride received the ring prior to the statement having been recited – the validity of the kiddushin is doubtful.",
+ "In the present case, as appears in the video of the ceremony, the giving of the ring by the groom preceded his reciting of the kiddushin formula, “You are hereby betrothed.” In other words, the act of kiddushin was executed without the statement. Now, if the man would have spoken with the woman about matters of kiddushin and given her the ring in silence, the kiddushin would be valid. Similarily, in the present case the kiddushin ought to have been equally recognized. However, as we noted, the parties were unaware of the fact that they were dealing with “matters of kiddushin,” (iskei kiddushin) for they viewed the ceremony as the exchange of presents, and had no awareness of the aspect of the prospective husband’s undertaking of his marital responsibilities at the time of the kiddushin. As Rabbi Osher Weiss incisively observes:",
+ "A husband’s act of kiddushin is different according to our Torah . . . from what is customary in the modern world. According to the Torah, the husband acquires his wife by giving her a ring as kiddushin of money . . . The kiddushin is effectuated by him but one requires only her consent. . . . However, the modern understanding in the world is that we have a mutual obligation each for the other without any symbolic act of undertaking an obligation (kinyan) . . . it is a sign of endearment and love. Therefore, the practice is to exchange rings and the primary validity of the betrothal according to their outlook is in their declaration . . . rather than money.",
+ "Therefore, it is very doubtful whether the couple understood that giving the ring is the actualization of this symbolic act or whether they regarded the ring simply as part of the marriage ceremony.",
+ "6. Ownership of the ring by the person who executes the kiddushin (the mekadesh)",
+ "The kiddushin ring must belong to the prospective husband who executes the kiddushin. The purchase of it by the groom, excludes the use of a borrowed ring, a stolen ring or one belonging to his partner for kiddushin. It becomes the responsibility of the officiating rabbi to establish that the ring does indeed belong to the groom.",
+ "In the present case, prior to the ceremony, the parents of the defendant told the plaintiff that they had purchased a ring as a gift, and it should be used in the ceremony. In the absence of an act of acquisition, ownership of the ring vested in the plaintiff, since the defendant’s parents announced that they bought the ring for her as a gift, indicating acquisition by way of a statement attesting to a halakhic transfer of ownership (kinyan odita). However, a preliminary condition for recognition of this type of acquisition is that the statement was said in the presence of two eligible witnesses.",
+ "Clearly, the defendant did not need to execute the symbolic act of acquiring the ring via lifting (kinyan hagbahah). Acquisition may be executed via possessing the ring in his hand (kinyan yad). However, such acquisition is valid provided that the person had intent to acquire the object. In our case, given the defendant’s lack of Jewish education in general and ignorance of the halakhot of acquisition in particular, the defendant lacked the intent to acquire the ring. Furthermore, seemingly since the defendant’s parents gave the ring to their son and we know that “when another mind conveys title” (da’at aheret maknah) the defendant may acquire title, so the transfer ought to be effective. Nevertheless, given the parents lack of Jewish education in general and the halakhot of acquisition in particular, such a transfer never transpired.",
+ "To state it differently, before the kiddushin ring was given by the defendant to the plaintiff, ownership of it remained vested in his parents, and the kiddushin was in fact executed with a ring that did not belong to the defendant, hence the kiddushin is invalid or minimally a doubtful marriage if construed as a borrowed ring or as a gift to be returned to the donor.",
+ "Finally, even if such a statement was declared in front of two witnesses and consequently the ring now belongs to the plaintiff, it is a matter of debate as to whether a second kiddushin has to be executed if the prospective wife gave her ring to her prospective husband to be utilized as the kiddushin ring.",
+ "7. Absence of finality of intention in the kiddushin ring requiring appraisal",
+ "A wife cannot be acquired by means of an object the value of which cannot be appraised by experts, since its value may be wrongly appraised; therefore, the bride cannot be assured of its appraisal.",
+ "In our case, the plaintiff was married by means of a ring containing several diamonds, and she had no idea of the value of the ring and its worth prior to the kiddushin. As we mentioned, she knew only that she would receive this ring in the wedding hall in the course of the wedding ceremony.",
+ "Moreover, when the face of the bride is covered at the moment of the giving of the ring, this indicates that she is not particular about the object with which she is being betrothed, and the value of the ring is not important to her. In the present case, however, the bride’s face was uncovered at the time that the ring was given. Furthermore, in order to dispel the concern about the absence of finality of intention on the part of the bride, the officiating rabbi ought to have asked her whether the ring was indeed worth one perutah. In the present case – he did not ask.",
+ "8. Seclusion of the bride and groom (yihud)",
+ "There are several interpretations of the definition of the marital canopy (“hupah”). According to some decisors, it is the bringing of the bride to the house of the groom for the purpose of marriage. Others are of the opinion that it is obligatory for the couple to seclude themselves in a special place for the purpose of marriage, and there are other interpretations as well. According to the second view, which is the common practice in the Ashkenazic community, the bride and groom seclude themselves in a “seclusion room” after the wedding ceremony, and two eligible witnesses must be present when the couple goes into the room.",
+ "In the present case, the Ashkenazic couple was secluded without the presence of two witnesses. In other words, the officiating rabbi was evidently unaware that the kiddushin and marriage ritual require the presence of two witnesses at the time of the seclusion.",
+ "Decision",
+ "In view of all the above, the kiddushin of the plaintiff and the defendant are voidable for the following reasons:",
+ "First, according to Rabbi Ehrenberg, who teaches us:",
+ "Since the witness was a transgressor of the Shabbat, there is a suspicion that the rabbi who performed the kiddushin for them also did not perform the kiddushin in a way that caused them to have effect . . . for the witnesses might not have watched the ring being given, or if the word li “to me,” as required by Even ha-Ezer 27:4, were missing, and as a result there is no valid kiddushin, and the officiating rabbi must check this; this is acceptable if the rabbi who is the officiating rabbi is an observant person who is expert in the nature of kiddushin – we can rely on the presumption that the kiddushin were in accordance with the law . . . If there are no witnesses to this, and in particular if the officiating rabbi is not an expert and cannot be presumed to have conducted [them] in accordance with the law . . . it is doubtful whether kiddushin took place, and the woman is presumed to be unmarried, even if we know that there were eligible witnesses at the time of the kiddushin to attest to their validity.",
+ "In other words, even if there were eligible witnesses, according to Rabbi Ehrenberg, the woman is deemed to be unmarried, because the officiating rabbi was not proficient in the halakhot of the ceremony of kiddushin and marriage!",
+ "Indeed, in our case, as we explained, the officiating rabbi did not attend to all that was required in order for the kiddushin to be valid and consequently “we are witnesses” (anan sahadi) was ineffective as a vehicle to establish the act of kiddushin.",
+ "To state it differently, when dealing with a doubtful marriage (kiddushei safek), there are numerous early authorities as well as other decisors who argue that we reinstate the original presumption of the wife, namely she has the presumption (hazakah) of being a single woman and she is biblically permitted to remarry without a get. Following in the footsteps of some authorities who arrive at the conclusion that she is permitted to remarry rabbinically without a get, we have decided to invalidate the kiddushin based upon the fact that the groom used a ring which did not belong to him, and given the various improprieties emerging from the wedding ceremony due to the halakhic incompetence of the officiating rabbi, as per the view of Rabbi Ehrenberg.",
+ "Secondly, notwithstanding some who contend that a wedding officiated by a Conservative rabbi is a case of a doubtful marriage (safek kiddushin) where one can either obligate or coerce the giving of a get, in accordance with the rulings of Rabbi Moshe Feinstein and Rabbi Ahron Soloveichik, due to the fact that the officiating rabbi was affiliated with the Conservative Movement in general, and subscribed to its views in particular as well as Rabbi Ehrenberg’s position of the halakhic incompetence of the officiating rabbi the kiddushin that he conducted are not to be recognized.",
+ "Accordingly, the plaintiff is permitted to remarry without a get any Jew, including a Kohen.",
+ "This decision was approved by a renowned halakhic authority."
+ ],
+ "c) The wedding ring; A borrowed ring or a gift on the condition to return it?": [
+ "C. A kiddushin ring: A borrowed ring or a gift on the condition to return it?",
+ "During January 1993, the couple in question married. In September 2010, the couple separated and the civil divorce was finalized in September 2016. We summoned the husband (hereinafter: the defendant) to appear in beit din and he refused to respond to the summons. We scheduled a beit din hearing, we heard the arguments of the wife (hereinafter: the plaintiff), and during January 2018 we obligated the defendant to give a get to the plaintiff. To date, he has been recalcitrant in regard to giving the get.",
+ "Prior to the defendant’s giving a kiddushin ring (loosely translated: the wedding ring) to the plaintiff, the rabbi who officiated at the wedding ceremony (the mesadeir kiddushin) asked the defendant – “Is the ring yours and have you paid for it?” His reply was that the ring belongs to him and he purchased it. However, the plaintiff, as well as other relatives that stood under the wedding canopy (hupah) during the time of the kiddushin, said that the defendant lied regarding the ownership of the ring.",
+ "As described, “a crisis” occurred when the individuals standing under the wedding canopy realized that there was no wedding ring. Suddenly, one of the people standing there, a friend of the defendant, removed his ring and he gave it to the defendant, and with this ring the act of kiddushin was consummated. After the ceremony, the defendant’s friend approached the plaintiff and requested that his ring be returned to him. The plaintiff agreed, she removed the ring and returned it to the defendant’s friend.",
+ "Discussion",
+ "Even though many authorities claim that traditionally, all strict views must be considered in matters concerning forbidden sexual relations, nevertheless, in a matter of get recalcitrance (igun) many contend that the lenient view ought to be adopted. As Rabbi Yitzhak Bacher teaches us, if every Torah scholar abstains from addressing these issues and declares that he will not enter “a place where there is a mighty flame” due to the stringency of prohibited sexual relationships, this is not the proper approach to adopt. Every Torah scholar, may he be a minor or major scholar, is obligated “to search with candles in the holes and cracks,” and maybe he will discover a medicine for the daughters of Yisrael in order to save them from get recalcitrance.",
+ "As Rabbi Avraham Shapiro, former Chief Rabbi of the State of Israel, observes in a case which did not entail get recalcitrance (igun):",
+ "We do not work excessively hard to consider carefully all potential leniencies, but in the case of an agunah, the beit din must work hard to identify a leniency in order that she not remains an agunah.",
+ "As Rosh states:",
+ "Every teacher is to review all the sides of the issue in order to permit (her to remarry).",
+ "Accordingly, we have canvassed the halakhot to void the kiddushin (loosely translated: the marriage) of the above couple and to release her from the chains of igun.",
+ "The emerging question from the facts of the case is: at the time the defendant’s friend transferred his ring to the defendant, what was his intention? Did he intend to lend his ring for the act of kiddushin or did he intend to gift it on condition that it would be returned after the ceremony?",
+ "Let us address both possibilities.",
+ "1. The validity of a borrowed wedding ring",
+ "The threshold question is whether he asked for the ring in order to marry his prospective wife or requested to borrow it without specifying the reason for borrowing the ring. Clearly, given the circumstances, the reason for borrowing the ring was for the purposes of marrying his prospective wife.",
+ "Let’s begin with the words of Rabbi Shmuel Kol, a contemporary commentator on Rambam’s Mishneh Torah, regarding a borrowed kiddushin ring, who expounds:",
+ "Many problems emerge regarding kiddushin with a borrowed ring by men who are not Torah observant. They live many years together (as spouses – AYW) and exchange rings between themselves as a sign of trust and mutual agreement to maintain joint lives as a husband and wife. . . . Frequently, after having sired children, they turn to the rabbinate (Israeli rabbinate of the Chief Rabbi – AYW) in order to have a marriage (a halakhic union – AYW) executed. The rabbi who officiates at the marriage asks and clarifies in the following manner: “Is the ring yours? Did you purchase it with your money?” The secular groom, who does not understand the import of these strange questions, responds frequently: “Yes, absolutely.” And he thinks, what do they want for me, did I steal the gold ring? . . . He fails to raise in his mind the significance of how the marriage ring reached his possession for a second time via the bride that lent it to him for the purpose of the marriage ceremony. She does not raise in her mind that she has to gift it to him. Rather, she gave him the ring for the ceremony and the rest is in the hands of the rabbinate.",
+ "As we will see, this fear of dealing with individuals who are ignorant of Halakhah is factored into consideration by the decisors. Can we speak of a groom halakhically intending to give a borrowed ring to his bride?",
+ "Rosh states:",
+ "If he lent the ring for a specified time and he gave permission to the borrower to lend it to a third party in order to marry her, notified him that the ring is lent for a specified time and it was given to her, she is deemed married due to deriving benefit from its use as well as the adornment until a prescribed time. One must appraise that the benefit from the adornment is worth the value of a perutah. She is married even though the actual ring does not belong to her.
If he says let me borrow the ring in order to marry her with it, she is married due to the fact that he borrowed it on the assumption that he wanted to marry a woman. . . . We are witnesses that he resolved in his heart to give it to him in language which would be effective regarding the act of kiddushin that will enable her to be married. . . .",
+ "According to Rosh’s presentation, does the borrower have a right of possession (“a zekhut kinyanit”) in the borrowed ring? As we know “a lease (sekhirut) for a day is a sale.” In other words, though a leased item is not considered to be owned by the lessee, nevertheless the lessee possesses the asset and the lease is for a set time. The right of possession of the lessee manifests itself in the fact that the lessor transferred to him the benefit from the asset rather than the actual ownership of the asset. Similarly, Rosh ascribes to this approach that the nature of the lessee’s right vis-à-vis the asset is a possessive right. As Rosh writes elsewhere:",
+ "A lease for a day is a sale and the sale is for his benefit.",
+ "If we turn to the nature of borrowing (she’elah) in accordance with Rosh’s words, the borrower acquires a possessive right in the ring for a prescribed time for a specific use, i.e. the act of kiddushin. Similar to a lease where the lessee does not acquire an ownership right in the asset, analogously the husband does not receive such a right in the ring. However, as noted by Rosh, similar to a leased item, the prospective wife (mekudeshet) must derive a benefit from utilizing the ring during the time of the kiddushin.",
+ "His ruling is equally clarified in another responsum, and cited by Tur and Shulhan Arukh, with the commentaries on the Shulhan Arukh not citing a dissenting view. Other decisors concur that the borrower has a possessive right for use just as the lessee.",
+ "Adopting the posture of Rosh raises a few difficulties.",
+ "First, in our present case, regarding the friend of the defendant who is interested in aiding the kiddushin to transpire, we may assume that he intends to transfer (hakna’ah) the ring in a halakhically effective fashion. However, in our situation, we have reason to suspect that the lender is not versed with the halakhot of executing a transfer! While he studied in a Yeshiva day school for his elementary school years, afterwards he enrolled and studied in public school and did not gain an advanced Jewish education.",
+ "Secondly, as we noted, Rosh teaches us:",
+ "If he lent him the ring for a specific time and gave him permission to lend it to a third party to marry a woman, she is deemed married.",
+ "Generally, the borrower is proscribed from lending the borrowed item to a third party. In our case, the defendant would be unable to lend his friend’s ring to his prospective spouse for the consummation of kiddushin. However, Rosh argues that if the lender permits the borrower to lend it to a third party, the loan is valid. And in our case, the circumstances demonstrate that the lender (the defendant’s friend) authorized the defendant to lend the ring to his prospective wife. As such, the kiddushin ought to be valid. However, Rabbi Ephraim Navon demurs and understands that Rosh contends that the lender can expropriate the lent item from the sub-borrower, and therefore she would not be married. In fact, elsewhere, Rabbi Navon’s interpretation is found supported in Rosh’s ruling. Given that expropriation is valid, therefore the benefit derived from the use of the ring cannot serve as a medium to establish the kiddushin (kesef kiddushin).",
+ "Furthermore, in our circumstances, the borrower and the lender did not make the plaintiff aware that the ring was borrowed. The reason is that one has to inform her that the borrowing was for a specified time, lest she think that the ring was hers forever, and therefore she agreed to adorn herself with the ring. For otherwise, when she would realize that it wasn’t given to her permanently, there would be no kiddushin even though she had derived benefit from the adornment which was valued at least a perutah, as she had no intent for this benefit to serve as the kiddushin.",
+ "The following question is posed to Rashba:",
+ "Some say that a borrowed ring for the purpose of marrying a woman deems her married . . . And here, where it was borrowed in order to marry a woman, and it was lent for that purpose, she is deemed married, and this is how the Geonim ruled . . .",
+ "Rashba replies:",
+ "Those Geonim who ruled in this fashion – I never heard about them, and I do not agree with their posture . . . We are dealing with a loan, not a gift or a sale. For neither a sale nor a gift is ever [formulated] in the language of a loan. . . . A person knows that one does not marry with a borrowed utensil, and resolves to give it as a gift . . . Firstly, most people are not proficient in these halakhot. Moreover, most people err in this matter because they do not know the halakhah of kiddushin.",
+ "Rashba claims that consummating a kiddushin with a borrowed ring is invalid due to the fact that lender does not intend to transfer the ring to the groom (the mekadesh), because he is unaware that for the kiddushin to be effective one requires that the ring be transferred. In rabbinic parlance, one requires the knowledge of the lender to transfer it in accordance with the rules of undertaking duties (da’at makneh) accompanied by the execution of a symbolic act to undertake a duty (a kinyan), and the lender is bereft of such knowledge.",
+ "One might argue that it suffices if the lender had a general intent to transfer the item to the groom at an unspecified time and without designation of a particular symbolic act. However, in our situation, the lender was bereft of such intention. Nonetheless, in pursuance to Shakh and Netivot ha-Mishpat, if it is clear that he desires that his friend benefit from the monetary item, even if he is unaware of the halakhot regarding a halakhic transfer, then the transfer is valid. As such, in our present case, it is clear that the groom’s friend (i.e. the lender) wants his ring to be used in the ceremony and consequently his transfer ought to be effective. As such, Rashba’s stance is problematic.",
+ "Rashba’s line of reasoning stands in variance with Rosh’s rationale that the lender and borrower want the halakhic status change from being a single woman to being a married woman (known as the halot condition), and consequently he intends to transfer the item in a halakhically effective manner.",
+ "Yet, numerous other decisors subscribe to Rashba’s opinion. In fact, Rabbi Avraham Borenstein observes:",
+ "Even though in a case of a borrowed ring by the prospective husband, Shulhan Arukh rules that she is married, in pursuance to Rosh, Rashba in 4:273 disagrees, and the Beit Yosef surely did not see this responsum, because if he did, he would have cited it. Also, Knesset ha-Gedolah . . . who is uncertain whether Rashba agrees with Rosh, and also Maharhash did not see. And if Beit Yosef would have seen it, he would not have ruled like Rosh, and marrying a woman with a borrowed ring creates a doubtful marriage.",
+ "In another responsum, Rashba adds:",
+ "She becomes married via the benefit derived from her adornment which is worth the value of a perutah. . . . However, if he lent it to her for an extended period of time and stated that the benefit derived from the span of time is worth the value of a perutah, and he said to her explicitly, “be married to me by the benefit derived of the adornment of this ring for an allotted time,” she is married, because he did not marry her with the actual ring but with the benefit she derived.",
+ "In other words, according to Rashba, the halakhic status change from being a single woman to being a married woman is grounded in the benefit derived from wearing the ring of kiddushin rather than from possessing the ring.",
+ "As we pointed out, while there are differences between the views of Rosh and Rashba concerning the validity of utilizing a borrowed ring for the act of kiddushin, nevertheless the common denominator of their postures is that the woman is married due to the use or adornment which is worth the value of a perutah.",
+ "The question which emerges from our presentation is whether deriving the benefit of adornment which is valued at a perutah is considered monetary substance equivalent to legal tender (“mamon”) and is therefore a means to execute or undertake an obligation (a kinyan), or is it something lacking a physical property (a “davar shein bo mamash”)?",
+ "We read in the Talmud that there is a dispute between Ulla and Rabba as to whether a betrothal performed with a priestly tithe on produce (terumot) and other tithes (and gifts) which are a benefit is valid. Rabba is of the opinion that the benefit of these rights (tovat hana’ah) is not considered to have monetary value and thus it is invalid; whereas Ulla is of the opinion that this benefit is considered to have a monetary value and thus it is valid.",
+ "Decisors were also in disagreement about this matter. Some authorities agreed with Ulla that this benefit is considered to have monetary value and the woman is considered married. On the other hand, there were numerous authorities who decided in accordance with Rabba that this benefit has no monetary value and consequently is not a means of acquisition and therefore she is not married.",
+ "Even if we would ascribe to the view that an accrued benefit has monetary value, in the present case, at the time of the kiddushin the groom (the defendant), refrained from stating to the bride (the plaintiff) that she is being married via the vehicle of derivate benefit of being adorned by the wearing of his friend’s ring.",
+ "Accordingly, in pursuance to the view that the benefit of adornment does not constitute a means to acquire a woman via the act of kiddushin where the defendant gave his prospective wife his friend’s ring, the marriage is invalid.",
+ "2. A kiddushin ring- a conditional gift",
+ "After proposing the utilization of a borrowed ring for kiddushin, Rosh continues:",
+ "And if using terminology of a loan will not be effective then it should be in the language of a gift, minimally conditioned upon the groom returning the gift, she will be deemed married and he will acquire it from the woman and return it to him.",
+ "In accordance with the authorities who reject the validity of the act of kiddushin via the use of a borrowed ring, Rosh contends that there is an assumption that the lender intended to give the ring as a conditional gift. In other words, it is gifted for the kiddushin and afterwards the donor requests its return. Other decisors endorse Rosh’s view.",
+ "In a case where a donor gifts an item on the condition that it is returned, the item, i.e. the ring, belongs to the recipient, i.e. the groom, during the time it is in his possession, provided that he will subsequently return the gift to the donor, i.e. the groom’s friend. And the donor allows the recipient to give the gift to a third party, contingent upon the third party returning the gift to the recipient.",
+ "In our case, it clear that the defendant’s intent was to give the ring to the plaintiff for the purpose of the kiddushin and that subsequently the plaintiff will return the ring to the donor, namely the defendant’s friend, or that she would return it to the recipient and he would then give it back to the donor.",
+ "As we know, due to the severity of incest (arayot), Halakhah establishes that the validity of giving a conditional gift is contingent upon the execution transpiring in accordance to the halakhot of conditions (mishpetei ha’te’naim), such as the principle that a condition, when stipulated, must be formulated as “a double condition” (a tenai kaful). In other words, the condition must be stated in the affirmative (if he complies with the condition, he is entitled to the arrangement) and in the negative (if he does not comply with the condition, he is not entitled to the arrangement). Moreover, the affirmative must precede the negative (hen kodem le-lav). Furthermore, it is required that the condition must be stated prior to the actual transaction (tenai kodem le’ma’aseh). Finally, the condition must be possible to fulfill (davar she-afshar le’kayyemo).",
+ "In our case, it is clear that the donor and the recipient neither couched the gift in terms of the aforesaid four requirements nor did the donor stipulate that he was giving the gift for an expressed period of time or that it be returned after a prescribed time.",
+ "In the absence of implementing the aforementioned rules of conditions, there are legists who will impart validity to the arrangement of the gift in light of the circumstances which would indicate a clear expectation (umdana) that in fact the gift was given for a specific time and would be returned after the time had lapsed. However, there are others who mandate the application of the rules of conditions to validate the transfer of a conditional gift rather than invoking an assessed expectation. In our case, as mentioned, the rules of conditions were not implemented. As such, the gift may not serve as a vehicle to establish kiddushin. Consequently, she is not married.",
+ "Another difficulty arises from another halakhah dealing with gifting. The recipient of the gift that executed a symbolic act of undertaking vis-à-vis an asset was unaware that the asset received was a gift; he acquires it because there is no duty that the recipient of a gift must intend to acquire it. And the reason for this halakhah is that the donor has the intent to transfer it to him (da’at aheret makneh). Lest one argue that in our case, given that the defendant’s friend was ignorant concerning the halakhot of undertaking obligations, therefore one cannot assert da’at aheret makneh. There are decisors who contend that intent to transfer is determination, and a symbolic act of undertaking a duty need not be executed. However, others claim that there is a requirement of executing a symbolic act of undertaking an obligation, though the defendant’s friend is incapable of fulfilling this duty.",
+ "Moreover, in contradistinction to other authorities, upon return of the gift from the sub-recipient (the plaintiff), the recipient has to halakhically transfer the gift back to the donor, the defendant’s friend. In the wake of the absence of any formal halakhic transfer, the gift, the ring, remains in the possession of the groom, the defendant. On the other hand, there are decisors who do not mandate the execution of a kinyan upon returning a gift, due to the fact that the gifting was for a limited time or because the donor retained a residual right (known as a “shiyur”) in the gift, that at the end of the agreed time the gift would be returned to him. In our present case, the donor, the defendant’s friend, was neither well versed in the halakhot of undertaking obligations in general nor in the entitlement to retain a residual right in particular, and thus there was no meeting of the minds regarding the length of time that the ring would be kept by the groom and the bride.",
+ "One might challenge our conclusion based upon the halakhah that a person’s hand (kinyan yad) can acquire an object even without his awareness. Hence, if the recipient took the ring into his hand, his hand would acquire it without his awareness. However, in our case the ring was returned directly from the sub-recipient, the plaintiff, to the donor, the defendant’s friend.",
+ "In short, the validity of the kiddushin with either a borrowed ring or a conditional gift is subject to a debate among the authorities, and this beit din panel arrived at the conclusion that construing the kiddushin ring as either a conditional gift or a borrowed one is halakhically ineffective, and therefore the kiddushin of the couple is void.",
+ "3. Halakhic matrimony established by an exclusive conjugal relationship",
+ "In the wake of the halakhic doubts regarding the transfer of the ring (kiddushei kesef) as a vehicle to establish the act of kiddushin, should we fear that marriage has been created via intercourse by living together (kiddushei bi’ah), based upon the Talmudic presumption that a man does not engage in sexual relations promiscuously (the hazakah of “ein adam oseh be’ilato be’ilat zenut”)?",
+ "First, there is the view represented by Rabbi Yosef Rozanne and Rabbi Yosef Henkin that even if the parties did not intend to marry according to the prescribed form of kiddushin, nonetheless the above presumption applies equally to non-observant couples who engage in an exclusive conjugal relationship. Though numerous decisors reject this posture, authorities such as Rabbi Moshe Feinstein factor this minority view into consideration and mandate a Jewish writ of divorce as a stringency (a get le’humra) due to the presumption of the woman being a married woman (eishet ish). Clearly, in our case, we are dealing with a couple who wanted to, and did, live together for years in an exclusive conjugal relationship and the above-named two rabbis would have viewed them as halakhically married based upon this presumption. As such, a get would have been mandated.",
+ "An additional reason for mandating a get is that if a wife is released from matrimonial bonds without a get, we are concerned that the community will say she is leaving a marriage without a get.",
+ "Finally, even though at Mount Sinai, Jews were obligated to perform certain halakhot dealing with kiddushin, nonetheless, they still remained dutybound by the halakhot of marriage and divorce (albeit different halakhot) mandated to the non-Jewish community.",
+ "Without addressing the halakhic history of this marriage in general and the improper kiddushin in particular, the common denominator of these three reasons for mandating a get is, in effect, that living together within the context of an exclusive conjugal relationship is to be construed either as a recognition of the establishment of kiddushei via intercourse or a marriage as mandated by Halakhah to the non-Jewish community (bnei Noah).",
+ "As we will show, this posture reflects the opinions of a minority of decisors (me’ut ha-Poskim), and protects the institution of the Jewish family. Consequently, it is unsurprising to encounter the following posture of Rabbi Aharon Walkin, an early twentieth century arbiter. A sine qua non to create the act of kiddushin (ma’aseh kiddushin) is the presence of two adult Jewish males who are Torah observant, not blood relatives to either the groom or the bride, who witness the man’s recitation of the kiddushin formula, “harei at mekudeshet . . .,” observe the man transferring the ring to the woman and observe her acceptance of the ring. Addressing the case of an agunah who requests that her marriage be voided due to the fact that both witnesses during the kiddushin were disqualified since they violated the Shabbat and committed other sins, Rabbi Walkin, who resided in Pinsk-Karlin, Ukraine, responds to such a petition in the most trenchant terms:",
+ "It is improper in my eyes to adopt this path, to criticize the act of kiddushin eight years after the wedding . . . you must understand that such advice can destroy the purity of Israel . . . to multiply halakhic bastards in the midst of a holy nation, as the marital bond from now will not be sustained . . . And the stringency of being married will be nullified. . . . Therefore, eight years after the wedding . . . we should not inquire for guidance to void the marriage.",
+ "Both Rabbi Walkin’s opposition to voiding a marriage as well as the above legists who would obligate a get in circumstances that there is exclusive conjugal relationship in lieu of a proper kiddushin under the hupah are concerned about the stringency of a married woman and “the purity of Israel.”",
+ "Even though many decisors claim that traditionally, all strict views must be considered in matters concerning forbidden sexual relations, nevertheless, in a matter of a husband’s get recalcitrance, many hold that the lenient view ought to be adopted. Given that in our circumstances we are dealing with a woman who has been an agunah for over seven years, we have adopted the lenient approach, and will address the reasons for rejecting the validation of the couple’s marriage based upon consummation of kiddushin via intercourse and the marital obligations of the non-Jewish community.",
+ "Regarding applying the laws of marriage of non-Jews to Jews, most authorities reject this posture.",
+ "Concerning the argument that kiddushin via intercourse should be effective, as Rabbi Uzziel aptly notes, if a groom assumes that the kiddushin was executed properly and he was unaware that there was an impropriety (such as ineligible witnesses or the use of a stolen kiddushin ring), why would he have intercourse for the sake of kiddushin when his intercourse is reliant upon the fact that the first kiddushin were valid!",
+ "A similar line of reasoning is advanced by Rabbi Shalom Schwadron:",
+ "If we would be concerned that they lived together like husband and wife publicly, known by the world, it is similar to Rivash’s dealing with marriage effected in civil court that fail to follow the religion of Moshe and Israel, that one is unconcerned that they lived together for a few years, as this was done with the intent of relying upon the first marriage (i.e. civil court – AYW) rather than for the sake of additional kiddushin.",
+ "Finally, the application of this principle based on the presumption that a man does not engage in sexual relations promiscuously is inapplicable in recent generations, since we do not establish a halakhic marriage via intercourse. As Sha’agat Aryeh observes:",
+ "It seems to me that the logic is that the presumption that a man does not engage in sexual relations promiscuously, and for the purpose of kiddushin he engaged in intercourse, applies only to the early generations, that they were accustomed sometimes to marry via intercourse, which was impossible without witnesses who attested to the seclusion of the couple, and this halakhah was clear and known by all. However, in our times and in these countries, there is no practice to marry through intercourse and this halakhah is only known by Torah scholars who are proficient in the halakhot of kiddushin. In contrast, this particular man, one can expect to find that he does not know and is not versed in hilkhot (Jewish laws – AYW) kiddushin that we would say that he had intercourse for the purpose of kiddushin and witnesses to the seclusion are not proficient at all. Would that, I wish that the majority of the arbiters in our times knew hilkhot kiddushin. . . . Therefore, in our case we do not fear that kiddushin transpired.",
+ "We will conclude with the words of Rabbi Yitzhak Taib:",
+ "There is nobody who believes that the kiddushin are proper when a man engages in intercourse for the sake of kiddushin except for the Rashbatz (3:47), and he stands in opposition to the Talmud and the authorities.",
+ "A fortiori in our present case, where the couple clearly did not know of the concept of establishing kiddushin via intercourse, that we cannot say that their intent in living together was for the sake of kiddushin.",
+ "As we mentioned, the validity of the kiddushin with either a borrowed ring or a conditional gift is a subject of debate among the authorities, and this beit din panel arrived at the conclusion that construing the kiddushin ring as a conditional gift or as borrowed is halakhically ineffective, and therefore the kiddushin of the couple is void.",
+ "Alternatively, there are grounds to void the marriage based upon invoking a double doubt as to what the Halakhah ought to be (sefek sefeika de’dina) in a biblical prohibition including a matter of personal status (ishut). Based upon the foregoing, various doubts have emerged regarding the act of kiddushin. The first uncertainty is if a borrowed ring may be used to establish the kiddushin, and as we have demonstrated, this is subject to halakhic debate. The second doubt is whether one can use a ring for kiddushin which is a conditional gift, and as we have shown, this is equally a matter of halakhic controversy. When the creation of the kiddushin is viewed as a doubtful marriage, there are numerous early authorities as well as other decisors who argue that we reinstate the original presumption of the wife, namely that she has the presumption (hazakah) of being a single woman, and she is permitted to remarry without a get.",
+ "As such, we are dealing with a series of halakhic doubts (sefeik sefeika de’dina). As we know, if there exists a double halakhic doubt in regard to an act of kiddushin, we may permit her to remarry without a get in a case of a husband’s get recalcitrance.",
+ "Therefore, the plaintiff is permitted to remarry any Jew, including a Kohen. In short, in the wake of a get recalcitrant husband, we deem the matter as “an hour of emergency” (sh’at ha-dehak) and a priori (le-hatehillah) we can void the marriage based upon a double halakhic doubt."
+ ],
+ "d) A husband who does not engage in conjugal relations (\"onah\")": [
+ "D. A husband who does not engage in conjugal relations (“onah”)",
+ "Facts",
+ "In April 2010, Sara Cohen (the plaintiff) and Avraham Cohen (hereinafter: the defendant) were married in accordance with Halakhah. During the course of their marriage, a son was born. The couple separated in the summer of 2014. We summoned the defendant to appear at the Beit Din in order to address the matter of the get. However, he refused to appear for a hearing. In July 2017, we ordered the defendant to give the plaintiff a get. To this day, he refuses to do so. The issues of maintenance and custody of the child have not yet been resolved, nor has there been a civil divorce.",
+ "Let us discuss whether there are grounds for releasing the plaintiff from the chains of a husband’s get recalcitrance (igun) by invalidating the kiddushin (loosely translated: the marriage).",
+ "Discussion",
+ "One of the reasons that the plaintiff left her husband was the absence of “intimacy” between the couple during the act of intercourse. The plaintiff claims that when the defendant had intercourse with her, he refrained from talking to her or from demonstrating any affection such as embracing or kissing (in halakhic parlance such conduct is known as “kiruv basar”). In the eyes of the husband, the duty (the mitzvah) of marital relations (“onah”) was fulfilled by the physical act alone. The defendant had intercourse with the plaintiff once or twice a month. Outside of the bedroom, the defendant almost never embraced or kissed his spouse.",
+ "One of the halakhic obligations of a husband towards his wife is the wife’s right to conjugal relations. Although the source of the husband’s obligation is in the duty of intimate relations, Rashba opines:",
+ "It would appear that it is not merely a matter of performing a religious duty (mitzvah -AYW); there is also an element of mutual commitment to sexual gratification, which is implicit in their agreement to marry.",
+ "In other words, in addition to this obligation, the husband has a commitment vis-à-vis his wife, as pointed out: “The sexual aspect of marriage goes to its essence and therefore the obligation is a very strict one.”",
+ "The scope of the obligation to engage in marital relations varies in accordance with the husband’s physical ability and the requirements of his daily work. In view of this defendant’s occupation, his obligation is to have intercourse with his wife twice a week, provided his wife is not a menstruant.",
+ "As Talmud states:",
+ "A husband who said: I will not (perform conjugal relations) unless she wears her clothes and I mine, must divorce her and also give her her ketubah.",
+ "Subsequently, this ruling is crystallized in Shulhan Arukh, accompanied by the identical Talmudic mandate by Rema for the wife, that she cannot say I am unable to have intercourse unless I wear clothes and he wears clothes. Such behavior will equally result in her being divorced without receiving the value of her ketubah.",
+ "As Ritva teaches us, such conduct demonstrates the absence of love, and as other decisors note, such behavior engenders pain for either spouse and/or is deemed to be rebellious (a moreid/moreidet) due to such inappropriate conduct.",
+ "In the present case, the defendant would have intercourse with his wife twice a month, and even then, it was unsatisfactory. In other words, plaintiff’s description of the defendant’s behavior during intercourse was that even when she was aroused and there was penetration, it would end extremely quickly. To state it differently, on the one hand, there was an actual act of intercourse and not only first stage coitus (insertion of the corona of the male organ into the vagina). It is well-known that this duty cannot be fulfilled by first-stage coitus alone and in the present case, the defendant completed the act of intercourse with the first stage of coitus, but on the other hand, after penetration, the act of intercourse was over very abruptly.",
+ "Rabbi David ibn Zimra (known by the acronym: Ridvaz) provides an apt description of a situation, similar to ours:",
+ "It makes sense to argue that since the husband is not fulfilling the duty, he is obliged to divorce her and pay her (the value of – AYW) her ketubah. This applies even when the wife’s claim is that there is erection and penetration, but immediately upon penetration the erection fails and the organ becomes flaccid: she is believed, according to this opinion. The reason is that if she is lying, then her husband will immediately refute her, and the rule is that in relation to an immediately-refutable claim, a person is not suspected of lying. Now, it is arguable that she should not be believed because she is not under any obligation to procreate. This argument, however, is incorrect, since a woman is entitled to request “a staff [a child] to lean upon in her old age and someone to use a spade to dig a grave.” In any case, even if there is no such duty, she would still be believed because the husband is in breach of this obligation, and therefore her pain is especially great. Even though, in halakhic terms, penetration is treated as intercourse in many areas of Halakhah, it is not sufficient for the purpose of fulfilling the duty . . . because it is entirely lacking in affection. Therefore, even if penetration is considered to be intercourse for the purpose of fulfilling the duty, in this case, the element of affection in performing conjugal relations is absent. . . . The woman in this case is not claiming that her husband is impotent, but merely that she is unable to enjoy intercourse as it is normally thought of with her husband, and this is the gravity of her claim.",
+ "As ruled by an Israeli rabbinical court, such conduct exhibited on the part of a husband towards his wife constitutes grounds for divorce. The Beit Din states:",
+ "When he was aroused there was penetration, but it would be over abruptly, and clearly this cannot be called “impotence.” (It is indeed possible that in cases in which “it is over abruptly” and she has no sexual gratification, there is a ground to obligate him to give a get, as appears in Tosafot Yevamot 65a, s.v. she’beino: “Because she derives little pleasure from intercourse, similar to the case of a man who does not ejaculate with sufficient force,” and further investigation is required.",
+ "In short, fulfillment of the duty of engaging in intimate relations is not limited to the act of intercourse, but it includes the sufficient duration of the act in order that a wife derives sexual gratification.",
+ "The Talmud and the early authorities (Rishonim) note the importance of sexual gratification. For example, Rashi writes as follows:",
+ "Mishnah: One who takes a vow prohibiting his wife to have marital relations – for example, he said that he would be forbidden to enjoy the marital relations with her [he is within his rights], but she was not forbidden to enjoy the marital relations with him [as this is not within his rights], for he is committed to her as is written, “He shall not withhold her sexual intercourse” . . .",
+ "The early legists by and large agree with Rashi, and in our context, Rashba’s words are instructive:",
+ "And the same applies to one who says to his wife: I take an oath that you will derive no sexual pleasure from me, namely, we force him to engage in full sexual intercourse with her, since he is duty-bound to provide her with sexual gratification, and this oath is in effect depriving her of that which is legally hers. The point is not only that the mitzvah is not being fulfilled, but that he is in breach of a mutually-undertaken obligation at the time of marriage. In this light it is clear that the objection raised by the Talmud is not framed in terms of the duty of intimacy, in the same fashion that if a man takes an oath not to have any benefit from a tabernacle (a sukkah), the oath is critiqued on the grounds that residing in a tabernacle entails the performance of a duty, and the rule is that commandments are not defined according to one’s enjoyment of them. In this case, however, the commandment itself is not as relevant as the mutual commitment to sexual gratification.",
+ "In other words, a woman gets married with the intention of finding sexual gratification. The commandment and mutual commitment are not limited to the technical aspect of marital relations, but include the duty to induce the wife’s pleasure from their relationship of intimacy.",
+ "Implicitly relying upon earlier authorities, Rabbi Moshe Feinstein states: “Expressions of affection such as embracing and kissing are also part of the obligation of sexual intercourse.” In the wake of the absence of proper conjugal relations, in the mind of Rabbi Feinstein, the Talmudic presumption,“it is better off to be married to anyone rather than be single” (tav le-metav tan du me-le-meitav armelu), which sometimes appears in decisors’ writings as “she is satisfied with anyone” (niha lah be-khol de-hu) is inapplicable.",
+ "Rabbi Ya’akov Yisrael Kanievsky (known as “the Steipler”) elucidates:",
+ "If the husband performs the duty [of onah] abruptly without intimate contact with his wife, if he withdraws just as soon as the act is over and keeps his distance from her, he may think that he has thereby ascended to a high [spiritual] level. . . . His wife has experienced no pleasure at all. On the contrary, she is distressed and humiliated. . . .",
+ "Rabbi Yitzhak Shor, head of the Slobodka Yeshiva in Lithuania, teaches us in a similar vein:",
+ "It is forbidden for the husband to withdraw from his wife in the middle of sexual intercourse, since this causes her great distress and constitutes a great torment. The talmudic rule in relation to a woman who is subject to coercive sexual relations is that initially the intercourse is unwanted, however, by the end, it is desirable. Nevertheless, the entire act is considered coercive, since it was forced upon her, and it is her nature that makes it ultimately desirable. How much more does this apply where the intercourse begins voluntarily, but her husband ceases abruptly and causes her distress after having brought her to a state of arousal? Clearly, had she known at the outset that this would be the result; she would never have consented to the intercourse in the first place.",
+ "In a somewhat different context, Rabbi Kolitz notes:",
+ "“Even if he is erect, but he finishes abruptly, this does not constitute the fulfillment of the duty of conjugal relations; on the contrary, she is more distressed.”",
+ "As opposed to those who think that such a husband is acting with piety, Ra’avad writes that ascetic conduct by the husband requires the consent of the wife. In the present case, it is clear that the defendant did not receive the plaintiff’s consent to withhold his affection from her.",
+ "Rabbi Yehezkel Abramsky observes that “the whole essence of marriage is for the purpose of marital relations,” and “all are aware why a bride is getting married:”",
+ "“All are aware” and nobody needs to explain (Rashi, Shabbat 33a), and a marriage that is devoid of marital relations is undoubtedly a mistaken marriage, since she did give herself over to marriage with this in mind.",
+ "In the present case, fulfillment of this duty was not realized and she had no sexual gratification, but he also caused his wife distress due to his limited involvement both in terms of frequency and in terms of the scope of his performance in the duty of intimate relations.",
+ "The significance of this determination is that suppression of sexual desire after it is aroused entails suffering for the person whose desire is suppressed. It is true that the modes of sexual arousal and their expression differ between men and women and differ between one woman and another one, but it is clear that when either a man or a woman is at the stage following physical contact and desire has already been aroused, termination of the act and suppression of the desire by the one partner constitute suffering for the other partner.",
+ "The question arises as to whether engaging in the act of intercourse in the absence of affection in the bedroom, as in the present case, is a consideration in determining the Halakhah.",
+ "We will cite two responsa in order to demonstrate the halakhic importance of demonstrating affection in performing this obligation. One example is found in a ruling of Rabbi Ya’akov Reischer, a renowned 18th century legist, whereby it was known that the husband was impotent prior to the kiddushin but the wife had no knowledge of this fact, and she claimed that her kiddushin were invalid due to being a mistaken kiddushin. According to Rabbi Reischer, she is not to be released without a get. The reason for this conclusion, according to the respondent, is that “although he is not capable of having intercourse, nevertheless she is satisfied with physical contact and embracing and kissing, and ‘a woman prefers one kav of food and physical intimacy”.",
+ "Rabbi Reischer cites the Talmudic maxim that “a woman is satisfied with a small measure,” which is an expression equivalent to the maxim that “it is better to live as two together than to be alone.” In other words, although there is no possibility of bringing children into the world due to the husband’s impotence, the wife wishes to stay with her husband on condition that the normal trappings of intimacy are maintained, i.e. “physical contact and embracing and kissing.” Therefore, in his opinion, there are no grounds for accepting the wife’s claim and for voiding the kiddushin.",
+ "The following incident occurred in the twentieth century. These are the facts, as described by Rabbi Yitzhak Weiss:",
+ "A man married a woman in accordance with the Halakhah. Several months later, the woman turned to the beit din and claimed that her husband was impotent and that she could not and did not wish to live with him any longer. After she was examined by a doctor, and it was discovered that she was still a virgin and had never had sexual intercourse, she received a civil divorce . . . the judgment stated that the marriage was voided . . . She subsequently asked her husband for a get. The son’s parents convinced him not to give her a get unless she gave him three hundred pounds sterling. The woman was poor and could not agree to this. They separated and the woman married another man in a civil ceremony . . . she had two boys and a girl with him. The woman has now come to the beit din . . . and begs us to remove the taint of mamzerut (halakhic bastardy- AYW) from her children . . .",
+ "The woman’s argument is that the kiddushin ought to be voided on grounds of mistaken transaction, since she did not know prior to the marriage that her husband was impotent. Rabbi Weiss’s response was that a claim of mistaken transaction can be raised on condition that when the true situation was discovered (i.e., awareness of the husband’s impotence), she was ready to leave him. However, if she complains “about the situation” but does not leave her husband after a certain time, the kiddushin are unassailable. As Rabbi Weiss states:",
+ "In the present case, when she was in intimate contact with him for approximately four years, in the knowledge always that he was incapable of coitus, one must say that she accepted the situation, due to [the maxim] “it is better to live together . . .”",
+ "In other words, due to the fact that there was intimacy (i.e. caressing and kissing) albeit only through “physical contact,” in addition to other reasons, the respondent refused to remove the taint of halakhic bastardy (mamzerut) from the children.",
+ "From the above it emerges that according to both Rabbi Reischer and Rabbi Weiss, intimacy through “physical contact” constitutes a consideration for refraining from invalidating kiddushin and removing the taint of halakhic bastardy.",
+ "Above we have seen two examples in which intimacy (i.e., physical contact) leads to the conclusion according to two authorities that the marriage is valid.",
+ "As opposed to the above, there are several decisors who contend that if there is no sexual intercourse, the presumption that “it is better to live together . . .” is overruled, and the kiddushin are invalidated.",
+ "The common denominator of all the above halakhic sources is the significant weight and importance attributed towards the promotion of intimacy in marital relations. In the present case, there was virtually no intimacy.",
+ "Rabbi Kanievsky teaches us:",
+ "With regard to the element of mating in the commandment of marital intercourse, we find in the Siddur Ya’avetz in the section dealing with the halakhot of Friday night – and the relevant passage ought to be read with great care – that close union between a man and wife is a halakhically binding obligation. Indeed, according to Torah law, it is forbidden to engage in sexual intercourse in such a way that the wife has no emotional gratification and therefore the husband is required to please her by the intimacy of embracing and kissing so that she is brought to a state of desire. . . .",
+ "As Rabbi Shor expounds:",
+ "One who performs intercourse without a significant measure of desire transgresses the prohibition against depriving one’s wife of sexual gratification. Note the following in Ramban’s Commentary on the Torah: “Food, raiment and sexual gratification – this [last] means physical intimacy and the raiment refers to the bed covering, and food to the arousal of passion. According to the Torah, none of these are to be withheld, etc.” In other words, the food is in fact the husband’s flesh: see there. Here it is made quite clear that just as it is forbidden to abstain from the sex act, it is forbidden to abstain from loving physical intimacy, for the wife desires the closeness of her husband’s body, and this is above and beyond the actual act of intercourse. The husband is therefore commanded to satisfy his wife’s physical yearning: see Talmud Yevamot 62 and Pesahim 72, where it explains that the term sexual intercourse (onah) refers to physical desire only, and this may occur even if she is not in the fertile phase of her cycle.",
+ "Hence, we see that there is a prohibition against withholding desire in general and the absence of physical contact in particular, in the intimate relations between a husband and his wife.",
+ "Moreover, Rabbi Hayyim Sofer furnishes an incisive example in our context – an example that has significant halakhic consequences. In clear and trenchant terms, Rabbi Sofer elucidates:",
+ "In my humble opinion, in understanding the words of the Talmud Yerushalmi (Ketuvot, Perek af al pi - A.Y.W.), that the mutual commitment of a husband and wife in the mitzvah of onah lies in two matters: (a) the Torah understood human nature, that marital relations are made pleasurable by lying in close physical contact, by embracing and kissing . . . such pleasures are part of intimacy and . . . (b) the essence of intercourse . . . that each husband has an obligation to have sexual intercourse with his wife which involves actual coitus, even if she is pregnant and even if he has already fulfilled the duty of procreation, since this entails physical pleasure, and there is a duty to complete the act of intercourse in a loving fashion, in accordance with the husband’s individual obligation . . .
And if a person does not fulfill either of these two obligations, he is considered to be rebellious, both if he desires to have intercourse but does not wish to have intimate contact or if he wishes to be intimate through embracing and stroking but does not desire actual intercourse.",
+ "In other words, a husband who refrains from having intercourse with his wife according to the timetable set by the Sages is labeled a rebellious husband (a moreid). A husband who refrains from providing his wife with sexual gratification, namely he neither prolongs the act of intercourse nor engages in “acts of physical contact,” is labeled a rebellious spouse.",
+ "Rabbi Ovadia Hadaya, twentieth century authority elucidates:",
+ "In this context, there is another argument concerning tormenting the person in relation to onah itself: that he lives with her but he does not live with her in the normal fashion, then . . . this is similar to the case of a husband who demands that his wife turn over immediately after intercourse so that she does not become pregnant, in relation to which the Shulhan Arukh Even ha-Ezer 76:12 that he is compelled to divorce her and to pay out her ketubah. A fortiori this ruling is applicable where she derives no satisfaction whatsoever from the intercourse . . . and she is greatly distressed by the fact that her husband does not remain lying on her stomach as he ought to and has not satisfied her thirst for intimacy. This is a clear-cut case of a sexual rebel who fails to perform the mitzvah of onah in the required manner.",
+ "As we know, a husband who is rebellious vis-à-vis his wife in matters of sexual intercourse is compelled to give her a get. Contrary to what is advanced amongst some decisors, many authorities decided in accordance with Shulhan Arukh that a get ought to be compelled. Such conduct means that the defendant has transgressed a negative commandment, and is rebellious in matters of cohabitation.",
+ "As we know, when there is no possibility of compelling the get in the Diaspora, there are grounds for invoking the mechanism of “She did not give herself over to marriage with this in mind” (a clear expectation - umdana de’mukha). In the present context, the couple lives in the United States, and therefore it is legally impossible and consequently halakhically inappropriate to compel the get. Therefore, invoking a clear expectation is justified. The nature of the clear expectation, “She did not give herself over to marriage with this in mind” is noted by Rabbi Abramsky – “The main reason for marriage is for the purpose of cohabitation, and we know for what purpose the bride entered the wedding canopy.”",
+ "In the present case, the defendant did not fulfill his duty of intimate relations properly, “he penetrated and withdrew,” i.e., he withdrew himself from her abruptly, and also had intercourse only once or twice a month. Furthermore, he refrained from fulfilling the second aspect of the obligation, namely, the intimacy of “embracing and kissing until she desires to be joined”.",
+ "In other words, the failure of the defendant to fulfill the duty appropriately is equivalent to a husband who stipulates that the kiddushin is conditional upon being exempt from the duty of conjugal relations, which constitutes making a condition, and such a condition which undermines Halakhah is void. Due to the fundamental breach of this condition, as twentieth century legist Rabbi Rozin argues, the clear expectation that “She did not give herself over to marriage with this in mind” should be implemented, and therefore the kiddushin may be invalidated.",
+ "Furthermore, as Rabbi Rozin expounds:",
+ "In light of all this, it is abundantly clear that the husband has no intention of taking upon himself the obligations of marital life – and this is tantamount to the husband admitting to us ab initio that he is unwilling to take upon himself the biblical obligation of food, clothing and sexual intercourse. And even though it is established Halakhah that a man who marries on condition that he is exempt from the duty to provide his wife with food, clothing and sexual intercourse is nevertheless obliged to fulfill those functions, since the condition is contrary to the Torah and therefore invalid, this is only relevant to an actual condition. However, when a husband simply states at the outset that he refuses to carry out his biblical obligations, then his refusal may not constitute a breach of established law. Indeed, Tosafot ad loc. pose this very question and answer it by pointing out that marriage is a package deal and none of its constitutive elements can be removed without negating the entire institution. Hence, once the husband says, “You are betrothed to me,” he is committing himself to the institution of marriage in its entirety, including the element of sexual intercourse and gratification. As a result, the above distinction between a condition and a statement of refusal is irrelevant since the sexual element is an inseparable part of marriage. And indeed, in the present case, it is clear that he has no intention of fulfilling the marital obligation, since as far as he is concerned, sexual intercourse poses a danger to his health and possibly to his life, and therefore, it is as if he had stated from the outset that the marriage will be bereft of all sexual gratification, thus emptying the marriage of all emotional content. Moreover, it is stated, “See life with a woman whom you love,” and this is a loveless life for the wife and is not considered a marriage under Torah law. By way of illustration, consider a case of a man on death row being led out to his execution and at that very moment contracting a marriage. Clearly there is no way that this would be considered a valid marriage. In our case too, it is absolutely clear that the husband never obligated himself to fulfill his marital duty – a clear expectation – and as has often been stated, a clear expectation is certainly superior to any condition that the husband makes. . . .",
+ "In other words, it is as if the defendant conditioned his marriage upon being exempt from fulfilling the duty properly (“making a condition as to an express biblical law”). And as Rabbi Rozin argues, the obligation of sexual intercourse is a fundamental duty of all marriages.",
+ "Contrary to several authorities who rule that kiddushin cannot be invalidated on the basis of a clear expectation, there are quite a number of decisors who permit invoking umdana as a means for invalidating kiddushin.",
+ "Seemingly, the employment of an umdana here is open to challenge. As we know, for an umdana to be effective is dependent upon the expectations of both parties. For example, a sales transaction involves the agreement of parties, the seller and the buyer: “taluy be-da’at shenehem.” The voiding of the sale with the appearance of a defect subsequent to purchase would be predicated upon two conditions:",
+ "1. The buyer would have not consummated the deal if he had realized that the item sold would be defective within a reasonable time. As Shulhan Arukh Hoshen Mishpat 232:3 states:",
+ "If one sells another land, a slave, a domesticated animal, or other moveable property, and a defect of which the buyer did not know is found in the purchase, the buyer may return it (to the seller and receive his money back – AYW) even if a number of years (have elapsed since the transaction – AYW), since this transaction was based upon fundamental error, provided that the buyer did not continue to use the item after he became aware of the defect. If, however, the buyer continued to use the item after he saw (or became aware of – AYW) the flaw, he has (by his behavior – AYW) renounced (his right of rescission) and cannot return (the defective item and receive his money back – AYW).",
+ "2. The seller would negotiate the sale contingent upon the utility of the item being sold. In other words, the voiding of the sales transaction is dependent upon the existence of both the seller’s and buyer’s implied conditions. The requirement of “taluy be-da’at shenehem” as a precondition prior to the invoking of an umdana equally applies to marriage which is based upon the consent of both a man and a woman. For example, if a husband is engaged in criminal activity while married, the fact that a wife would exclaim, “had I known he would become a criminal, I never would have married him” would seem to offer no basis for voiding the marriage, since a similar statement must have either been articulated by the husband or be presumed on the husband’s behalf. The husband’s declaration would be – “If I become a criminal after the onset of the marriage, my marriage is invalid.” In fact, the husband may not want to void the marriage in order to avoid his sexual intercourse being viewed as be’ilat zenut, an act of fornication. However, in contradistinction to the above view, in cases of a major clear expectation or what has been labeled as an umdana de’mukha (hereinafter: umdana), a major inference from assessed expectations expressed by one person suffices in order to void a commercial transaction, and according to certain authorities a marriage or a levirate marriage may be equally voided under such circumstances.",
+ "Consequently, we are invalidating the kiddushin on the basis of this clear expectation (“umdana”), and Sara Cohen is permitted to marry any Jew, even a Kohen.",
+ "This decision was approved by a renowned halakhic authority.",
+ "Final afterthoughts",
+ "If a husband’s abstention from the duty to engage properly in conjugal relations is for the purpose of causing his wife pain, relying upon Rambam’s judgment, argues Rabbi Yosef Karo that he transgresses the negative biblical commandment of, “her conjugal relations he will not diminish.” Seemingly, if the husband has no intention to engender pain and is abstaining for pragmatic reasons such as the need to travel in order to conduct business, even for a time period which is beyond the halakhically allotted time to be absent from one’s spouse, he has not committed a halakhic infraction.",
+ "However, others claim that clearly if the husband unintentionally causes pain by failing to engage in onah properly such as being impotent, sexually dysfunctional or being imprisoned, he is in contravention of Halakhah, and such situations may serve as grounds for obligating or coercing a get.",
+ "Consequently, if a husband forbad his wife via a vow to nullify his duty to engage in conjugal relations, the vow will be invalid. For example, if he says to his wife, “a vow of abstinence if I cohabit with you,” his vow has no validity due to the fact that he is obligated to perform sex and allow her body to feel satisfaction from the intercourse. As we know, according to the majority of authorities, a husband is proscribed from exempting himself from engaging in the duty of sex because it incurs pain (tza’arah de’gufah) for his wife.",
+ "The concern about the pain engendered by the husband is not limited to the realm of intimate relations and it applies equally to the daily, interpersonal relationship of the couple. Already in a series of rulings in the Mishnah in the seventh chapter of Tractate Ketuvot, we encounter the interdict against a husband prohibiting his wife via a vow to derive certain benefits such as tasting a certain fruit or adorning herself, disengaging from familial and social interaction such as forbidding her via a vow to go to her father’s home or proceeding to a house of mourning or a place of festivity. Such behavior, known as “vows which torment the woman’s persona” (“nidrei innui ha-nefesh”), is outlawed by Shulhan Arukh and Rema unless the wife consented.",
+ "In sum, there is potential for dissolution of marital ties due to such vows which, in modern terminology, would be labeled as emotional abuse. In the wake of a husband’s emotional abuse of his wife, are there grounds to coerce the giving of a get?",
+ "In all these Mishnaic rulings it states that he must give a get, and the language which is utilized is “take out” (“yotzi”). Though regarding a husband’s vow dealing with preventing his wife from wearing a certain adornment, the majority of decisors mandate get coercion, nonetheless, generally speaking, when the Mishnah states “take out,” the majority of authorities will only obligate a get. As noted by some legists, it is incumbent upon beit din to determine if the husband’s emotional abuse of his wife is more severe than the incidents enumerated in the Mishnaic and Talmudic rulings of Tractate Ketuvot prior to obligating a get. Others assume that emotional abuse is worse than the behavior cited in the rulings of the Mishnah! Consequently, it is unsurprising to find that there is a minority of decisors (a “da’at me’ut”) who will coerce a get if the severity of the abuse exceeds the degree of abuse which emerges from the cases mentioned in the Mishnah and Talmud.",
+ "Probably the most frequently cited responsum regarding emotional abuse, both in the universe of over 300,000 extant responsa and in the decisions of the Israeli Rabbinical Courts handed down under the Chief Rabbinate, addresses a case in which a husband physically endangered his wife’s life by depriving her of food. In his attempt to ascertain whether this behavior constitutes grounds for divorce, Rabbi Shimon bar Tzemah Duran (known by the acronym: Tashbetz) of fourteen century North Africa draws two analogies to psychological battery in order to arrive at the conclusion that a get ought to be given. Tashbetz argues:",
+ "If a husband declares, “I will neither feed nor provide for my wife,” he is compelled to grant her a divorce . . . If bad breath would be grounds for such compulsion [as stated in the Talmud Yerushalmi], her very soul is far more so. . . . In this case, he should divorce her and pay the amount stipulated in the ketubah because it is written that “she was to live with him and not to suffer with him”. . . . If even concerning one who prohibits his wife from doing things which are not so painful for her, we rule that he should divorce her . . . a fortiori when he causes distress on a regular basis that we should say that he should divorce her and pay the amount earmarked in the ketubah.",
+ "Tashbetz’s use of analogy to cases of psychological abuse in determining the status of physical abuse is not an isolated instance. In obligating a wife-beater to grant a get, Rashba finds support for his conclusion in the above cited Mishnaic rulings obligating a husband to give a get in a case of a husband who attempts to prevent his spouse from associating with her family and/or friends.",
+ "Thus, as counterintuitive as it appears, for both Ramban and Tashbetz, the level of enforcement of a divorce judgment relating to emotional abuse was clear and required no lengthy argumentation to defend. On the contrary, for these decisors the real issue lies in the realm of physical battery of a spouse; they determined the proper ruling in the latter case based upon the conclusion in the former.",
+ "In opposition to the numerous decisors who will only obligate a get for spousal emotional abuse, there are some well-known and well-respected authorities who align themselves with Tashbetz’s posture, mandating get coercion in cases where the degree of emotional pain/stress is significant.",
+ "As we mentioned earlier in our decision, in the absence of the ability to coerce a get in the Diaspora, there are authorities who will void a marriage based upon invoking a clear expectation (“umdana de’mukha”). As we mentioned in our decision, we employed the clear expectation that a woman would never marry a man who would not practice the duty of intimacy in general, and the accompanying conduct of embracing and kissing in particular. That being said, based upon the foregoing, there emerges a second clear expectation, namely that a woman would not marry a man who would emotionally abuse her. In short, there are two types of clear expectations which serve as grounds for voiding the marriage. The emerging question is whether there is a double doubt (a sefek sefeika) regarding what the Halakhah ought to be and we can therefore offer a second reason for voiding a marriage. Seemingly, this avenue for voiding a marriage is not recognized. Implicitly or explicitly relying upon the view of Rabbi Mordekhai ben Hillel, some decisors contend that the construction of a double doubt under such conditions will be ineffective. However, numerous decisors, Ashkenazic and Sephardic alike, argue that in the wake of a double uncertainty or a series of doubts in matters of a halakhic debate in a biblical matter including a matter of personal status (ishut), one can trump the presumption of a married woman (hazakah of eishet ish) and reinstate her original status as a single woman (penuyah).",
+ "Consequently, in the present case, one doubt is whether there one can halakhically endorse the clear expectation that a woman would never marry a man who would not practice the obligation of sexual intercourse (onah) in general, and the accompanying conduct of embracing and kissing in particular, as a means to void the marriage. And the second doubt is whether halakhically one can deploy the clear expectation that a woman would not marry a man who would emotionally abuse her as a vehicle to void the marriage. Seemingly, given that there is a debate as to whether the technique of a clear expectation is a means to void a marriage, the above double halakhic doubt emerges. In light of the tradition that a double doubt regarding two halakhic controversies in a biblical mater may trump the presumptive married status of the woman, the marriage may be voided.",
+ "Finally, in the wake of the absence of the performance of intimate relations (onah), our ruling implicitly rejects the Talmudic presumption (hazakah) of “it is better to live as two than to remain in widowhood” (tav le-meitav tan do mi-le-meitav armalu). A review of our responsa (teshuvot) will demonstrate that a woman wants to be married and under many conditions prefers to remain married to a man for multifarious reasons such as having conjugal relations, being desirous of bearing children, being economically dependent upon her spouse and that being married is socially attractive.",
+ "The emerging question is: in light of the absence of conjugal relations in our case, given that there are various other reasons for remaining married, ought one apply the presumption of “it is better to live as two than to remain in widowhood”? To state the question differently, since we voided the marriage, on what basis did we implicitly reject the application of the presumption in our situation? Notwithstanding the views of Rabbi Ya’akov Reicher and Rabbi Avraham Yitzhak Kook that the presumption would be applicable due to the fact that engagement in conjugal relations is not the sole reason underlying the presumption, other authorities contend that in the absence of intimate relations the presumption is inapplicable. Implicitly, our beit din has endorsed the latter approach.",
+ "Given that the marriage is being voided due to the husband’s failure to perform the duty of conjugal relations properly, why did she wait over four years to divorce him? First of all, she had no place to live. Her parents were dysfunctional and therefore could not provide a home for her and her child. And in fact, after the couple’s separation, she lived in a shelter for women. Also, she heard that every marriage was difficult and it was her responsibility to attempt to address the problems. Consequently, although she had separated from him earlier, before the final separation, due to his engagement in spousal physical abuse, she returned to him, hoping that therapy would ameliorate the situation. However, the therapy never succeeded to restore his mental stability and he refused to take medicine to address his mental disorder. In short, out of love for her husband and feelings of responsibility towards him she attempted to save the marriage but to no avail. Moreover, her rabbi told her to remain married.",
+ "Finally, she was unsure whether he was incapable of improving “the bedroom situation” by performing properly at the time of intercourse, both in terms of the actual act of conjugal relations as well as exhibiting signs of intimacy such as kissing and caressing. However, marital intimacy never transpired. She was adamant that she wanted this marriage to succeed. Once she arrived at the realization that there were no prospects to live as a family for her and their child, she left him. Upon her realization that marital harmony was unattainable, she left due to the absence of the frequency and quality of intimacy. In short, reasonable explanations were offered as to why she remained in the marriage for a few years and as such there still remains a reason to void the marriage.",
+ "This decision was approved by a renown halakhic authority."
+ ],
+ "e) A husband who is a philanderer": [
+ "E. A husband who is a philanderer",
+ "Facts of the case",
+ "The couple married according to Halakhah in January 1978, and they separated in 1998. In that year, Morris (hereinafter: the defendant) filed for divorce in the civil court, and in July 2006, the civil divorce was granted. After the separation, the defendant moved in permanently with a non-Jewish woman, and according to the evidence submitted by Pearl (hereinafter: the plaintiff) and one of the relatives, as well as an article in a newspaper, he married this woman in a civil ceremony.",
+ "To this day, the defendant has made the giving of a get conditional upon the withdrawal of the plaintiff’s threat to file a claim in civil court for the defendant’s failure to pay alimony by executing a post-divorce agreement. The plaintiff refuses to sign such an agreement.",
+ "Although we summoned the defendant to appear before this Beit Din for a hearing on the matter of the get, he refused to comply with our request. Owing to a medical problem from which the defendant suffers, we twice suggested to him that we would hold the hearing in his home, but he rejected this offer.",
+ "In a hearing that took place in the absence of the defendant, the plaintiff recounted that the defendant had taken at least ten trips to distant destinations in order to participate in work-related meetings. He travelled on Shabbat, he said, in order to attend meetings on Monday. The plaintiff had thought it strange that he left so early in order to attend a Monday meeting, but she said nothing to him. On one of the trips, the plaintiff called the hotel at which the defendant was staying, and when the call was put through to his room, a woman answered. The plaintiff was surprised, and asked the defendant, “Who is this woman?” He replied that it was a woman from the hotel cleaning staff. At that time, the plaintiff accepted his explanation.",
+ "In 1996, the plaintiff found a photograph in which the defendant appeared with women at the beach, dated at a time at which he was in France. After discovering this photo, the plaintiff warned the defendant to put an end to his contacts with other women.",
+ "On the couple’s honeymoon, the plaintiff discovered that the defendant was strongly attracted to prostitutes. He planned the honeymoon so that they would stay in a hotel in close proximity to a street which was known as a “prostitutes’ place”. When the plaintiff was with her children in Israel, a cousin of the defendant stayed with him in New York, and while he was there, they checked out the rates of prostitution services in the city. Several times during the course of their marriage, the defendant asked the plaintiff about the going rate for prostitutes.",
+ "At the end of 1996, or at the beginning of 1997, the defendant went to a neighborhood in New York where there were prostitutes, and he asked one of them, “What is your rate?” To his surprise, she answered that she was a policewoman (undercover as a prostitute), and took him to the police precinct. At the end of the court hearing, a penalty of community service for a short period was imposed on him. The plaintiff also recounted that she received a report from the police which mentioned the date of the incident and details of the arrest described above; she also received a legal document to the effect that the defendant must perform a number of hours of community service due to the offense that he had committed.",
+ "Although these documents had been thrown away, the plaintiff submitted to this Beit Din a recording from September 1998, in which the defendant is heard to admit to the occurrence of the above incident. According to one of the sons, too, the defendant admitted that this had indeed happened. After this incident, the plaintiff again warned the defendant to put an end to his contact with prostitutes.",
+ "After this incident, in December 1997, the parties’ younger son (who at that time was 13–14 years old) discovered email correspondence with a strange woman on his father’s computer. According to him, these emails indicated that his father had “an inappropriate relationship with the woman.” When we asked him if his father had intimate relations with that woman, he answered that this happened many years ago, and he does not remember. However, at the time he was under the impression that the father had an intimate relationship with the woman. He added, however, that he remembers that when he confronted his father with these emails, his father was very angry that he had discovered them. Subsequently, the son showed these emails to the plaintiff, and she claims that they show clearly that the defendant had an intimate relationship with this woman. The plaintiff approached him on the matter, but he did not admit to having an intimate relationship with this woman. At the same time, he expressed his intention to stop corresponding with her by email. In the said recording, we heard the defendant admitting that he was in contact with this woman, even though he refrained from admitting that he had an intimate relationship with her or any other woman.",
+ "From the plaintiff’s words, it emerges that in the course of their marriage, she warned the defendant at least six times to cease and desist from any relationship that he had with other women.",
+ "In January 1998, the parties’ older son (who at the time was aged 18–19) found similar emails on the defendant’s computer. We asked him whether the contents of the emails indicated that the defendant had an intimate relationship with the woman with whom he was corresponding, and the son answered that he did not know. Clearly, however, even according to what he did say, the interaction indicated, in his words, a “suspicious relationship.” After discovering these emails, the son showed them to the defendant, and in this case too, the defendant got angry but again did not admit that he had an intimate relationship with that woman. The plaintiff did not see these emails herself. That year (1998), the defendant began to frequent pornographic websites; already in 1993, the children had found a pornographic film in the house.",
+ "In effect, the plaintiff’s awareness of the defendant’s inappropriate behavior started to emerge at the end of 1996 with the incident of the alleged prostitute and culminated with the recordings in 1997 and 1998. Although, as we pointed out, there were certain incidents prior to this time which cast suspicions about his conduct, it was only commencing with the end of 1996 that her suspicions were validated. It is clear that the planned entrapment by the plaintiff by means of the recording constituted preparation in anticipation of the claim for divorce that she planned to submit to the Court. From an examination of the judgment of the Court, which was rendered after the recording, the connection between the recording and paragraphs 10, 12–13 of the judgment emerges clearly. Accordingly, despite the fact that it was the defendant who formally instigated the divorce proceedings in Court, the recording proves that the plaintiff had commenced, already a year beforehand, in order to convince herself that he was a philanderer and “to prepare the ground for divorce.” Moreover, she also notified the Court that at that time she had consulted with two lawyers on the matter of divorce.",
+ "Given the more recent revelations, she separated from him in 1998.",
+ "Discussion",
+ "A. Does infidelity on the part of the husband constitute grounds for divorce?",
+ "It clearly emerges from the facts described above that the defendant was unfaithful to the plaintiff and even lived, at times, with another woman, and that despite the plaintiff’s warnings, he continued in his adulterous ways, and he continues to act in this manner even after separating from his wife by civilly marrying another woman without giving a get to his wife. Therefore, he is to be defined halakhically as a “philanderer” (ro’eh zonot). According to Rema:",
+ "Regarding a person who is a philanderer and his wife complains about it: if there is evidence that he was seen with adulterers or that he confessed, some say that he is forced to divorce her.",
+ "The Netanya Regional Beit Din interprets Rema’s ruling in the following fashion:",
+ "This means that he was seen in the company of adulterers, and it means that it is not necessary for him to be seen committing adultery, which would be the case if the issue was prohibiting an adulterous woman to her husband. But in order to determine that he is a philanderer (“ro’eh zonot” – AYW), it is sufficient that he is seen in the company of those who are habitual adulterers, and the circumstances in which they are seen then attest to the fact that he is a philanderer. . . . In all cases in which there is a strong presumption that he is a philanderer, we rule in accordance with this presumption and with his conduct which clearly proves his deeds, even though we have not seen him in the act.",
+ "In the present case, it is not necessary to invoke a presumption in order to conclude definitively that the defendant is a philanderer, for as we described in detail above, the circumstances attest to the fact that he indeed availed himself of the services of prostitutes, such as in the incident in New York with the undercover policewoman, proving that he moved about in places where adultery and prostitution were to be found. Following this incident, other events that occurred throughout the course of the marriage become comprehensible (choice of location for the honeymoon; his long-distance journeys; the phone call with the woman in his hotel room; the email correspondence, the pornography on the internet, the engaging in a bigamous relationship etc.), which indicate that he is a philanderer.",
+ "The first of the authorities to discuss the definition of philanderer and its halakhic meaning is Rabbi Alexander Zuslin ha-Cohen of 14th century Germany, who writes:",
+ "A matter once came before me: Leah claims about Reuven that he is a philanderer while he denies it. I ruled that if she brings witnesses that he is so – he must divorce her and pay out her the ketubah, whether according to Scripture, or to the Talmud, or on rational grounds. Scripture – for it is written (Bereshit 31:50): “If you shall take wives beside my daughters.” The Talmud, for it states there: “A person may take more than one wife only when he is able to provide appropriately for all the needs,” and in this context, it is written (Mishlei 29:3): “But he that keeps company with harlots wasteth his substance.” And on rational grounds, since philandering is worse than all the grounds cited in the chapter ha-Madir [Tractate Ketuvot] for compelling a man to divorce his wife.
But this is only when there are witnesses who saw him with the Aramean woman in the manner of adulterers; but if gentile women bring him children [claiming that he is their father], he is not forced [to divorce his first wife], because there have been several incidents in which [Jewish men] have been conspired against in this way.",
+ "Three reasons are brought in the above passage for the right of a woman to be divorced following infidelity on the part of the husband. First, intimate relations with another woman constitutes a fundamental breach of the marriage, particularly at present, when there is a halakhic prohibition of committing bigamy. Second, when the husband is unfaithful, there is a very good chance that he will not be able to provide for his wife’s needs. Third, if it is possible to compel a man to give his wife a get when he emits a bad odor, a fortiori he can be compelled to give a get in a case in which he is unfaithful to his wife!",
+ "In the nineteenth century, hundreds of years after the appearance of the Sefer ha-Agudah, Rabbi Yehiel Michel Epstein suggests additional reasons for compelling a philandering husband to give a get. Rabbi Epstein elucidates:",
+ "[Rema] wrote further, that if a person is a philanderer, and his wife complains, if there is evidence that he was seen with adulterers or that he confessed, there are those who say [yesh omrim] that he is compelled to divorce . . . and even though in relation to other sins which have no direct bearing on the woman he is not compelled to divorce, in the case of philandering, however, we do compel him, for in this case the sin does have a direct impact upon her. First, it affects her right to sexual gratification, for philanderers “despise that which is permitted to them and are attracted by the sweetness of stolen waters”; second, there is no doubt that he is certainly repulsive in her eyes, and finally, he might even pose a danger to her. And this is true not only according to Rambam, who maintains that if a wife complains that her husband is repulsive to her, he is compelled to divorce her, but even those who disagree with him would admit that in this case [compulsion is justified]. The Talmud explains that a person who refuses to fulfill conjugal duties is compelled [to divorce], and how much more so a philanderer, who is of course worse. All this applies when the truth of the matter has been thoroughly investigated.",
+ "According to the above, the husband is liable, due to his infidelity, to refrain from intimate relations with his wife. His infidelity causes him to be repulsive to his wife. Finally, a husband who lives with another woman poses a danger to his wife (presumably referring to the risk of contracting a sexually transmitted disease).",
+ "The common denominator of the reasons offered by Sefer ha-Agudah and Arukh ha-Shulhan in support of this ground for divorce is not due to the transgression of adultery itself, but rather in the destruction of family life caused by the husband as a result of these actions, and the wife is therefore entitled to demand a get.",
+ "In such circumstances where there is evidence that he married another woman, not only is there cause for obligating the husband to give a get, but he may even be compelled to do so. The issuance of a get compulsion order for a philandering husband not only resonates in the positions of Sefer ha-Agudah and Arukh ha-Shulhan but emerges explicitly or implicitly in the rulings of other decisors.",
+ "According to Rabbi Yehezkel Landau, if in fact the husband is no longer living with another woman, he is not to be compelled to give a get. This implies that if the husband continues living with another woman, such as in the present case, where he has been living with another woman for 18 years and is even married to her civilly, Rabbi Landau, too, would agree that he is to be compelled to give a get.",
+ "Moreover, today, given our concern about the transmission of AIDS when a man is unfaithful, there are further grounds for compelling a get. As opposed to these authorities, Shulhan Arukh does not cite the words of Sefer ha-Agudah as normative Halakhah. His silence in aligning himself with this posture is explained in the following fashion:",
+ "And in any case, it appears to me that the words of Sefer ha-Agudah, Rabbeinu Simhah and Ohr Zarua are not to be relied on to compel a get, because they are not cited by any of the famous authorities.",
+ "Other later authorities (Aharonim) equally oppose compelling a get in the case of adultery by the husband.",
+ "However, as we have said, Rema invests this view of get coercion with practical halakhic force.",
+ "B. A wife who claims “he is repulsive to me” (a plea of mais alai) – Grounds for compelling a get?",
+ "As we mentioned, according to some later authorities, divorce cannot be compelled on grounds of the husband’s infidelity, and we must therefore examine the plaintiff’s claim that her husband is repulsive to her due to the very thought that in his adultery, his body was in intimate contact with the body of another woman; she is sickened by the very notion of resuming intimate relations and of reconciliation with him!",
+ "1. Rebellious Wife due to Revulsion",
+ "From the Talmud in Ketuvot 63b, it emerges that there are two types of claim of rebellion that may be advanced in beit din by the wife regarding marital relations:",
+ "(a) Rebellion due to a dispute (She says, “I want him as a husband but I wish to torment him”) – A wife who does not want to divorce, but refuses to engage in marital relations, in order to cause distress to her husband due to her dispute with him. This rebellious wife is interested in divorcing her spouse without providing reasons, and she is tormenting her husband so that he will divorce her and pay out the value of her marital agreement (the ketubah).",
+ "(b) Rebellion due to revulsion (“He is repulsive to me”) – the wife can no longer bear to engage in marital relations with her husband.",
+ "In our view, the arguments of the plaintiff cannot be classified as rebelliousness of the first type, for she has no interest in causing her husband distress, neither due to any argument with him, nor so that he will pay out the value of her ketubah. On the other hand, the plaintiff is not claiming that her husband is repulsive to her regarding marital relations; rather, that life together with him is repulsive to her, and she no longer wishes to be married to him. The question, therefore, is whether this second type of argument of rebellion due to revulsion is limited to cases in which the woman can no longer bear having intimate relations with her husband, or whether it can also be advanced in circumstances in which the wife can no longer tolerate married life with her husband due to his conduct towards her.",
+ "Rabbi Aharon Sasson casts doubts regarding this question, particularly as to the correct understanding of Rambam’s opinion:",
+ "When the Talmud says, “He is repulsive to me,” . . . her claim is that she can no longer engage in sexual relations with him due to revulsion, like the precise understanding of the expression, “He is repulsive to me like the flesh of a pig, etc.” But if her argument does not relate to revulsion at intercourse, then her argument is not that of “He is repulsive to me,” and even if she says, “I do not want him because I hate him,” or “He will no longer be called my husband,” etc., as is said in this case, these statements do not indicate a claim of “He is repulsive to me” etc., for it is possible that the hatred arises not due to revulsion but only because of a dispute with him, or something else, and then her claim is not one of revulsion. . . .
And it might also be possible to say the contrary, i.e., “He is repulsive to me” is one way of saying “I hate him and I do not want to be with him” etc., . . . as is implied in Rambam’s words there: “She is not as a prisoner who is forced to have relations with one who is hateful to her” etc. The formulation, “He is repulsive to me” is not used [by Rambam], from which we may deduce that hatefulness and repulsiveness are one and the same thing. And the reason that the Talmud did not include hatred in general is because it wanted to be sure that there is an objective reason for the hatred.",
+ "And after adducing various proofs for each side of the argument, he concludes:",
+ "In light of all this, I have doubts in the present matter, since I have not found a definitive answer in any of the decisors, or even the slightest indication of a preference in relation to any of these arguments. This may be because the matter was so clear to them that they did not feel the need to provide any definitive rulings. Therefore, my tendency is that whenever the wife says, “I do not want him and I hate him and he is no longer to be called my husband,” we will apply the halakhah of “He is repulsive to me.”",
+ "Indeed, from the writings of a number of authorities, a distinction emerges between the two possible claims of the wife that she is revolted by her husband, and according to this, only in relation to being revolted by intimate relations will the halakhah of the rebellious wife (“moreidet”) due to revulsion be applied to the wife.",
+ "Rabbi Herzog defines revulsion by a medical analogy in a more narrowly-focused fashion:",
+ "And one must further distinguish: the claim “He is repulsive to me” is not just a matter of simple hatred, but deep revulsion at having relations with that body, and this is one of the deep secrets of the soul [in our days, the doctors have discovered a disease known as haphephobia – fear of being touched, i.e., for a reason which cannot be explained, a person is reluctant to touch a certain person or object, and Rambam, in his divine wisdom, preceded modern day physicians in many things, including this].",
+ "It emerges from the words of many decisors that the claim of revulsion also applies in circumstances in which the wife is not interested in continuing to live with the husband, and there is not even a need for a wife’s explicit statement of revulsion. Said conclusion may be derived from how the plea of repulsion is dealt with by other decisors. For example, in discussing compelling levirate marriage (yibum), one authority explains that according to Rambam and others, “Not only does this apply in relation to a claim of ‘he is repulsive to me,’ but in any case in which she claims a get, we give it to her immediately.” Rabbi Shmuel de Medina opines that the sanctions of Rabbeinu Tam (i.e. isolating measures that serve to pressure a recalcitrant husband to give a get) do not apply only to the claim, “he is repulsive to me.” Beit Shmuel and others cite the above responsum of Rabbi Sasson discussing a case in which the claim was not formulated as “he is repulsive to me,” and thus we may infer that they rule similarly regarding this claim or formulation. The position of these legists is adopted in various rulings of the rabbinical courts functioning within the network of the Chief Rabbinate in the State of Israel.",
+ "The following appears among the reasons for the judgment of Netanya Regional Beit Din:",
+ "According to many of the authorities, and also according to Rambam and the Shulhan Arukh, the definition of “repulsive” does not depend on this particular form, nor does it necessarily depend upon marital relations; rather, the criterion is substantive, relating to the whole of the shared life, and insofar as it is clear to us that the woman hates her husband and does not want him, and in the opinion of the beit din her words are sincere and are based on a clear pretext(s), then it is as if she said, “He is repulsive to me,” even though she does not insist that marital relations with him are repulsive to her. And, as emerges clearly from the enactment of the halakhah of the Academy [Geonim] (which is attributed to the halakhah of “He is repulsive to me,” and as was proven also by Rabbi Sasson above, and nothing need be added), where it was clear that she was not claiming that he is repulsive to her due to sexual relations, nevertheless the halakhah of “he is repulsive to me” was applied.",
+ "In the present case, the plaintiff did not say explicitly “He is repulsive to me,” but her words clearly express the revulsion she feels at the husband’s infidelity, and her unwillingness to continue her married life with him.",
+ "We therefore rule in accordance with the opinion that the halakhoth that apply to the rebellious wife due to her husband being repulsive to her also apply when the wife claims that she no longer wishes to live together with her husband.",
+ "2. The evidence required to prove the plea “he is repulsive to me”",
+ "Although several authorities are of the opinion that accepting the claim “He is repulsive to me” is conditional upon evidence being brought in relation to the cause of the revulsion, many arbiters claim that there is no need for admissible proof for this purpose, and it is sufficient that her revulsion is evident from what she says or from the circumstances, or if she presents an explanation, a clear pretext (amatla mevureret), for her claim that he is repulsive to her. There are indeed those who argue that there is no requirement for any explanation on the part of the wife, a position which is not reflective of normative Halakhah.",
+ "The majority of decisors are of the opinion that it is insufficient to simply provide some sort of explanation for the claim, “he is repulsive to me,” and what is necessary, according to them, is a “clear pretext.”",
+ "The assumption is that despite the emotional/psychological aspect of the claim, “he is repulsive to me,” the wife who is suffering has the ability to express her feelings in a rational manner in front of the beit din by explaining the source or the reason for these feelings with a “clear pretext,” and the beit din must determine whether there is a true, justified ground for divorce.",
+ "3. Discretion of the beit din in accepting the claim, “he is repulsive to me”",
+ "In fact, determination of whether the “clear pretext” is sufficiently compelling to attract the application of the halakhot of the rebellious wife whose husband is repulsive to her is subject to the discretion of the beit din, in accordance with “what the dayanim discern for themselves” in order to assess the sincerity of the claim that the husband is in fact repulsive.",
+ "In other words, the beit din must believe that the wife is making the claim for real, relevant reasons, rather than as a trick or a tactic because “she had cast her eyes on another.” Thus, for example, if the woman waives collecting the value of her ketubah, the sincerity of her claim has more credence.",
+ "In his clear, articulate manner, Rabbi Kook defines the nature of the “clear pretext” as part of the investigation conducted by the beit din:",
+ "Where it is clear to the beit din that justice is on her side and he deserves, by his improper actions and practices, that she would be repulsed by him . . . that he caused everything.",
+ "In the present case, the plaintiff’s claim that her husband is a philanderer constitutes an example of one who claims that her husband is repulsive to her with a clear pretext. In the words of Arukh ha-Shulhan quoted above, “for philanderers despise that which is permitted to them and are attracted by the sweetness of stolen waters, and he is certainly repulsive in her eyes.”",
+ "Other authorities regard such behavior as repulsive. Addressing engaging in illicit affairs, for example Rabbi Eliyahu of Tarla writes as follows:",
+ "With regard to compelling a person to divorce, this is certainly worse than the defects in relation to which the husband is compelled to divorce, and there is no greater revulsion than this.",
+ "In our days, Rabbi Uriel Lavi elucidates:",
+ "It appears from the Sefer ha-Agudah . . . that such conduct on the part of the husband usually leads to him losing his money and to deprivation regarding marital relations and causes the woman distress, i.e., the conduct itself by its very nature entails revulsion on the part of the wife and justifies compelling the husband to divorce . . . revulsion that is recognized and accepted in these circumstances in relation to all wives, and the husband is to be compelled to divorce.",
+ "In the present case, it is clear on the one hand that the amount of maintenance paid to the plaintiff ($400 per month) was not affected by the defendant’s liaisons with another woman or other women. On the other hand, according to the plaintiff, the infrequency of the marital relations with her husband must be attributed to his adultery.",
+ "Rabbi Shlomo Daichovsky advances the importance of the discretion of the beit din in determining that he is repulsive. The following excerpt of his beit din ruling is quoted by Israel’s High Court of Justice, a civil tribunal:",
+ "The need for a clear pretext in relation to one who says “He is repulsive to me” is not because such a claim without a pretext is not sufficient, but because in such a case we are concerned that she might have cast her eyes on another. But as long as her revulsion is clear in the eyes of the beit din, even if it is not justified, the woman is considered as saying “He is repulsive to me” with a clear pretext, and as Hazon Ish said (Even ha-Ezer 69:16): “The main thing depends on the impression of the beit din, if there is mean-spiritedness in her demanding her ketubah, but if her claim that “he is repulsive to me” appears to be sincere, but she is demanding her ketubah in order to support herself, she will not lose her claim.",
+ "Rabbi Eliyahu Bakshi-Doron adds:",
+ "Even those who disagree with Rambam that a get is to be compelled when there is a claim of revulsion, agree that if there is a clear pretext, and the claim is sincere and no concern arises that she has cast her eyes on another, the divorce is to be compelled.",
+ "In the present case, according to the impression of the panel of the Beit Din, the plaintiff claims that the husband is repulsive to her with a clear pretext, and he may therefore be compelled to give her a get.",
+ "C. Admissibility of Evidence Obtained in Breach of Privacy",
+ "Another question which must be discussed is the validity of the evidence identifying the defendant as a philanderer which was obtained in violation of his privacy, by means of the plaintiff planting a recording device and by the two sons reading the email correspondence on his computer. The computer was owned by the defendant, but the two sons guessed the password and succeeded in getting into the computer in order to read his email.",
+ "What Halakhah applies to evidence that was obtained in a breach of privacy? Does the fact that permission had not been given for this breach disqualify it as evidence?",
+ "The dilemma with which we are faced is whether the need to establish the truth outweighs the need to allow evidence which was obtained unlawfully (i.e., in violation of the halakhah), or does protection of the public interest requiring that privacy be preserved override, in the case at hand, the need to reveal the truth?",
+ "The American, English and Israeli legal systems are adversarial systems in which the judge is supposed to be passive and the parties lay out their arguments before him. Accordingly, the judge does not endeavor to uncover evidence that the parties did not present. In accordance with this system, it was ruled that the proceedings in court have finality, since the process is a value in itself, even in cases where justice is not exhausted.",
+ "On the other hand, a halakhic system requires the dayan, the judge, to be actively involved in the beit din process, and his function is to rule according to the truth.",
+ "The Talmud teaches: “Any judge who renders a judgment that is absolutely true, even [if he sits in judgment for only] one hour, is considered by Scripture as if he became a partner with the Holy One, Blessed is He, in the act of creation,” and contrarily, “Any judge who renders a judgment that is not absolutely true causes the Divine Presence to depart from Israel.”",
+ "An alternative line of reasoning is that the transgression per se does not disqualify the halakhic outcome, but the value of truth overrides the value of human dignity.",
+ "Addressing this issue, Rabbi Shlomo Daichovsky teaches us:",
+ "I believe that it is correct to say that in relation to a married couple, there is no concept of individual privacy. The joint privacy of them both is one unit, one tree. This is the nature of married life, which renders the individual intimacy of each as one intimacy. The cooperation between the spouses is in the areas of intimacy, emotion, physicality and property all together. How can one talk of intrusion into the privacy of one spouse vis-à-vis the other, when the whole essence of marriage is expansion of the individual privacy into joint privacy? Even when the couple is in conflict, as long as the marital bond has not been severed or as long as no decree of divorce has been issued, the collective privacy in which the two sides are partners remains in effect. I agree that this privacy is intended for them alone, and it is not permitted for outsiders to enter, but in our case, the beit din is supposed to investigate the problems in the marriage and to arrive at conclusions. The status of the beit din is like that of a doctor, and each party can and must present before it the problems in their married life, even if one party discloses the misdeeds of the other.",
+ "Moreover, although the ruling in practice is that a breach of privacy constitutes a halakhic transgression, the halakhic principle is that the evidence that was obtained as a result of this violation is not to be disqualified. This principle is learned from the halakhah pertaining to a person who for three consecutive years consumed the halakhically-forbidden fruit of a particular field. These three years count for the purpose of a presumption of ownership, even though the eating of the fruit was forbidden. According to this position, “evidence that was obtained unlawfully is admissible as evidence, and the prohibition does not detract from the right of the possessor.”",
+ "This halakhah derives from a principle that was articulated by the Amoraic sage Abaye, who stated: “any act which the divine law forbids, if it has been done, it has legal effect.” In other words, committing a prohibited act does not negate its legal consequences, for according to the halakhah, there is a distinction between the sphere of prohibitions (“issur ve-heter”) and the halakhic-civil sphere (“dinei mamonot”), and therefore, an unlawful violation of privacy does not disqualify use of the evidence that was obtained by means of this violation.",
+ "D. The Probative Value of the Recording and the Email",
+ "In the present matter, despite the fact that it was the defendant who sued for civil divorce, the plaintiff claims that she decided to divorce the defendant even before he initiated the civil divorce proceedings. In addition, she claims that the incident with the policewoman posing as a prostitute indeed occurred, even though she does not have documents to prove it. Unfortunately she threw away the police report and the decision of the court which sentenced the defendant to community service for this incident, and therefore, she was unable to submit them to our Beit Din for our review.",
+ "In order to prove her claims, the plaintiff submitted to the Beit Din a recording which indeed proved her activities in anticipation of civil divorce proceedings, as well as the defendant’s admission of the incident with the undercover policewoman.",
+ "However, the recording cannot serve as evidence, for as is known, there is a dispute as to whether voice identification (“tevi’at kol”) constitutes evidence or not. According to Ramban, there are people who are able to produce a voice like that of another person. A related problem emerges from the view of Ketzot ha-Hoshen, according to whom voice identification is a weak proof. Finally, pursuant to Netivot ha-Mishpat, voice identification is regarded as mere information. In contemporary times, Rabbi Daichovsky rules that a recording cannot be relied upon by itself, without additional evidence.",
+ "We listened to two recordings that included two hours of conversations between the plaintiff and the defendant, but we could not recognize their voices on these recordings, which were recorded 19 years ago. Similarly, we listened to conversations spanning one and a half hours that concentrated on the subject of the family debt of the plaintiff’s brother-in-law in connection with the couple’s house and additional disagreements between them, particularly concerning the way in which the plaintiff’s brother-in-law, who is a lawyer, dealt with the apartment.",
+ "It is clear that the planned entrapment by the plaintiff by means of the recording constituted preparation in anticipation of the claim for divorce that she planned to submit to the Court. From an examination of the judgment of the Court, which was rendered after the recording, the connection between the recording and paragraphs 10, 12–13 of the civil judgment emerges clearly. Accordingly, despite the fact that it was the defendant who formally instigated the divorce proceedings in Court, the recording proves that the plaintiff had commenced, already a year beforehand, “to prepare the ground for divorce”. Moreover, she also notified the Court that at that time she had consulted with two lawyers on the matter of divorce.",
+ "On the second matter, it is possible to rely upon the last quarter of an hour of the recording, which includes the husband’s admission that the incident with the undercover policewoman had indeed occurred. In this recording, the defendant also confirmed his association with another woman, without admitting that he had an intimate relationship with her.",
+ "The probative support for what was said in the recording about the intimate connection is provided by the testimony of the sons of the couple concerning the immodest email correspondence with a woman, as mentioned above. The younger son, who saw the correspondence in 1997 (he was then 13–14 years old) described it as “an inappropriate connection with a woman,” and testified that the defendant promised that he would put an end to this correspondence. The plaintiff, to whom the son presented these mails at the time, claimed in the Beit Din that the contents of the correspondence clearly attest to lewdness and adultery, and in her words, “sexually explicit messages”. The older son discovered similar messages in 1998 (he was then 18–19 years old), and while he could not say whether this correspondence pointed to an intimate relationship between the defendant and the woman, he also defined this connection as “suspicious.” In other words, the plaintiff and the two sons separately raised the matter of the email correspondence of the defendant, and when they confronted him with it he got very angry, but he refrained from admitting that he had an intimate relationship with another woman.",
+ "A judgment of Rabbi Zvi b. Ya’akov, a dayan serving on the Tel Aviv-Yaffo Rabbinical Court, provides an apparent basis for the position that the conduct of the defendant defines him as a philanderer. Rabbi b.Ya’akov rules as follows:",
+ "In all events, it emerges from the view of Sefer ha-Agudah that we don’t require actual witnesses to the fornication, as we would in the case of a wife suspected of adultery, but insofar as he is seen with the adulterers, he is classified as a philanderer. It appears that if he exchanges lewd messages on the internet and participates in these things . . . visiting these sites constitutes his being amongst the adulterers, and he is to be compelled to divorce her and pay out her ketubah. . . .",
+ "In the present case, however, we cannot rely on the email correspondence, for the writing is electronic and it is clearly impossible to identify who wrote the messages. Even if we could know with certainty from which computer the messages were sent, and thereby determine, prima facie, that the owner of the computer is the person who sent them, this is not absolute proof, for it is technologically possible to penetrating the virtual space of the individual, to read, to change and to copy the digital information stored in the computer; such penetration is an everyday occurrence, and the phenomenon of hackers is well-known. Therefore, who can assure us, beyond all doubt, that the defendant, the owner of the computer, was the one who wrote these messages, rather than another individual?",
+ "Authorities from earlier ages were unaware of modern technology in general and of computers in particular, but the later decisors already discuss this point. Avnei Nezer examines a letter that was found, written by a certain married woman to a suspect, which contained several abhorrent and repulsive expressions. The author wrote that if it was not written explicitly in the letter that the woman was adulterous, then this is considered to be no more than unseemliness. And if it emerges that this is her writing, then even though the writing is similar to her handwriting in another document which she admits is hers, this is not proof that she indeed penned the unseemly words. First, the other document might be forged, and should you wish to say that it is not possible to replicate each individual letter, but only a signature, and then the handwriting is not identifiable. But if you wish to say that it is possible to write each letter identically, then forgery is possible. Furthermore, proving the similarity will not serve with respect to her being prohibited to her husband, because the only acceptable method in such a case is visual identification of her handwriting.",
+ "Rabbi Berlin addresses the case of a wife about whom there was a persistent rumor, and the suspected lover admitted to impropriety and also showed letters from her demanding that he not reveal the truth. Rabbi Berlin contends that the rumors carry no weight and that the testimony of the suspect, who was the single witness to the impropriety, was inadmissible, and he writes at length that she not be prohibited [to remain with her husband], for what is written there does not constitute impropriety.",
+ "On the basis of the above, one must be certain that the correspondence was in fact written by the husband and the woman to whom it was addressed.",
+ "In the opinion of this Beit Din panel, the email correspondence is not to be presumed to be authentic, and it is therefore possible to accept the claim that it was edited and forged. In this case, the computer was not tested, and it is therefore impossible to prove from the electronic correspondence that the defendant was indeed a philanderer. As such, we cannot apply the ruling of Rabbi Zvi Yehuda b. Ya’akov that lewdness in the defendant’s emails constitutes an instance of the approach of Sefer ha-Agudah (i.e., being seen with adulterers) with respect to the definition of a philanderer.",
+ "At the same time, since the Beit Din is obliged to render judgment according to how the rabbinic arbitrators (dayanim) understand the pending issues, all the matters that we have mentioned that preceded the discovery of the email correspondence, along with all the events that occurred thereafter, fit the pattern of conduct of the defendant in general, and the encounter with the undercover policewoman and subsequent marriage to another woman without giving a get to his wife in particular, therefore clearly indicate that the defendant is to be labeled as a philanderer who never chose to religiously rehabilitate himself.",
+ "E. Igun of the Wife – Grounds for Divorce",
+ "In addition to the abovementioned grounds for divorce – the fact of the husband being a philanderer, and the plaintiff being repulsed by him with a clear pretext – justifying compulsion of the get, there is, in the circumstances of this case, another reason for compelling the get, i.e., the igun of the wife.",
+ "The defendant has already lived in a different state for a number of years; he fails to perform his marital duties (including refraining from fulfillment of his obligation regarding marital relations and maintenance). He has already left her in a state of being a chained wife due to get recalcitrance (igun) for over 18 years and is currently married to another woman. Assuming legally we were empowered to coerce a get, we would render such a judgment.",
+ "Moreover, though there are some legists who do not accept irretrievable breakdown of a marriage (i.e. no-fault divorce) as grounds for compelling or obligating a divorce, but on the other hand, there are decisors who do accept the wife’s inability to receive her get as grounds for coercing or obligating a get.",
+ "F. Decision on the Question of Compelling the Get",
+ "From the above it emerges that there are several halakhic doubts (sefeikot de’dina) in our case. The Halakhah might be in accordance with the approach of Sefer ha-Agudah and Arukh ha-Shulhan, that a philanderer is compelled to divorce. Alternatively, the Halakhah may be in accordance with the view of Rambam, Rashbam, Rashi, Ra’avad, Smag and others who compel a person to divorce when the wife claims “He is repulsive to me,” even without a clear pretext. On the other hand, one might claim that the Halakhah is not decided in accordance with that view, but rather with the opinion of Rabbeinu Tam, Rosh, Shulhan Arukh, Rema and others, whereby one does not compel in the case of such a claim. Or the Halakhah might be resolved according to Rashbash and those who endorse his posture whereby if there is a clear pretext, one does compel. Or it may be that one does not compel, rather the Halakhah subscribes to the opinions of Rosh, Rashba and Beit Yosef as understood by Maharam, whereby even with a clear pretext one does not compel. Or the Halakhah reflects the enactment of the Geonim as explicated in Rif and in Or Zarua that in fact, according to the fundamental legal doctrine, one does not compel, but the husband is to be compelled due to the enactment pertaining to the maintenance of Jewish women at a certain standard. Similarly, in the present case, the Halakhah may be in accordance with the approach of Mabit, Hakham Zvi, Divrei Hayyim and others, whereby a get can be compelled due to the husband’s get recalcitrance (igun), and at variance with the positions of Divrei Malkiel and those who support his view that is not a reason for compelling. In the circumstances of the present case, therefore, there are five doubts in relation to the question of compelling the defendant to give a get.",
+ "In view of the proliferation of these halakhic doubts, how must we decide?",
+ "One of the great authorities of the 19th century Hungary, Rabbi Moshe Sofer, limits the scope of Rambam’s ruling. His rationale is that the pressure that the beit din exerts on the husband to express his willingness to comply with what the authorities say is predicated upon the fact that the compulsion is lawful according to all views, and thus the husband accepts this compulsion as an acceptance of the rabbinic will. However, in cases in which there is a dispute amongst the authorities, we cannot compel the husband, due to the fact that his unwillingness may be justified: “the divorcing person can surely say, ‘on what basis do you prefer the Rosh to the Mordekhai?”",
+ "We argued that because there was no face-to-face confrontation, similar to a Sanhedrin proceeding, the minority opinion cannot be dismissed, and as such the husband’s will to listen to the words of the Sages is unclear. Consequently, any get coercion would result in “a coerced get” (a get me’useh) and thus be invalid.",
+ "According to Rabbi Moshe Sofer’s argumentation, the husband can presumably not be compelled to give a get.",
+ "However, this approach is unacceptable to other later authorities. Relying on the ruling of the nineteenth century Lithuanian rabbinic luminary, Rabbi Yitzhak Elhanan Spektor, Rabbi Yitzhak Herzog opines:",
+ "That because the beit din ruled that he is to be compelled, the husband – despite being aware that there are those who rule against compulsion – accepted the ruling, because it is an obligation to comply with what the authorities in one’s generation say.",
+ "Rabbi Hayyim Hizkiahu Medini also cites the position of Hatam Sofer, but he challenges it, contending:",
+ "Since all who appear in a beit din are presumed to be experts in Halakhah, therefore both those who are unaware of the above dispute between the holy rabbis, and those who are learned with regard to it may be compelled to divorce. For it is the Halakhah that all are required to obey the judge who lives in their time, and if the beit din dealing with the case decides that the Halakhah is in favor of compulsion, we may very well say that the parties accept this decision with all their hearts (i.e. their undivided will – AYW), since it is an obligation to comply with the words of the contemporary judges. It is surely inconceivable that a litigant will enforce his opinion of Halakhah against that of the court sitting in his days.",
+ "In pursuance to Rabbis Spektor, Medini and Herzog’s approach, the conclusion regarding our case at this stage is that there is a basis for compelling the get for three reasons: a get is compelled in the case of the infidelity of the husband, who has been warned several times about his conduct; a woman who claims, “he is repulsive to me” with a clear pretext – her husband is compelled to give her a get; and where the woman is left in a state of a husband’s get intransigence, there is a ground for compelling the get. Finally, get coercion is appropriate due to the fact that a philanderer may divert assets from “the marital piggybank” in order to satisfy his desires for lust; consequently, we compel the giving of a get in order that the wife receive the value of her ketubah and other marital assets rather than as retribution for his inappropriate behavior.",
+ "In sum, in our decision, we have advanced one series of five reasons for get coercion as well a second series of three reasons for get coercion.",
+ "G. Voiding the kiddushin by virtue of the clear expectation that “she did not give herself over to marriage with this in mind” (umdana)",
+ "Even though we have concluded that there are sufficient reasons for compelling the defendant to give a get, such compulsion would be practical only if the plaintiff were living in the State of Israel, where there is a legal possibility of compelling a get, and she could therefore have expected that her marriage would be brought to an end by implementation of the means of compulsion.",
+ "However, in our case, the couple is at present living in the United States, in which there is no legal authority (and therefore, no halakhic authorization) on the part of the beit din to compel a get. In accordance with various decisors, in the absence of such authority, relying on the facts that were described and the evidence that was brought before the Beit Din, the kiddushin may be invalidated by invoking the clear expectation (the umdana de’mukha) that “she did not give herself over to marriage with this in mind.” In other words, invoking the clear expectation means that there is an implied condition in the constitution of the marriage and its validity. Consequently, it is of no surprise that numerous authorities have employed the clear expectation as a vehicle to void a marriage.",
+ "Without addressing the validity of the appraisal of intention as a means for invalidating kiddushin, one formulation of the statement “for that reason she married” is found in the words of the Gra of Tarla, who notes:",
+ "And even though we accept Rava’s opinion, whereby a man may marry several wives on condition that he can fulfill their needs, Ritva points out that where the custom is to marry only one wife, Rava would admit that in such a case, he must divorce her and pay out her ketubah, for this is an implied condition on the basis of which she agreed to marry him. Therefore, that which it is written concerning a man who takes a mistress promiscuously, it is a proven assessment that had she known that this would happen, she would never have agreed to marry him . . .",
+ "In our context, the import of the assessment is that the plaintiff never considered marrying a man who was a philanderer.",
+ "Final Afterthoughts",
+ "On the basis of the above, although there are authorities who oppose use of this clear expectation that “she did not give herself over to marriage with this in mind” as an instrument for invalidating the kiddushin, nevertheless, in reliance on the authorities mentioned above, we rule that this appraisal of intention can be invoked as a means for voiding the kiddushin in this case.",
+ "Therefore, the plaintiff is permitted to marry any Jew, including a Kohen, without receiving a get.",
+ "In our decision we wrote the following:",
+ "From the above presentation of our decision it emerges that there are several halakhic doubts (sefeikot de’dina) in our case. The Halakhah might be in accordance with the approach of Sefer ha-Agudah and Arukh ha-Shulhan, that a philanderer is compelled to divorce. Alternatively, the Halakhah may be in accordance with the view of Rambam, Rashbam, Rashi, Ra’avad, Smag and others who compel a person to divorce when the wife claims “He is repulsive to me,” even without a clear pretext. On the other hand, one might claim that the Halakhah is not decided in accordance with that view, but rather with the opinion of Rabbeinu Tam, Rosh, Shulhan Arukh, Rema and others, whereby one does not compel in the case of such a claim. Or the Halakhah might be resolved according to Rashbash and those who endorse his posture whereby if there is a clear pretext, one does compel. Or it may be that one does not compel, rather the Halakhah subscribes to the opinions of Rosh, Rashba and Beit Yosef as understood by Maharam, whereby even with a clear pretext one does not compel. Or the Halakhah reflects the enactment of the Geonim as explicated in Rif and in Or Zarua that in fact, according to the fundamental legal doctrine, one does not compel, but the husband is to be compelled due to the enactment pertaining to the maintenance of Jewish women at a certain standard. Similarly, in the present case, the Halakhah may be in accordance with the approach of Mabit, Hakham Zvi, Divrei Hayyim and others, whereby a get can be compelled due to the husband’s get recalcitrance (igun), and at variance with the positions of Divrei Malkiel and those who support his view that is not a reason for compelling. In the circumstances of the present case, therefore, there are five doubts in relation to the question of compelling the defendant to give a get.",
+ "In view of the proliferation of these halakhic doubts, how could we have decided?",
+ "As we examined in the earlier portion of this monograph, there is a Yerushalayim Regional Beit Din ruling which addresses our issue.As we said:",
+ "The aforementioned decision of the Yerushalayim Regional Beit Din focuses upon a suit for divorce filed by a woman on grounds of repulsion of her husband following a verdict in the civil court that convicted the husband of obscene acts carried out on minors. In its argumentation, the panel addresses whether there is a basis for coercing a get when a wife advances a plea of “he is repulsive to me” accompanied by a clear pretext. Though there were a few decisors who subscribe to get coercion under these circumstances, the majority reject this view. Moreover, some authorities would not even obligate a get in these circumstances. Secondly, the beit din explores whether there would be grounds to coerce a get due to the fact that the husband acted deceitfully when he refrained from disclosing to his wife prior to their marriage that he was a convicted pedophile. Here again, upon beit din review; it was found that the propriety of a get compulsion order was equally a matter of halakhic debate.
In the wake of this understanding of these two issues, what emerges from the decision of the beit din panel is that there are two halakhic doubts (hereinafter: double doubts): namely, whether one may coerce a get in light of a husband’s abusive behavior and whether one ought to coerce a get due to his deception. Without elucidation, the panel posits that since get coercion entails a biblical prohibition, therefore we are dealing with a double halakhic doubt on a biblical level, where a get may be coerced. In light of a controversy whether we can permit a wife to remarry when there is a biblical double uncertainty, the panel aligns itself with the posture which would allow for this remarriage. However, since it presumes that each doubt has to be even (shakul), which means that there must be equal number of decisors who will coerce a get versus an equal number of decisors who reject this possibility prior to invoking the technique of a double halakhic doubt; this method could not be implemented. As we mentioned, the majority of authorities oppose get coercion vis-à-vis a husband who engages in pedophilia. And regarding the matter of misrepresentation, it is unclear whether the numbers of authorities who endorse get coercion that corresponds to the number of those who reject the implementation of get coercion.",
+ "Since a doubt regarding the propriety of get coercion entails a biblical doubt, therefore we are dealing with a double halakhic doubt on a biblical level, where a get may be coerced.",
+ "As we mentioned, it is clear from reading the Yerushalayim Regional Beit Din’s decision that the fact that most authorities rule against the propriety of get coercion prevents the invoking of a double doubt, and said conclusion is also supported by other legists. However, it is our understanding that Bahag, Rif, Rambam, Rosh (possibly), Ra’avad, Semag, Ramah, Meiri, Ritva, Rabbi Yosef Karo (possibly), Rabbi David ibn Zimra, Rabbi Mordekhai ha-Levi, Hida, Rabbi Ya’akov Emden and Rabbi Ovadiah Yosef all rule that under certain conditions (e.g. a doubt as to what the Halakhah ought to be), a biblical doubt (a sefeika de’oraita) ought to be resolved stringently on a rabbinic level. In pursuance to this tradition that we are dealing with a rabbinic matter, there is no requirement that the double doubt represent that the authorities are equally divided (i.e. shakul) to determine whether one may coerce a get in order to free the wife without a get. Even if one side of the doubt reflects a minority opinion, the double halakhic doubt will be effective. Finally, given that the rule of “following the majority” is applicable only to resolving issues within the confines of a beit din proceeding, one cannot speak of a majority opinion and minority opinion concerning intergenerational disputes. As such, the requirement that the decisors be equally divided regarding a pending issue is not mandated regarding a double doubt.",
+ "Moreover, even according to Rashba and others that a biblical doubt ought to be resolved stringently on a biblical level that does not necessarily mean that the application of a double uncertainty will be ineffective. The consequent leniency associated with the implementation of a double uncertainty is due to the rule of following the majority (“aharei rabbim le’hattot”). The existence of one doubt creates a situation of 50/50 uncertainty (“ke-mehtza al mehtza dami”), and then the second doubt creates a majority which results in treating the matter leniently on a biblical level. In accordance with many legists (Poskim) this approach is the dominant understanding as to why the employment of a double doubt will be effective. Given the above lines of reasoning, there is no prerequisite that the doubt must be even, namely that the arbiters would be equally divided concerning the propriety of the issuance of a get compulsion judgment prior to employing the rule of the double doubt. As such, relying upon a well-trodden tradition (mesorah) of Ashkenazic as well as Sephardic legists that sanctions the employment of a double uncertainty concerning a matter of Biblical ritual law including a matter of personal status (ishut), the invoking of the double doubt regarding get coercion under certain conditions will trump the presumption that she is a married woman and will reinstate the original presumption of being a single woman (a penuyah).",
+ "Based upon the foregoing, freeing the plaintiff without a get may be based upon the employment of a double doubt relating to five different debates as to whether one can coerce a get concerning the wife’s plea of repulsiveness as well as the controversy centering around the issue whether the engagement of philandery serves as a basis to implement get coercion against a get recalcitrant husband. In short, in the wake of a get recalcitrant husband, we deem the matter as “an hour of emergency” (sh’at ha-dehak) and a priori (le-khatehillah) we can void the marriage based upon a double halakhic doubt."
+ ],
+ "f) A husband who engages in spousal battery and child abuse": [
+ "F. A husband who engages in spousal battery and child abuse",
+ "During March 1995, Esther Mark (hereinafter: the plaintiff) married Fred Miller (hereinafter: the defendant) in accordance with Halakhah. The couple separated in September 2011 and in August 2015 a civil divorce was executed. We summoned the defendant to appear at the Beit Din in order to address the matter of the get. However, he refused to appear for a hearing. We conducted a hearing with the plaintiff and we heard her arguments as to why she felt entitled to receive a get. In March 2018, we obligated the defendant to give a get to the plaintiff. To date, he refuses to give one, claiming that even if the plaintiff agreed to reduce his financial responsibilities towards her, obligations mandated by the civil court, he would still remain adamant in refusing to give a get.",
+ "Approximately twelve years into the marriage, the defendant began to engage in domestic violence. In terms of spousal abuse, he kicked her in the mouth, broke her finger necessitating that it be placed in a splint for a few weeks, she received bruises and experienced breathing problems for a time from being thrown down the stairs, he meted out a karate chop and injured her ankle from being pushed down the stairs. These incidents as well as others all occurred when the defendant was either dissatisfied with the plaintiff’s conduct or with his children’s behavior. Regarding child abuse, the defendant physically abused them over twenty times, frequently emotionally and verbally abusing them by insulting and intimidating them. On various occasions, the plaintiff warned him to cease and desist from his abusive behavior. Due to these events, the children only interacted with the defendant in the plaintiff’s presence. Despite the defendant’s acts of domestic violence which caused the plaintiff and the children to fear for their lives, she refrained from contacting the police and/or child protection services in order to stabilize her family and avoid being personally humiliated in her community and having her children stigmatized and shunned by their relatives, friends and peers. In September 2011, the defendant moved out of the marital home and subsequently civil divorce litigation ensued.",
+ "Discussion",
+ "The threshold question is whether there are grounds to trust the allegations of domestic violence advanced by the plaintiff. Her presentation is memorialized in the findings of a civil court case dealing with the parties. Despite the fact that the defendant argued that the incidents were fabricated and that the plaintiff initiated the physical strife, the court evaluated the credibility of the parties and arrived at the conclusion that the plaintiff’s testimony was credible. As a beit din, we endorsed the civil court’s findings.",
+ "A. Spousal battery – grounds for get coercion?",
+ "We now must address the issue of whether there is a basis to coerce a get in a situation where a husband is a batterer. One approach, which first appears in the writings of Ohr Zarua, Rabbeinu Simhah and espoused by others, is to issue a compulsion order in the wake of a husband who assaults and insults his wife. A contemporary rationale for get coercion is articulated by an Israeli dayan who teaches us:",
+ "get coercion is due the destruction of family life by the husband as a result of his behavior rather than due to the acts of abuse and the wife is therefore entitled to demand a get.",
+ "Responding to this posture of Ohr Zarua and Rabbeinu Simhah, Rabbi Yosef Karo in Beit Yosef demurs, stating:",
+ "We cannot rely on their words . . . to coerce . . . since it is not mentioned by any one of the renowned authorities.",
+ "In light of the view of the Beit Yosef’s predecessors who argue that since the Mishnah and/or Talmud failed to explicitly mention that spousal battery is a ground for divorce (ilat gerushin) which mandates get coercion, a beit din may not issue a compulsion order. And this view was subsequently established in Rabbi Karo’s Shulhan Arukh. Yet, Rabbi Karo concurs that a husband may be obligated to give a get.",
+ "Therefore, the rationale for the opposition to coercing a husband who is a batterer to give a get is based upon their understanding that the resultant get is deemed “a coerced get” (“a get me’useh”) and consequently it is invalid. Consequently, should the wife remarry relying upon this get and have children, the offspring would be labeled as halakhic bastards (mamzrerim). Since a halakhic bastard is the product of an incestuous relationship, the fact that the get was invalid means that in effect she was still married to her first husband when she had children with her “second marriage.”",
+ "In the wake of Beit Yosef’s posture, Darkhei Moshe rules:",
+ "I don’t see his words at all because it is worthwhile relying upon the Geonim, a fortiori given that Ramban and Maharam [also] agree in their responsa concerning assaulting a wife (that it is a grounds for to obligate a get – AYW) and they brought clear proofs to their words and logic agrees with them.
And the fact that it isn’t mentioned (the reason that spousal battery is not mentioned in the Talmud as a ground for a get – AYW) one possibly could say that it was obvious in their eyes . . . and it did not happen in their days (that there was a phenomenon of spousal battery – AYW). . . .",
+ "Numerous decisors subscribe to Beit Yosef’s and Darkhei Moshe’s posture that one cannot coerce a husband who assaults his wife to give a get.",
+ "Nevertheless, there are authorities (Poskim) who claim that in situations where the spousal assaults are frequent and life-threatening to the wife there are grounds to coerce the husband to give a get.",
+ "Since the defendant was intermittently abusive due to issues of anger management, the plaintiff and children felt that their lives were threatened. However, the acts of domestic violence did not rise to the level of actually threatening their lives. Yet, on two separate occasions, the defendant broke her finger and threw her down the stairs, injured her ankle and her lip required stitches. Nonetheless, concerned with Rabbi Yosef Karo’s view, some legists reject get coercion even under such circumstances.",
+ "As such, we are relying upon the minority of authorities (“da’at me’ut”) who endorse get coercion for a husband’s acts of spousal battery. Arguing that in contemporary times, a wife is repulsed by being a victim of domestic violence to the degree that she refuses to live with a batterer, Rabbi Shlomo Amar concludes that a get compulsion order ought to be issued.",
+ "Prior to either obligating or, some say, coercing a batterer to give his wife a get, there is a requirement to forewarn him to cease and desist from such behavior. In our case, the plaintiff forewarned him a few times but to no avail. In contemporary times, even in the absence of forewarning, given that this behavior represents a well-known sin (“aveirah mefursemet”) and is a violation of criminal law and/or it is clear that the battery transpired over an extended period of time, in our present case there would be no requirement of giving a forewarning prior to issuing a divorce order.",
+ "B. A wife who claims “he is repulsive to me” (a plea of mais ali) - Grounds for compelling a get?",
+ "Lest one challenge our conclusion by claiming that one may only obligate a get in a situation of spousal battery, we will show that there are two additional rationales for coercing a get in a situation of spousal battery.",
+ "Firstly, we must examine the plaintiff’s claim that her husband is repulsive to her (“ma’is ali”) due to the very thought that she would never marry a man who would be abusive physically, emotionally and verbally and secondly we will address that the husband was transgressing Halakhah by engaging in abusive behavior vis-a-vis his spouse and children.",
+ "1. Rebellious Wife due to Revulsion",
+ "From the Talmud in Tractate Ketuvot 63b it emerges that there are two types of claim of rebellion on the part of the wife regarding marital relations:",
+ "(a) Rebellion due to a dispute (She says, “I want him as a husband but I wish to torment him”) – A wife who does not want to divorce, but refuses to engage in marital relations, in order to cause distress to her husband due to her dispute with him. This rebellious wife is interested in divorcing her spouse without providing reasons, and she is tormenting her husband so that he will divorce her and pay out the value of her the marital agreement (ketubah).",
+ "(b) Rebellion due to revulsion (“He is repulsive to me”) – the wife can no longer bear to engage in marital relations with her husband.",
+ "In our view, the arguments of the plaintiff cannot be classified as rebelliousness of the first type, for she has no interest in causing her husband distress, neither due to any argument with him, nor so that he will pay out the value of her ketubah. On the other hand, the plaintiff is not claiming that her husband is repulsive to her regarding marital relations; rather, life together with him is repulsive to her, and she no longer wishes to be married to him. The question, therefore, is whether this second type of argument of rebellion due to revulsion is limited only to cases in which the woman can no longer bear having intimate relations with her husband, or whether it can also be advanced in circumstances in which the wife can no longer tolerate married life with her husband due to his conduct towards her.",
+ "Rabbi Aharon Sasson cast doubts in relation to this question, particularly with regard to the correct understanding of Rambam’s opinion, teaching:",
+ "When the Talmud says, “He is repulsive to me,” . . . her claim is that she can no longer engage in sexual relations with him due to revulsion, like the precise understanding of the expression, “He is repulsive to me like the flesh of a pig, etc.” But if her argument does not relate to revulsion at intercourse, then her argument is not that of “He is repulsive to me,” and even if she says, “I do not want him because I hate him,” or “He will no longer be called my husband,” etc., as is said in this case, these statements do not indicate a claim of “He is repulsive to me,” etc., for it is possible that the hatred arises not due to revulsion but only because of a dispute with him, or something else, and then her claim is not one of revulsion. . . .
And it might also be possible to say the contrary, i.e., “He is repulsive to me” is one way of saying “I hate him and I do not want to be with him,” etc. . . . as is implied in Rambam’s words there: “She is not as a prisoner who is forced to have relations with one who is hateful to her,” etc. The formulation “He is repulsive to me,” is not used [by Rambam], from which we may deduce that hatefulness and repulsiveness are one and the same thing. And the reason that the Talmud did not include hatred in general is because it wanted to be sure that there is an objective reason for the hatred.",
+ "And after adducing various proofs for each side of the argument, he concludes:",
+ "In light of all this I have doubts in the present matter, since I have not found a definitive answer in any of the decisors, or even the slightest indication of a preference in relation to any of these arguments. This may be because the matter was so clear to them that they did not feel the need to provide any definitive rulings. Therefore, my tendency is that wherever the wife says, “I do not want him and I hate him and he is no longer to be called my husband,” we will apply the halakhah of “He is repulsive to me.”
Indeed, from the writings of a number of authorities, a distinction emerges between the two possible claims of the wife that she is revolted by her husband, and according to this, only in relation to being revolted by intimate relations will the halakhah of the rebellious wife (“moreidet” – AYW) due to revulsion be applied to the wife.",
+ "Rabbi Herzog defines revulsion by a medical analogy in a more narrowly-focused manner:",
+ "And one must further distinguish: the claim “He is repulsive to me” is not just a matter of simple hatred, but deep revulsion at having relations with that body, and this is one of the deep secrets of the soul [in our days, the doctors have discovered a disease known as haphephobia – fear of being touched, i.e., for a reason which cannot be explained, a person is reluctant to touch a certain person or object, and Rambam, in his divine wisdom, preceded modern day physicians in many things, including this.]",
+ "It emerges from the teachings of many other authorities that the claim of revulsion also applies in circumstances in which the wife is not interested in continuing to live with the husband, and there is not even a need for an explicit statement of revulsion. Said conclusion may be derived from how the plea of revulsion is dealt with by other legists. For example, in discussing compelling a release from levirate marriage (halitzah), one authority explains that according to Rambam and others, “Not only does this apply in relation to a claim of ‘he is repulsive to me,’ but in any case in which she claims a get, we give it to her immediately” Rabbi Shmuel de Medina opines that the sanctions of Rabbeinu Tam (i.e. isolating measures that serve to pressure a recalcitrant husband to give a get) do not apply only to the claim “he is repulsive to me.” Beit Shmuel and others cite the above responsum of Rabbi Sasson, discussing the case in which the claim was formulated in words other than “he is repulsive to me,” and thus we may infer from this formulation that they rule similarly. The position of these arbiters is adopted in various rulings of the rabbinical courts functioning within the network of the Chief Rabbinate in the State of Israel.",
+ "The following appears in the reasons for a judgment on a related case by the Netanya Regional Beit Din:",
+ "According to many of the authorities, and also according to Rambam and the Shulhan Arukh, the definition of “repulsive” does not depend on this particular form, nor does it necessarily depend on marital relations; rather, the criterion is substantive, relating to the whole of the shared life, and insofar as it is clear to us that the woman hates her husband and does not want him, and in the opinion of the beit din her words are sincere and are based on clear pretexts, then it is as if she said “he is repulsive to me,” even though she does not insist that marital relations with him are repulsive to her. And as emerges clearly from the enactment of the Halakhah of the Academy [Geonim] (which is attributed to the halakhah of “he is repulsive to me,” and as was proven also by Rabbi Sasson above, and nothing need be added), where it was clear that she was not claiming that he is repulsive to her due to sexual relations, nevertheless the halakhah of “he is repulsive to me” was applied.",
+ "In the present case, the plaintiff did not say explicitly “he is repulsive to me,” but her words clearly express the revulsion she feels towards her husband’s abuse, and her unwillingness to continue her married life with him:",
+ "We therefore rule in accordance with the opinion that the halakhot that apply to the rebellious wife due to her husband being repulsive to her also apply when the wife claims that she no longer wishes to live together with her husband.",
+ "2. The evidence required to prove the plea, “he is repulsive to me”",
+ "Although several decisors are of the opinion that accepting the claim, “he is repulsive to me” is conditional upon evidence being brought in relation to the cause of the revulsion, many authorities opine that there is no need for admissible proof for this purpose, and it is sufficient that her revulsion is evident from what she says, from the circumstances, or if she presents an explanation, a clear pretext (amatla mevureret), for her claim that he is repulsive to her. There are indeed those who argue that there is no requirement for any explanation on the part of the wife, a position which is not reflective of normative Halakhah.",
+ "The majority of authorities are of the opinion that it is not sufficient simply to provide some sort of explanation for the claim, “he is repulsive to me,” and what is necessary, according to them, is a “clear pretext.”",
+ "The assumption is that despite the emotional/psychological aspect of the claim “he is repulsive to me,” the wife who is suffering has the ability to express her feelings in a rational fashion in front of the beit din by explaining the source or the reason for these feelings with a “clear pretext,” and the beit din must determine whether there is a true, justified ground for divorce.",
+ "3. Discretion of the beit din in accepting the claim, “he is repulsive to me”",
+ "In fact, determination of whether the “clear pretext” is sufficiently strong to activate the halakhot of the rebellious wife whose husband is repulsive to her, is subject to the discretion of the beit din, in accordance with “what the rabbinic arbitrators (dayanim) discern for themselves” in order to assess the sincerity of the claim that the husband is in fact repulsive.",
+ "In other words, the beit din must believe that the wife is making the claim for real, relevant reasons, rather than as a trick or a tactic because “she had cast her eyes on another.” Thus, for example, if the woman waives collecting the value of her ketubah, the sincerity of her claim has a stronger foundation.",
+ "In his clear and articulate style, Rabbi Kook defines the nature of the “clear pretext” as part of the investigation conducted by the beit din:",
+ "Where it is clear to the beit din that justice is on her side and he deserves, by his improper actions and practices, that she would be repulsed by him . . . that he caused everything.",
+ "Rabbi Shlomo Daichovsky explains the contours of the discretion of the beit din in determining that he is repulsive. The following excerpt of his beit din ruling is quoted by Israel’s High Court of Justice, a civil tribunal:",
+ "The need for a clear pretext in relation to one who says, “he is repulsive to me” is not because such a claim without a pretext is not sufficient, but because in such a case we are concerned that she might have cast her eyes on another. But as long as her revulsion is clear in the eyes of the beit din, even if it is not justified, the woman is considered as saying, “he is repulsive to me” with a clear pretext, and as Hazon Ish said (Even ha-Ezer 69:16): “The main thing depends on the impression of the beit din, if there is mean-spiritedness in her demanding her ketubah, but if her claim that “he is repulsive to me” appears to be sincere, but she is demanding her ketubah in order to support herself, she will not lose her claim.",
+ "Rabbi Eliyahu Bakshi-Doron adds:",
+ "Even those who disagree with Rambam that a get is to be compelled when there is a claim of revulsion, agree that if there is a clear pretext, and the claim is sincere and no concern arises that she has cast her eyes on another, the divorce is to be compelled.",
+ "In the present case, according to the impression of the panel of the Beit Din, the plaintiff claims that the husband is repulsive to her with a clear pretext as established by her words and the findings of the civil court, and given that she has not cast her eyes at another man and is not claiming the value of her ketubah, he may therefore be compelled to give her a get.",
+ "Alternatively, in this case, we can deploy the principle of double doubt, comprised in this case of three halakhic doubts, understood in the manner of “if you choose to say”: Should you choose to say that normative Halakhah accords with Rambam and others that in the wake of a plea of repulsion without a clear pretext, we can coerce a get. And should you choose to say that there is only a basis to compel a get if the plea is accompanied by a clear pretext (amatla mevureret), given such a pretext one can coerce a get. And should you choose to say that even under such conditions there are no grounds for get coercion, we follow in the footsteps of Alfasi and others who mandate a compulsion order due to the rabbinic legislation passed in the Geonic times that directs and coerces a get. Based upon the foregoing, in pursuance to some contemporary authorities there is a double halakhic doubt in biblical matters concerning the different planes of the plea of repulsiveness which permits us to void the marriage in our case.",
+ "Seemingly, such a construction of a double halakhic uncertainty runs afoul of the requirement that each doubt must be expressed by formulating each side of each doubt (“mit’hapekh”). In other words, in our example, the first doubt was whether to follow Rambam regarding a wife’s plea of being repulsed by her husband alone, where according to Rabbeinu Tam and Rosh we are proscribed from get coercion in such a case. However, other legists demur and contend that there is no such requirement, and simply stating, “if you choose to say that we follow Rambam’s view which mandates get coercion” is sufficient. And clearly in a case of three doubts, there is no such prerequisite prior to employing the principle of a double halakhic doubt.",
+ "C. “Oveir al dat yehudit” – a person who acts contrary to Jewish practice",
+ "As opposed to the halakhah governing “transgressing Jewish law” (“oveir al dat Moshe”) which deals with a husband who causes his wife to violate prohibitions such as engaging in conjugal relations during her menstrual period (a niddah), a husband who acts improperly towards his wife, e.g., he hits her, physically or emotionally abuses her, is defined by the Halakhah as one who “acts contrary to Jewish practice,” that is, he deliberately flouts the divine commandments (mitzvot). Clearly, raising one’s hand to strike a fellow-Jew, much less assaulting him, is a halakhic infraction. Moreover, one must respect the dignity of one’s wife and one is prohibited from striking her. As an Israeli rabbinical court states in eloquent terms:",
+ "A wife is not the acquisition of her husband, “for life she is given and not for pain”. There is no place for distinguishing between a wife and a friend . . . On the contrary, in the relation to one’s wife, a husband is obligated to love her and respect her more than the duty concerning his friend.",
+ "Furthermore, as Rambam opines:",
+ "Anyone who assaults an honest (kasher) individual of Israel, whether he is a minor or of majority age . . . in a disrespectful fashion (derek nitzayon), violates a negative commandment . . . and one who lifts his hand, even though he has not hit him, is wicked.",
+ "Abusive behavior towards children, whether by a parent or third party, is outlawed.",
+ "In the present case, the defendant suffered from fits of rage, which, according to the plaintiff, caused him to abuse her, as well as their own children, both physically and emotionally.",
+ "Prima facie, this behavior is not an example of a husband who is acting contrary to Jewish practice. The following question is raised in relation to a wife who acts contrary to Jewish practice (“overet al dat Yehudit”): A wife, following a fight, ran outside and shouted at her husband that he was a member of a sect and she saw him practicing idolatry with his worker and once with his son, and word of this rang out in front of many non-Jews and Jews. In the course of doing this, her head became uncovered and her arms were bared, and she also hired a non-Jew to approach the authorities in order to burn her husband for this reason.",
+ "Rashba responds:",
+ "Regarding their ordering her to divorce without receiving her ketubah – this is based on the rule of one who violates the halakhah and acts contrary to Jewish practice in the context of one who uncovered her head and her arms . . . This referred only to one who was in the habit of doing so, but in relation to one who just happened to uncover her head, or who conversed once with the fellows by chance, then of course she does not lose her ketubah . . . and moreover this was in the heat of anger, and in the heat of anger it is as if she is insane, and G‑d and His mitzvot are not with her (absence of a willingness to fulfill mitzvot - AYW) at that time.",
+ "In other words, if it is possible to explain that the wife’s outburst was caused by her emotional state, and not due to the commission of an offence in a deliberate and disrespectful manner, she will not be defined as transgressing “Jewish practice,” as Rashba observes: “in the heat of anger it is as if she were insane, and G‑d and His mitzvot are not with her at that time.”",
+ "The halakhah of “acting contrary to the practice” in relation to a husband was not mentioned in the Talmud; however, on the basis of the authorities who hold that the same halakhah applies to both a male and a female who act contrary to Jewish practice, Rashba’s view in relation a wife who acts contrary to Jewish practice can be applied in the case before us, in which it is the husband who acts contrary to Jewish practice. If so, in our case, in which the abusive acts were caused by anger and aggression and nothing else, and at those times the defendant did not have G‑d in mind and consequently is not held liable, the result is that the defendant is not subject to the halakhah of one who acts contrary to Jewish practice on account of his outbursts.",
+ "In other words, we must examine whether the acts of physical and emotional abuse of the defendant constitute deliberate, contemptuous acts contrary to Jewish practice on the part of the husband, in which case he is to be compelled to give a get, or whether the defendant falls into the category of an insane person in relation to these acts and is not accountable, for it is as if he is under duress (“ones”), and as Pri Megadim writes, “G‑d exempts duress.”",
+ "The answer to this question is based upon the Talmudic principle relating to “a case which began with coercion and ended with consent.” The Talmud discusses the case of a woman who was forced by a man to have relations, and during the intercourse people came to save her but she refused their help, saying: “Leave him be!” In other words, at that stage she no longer objected to the rape, but desired it. According to the Talmud, this process is designated as “a case which began with coercion and ended with consent,” for which the woman is not liable with respect to the act of intercourse, since it is a matter of an involuntary instinct.",
+ "Yet, this halakhah cannot serve as a loophole through which to absolve a person of his sinfulness, as Rabbi Yosef Karo expounds:",
+ "Regarding that which he wrote, “due to her instincts she was overpowered,” one may ask: if so, are all sinners exempt, because their instincts have surely overpowered them? The answer is that it is not only because her desire overpowered her that she is exempt; rather, we say that because the act began as assault but now her instinct has overpowered her, that she is exempt because the instinctual act originated in an act of coercion.",
+ "In other words, where the person is defined as acting under coercion, he is not subject to punishment, even if the act ended with his consent, so long as the consent stemmed from the coercion. On the other hand, where it is clear that when a person begins something voluntarily and he has the option of not transgressing, he is most certainly responsible for his actions.",
+ "In the present case, the husband received a Yeshiva day school education and he studied the importance of the dictum, “A man must honor his wife more than himself and love her as himself,” or at the very least he studied the fundamental halakhot of human dignity, and therefore this is a person who should wish to observe the divine commandments.",
+ "From all this it follows that the defendant falls into the category of a person who acted contrary to Jewish practice on account of his abusive conduct vis-à-vis his spouse and children, which were committed willingly and deliberately, and he may therefore be compelled to give a get. In short, spousal battery is an example of transgressing a Jewish practice (oveir al dat Yehudit). Whether one can coerce a get or only obligate a get under such conditions is subject to dispute.",
+ "In sum, this Beit Din subscribes to the tradition that one ought to compel a get for three reasons: First, spousal battery is a ground for divorce (an ilat gerushin). Secondly, the prevalence of both spousal battery and child abuse in this family propels the plaintiff to advance a plea of repulsion – “I cannot live with the defendant.” Finally, such behavior is in variance with Halakhah and therefore the defendant is to be classified as transgressing a Jewish practice.",
+ "Implicit in the above solutions is that in the event a particular defect serves as a ground to coerce a get, then under certain conditions it may equally serve as a basis to void the marriage.",
+ "Alternatively, one can arrive at the conclusion that a particular flaw is a major one and therefore under certain conditions one may void a marriage independent of the issue where it serves as grounds to issue a get compulsion order.",
+ "In a judgment of the Beit Din ha-Rabbani ha-Gadol, the highest court under Israel’s Chief Rabbinate Rabbi Shlomo Daichovsky expounds as follows regarding the definition of defects on the part of the husband:",
+ "The matter of defects for which a woman may sue for her get is not scripturally ordained law, but reason and logic, as Rambam writes (Hil. Ishut 25:2): “These matters are concepts that reason dictates; they are not decrees of the Torah.” The entire subject of defects is a product of human reason, and the emotional unwillingness of one spouse to endure an intolerable situation on the part of the other spouse. For this reason we have the halakhah of “he assessed and accepted” or “she assessed and accepted.” It is possible to say that if the general opinion concerning a particular defect changes, then it may not be said that “she assessed and accepted” on the basis of her past acquiescence. A defect may not necessarily be a physical one: defective behavior, such as consorting with prostitutes, may entail an order to give a get. Indeed, this halakhah concerning consorting with prostitutes appears in Shulhan Arukh 154, which is the section dealing with defects. In all civilized countries, it is very humiliating for a woman to share her bed with another woman, and a husband who takes another wife will be ordered to give a get, not only due to the ban of Rabbenu Gershom, but also due to the humiliation and the flaw in this (behavior – AYW). The parties came from Yemen, where it was acceptable to marry two wives. Here, this is considered a great disgrace, and must be regarded as a major defect. The wife’s past acquiescence does not obligate her at present, and therefore this is not only a matter of “he is repulsive to me, (ma’is ali)” but also a matter of a defect in the husband, due to which the wife cannot live with him. In the case of divorce due to a defect, the wife does not lose her ketubah. It is plausible to say that even if the wife married a philandering husband, and later repented of her decision and can no longer tolerate this situation, the husband will be ordered to give her a get, and will not be able to claim that she “assessed and accepted.” Equally, in my opinion, the claim “She assessed and accepted” cannot be made in a situation in which a woman married a man who was an avowed homosexual, even though she was perfectly aware of his proclivity, and later learnt about the severity of the prohibition, and wishes to divorce him due to the husband being repulsive to her. Here, too, there is no room to argue that “She assessed and accepted.”
As we know, a husband’s flaw (as well as a wife’s flaw) that may serve as a ground to void a marriage frequently is based upon the halakhot of a mistaken transaction (mekah ta’ut) and consequently a defect which society views as a defect a purchaser may have grounds to rescind the sale due to the emergence of this flaw.",
+ "Similarily, Rabbi Shlomo Amar argues regarding battery of a wife,",
+ "In contemporary times, we need to be very stringent regarding the assaulting of one’s wife since every well-mannered and intelligent man is embarrassed by this (conduct-AYW) and a woman cannot tolerate this and it is major embarrassment today compared to earlier times . . . a man who batters his wife is deemed as being disgusting and abhorrent in his wife’s eyes . . . to the extent that she cannot live with him.",
+ "In accordance to Rabbis Amar and Daichovsky, undoubtedly a wife has a justifiable argument claiming that her spouse is repulsive (“ma’is ali”).Consequently, it is of no surprise that numerous Israeli rabbinical courts have examined spousal assault as a grounds for divorce through the prism of the wife’s plea that “he is repulsive to me.” Based upon the above, a husband’s battery of his wife is a major defect (“mum gadol”) and under certain conditions may serve as grounds to void a marriage.",
+ "Under certain conditions some decisors argue we may invoke a clear expectation (the umdana de-mukha) that a woman is unwilling to marry a man who is a batterer and abuser.",
+ "However, given the fact that the defendant bolted the marriage while the plaintiff attempted to maintain the family unit lest her children be stigmatized by the community, one cannot invoke a clear expectation which results in her marriage being voided. In other words, the employment of a clear expectation assumes that certain inappropriate conduct displayed by the defendant during the marriage consequently led her to separate from him. Despite being a victim of spousal battery accompanied by her husband’s acts of child abuse, in fact she never left him. Therefore, under such circumstances one cannot advance a clear expectation.",
+ "Nonetheless, following a recent contemporary Israeli beit din ruling, we find an alternative here, which is that we are dealing here with three halakhic doubts regarding what the Halakhah ought to be regarding the propriety of a get compulsion order. Without elucidation, the panel posits that since a doubt regarding the propriety of get coercion entails a biblical doubt, therefore we are dealing with three halakhic doubts on a biblical level, where a get may be coerced.",
+ "First, there is a doubt created by dint of the controversy as to whether one may coerce a get due to spousal battery. Additionally, there is a second doubt as to whether one can mandate get coercion when a wife advances a plea that her husband is repulsive, a claim supported by a clear pretext. Finally, given that spousal battery and child abuse is in violation of Halakhah, there emerges a debate as to whether a husband who is transgressing a Jewish practice may be compelled to give a get. A doubt (a safek) related to get coercion entails an uncertainty on a biblical level. As such, given that we have three doubts in our present case as we presented earlier in this decision we are dealing with three halakhic doubts which will trump the presumption of being a married woman and reinstate her original presumption of being a single woman.",
+ "Lest one challenge our conclusion, claiming that since the majority of arbiters reject get coercion for a husband who is a batterer, and a majority of decisors oppose a compulsion order for a wife who advances a plea of being repulsed by her husband and supports her claim by a clear pretext undermines the effectiveness of a double doubt which requires that the halakhic debate ought to be even (i.e. the authorities are equally divided concerning whether the issuance of a compulsion order ought to be sanctioned), we respectfully disagree.",
+ "Our conclusion is based upon the following: Bahag, Rif, Rambam, Rosh (possibly), Ra’vaad, Semag, Ramah, Meiri, Ritva, Rabbi Yosef Karo (possibly), Rabbi David ibn Zimra, Rabbi Mordekhai ha-Levi, Hida, Rabbi Ya’akov Emden and Rabbi Ovadiah Yosef, who opine that under certain conditions (e.g. a doubt as to what the Halakhah ought to be), a biblical doubt (a sefeika de’oraita) ought to be resolved stringently on a rabbinic level. In pursuance to this tradition that we are dealing with a rabbinic matter, there is no requirement that the double doubt (the sefek sefeika) represent that the decisors are equally divided (i.e. shakul) whether one may coerce a get in order to free the wife without a get. As such, the double doubt trumps the presumption that she is a married woman and she is free to remarry. Moreover, even according to Rashba that a biblical doubt ought to be resolved stringently on a biblical level, that does not necessarily mean that the application of a double doubt will be ineffective. The consequent leniency associated with the implementation of a “double uncertainty” is due to the rule of “follow the majority” (“aharei rabbim le’hattot”). The existence of one doubt creates a situation of a 50/50 uncertainty (ke-mehtza al mehtza dami), while the second doubt then creates a majority which results in treating the matter leniently on a biblical level. In accordance with many legists, this approach is the dominant understanding as to why the employment of the double doubt will be effective. Given the above lines of reasoning, there is no prerequisite that the doubt under scrutiny must be even, namely that the arbiters would be equally divided concerning the propriety of the issuance of a get compulsion judgment. Even if one side of the doubt reflects a minority opinion, the double doubt will be effective. Finally, given that the rule of “following the majority” is applicable only to resolving issues within the confines of a beit din proceeding, one cannot speak of a majority opinion and minority opinion concerning intergenerational disputes. As such, the requirement that the decisors be equally divided regarding a pending issue is not mandated regarding a double doubt.",
+ "Lest one challenge that every halakhic uncertainty, such as whether one can coerce a get in the case of domestic battery or transgressing a Jewish practice, entails one doubt, namely whether we can coerce a get, or for that matter to void a marriage, entails one uncertainty (“me’shem ahad”), one ought to conclude that deploying a double doubt will be ineffective. On the other hand, others contend that invoking a double doubt is justified even if it is all one uncertainty regarding the controversy. Halakhically speaking, there exists a majority to permit it and therefore even though each doubt leads to the same result, namely sanctioning the issuance of a get compulsion order, applying the double uncertainty ought to be valid.",
+ "In short, relying upon a well-trodden tradition of Ashkenazic as well as Sephardic decisors, in this case we are invoking a series of a halakhic doubts which under certain conditions permit us to reinstate her original status as a single woman without having her receive a get."
+ ],
+ "g) An epileptic husband": [
+ "G. An epileptic husband",
+ "Facts",
+ "The couple was married in accordance to Orthodox Jewish law in 1995 and subsequently sired five children. In 2015, Sarah (hereinafter: the plaintiff) separated from her spouse, Yosef (hereinafter: the defendant), and a civil divorce was executed a year later. We summoned the defendant to appear at the Beit Din in order to address the matter of the get. However, he refused to appear for a hearing. Though the defendant was obligated by beit din to give a get to his wife, to date he has refused to give one to the plaintiff. It is our understanding that he was a convert to the Jewish religion and did not observe religious commandments.",
+ "The plaintiff was adopted and during her childhood she was emotionally abused by her stepmother. Similarly, according to the defendant’s sister, he was subjected to emotional abuse by his mother. Already during the early years of the marriage, the plaintiff, their children as well as her child from her first marriage, were abused by the defendant. In 1999, the plaintiff threatened to leave him. His response was that if she attempts to leave him, he will kill her. She took his threat seriously and remained with him.",
+ "During the course of the marriage, she discovered various matters about her husband that her spouse failed to disclose to her prior to marriage. First, the plaintiff was present when he experienced a seizure and she later found out that he was diagnosed with epilepsy a few years prior to the marriage, and until 2006 he was on dilantin and subsequently on trileptal to control his seizures. In 2002, the defendant began to suffer from dementia, which may be caused by the use of the above medication, and he was prescribed aricept. Along with his history of seizures and his dementia, the defendant was taking medication on a permanent basis for heart disease, diabetes and depression. The defendant’s medical history was corroborated by the documentation of three doctors. In the process of the plaintiff’s discovery of this medical documentation, she discovered the defendant’s real name.",
+ "Frequently, the defendant would seclude himself in his room and be in a depressive mood. Outside of the room, frequently he would be confrontational to his family and accused the plaintiff a few times of engaging in affairs with other men. As per a newspaper release, we read that the defendant was imprisoned for soliciting a prostitute. As the years passed, his conduct worsened. According to the professional literature, his having been a victim of child abuse may have been a cause of his lack of empathy towards people, his anti-social behavior, and his bouts of depression and jealousy. It is the understanding of his doctors that there is a direct link between the defendant’s childhood experiences and medical history with the abusive behavior he exhibited toward the plaintiff and the children. A social worker who was providing counsel to his children, along with one of the plaintiff’s friends, communicated to us that they were told about his abusive behavior from the children and the plaintiff.",
+ "Despite the defendant’s inappropriate behavior, the plaintiff continued to cater to his needs. Regularly, he had his meals served to him either in the bedroom or on the living room couch. In one incident, the defendant was lying on the house lawn in an epileptic fit from which he could have died, and he implored the plaintiff to let him die, yet her reply was “that’s not me,” and she addressed his situation, saving his life.",
+ "In one incident after their marital separation, as per a police report, the defendant entered the marital home and cut the electric and telephone wires as well as destroying the children’s property as well as the plaintiff’s computer. In the wake of this event, the police issued a temporary restraining order. The straw that broke the camel’s back was when the children implored the plaintiff to throw him out of the house due to his abusive behavior and because he had burnt her sheitel. Subsequently, they separated.",
+ "In light of his medical and psychological condition, the civil court ruled that visitation privileges with his children would be permitted on the condition that the defendant receives a psychologist’s approval that he did not pose a danger to his children and was able to care for them. Without such approval, the court prohibited him from seeing his children.",
+ "Discussion",
+ "Prior to a wife’s invoking the technique of kiddushei ta’ut (loosely translated as a mistaken marriage) to void a marriage retroactively and claim that that there was an error in the creation of the marriage, three preconditions must be obtained:",
+ "1. The husband’s defect must be a major one. As Mishnah Ketuvot states:",
+ "A man in who defects arose; we do not compel him to divorce (his wife – AYW). Rabban Shimon ben Gamliel said: When is this case – when the blemishes are minor. But in the case of major flaws, we compel him to divorce (her – AYW). And these are (the flaws) for which we compel (a man – AYW) to divorce (his wife): one who is afflicted with skin boils, one who has a polyp, and one who collects excrement, the copper smelter, the tanner, etc.",
+ "Accordingly, there is a list of major defects memorialized in the Mishnah (as well as in the Talmud) which serve as the grounds to compel a husband to give a get. Consequently, it is unsurprising that numerous authorities will invoke only these specific flaws as grounds for issuing a get compulsion judgment. The implications of this approach, namely that the scope of get compulsion is defined by a list of specific grounds enumerated in the Mishnah and the Talmud, means that certain conduct and types of illness such as insanity, psychological disorder, homosexuality, child abuse or a contagious disease such as AIDS or syphilis will not be a ground for compelling a get. As the famed ruling of Rabbi Asher b. Yehiel (known by the acronym: Rosh) notes:",
+ "One cannot add to what the Scholars enumerated.",
+ "However, the words of the aforementioned Mishnah belie another approach which expands the scope of grounds for get compulsion. The Mishnah teaches us:",
+ "And these are (the flaws) for which we compel (a man – AYW) to divorce (his wife): one who is afflicted with skin boils, one who has a polyp, and one who collects excrement, the copper smelter, the tanner, etc.",
+ "The word “etc.” teaches us that the list is an open list. One tool which will widen the scope of grounds for a get (ilot gerushin) is the employment of analogical reasoning (hekesh). For example, just as regarding a husband who has a polyp, while there are prospects for a cure, one may still mandate get compulsion, similarly, regarding a husband who has a scab on his head, while there is a chance for a cure, one may coerce a get. Or, just as a husband who has a foul-smelling mouth justifies get coercion, similarly a husband who is imprisoned and in effect his status is one of being in a situation beyond his control wherein he cannot fulfill his marital duties (an onus), get compulsion ought to be legitimate.",
+ "Another technique which will expand the list is the utilization of a fortiori reasoning (a kal ve-homer). For example, if there is an explicit mention that a husband who has a polyp or has an obnoxious order can be compelled to give a get, a fortiori, contends Rabbi Shimon b. Tzemah Duran (known by the acronym: Tashbetz), causing pain such as physical or emotional abuse legitimates the employment of get compulsion. Or just as a husband cannot vow to have his wife abstain from engaging in conjugal relations with him lest a get be compelled, analogously one can compel a husband to give a get should he be incarcerated and thus be unable to have relations with his wife.",
+ "Furthermore, though Rosh refuses to expand the list of grounds for get compulsion, nevertheless, when addressing the case of an epileptic husband, he unhesitatingly argues that if we compel a get in a situation of a husband who has a foul-smelling mouth, surely we will do it for preventing the occurrence of a danger (“hayei ha-nefesh”).",
+ "Given that eplilepsy is not one of the instances enumerated in the Mishnah and Talmud which serves as a basis for get coercion, we need to address the threshold question of whether one can compel an epileptic husband to give a get.",
+ "In the second half of the thirteenth century, Rabbi Mordekhai b. Hillel ha-Kohen of Germany communicates to us the following tradition:",
+ "Ra’avyah writes that even though epilepsy in regard to a woman constitutes a defect, one cannot advance this as proof that we should consider it a defect for a man since “a woman is satisfied with anyone” and you should know that epilepsy is not written concerning men’s defects, and we cannot coerce without a demonstrable proof . . . and this is what he heard from his father Rabbi Yoel ha-Levi.",
+ "In other words, get compulsion is not an option regarding an epileptic husband for two reasons. Firstly, the Talmudic presumption that “a woman is satisfied with anyone,” which is construed by post-Talmudic decisors as equivalent to the Talmudic presumption that it is better to live as two than to live alone (“tav le-meitav tan du mi-le-meitav armelu”), preempts the possibility of get compulsion. Get coercion is predicated upon the person considering a particular illness as a defect which mandates marital dissolution. The invoking of this presumption teaches us that a woman is willing to tolerate living with a man who suffers from this illness. As such, we are proscribed from compelling a get. Secondly, epilepsy is absent from the Mishnaic and Talmudic list of illnesses and types of conduct which legitimate get compulsion. Consequently, under such circumstances we cannot compel a get. Whereas, Rabbi Yoel, Ra’avyah’s father, is in doubt as to whether one may compel an epileptic husband to give a get and therefore acted stringently, Ra’avyah offers reasons for rejecting this possibility, with Rabbi Mordekhai ben Hillel aligning himself with that posture. On the other hand, Rosh, who lived in the same century as Rabbi Mordekhai, argues that epilepsy is a major flaw and may serve as a basis for voiding the marriage.",
+ "These opposing views converged in the famous responsum of the nineteenth century Hungarian rabbi, Rabbi Moshe Sofer, wherein he stakes out his position concerning this issue. He teaches us the following:",
+ "Even if it is clear in Heaven that Halakhah follows Rosh, since there is the opposing opinion of Mordekhai, and we do not have anyone who can decide between them, if one forced him to divorce, she is still a definitely married woman . . . it is presumably agreeable to him to fulfill the words of the Rabbis who said one should compel him to divorce [under these circumstances] – as Rambam beautifully explains. However, this is only when it is clear to the husband that the coercion is in accordance with the Halakhah according to every authority, for if so, it is a duty (in the husband’s case – AYW) to comply with the teachings of the Rabbis. However, in this situation, the husband will say, “Who says it is a duty to heed the words of Rosh; perhaps it is an obligation to follow the words of the Mordekhai?” For if when he said, “I agree” it was coerced, it did not emanate from his heart . . .",
+ "In other words, a husband’s constructive consent to give a get is predicated upon the fact that all authorities agree that a get ought to be coerced. Should one opinion dissent, one cannot speak of “a husband’s real will” being to give a get. Given that there are some dissenting opinions, and nineteenth century medical opinion claims that living with an epileptic does not pose a danger to oneself and is not contagious, Rabbi Moshe Sofer opines that there are no grounds to coerce a get. Various authorities subscribe to his position. This view is the first opinion identified as “some say” (“yesh omrim”) in Rema’s ruling.",
+ "Given that Rabbi Yosef Karo only cites Ra’avyah’s opinion in his Beit Yosef and does not endorse Rosh’s view in his subsequent compendium, Shulhan Arukh, some conclude that he aligns himself with the decisors who reject get coercion in the case of an epileptic husband. However, given that earlier in his Beit Yosef, as well as in his Shulhan Arukh, Rabbi Karo wholeheartedly subscribes to Rosh’s position, we may conclude that he would compel an epileptic husband to give a get.As Maharam of Lublin and Maharal Zunz contend, many authorties ascribe to this opinion, with some emphasizing that the case must be a case of a husband’s get recalcitrance. This view is the second opinion identified as “some say” (“yesh omrim”) which is memorialized in Rema.",
+ "The emerging question is whether Rema identifies his view with the first opinion that rejects get coercion or with the second opinion which endorses get compulsion. Given that both views are recorded, one approach is that Rema left the matter undecided. However, others assert that since earlier in his rulings Rema stakes out a position and clearly advances Rosh’s posture, namely legitimating get compulsion in the case of an epileptic husband, he relies upon his resolution there and subsequently he recorded both opinions, believing that his second opinion is the normative one.",
+ "Based upon the foregoing, the beit din followed in the footsteps of many of the authorities who construed epilepsy as a major defect (a mum gadol) and therefore may serve as grounds to compel a husband suffering from this illness to give a get.",
+ "In the wake of the particular circumstances of our case, we advance four additional rationales for get coercion. Firstly, though generally speaking compelling an epileptic to give a get is opposed by Hatan Sofer, nevertheless in light of the fact that engaging in conjugal relations was difficult in our present case due to his epilepsy, Rabbi Sofer concurs that it would be proper to coerce a get. Moreover, given that the defendant could not support his wife due to his illness, we coerce the giving of a get. Furthermore, as Rabbi Elyashiv claims, since we are dealing with a husband’s get intransigence, namely, the defendant’s behavior exhibits get recalcitrance, as such get compulsion may be meted out. Finally, given that there is a concern that marital separation may lead to the commission of sin, consequently we coerce a get by dint of being empowered to coerce the prevention of prohibitions (kefiyah al ha-mitzvot for ifrushei issura) rather than by dint of halakhic divorce law.",
+ "The ramification of our conclusion that get coercion is legitimate implies for some decisors that the Talmudic presumption (hazakah) “it is better to live as two than to live alone” is inapplicable. The presumption is only operative if one cannot compel the giving of a get. While some authorities claim that epilepsy is to be viewed as a major defect due to the exposure to danger beyond one’s control, like insanity or worse than a foul-smelling mouth, others simply posit it as a major flaw unrelated to the issue whether one may coerce a get due to this flaw. In other words, even those decisors who may contend that there are no grounds to issue a get compulsion order regarding an epileptic husband, there would still remain a basis to argue that it is a major defect (mum gadol).",
+ "In sum, whether a particular illness or behavior is to be labeled a major defect is contingent upon the fact that it serves as grounds for get coercion. In the event a get ought to be compelled in a particular circumstance therefore we classify the behavior or illness as a major flaw and under certain conditions the marriage may be voided. On the other hand, should there be no grounds for get compulsion, the defect is minor.",
+ "On the other hand, even in the absence of a mandate for get coercion in our case, a husband who suffers from epilepsy possesses a major defect due to the fact that people consider it to be a major defect. In the words of Rabbi Yitzhak Elhanan Spektor of nineteenth century Kovno, a major defect (a mum gadol) is decided by societal consensus (“heskem bnei ha-medinah”). In other words, the model of a mistaken sales transaction (a mekah ta’ut) is applied towards defining a husband’s major flaw concerning establishing a mistaken marriage. As we know, anything that the majority of the community considers to be a defect in an item, if said defect is neither obvious nor disclosed to the buyer prior to the purchase, it generates a buyer’s right to void the sale. Similarly, numerous legists contend that any defect viewed by society that relates to the essence of the marriage and/or its ongoing stability is to be understood as a major defect and therefore, under certain prescribed conditions, one may free an agunah from her marriage without the requisite need of a get.",
+ "In the wake of an illness or a condition not enumerated in the Mishnaic or Talmudic list or being derived by applying analogical reasoning from the illnesses and conditions mentioned on the list, we may distill the above definition of a major flaw from the eloquent words of Rabbi Shlomo Daichovsky.",
+ "Rabbi Shlomo Daichovsky, a former Presiding Dayan of Beit Din ha-Rabbani ha-Gadol, the highest rabbinical court under Israel’s Chief Rabbinate, elucidates as follows:",
+ "The subject of defects in respect to which a wife can demand her get is not Scriptural law, but a question of reasoning and logic, as Rambam opines in Hil. Ishut 25:2: “These matters are concepts that reason dictates; they are not decrees of the Torah.” The entire subject of blemishes is one relating to human reason and mental unwillingness to tolerate an unbearable situation on the part of the other spouse. We therefore have the halakhah of “he considered and accepted” or “she considered and accepted.” It may be said that if people’s attitude changes with respect to a particular defect, it cannot then be said that “she considered and accepted” on the basis of her past agreement. A defect need not necessarily be in the physical sphere: a behavioral defect, such as procuring harlots, also entails an obligation to give a get. And indeed, this halakhah relating to the procurer of harlots appears in the Shulhan Arukh (EH – AYW) 154, which is the section dealing with defects. In all civilized countries, it is extremely humiliating for a wife to have her bed shared by another, and a man who marries a second wife will be obligated to give the first wife a get, not only due to the ban of Rabbeinu Gershom, but also due to the humiliation and the defect that it involves. The parties came from Yemen, where it was acceptable to have two wives. Here this is considered a great humiliation and should be seen as a major defect. The past consent of the wife does not obligate her today, so it is not only a matter of “he is repulsive to me,” but also a matter of a defect in the husband which makes the wife unable to live with him. When it is a matter of divorce due to a defect, the wife should not forfeit her ketubah. It is likely that even if the woman married a man who is a “procurer of harlots,” and she later repented and returned to the religious fold, and she can no longer tolerate the situation, the husband will be obligated to give her a get, and he will not be able to argue that she considered and accepted. And it similarly appears to me that the claim that she considered and accepted cannot be made in relation to a wife who married a husband who engaged in homosexual conduct in (her) full knowledge of the situation, and later she learnt about the gravity of the prohibition and wishes to divorce him because the husband is repugnant to her. Here, too, it cannot be claimed that she considered and accepted.",
+ "Therefore, the many decisors who advocate get coercion or only obligate a get in our case are implicitly arguing that society considers the illness of epilepsy to be a major flaw in sustaining a marriage.",
+ "On the other hand, is there a basis for contending that if a husband fails to disclose prior to the marriage that he is suffering from epilepsy (and subsequently is recalcitrant concerning the get), that we can construe this marriage as a mistaken marriage and thus permit the woman to be free without a get? Addressing the above scenario, Rabbi Spektor argues that one can advance this claim as a supporting argument (a senif) rather than as an independent reason to void the marriage due to the existence of an error. Yet, regarding other flaws, Rabbi Spektor concludes that there are grounds to deploy the technique of a mistaken marriage as an avenue to void a marriage. Moreover, given that a person suffering from epilepsy is in the halakhic category of sometimes healthy and sometimes mentally incompetent (“itim halim, itim shoteh”), therefore two doubts emerge. One doubt is that possibly at the time of the kiddushin he was mentally incompetent (a shoteh), and if you want to claim he was healthy, possibly during the divorce he was healthy. However, in order for a double doubt to be effective, to trump the status of her being a married woman, Rabbi Spektor claims that the two uncertainties which entail factual uncertainty (i.e. his state of health at the time of the marriage and divorce) must emerge at the same time. In this case, one emerges at the time of the kiddushin while the second one arises at the time of divorce. As such, the implementation of a double uncertainty is inapplicable and therefore one cannot void the marriage.",
+ "A similar determination is promulgated in nineteenth century Lithuania, including Brisk, Minsk and Volozhin when Rabbi Yosef-Baer Soloveitchik (known by the title of his work: Beit ha-Levi) states:",
+ "Nonetheless, there are no grounds to say that we can free her without a get, since this case is no better than where we discover a defect in the woman, as is elucidated in sections 38 and 39 (Shulhan Arukh, Even ha-Ezer – AYW) that an unconditional engagement (kiddushin – to a man who subsequently is found to have defects – AYW) mandates a Jewish divorce due to a doubt (a get mi-safek). Similarly, when there is an unconditional engagement and marriage, it is viewed as a doubtful marriage and not a mistaken transaction, and a Jewish divorce due to a doubt is required . . . and this is also the result when other major blemishes are discovered in the husband.",
+ "During the same century in Lvov, Rabbi Aryeh Leibish Horowitz recognizes the severity of the illness and therefore mandates get coercion. However, explicitly relying upon Hatam Sofer, Rabbi Horowitz offers the identical reasoning as Beit ha-Levi for refraining from voiding the marriage.",
+ "On the other hand, in Brisk, Warsaw and Lvov of the nineteenth century, upon addressing the case of a deceased husband suffering from epilepsy and a missing levirate brother-in-law, Rabbi Zvi Hirsch Orenstein contends that in theory (le’halakhah), the childless widow is permitted to marry without halitzah due to the fact that this illness is similar to other defects that:",
+ "are major blemishes . . . but also due to the fact that nobody cannot tolerate them due to their repulsiveness and foul smell . . . Thus, concerning these defects it is not relevant to state that “a woman is satisfied with anything.” And so also with this present case . . . the marriage ought to be voided based upon a mistaken transaction.",
+ "Despite the fact that Rabbi Orenstein feels that we should not be stringent in this matter, nevertheless, in practice (“le-ma’aseh”) he refrained from permitting the wife to marry without a release from a levirate marriage (halitzah).",
+ "On the other hand, Rabbi Yitzhak ben Meir, the author of Sha’arei Durah and student of Rosh, expounds:",
+ "My teacher ha-Rav Asher wrote and I agree, that there is no major blemish like an epileptic, since we compare, in the chapter Ha-omnim (Bava Metzia 80a), the epileptic to a mentally dysfunctional . . . if one sold a cow to his neighbor, etc. (and failed to specify that he had a defect – AYW) it is a mistaken transaction . . . And a mentally dysfunctional individual cannot execute kiddushin (betrothal – AYW) and marriage even on a rabbinic level . . . No one can live with a serpent in the same basket. Even though sometimes there is kiddushin when he is healthy, and an epileptic if he is not always (manifest as) an epileptic can execute kiddushin. . . . Additionally, possibly she was an epileptic prior to the kiddushin and . . . it was a mistaken transaction.",
+ "In light of the foregoing, we can distill five points in Rosh’s posture as understood by his student, Rabbi Yitzhak ben Meir. Firstly, epilepsy is a major defect. Secondly, the Talmud compares an epileptic to a mentally dysfunctional person. Moreover, as Talmud Yevamot 112b taught in light of the metaphoric principle that “a person cannot live with a serpent in the same basket,” Torah scholars legislated that a mentally dysfunctional person can neither execute kiddushin on a biblical level nor on a rabbinic level. Furthermore, as others contend, an epileptic is to be subsumed in the category of sometimes healthy and sometimes mentally incompetent. Similar to a mentally dysfunctional individual, sometimes an epileptic can exhibit rational behavior and sometimes he can be mentally dysfunctional. Moreover, failing to disclose that he suffered from epilepsy constitutes deception, and in the mind of Rosh is to be labeled as “an improper kiddushin” (kiddushin she’lo ke’hogen) similar to the Talmudic instance of a man who was married to a minor, a marriage which was valid rabbinically. Upon reaching maturity, a third party kidnapped her and married her. Due to the inappropriate behavior of the second husband, the Sages permitted her to remain married to the first husband and annulled the second marriage. Similarly, Rosh argues that the husband’s failure to disclose his illness was inappropriate and therefore the marriage ought to be voided. Whereas Rabbi Yitzhak ben Meir concludes that epilepsy is a major defect, his teacher Rosh proceeds one step further and resolves that given the severity of his flaw, should he fail to disclose it to his spouse prior to the marriage, his marriage may be voided based upon upon “a marriage in error” (kiddushei ta’ut).",
+ "Finally, if a prospective husband failed to disclose to his prospective wife before the marriage that he was epileptic, according to Rosh and Rabbi Avraham Borenstein, we are dealing with a case of a mistaken marriage and therefore the marriage may be voided. Subsequent authorities such as Rabbi Kobo and Rabbi Binyamin Weiss have voided marriages of an epileptic husband who failed to disclose his flaw to his wife prior to their marriage. Other arbiters have voided marriages of husbands who failed to disclose, prior to the marriage, that they were sometimes healthy and sometimes mentally incompetent.",
+ "Thus, let us analyze whether the defendant had the status of a mentally incompetent person. In the Talmud, four criteria are established in order to label a person as mentally incompetent (a shoteh). We are taught:",
+ "Who is mentally dysfunctional? One who goes out alone in the evening; one who spends the night in the cemetery; and one who tears his garments . . . One who destroys all that is given to him.",
+ "The defendant’s destruction of his wife’s and children’s property would fall into the category of “one who destroys all that is given to him.” In contradistinction to numerous authorities who consider the aforementioned list to be a closed list, there are others who will extend mental incompetence to aberrant behavior which was not crystallized in the Talmud. That being said, given that he was epileptic, and, due to his illness, he was at high risk of developing dementia, it is no surprise that he contracted it. Though dementia is not listed among the types of irrational behavior which deem one mentally dysfunctional, nevertheless such conduct exhibits mental dysfunction. Finally, the defendant clearly exhibited signs of being sometimes healthy and sometimes mentally incompetent. In sum, the defendant is mentally dysfunctional due to his destruction of property, contracting dementia and his experiencing intervals of being healthy and being mentally incompetent (a shoteh).",
+ "Lest one argue that the defendant’s epilepsy ought be considered a defect rather than a major flaw due to the fact that no seizure occurred for a period of several years, and in the wake of the seizure which occurred in 1998 he started to take medication, nonetheless authorities consider it a major defect, either because it is viewed as only a partial recovery or because there is a fear that another seizure will occur in the future. In fact, subsequent to the seizure in 1998 he had a few additional seizures, and shortly before their separation he suffered from a diabetes seizure on a daily basis.",
+ "2. A wife’s trustworthiness regarding her unawareness of her husband’s defect prior to marriage",
+ "The wife must have been unaware of the major defect prior to the inception of the marriage and have only discovered it after the marriage. On the other hand, if for example, the seizures had only commenced after the marriage, though it may be characterized as a major flaw impairing the matrimonial relationship, nevertheless, since the disease occurred after the onset of the marriage, there would be no grounds for the wife’s claim that the marriage was consummated in error.",
+ "At first glance, whether one may trust her words hinges on the following debate. Relying upon Maharam of Rothenberg’s view, Mordekhai rules:",
+ "In these generations there exist promiscuous women and therefore it is improper to trust them.",
+ "A few centuries later, Rema writes:",
+ "Today wives act with impudence (vis-à-vis their husbands – AYW) and therefore cannot be trusted.",
+ "Subsequently, there are decisors who endorse this ruling.",
+ "However, Pithei Teshuvah states:",
+ "Look into Gevurat Anashim (67) that wrote: this is from Mordekhai in the name of Maharam and is not mentioned by any other authority. Moreover, all the authorities and later authorities have written without explanation that she is trustworthy and some have instructed that this ought to be the Halakhah in their generations, and he cited the words of Maharam ben Haviv . . . Rashakh . . . Maharik. . . . and Binyamin Ze’ev.",
+ "And there were others who subscribe to this posture.",
+ "Even if we accept the position that a woman’s words are trustworthy, nonetheless here we are dealing with a matter of ervah (loosely translated as nakedness or incest) and we generally require two witnesses, while in our case we only have the testimony of one witness. Nonetheless, this context may differ, as the specter that the wife may not be a married woman due to a doubtful marriage has been raised, which may emerge due to the claim that we are dealing with a mistaken marriage. Said conclusion could enable us to trust her words in a matter of nakedness or incest, as one witness can be accepted regarding a matter where the prohibition has not been established.",
+ "3. Upon discovery of the husband’s major latent defect, must the wife immediately bolt the marriage?",
+ "While according to certain decisors, upon the discovery of a husband’s major blemish, a wife must leave the marriage immediately or refrain from remaining in the marriage for an extended period of time, other authorities argue that she may continue to live with him, provided she offers a reasonable explanation(s).",
+ "In our present case, though the plaintiff remained in the marriage for many years, one should not infer from this fact that that she accepted her husband’s epilepsy (“savrah ve-kiblah”). Firstly, she took his threat to kill her seriously. Moreover, the defendant was stricken with both physiological disease as well as psychological disorders, and she felt that she could not leave him in such a condition in part because she had married him, because he served as her savior at the time that she was raped by a third party. In psychological terms, a social worker who counseled her for an extended period of time explained to us that it is a common occurrence that people who have been marginalized by childhood abuse continue to “live out” their experiences of victimization. Furthermore, the defendant promised her that he would improve, and in submissive contriteness he pleaded with her to remain with him.",
+ "Finally, addressing the case of an epileptic wife, as Rabbi Meir Arik notes:",
+ "It seems that these types of blemishes according to the words of the doctors entail diseased nerves in the brain, and it is known that this disease continues to become more severe, therefore the rule of accepting his (medical – AYW) condition is inapplicable.",
+ "As such, the husband in Rabbi Arik’s case should have left the marriage much earlier. And since he remained, we can only conclude that he accepted the ongoing severity of the disease and therefore he cannot subsequently claim that he never wanted to marry an epileptic wife.",
+ "However, our colleague Rabbi Ariel Holland of Tekoa, Israel, serving on this beit din panel contends that the facts of our case are different and consequently we must apply Rabbi Arik’s ruling as per the facts submitted to us. In our situation, the disease was not so severe and only infrequently occurred. As such, we cannot extrapolate from the circumstances that she accepted the disease (“savrah ve-kiblah”) since it was not so severe. As Teshuvot Harei Besamin contends:",
+ "The logic that he accepted (the disease – AYW) is inapplicable to a defect that is constant. . . . However, the sickness of mental incompetence changes from one period to another. Therefore, it is a possibility that in the condition that he knew (her – AYW) prior to the marriage he accepted and the craziness that emerged with her afterwards he couldn’t tolerate, and therefore one cannot say he accepted it.",
+ "The same logic is invoked by the Sanzer rabbi regarding a wife who suffered from epilepsy.",
+ "As Rabbi Tzion Boaron, former dayan of the Beit Din ha-Rabbani ha-Gadol, insightfully observes:",
+ "With respect to the defect of mental incompetence (shetut) in a situation such as that before us, it appears that this is certainly a case of mistaken transaction, for there is a strong presumption that no person will be reconciled to living his entire life and to his children living their whole lives, in suffering and in fear, every day and every hour.
And one cannot say that because she stayed with him for seven years and bore two children, that she saw the defect and became reconciled to it. It is not so, for in such things a person does not clearly understand the nature of the illness until a substantial period of time has passed, and out of love for him, she attributes his anger and his rage to tension and a passing state of nervousness, and she hopes and prays that the situation will improve. This is particularly so in relation to a person who is taking medication on a permanent basis, for then there are situations in which he is calm and quiet. And particularly, as the woman herself said, when he calmed down after each outburst, he would beg her to forgive him.",
+ "The fact pattern of our case is similar to the above situation and thus we conclude that the notion that she accepted the disease (“savrah ve-kiblah”) is inapplicable.",
+ "Notwithstanding others who contend that the presumption of being a married woman precludes voiding the marriage in these circumstances, based upon the foregoing in general and the technique of kiddushei taut in particular, we are voiding the marriage and thus the plaintiff is free to remarry a Jew, except for a Kohen, without a get."
+ ],
+ "h) A husband who is a pedophile and a philanderer": [
+ "H. A husband who is a pedophile and a philanderer: Response to a Question",
+ "Question",
+ "Mindy approached us and asked us as qualified expositors of Halakhah (mo’reih hora’ah rather than dayanim sitting in judgment) to void her kiddushin and to permit her to marry any other Jew without receiving a get from her husband.",
+ "Answer",
+ "1. The facts",
+ "Mindy and Meir married in December 2000 in accordance with Halakhah. They had three children. Over the years, Mindy felt that something was not in order with her husband, and therefore, on Friday evening, February 21, 2014, she asked him, “Did something happen before we got married?” He then admitted to her that he had had intimate relations with her sister after the wedding and that he had also abused 14 young children before they were married. The next day, on Shabbat, Meir admitted to her that he had had illicit relations with a second sister of hers after the marriage.",
+ "In mid-November 2015, following instances of abuse, one of the rabbis who headed his community fired Meir from his administrative position in the community center. One of the witnesses told us that the said rabbi indeed informed him that he was fired due to the abusive acts. We heard testimony from a Jew who deals with matters of abuse. He examined the list of 14 victims of abuse, and he recognized one of the names. He contacted him, and the person contacted confirmed the fact that he had indeed been a victim of abuse. One rabbi spoke with two relatives of the husband’s extended family, who told him that Meir had admitted to engaging in illicit relations with his wife’s two sisters and had also admitted to having had a sexual relationship with a child during a summer camp. There was also an exchange of letters between two rabbis who discussed the matter of Meir’s conduct and his effect on the community, from which it emerges that they assumed that he indeed had become addicted to acts of abuse. One of them wrote that Meir was a philanderer, and there is a copy of a letter from a doctor which stated that there had been “instances of sexual or other inappropriate relationships.”",
+ "Ultimately, we as rabbis believed that Mindy was indeed telling the truth about the conversations she had with her husband concerning his “liaisons with her sisters” and the acts of abuse. The civil court too, in its judgment (Superior Court of Maryland, Appellate Division) accepted what Mindy said concerning an act of intra-familial violence.",
+ "Following the conversations with her husband on February 14, 2014, and February 22, 2014, Mindy left the house for a few days. When she returned home, she decided that they would occupy separate rooms in the house. We were presented with more than 50 emails from the years 2014–2015 that had been sent to Mindy by her husband in attempts to get close to her through declarations of self-blame, thoughts about becoming religiously observant and praise for the character of his beloved, praiseworthy wife. Despite his declarations, Mindy eventually realized that her husband was lying, and in September 2015, he began to abuse her and threatened to harass her at her place of work and at family celebrations. These occurrences were confirmed as true in the judgment of the civil court.",
+ "As of February 21, 2014, Mindy tried to understand whether Meir had really become religiously observant, and whether there was any chance of rehabilitating the marriage. He went for treatment to several mental health practitioners, some of them expert in sex addiction. Mindy finally understood that all his “love letters” were a manipulative ploy and the couple separated on September 30, 2016.",
+ "On August 1, 2016, Meir summoned Mindy to adjudicate the matter of the divorce action (i.e., the get), custody of the children, maintenance of the children, financial relations between the spouses, and a monetary claim connected to his community center in the local Beit Din. Three additional summonses were sent, but Mindy refused to appear before the Beit Din. Following this, an attempt was made to hold an arbitration hearing. Two arbitrators were appointed by the parties, but to date no arbitration has taken place.",
+ "Although Mindy attempted to adjudicate matters in the framework of arbitration, the Beit Din issued a citation for contempt (ktav seruv) against her due to her failure to appear before them.",
+ "Not long ago, Mindy and the director of another local Beit Din sat with the director of the above Beit Din, and it emerged that the latter had signed the ktav seruv without going into the details of the matter, and he even stated orally that the ktav seruv was sent to her by mistake.",
+ "The civil decree of divorce was issued on August 29, 2018.",
+ "Although Mindy’s attorney and the civil court judge adjudicating the divorce proceedings raised the matter of the get, to date the husband has refused to give a get. In the absence of any chance of reconciliation and in view of the civil decree of divorce, and after a separation of 18 months, there are grounds for ordering that a get be given. If there are other claims, these matters must be adjudicated in a beit din, although deliberations and judgment in the beit din does not postpone executing the get. See Iggerot Moshe, ibid.",
+ "2. Mistaken Kiddushin due to Pedophilia",
+ "Before the mechanism of mistaken kiddushin can be implemented in order to invalidate the kiddushin and claim that there was a mistake in the inception of the marriage, three pre-conditions must be fulfilled:",
+ "(1) The defect must be serious, e.g., impotence, insanity, homosexuality or exposure of the wife to a dangerous disease such as AIDS.",
+ "Rabbi Shlomo Daichovsky, then presiding Dayan of the Beit Din, states as follows regarding the definition of defects on the part of the husband:",
+ "The matter of defects for which a woman may sue for her get is not Torah-ordained law, but reason and logic, as Rambam writes (Hil. Ishut 25:2): “These matters are concepts that reason dictates; they are not decrees of the Torah.” The whole subject of defects is a matter of human reason, and the emotional unwillingness of one spouse to endure an intolerable situation on the part of the other spouse. For this reason, we have the halakhah of “he assessed and accepted” or “she assessed and accepted.” It is possible to say that if the general opinion concerning a particular defect changes, then it may not be said that “she assessed and accepted” on the basis of her past acquiescence. A defect need not necessarily be a physical one: defective behavior, such as consorting with prostitutes, may entail an order to give a get. Indeed, this halakhah concerning consorting with prostitutes appears in Shulhan Arukh 154, which is the section dealing with defects. In all civilized countries, it is very humiliating for a woman to share her bed with another woman, and a husband who takes another wife will be ordered to give a get, not only due to the ban of Rabbenu Gershom, but also due to the humiliation and the flaw in this. The parties came from Yemen, where it was acceptable to marry two wives. Here, this is considered a great disgrace, and must be regarded as a major defect. The wife’s past acquiescence does not obligate her at present, and therefore this is not only a matter of “he is repulsive to me,” but also a matter of a defect in the husband, due to which the wife cannot live with him. In the case of divorce due to a defect, the wife does not lose her ketubah. It is plausible to say that even if the wife married a philandering husband, and later repented of her decision and can no longer tolerate this situation, the husband will be ordered to give her a get, and will not be able to claim that she “assessed and accepted.” Equally, in my opinion, the claim, “She assessed and accepted” cannot be made in a situation in which a woman married a man who was an avowed homosexual, even though she was perfectly aware of his proclivity, and later learned about the severity of the prohibition, and wishes to divorce him due to the husband being repulsive to her. Here, too, there is no room to argue that “She assessed and accepted.”",
+ "Clearly the defendant’s engagement in illicit affairs is to be deemed a major defect as well as repulsive. Additionally, these two characterizations of the husband’s behavior equally apply to the defendant’s sexual conduct with children. For example, in a case of a husband who “touched young girls,” Rabbi Weinberg writes: “She can say, ‘He is repulsive to me,’ and he is subject to the law as stated in Rema on SA Even ha-Ezer 77:3.” On the basis of this definition, the Netanya Regional Beit Din, rules in the matter of a husband who was convicted of aggravated indecent assault of a minor in the family, that he must divorce his wife:",
+ "The wife talks about the repulsiveness of intimate relations . . . and therefore in this case, a fortiori she has a strong argument for repulsion, for this is a case in which the husband perpetrated his repulsive, evil acts on his daughter for a period of more than two years, as he himself admitted . . . and the opinion whereby a claim of repulsion does not make a get obligatory even when there are grounds applies to cases in which some women would not be repulsed by such a husband; the conduct of this husband, however, would be found repulsive by every woman. Therefore, all agree that he must be ordered to give her a get, for this is not a case in which she is following her heart, or that she wishes to leave her husband for another man; rather, it is clear that her repulsion in this case makes it impossible for her to live with him.",
+ "In another case of the Netanya Regional Beit Din the Beit Din heard a case dealing, inter alia, with a husband whose computer had been found to contain child pornography, and the Beit Din defines the wife’s resulting claim as “total revulsion on the wife’s part due to her husband’s acts”:",
+ "After the husband left, the wife found child pornography on the computer, and she therefore turned to the police; a file was opened against the husband, and ultimately, they recommended to the District Attorney’s department that the husband be prosecuted. This caused the wife to be repulsed by her husband. . . . From what the wife said, it is clear that she is totally repulsed by her husband due to his evil acts.",
+ "The Beit Din ha-Rabbani ha-Gadol denied the husband’s appeal in this case, and the order to give a get remained in place. The Beit Din writes:",
+ "The Beit Din is of the opinion that the respondent’s suspicion about the acts attributed to the appellant are sufficient in order to establish her revulsion with him and the ground that justifies suing him for divorce without losing her ketubah.",
+ "The Yerushalayim Regional Beit Din also heard a wife’s action for divorce from her husband on grounds of revulsion following a verdict in the civil court convicting the husband of indecent acts perpetrated on minors.” In fact, the majority opinion adopts the approach that in principle, the husband is not to be ordered or compelled to give a get on grounds of repulsion, and that in the circumstances of the case it was not proven that the actual repulsion was so great; however, the majority was prepared to accept the argument that in general, such conduct arouses great disgust in the wife, which can be defined as repulsion with a clear pretext, and that this was a matter of “repulsion that intensified as time passed.” Indeed, the minority opinion in this decision was that this was a case of absolute repulsion:",
+ "The wife came with an argument that “he is repulsive to me” with a clear pretext – because the husband committed sex crimes against minor girls, it is impossible for her to get close to her husband, and he is repulsive to her due to his actions which are liable to repeat themselves, according to the opinion of professionals.
Our opinion, too, is that this wife will never agree to return to her husband, and there is no chance of reconciliation with her husband, who is repulsive to her with such a clear pretext.",
+ "It appears to us that the minority approach of the above rabbinical court ought to be adopted such as in our case.",
+ "(2) In order to invalidate the kiddushin, it must be clear that the defect indeed existed prior to the wedding, and that the wife did not know about it prior to the wedding.",
+ "As for the plaintiff’s awareness of the defect: the question arises as to whether she is to be believed that she did not know prior to her marriage that the defendant was a pedophile, i.e., in her claim that the mechanism of “mistaken kiddushin” (kiddushei ta’ut) should be activated to invalidate the kiddushin (and her status as a married woman). Should we therefore believe the wife as “a sole witness who is to be deemed credible in capital matters” with respect to a matter of sexual prohibitions in her claim that her husband disclosed to her his proclivity for pedophilia only after they were married? Or should we say that she is not credible, because in matters of sexual prohibitions no fewer than two witnesses are required!",
+ "Following her claim that she was not married to the defendant due to the mistaken kiddushin, or that this was a case of doubtful kiddushin, her legal position would lead to the conclusion that she did not have the status of a married woman, and therefore, the evidence of one witness only is sufficient, even though the issue is that of a sexual prohibition.",
+ "There are however, decisors who maintain that a single witness is not sufficient to dissolve marital status, even in cases where that status has not been definitively established.",
+ "However, several of the later authorities (Aharonim) object to this approach.",
+ "(3) Delay and Non-Acceptance of the Defect",
+ "The question of whether or not plaintiff should have left the marriage immediately upon finding out about her husband’s serious defect has not been ignored in the debate amongst the authorities. Although according to many halakhic authorities, she should have left immediately upon discovering the defect, according to R. Feinstein and Dayanim Goldschmidt and Bablicki, she could remain in the marriage, on condition that her reasons were justified. However, if ultimately the problems cannot be solved, such as in the case of an insane husband who is not helped by psychological treatment or medication, then the wife must leave her husband.",
+ "Furthermore, despite the fact that the wife failed to protest immediately upon discovering the defect, relying on the rulings of Tiv Kiddushin, Rabbi Weiss argues that remaining with her husband after discovery of the defect does not prevent her from later claiming that there was a mistaken transaction. He writes as follows:",
+ "Given that we are witnesses the reactions of people differ. It is very common that when a person discovers defects in a spouse, he does not react immediately for various reasons, sometimes due to distress and shock, and sometimes in order to preserve his sanity or in order to consider how not to hurt the feelings of the spouse, and this is not proof that he has pardoned or that he does not care. . . .
But it appears that even though she surely regretted her marriage, in any case she was prepared to try, to see if matters could be sorted out by adoption etc., but when all these attempts failed, we return to the original finding, namely that this is a case of mistaken kiddushin. . . .",
+ "In the present case, Mindy did not become reconciled to the defect.",
+ "Mindy became aware of the defect on February 21, 2014, and she left Meir in September 2016. According to the first view, the kiddushin should not be invalidated, since she is deemed to be one who “considered and accepted,” for she only left him two and a half years after discovering the defect.",
+ "According to the second opinion, on the other hand, it may be said that she had good reasons not to leave her husband as soon as she found out about his situation. It is clear to us that when Mindy found out about her husband’s situation; she thought that had she known about this in advance, she would never have married him. However, she tried through therapy to rehabilitate the marriage. She also thought that her husband would repent of his deeds and they would be able to continue their lives as a married couple. But it eventually became clear that all his love letters were a mask for a manipulative character.",
+ "Another reason for Mindy not leaving immediately was that they had three children, and she was not able to support them alone. Until today, she does not have sufficient financial resources to support them.",
+ "Nevertheless, when she finally understood that there was no chance of a change on his part, she could no longer tolerate living with him and she left him.",
+ "Apparently, the kiddushin cannot be invalidated due to a defect that was discovered, because the discovery was made a long time after the wedding.",
+ "Rabbi Grodzinski was asked about the case of a person who had a disease from which he died a short time after the marriage. The wife required halakhic release (halitzah) from her brother-in-law, who was deaf, but there was uncertainty as to the disease which caused the husband’s death. Rabbi Grodzinski opines that even if the husband had died from a disease that the wife could not identify, this would be considered a defect:",
+ "Moreover, because the wife did not know that the groom had an internal disease from which he was in constant danger – there is no greater defect than this.",
+ "That is to say, a disease that the wife did not know about is considered to be a defect for which kiddushin may be invalidated, even if it was discovered after the death of the husband.",
+ "In other words, both according to the question and according to Rabbi Grodzinski’s answer, the main point is that the wife did not know about the disease at the time of the marriage. The fact that knowledge of the defect greatly post-dated the wedding has no bearing on the question of invalidating the kiddushin.",
+ "3. Fraud and Misrepresentation (“Kiddushin in an Improper Manner”)",
+ "In the present case, there is additional justification for compelling the husband to give a get, due to the fact that he married his wife on fraudulent grounds (“kiddushin in an improper manner”), for he did not reveal to her prior to the wedding that he had abused children.",
+ "Rabbi Asher Yehiel (known by the acronym: Rosh) rules as follows:",
+ "A widow . . . was betrothed before two witnesses . . . should he be compelled to give her a get, for she says that she is repulsed by him . . .
Answer. . . . If it seems to you, the rabbis who are close to the matter, that if the man is not a fair and decent man who should become attached to a girl of good family, and he lured her with deceit and underhandedness he. . . . . A fortiori because he acted in an improper way. . . . Granted that we do not annul the kiddushin, but all events in this matter reliance should be placed on the minority of rabbis who ruled that he is to be compelled to divorce her.",
+ "Although Rosh usually adopts the position that a get should not be compelled on the claim “he is repulsive to me” due to the disagreement amongst the authorities, and “why should he insert himself between two great mountains, to release a married woman and to increase the number of mamzerim in Israel”, in the case of a husband who committed a despicable act and fraud, the get should be compelled. In the course of the responsum, Rosh relies on the discussion in Yevamot 110a concerning a person from Neresh who betrothed an orphan when she was still a minor (kiddushin effective by rabbinic decree), and before he had intercourse with her [after she had reached majority], another man came and effected Torah-valid kiddushin. Since the bride-snatcher acted improperly, he was treated “improperly” and the kiddushin were annulled. Following this discussion, Rosh decides that there is a basis for compelling the get in the case of misrepresentation on the part of the husband, who concealed his identity prior to the marriage.",
+ "Adopting Rosh’s view, Rabbi Meshulam b. Shemaya, a scholar who was a contemporary of Rema, rules that the get should be compelled in a case of a husband who wasted the money of the dowry, and was involved in fraud and therefore had to flee, and his wife claims that it is impossible to live under such conditions.",
+ "Apparently the two cases cannot be compared, for the cases discussed by the Talmud and Rosh involved a matter of “acting improperly” in the creation of the act of kiddushin by way of fraud. In contrast to this scenario, the case discussed by Rabbi Meshulam dealt with concealment of a defect on the part of the husband.",
+ "And indeed, Hazon Ish concurs with this line of argumentation:",
+ "The words of Rosh are clearly applicable only to a case in which an absolutely unworthy man seduced a fine woman into marrying him in the full knowledge that she would never be able to live with him. The sole purpose of his deceit was either to extort money in exchange for a divorce, or in order to have sexual relations with her. In any case, after having overcome the woman’s will with all manner of seductive ploys, the marriage was performed in a clandestine manner which is entirely unacceptable in Jewish law. It is only in such a case that Rosh agrees that the appropriate remedy is annulment, as specified in Yevamot 110a (see SA EH Helkat Mehokeik 20:28 and Beit Shmuel, ad loc., 30, whose words in relation to the issue of inheriting the wife support the contention that Rosh is in favor of marriage annulment in such a case). Rosh also supplements his approach with the Gaonic ruling that the husband of a woman who claims that he is repulsive to her – a rebellious wife (moreidet) – is to be forced to divorce her, as well as the opinion of Rif that this law is an enactment of the Babylonian yeshivot. However, in a case in which a man marries a woman in the hope that she will reconcile herself to his defects, there is no question that the marriage is a valid one, and the Rabbis would never see fit to annul it or to compel him to divorce her. The reason for this is that in many cases of male defects, the couple is nevertheless able to live together amicably, since as the Sages said: “Women will accept defective men rather than remain unmarried.” We may not therefore extend Rosh’s view to compel husbands to divorce in such cases. Similarly, the opinion of Beit Shmuel that a blemished husband may be compelled to divorce his wife who was ignorant of his defects at the time of marriage is not based upon the deceit but upon the law of the moredet, i.e., the wife claims that her husband is repulsive to her.",
+ "This was also the ruling amongst other decisors.",
+ "As opposed to this posture, on the basis of the above words of Rosh, as Hazon Ish mentions, Beit Shmuel claims in relation to a defect that is not major that one does not compel a get, but there may be circumstances in which the get is compelled when there are such defects. He teaches us as follows:",
+ "And it would appear that we do not force her to accept a get, neither in a case in which her blemishes occurred after the marriage nor if her husband knew of the defects prior to the marriage. If, however, he was unaware of the defects at the time of the wedding, then she may be compelled to receive a get since she acted in an underhanded fashion. It is in such a context that Rosh ruled in his Responsa 35 that if the husband acted in an underhanded fashion and married deceitfully, he is compelled to divorce his wife. Similarly, in our case, the wife may be compelled to accept a get.",
+ "Beit Shmuel rules similarly in another case:",
+ "But if she does not know, this is a mistaken transaction, and he is compelled to divorce her, as is written in SA EH 39 and 117, [regarding] “If a defect be found in her.”",
+ "In other words, in reliance on Rosh’s ruling in the case of fraud, there are grounds for compelling the husband to give his wife a get.",
+ "In the present Israeli rabbinical case law, many of the dayanim have applied Rosh’s ruling in cases in which there was concealment on the part of the husband prior to the marriage, and they have concluded that an order must be issued to give a get, but it is not to be compelled.",
+ "It therefore transpires that a get is not to be compelled in the case of improper kiddushin involving a despicable act and fraud, and particularly after rejection of the view of Beit Shmuel.",
+ "However, according to other authorities, a get may be compelled when the kiddushin involved deception.",
+ "4. Mistaken Kiddushin Due to Deceit and Misrepresentation",
+ "Owing to the fact that throughout the Diaspora, the secular state authorities are not prepared to enforce the order of a rabbinical court compelling the giving of a get, Rabbis E. Klatzkin, T. Frank and O. Yosef are of the opinion that the mechanism of “mistaken kiddushin” may be used in order to invalidate kiddushin, insofar as the circumstances of the case justify such a solution. As is known, when a get is compelled, there is no basis for applying the Talmudic presumption to the effect that, “It is better to live as two together than to be alone,” or, “A woman is satisfied with any man.”",
+ "As pointed out above, in the absence of the possibility of compelling the get, there is justification for invalidating the kiddushin on grounds of mistake. Several authorities rule accordingly, i.e., that in a case in which a husband acted deceitfully prior to the marriage, the kiddushin may be invalidated.",
+ "5. Clear Expectation: “She Did Not Give Herself in Marriage with This in Mind”",
+ "In addition to what has been said on the question of mistaken kiddushin in the present case, in these circumstances there is a proven clear expectation (umdana de’mukha) that a woman would not have married a man who was having intimate relations with her sisters.",
+ "The difference between “mistake” and “clear expectation”:",
+ "In order to invalidate kiddushin on grounds of mistake as to the facts, two fundamental conditions must be fulfilled: the defect must have existed prior to the kiddushin, and the spouse must have been unaware of it at the time of the kiddushin. Thus, in certain circumstances, if a defect existed in the husband prior to the kiddushin and the wife was not aware of it, the kiddushin can be invalidated on grounds of the defect. However, if the defect eventuated after the kiddushin, we cannot say that the kiddushin are now invalid due to mistaken transaction.",
+ "On the other hand, concerning the clear expectation that “she did not give herself in marriage with this in mind,” even in a case in which the defect appeared only after the kiddushin, under certain conditions it is possible to invalidate the kiddushin. This was the opinion of Rabbi Meir Simhah, head of the Beit Din of Dvinsk, “There are occasions on which we say that there is an assessment, even in relation to something which came about later . . . that she did not give herself in marriage with this in mind.”",
+ "This in fact warrants further elucidation, for it is necessary to properly understand the matter of cancelling the transaction, and to examine the relationship between mistake, clear expectation and condition. Under the halakhot relating to transactions, we find several cases in which the transaction is void. One possibility is that it was a mistaken transaction: this is when the purchased item was defined, and after the purchase, it emerged that the item was different from that which was agreed upon. Another possibility for voiding a transaction is when a sale was made on a certain condition: if that condition does not eventuate, the sale is void. In addition, Rabbi Yosef Karo mentions that there is a case in which the transaction is not voided:",
+ "But in a regular sale, even though he had in mind that he sells on such and such a condition, and even though it is logical that he did not sell other than in order to do a particular thing and this was not done, he may not retract, for he did not specify, and unarticulated thoughts have no legal validity. And even though prior to the sale he said that he is selling with the intention of doing a particular thing, because he said nothing at the time of the sale he may not retract.",
+ "Rema’s gloss on Rabbi Karo’s ruling is the following: “However, something about which there is a proven clear expectation – the transaction is invalidated.” It must be stressed that Rema did not write this as a matter of dispute in terms of “there are those who say” (yesh omrim), as he does unfailingly when he himself wishes to disagree with Shulhan Arukh, or when he cites a view that disagrees. The reason would appear to be that in Rema’s opinion, Shulhan Arukh too will concede this point, and in truth, the Vilna Gaon comments that Rema relies on cases mentioned elsewhere by Shulhan Arukh itself (one who heard that his son had died overseas, and he gifted his property; a document attesting to a fictitious transfer of ownership – shtar mavrahat). Therefore, it would appear that this ruling is basically undisputed, and we follow a proven responsa.",
+ "One of the differences between a mistaken transaction and a condition is that a condition may relate to something that may or may not materialize in the future, and therefore the sale may be valid or it may be invalidated retroactively. It is therefore necessary to clarify whether the clear expectation is like a mistaken transaction, where the particular flaw needed to have existed at the time of the transaction, and what the assessment adds is that even if he did not say specifically that he is buying with this in mind, nevertheless it is clear that this was his intention when he purchased the item; or rather, whether the clear expectation is like a condition, and the transaction may be invalidated by virtue of the clear expectation even if the flaw came about only later. From what Rambam writes as well as Shulhan Arukh, the clear expectation would appear to be similar to a condition, for these laws were included in the halakhot of conditions and not in the halakhot relating to mistaken transaction and fraud, and from the order of things we may infer that the grounds for invalidating the transaction do not need to be evident at the time of the transaction. Even amongst the authorities who dealt with umdana, it appears that it makes no difference whether the defect existed and was discovered only after the kiddushin, or whether it actually came into being only after the marriage, and in all events it would appear that from this aspect, a proven clear expectation is similar to a condition.",
+ "As Meiri notes that although we find in the Talmud Yerushalmi that even if she was the wife of a rogue and a person afflicted with a serious skin disease, it may be considered against her interests and cannot be done without her consent, due to the presumption that “it is better to be two together than to be alone.” However, regarding the wife of an apostate, it is considered a privilege for her to be divorced from him and thus it can be presumed that one has her consent. A contemporary Israeli rabbinical court contends: “If I could muster significant support amongst my colleagues, I would rule that the wife of a Jewish apostate for whom a get would unquestionably be a net benefit should be given one in such a way that it would be irrevocable one it reaches her agent’s hands.” In other words, Meiri is of the opinion that sometimes, it is considered a benefit for the wife’s to be divorced, and we do not say that it is better that she should be married: rather, we say that she did not give herself in marriage with this in mind.",
+ "6. Clear Expectation (umdana) Concerning a Wife and a Husband",
+ "Here we should recall the words of those who held that in relation to the wife, the clear expectation that she would not enter into a marriage with a husband who has a defect is stronger, for the reason that she cannot effect the divorce herself against the will of the husband if it transpires that she cannot live with him; and if it is the case that the husband, who does have the possibility of effecting the divorce himself has the right to claim that the kiddushin are invalid, a fortiori this could be said of the wife.",
+ "Rema, Sefer ha-Agudah and Arukh ha-Shulhan rule that the husband’s consorting with prostitutes is grounds for divorce and a get may be compelled. The common denominator of Sefer ha-Agudah and Arukh ha-Shulhan is that the ground for divorce is not the actual offense of the philandering, but the breakdown in family life that the husband causes with such behavior. In addition, following the concern about contracting AIDS if the husband is unfaithful, there are additional grounds for compelling the get according to the above-cited Sefer ha-Agudah.",
+ "Other authorities regarded this as conduct that in its very essence causes revulsion in the wife. For example, Rabbi Eliyahu of Tarla argues as follows:",
+ "“Regarding compelling a man to divorce – this is certainly worse than the blemishes in respect of which he is compelled to divorce her, and there is nothing more repulsive to her than this.”",
+ "And in contemporary times, Rabbi Uriel Lavi writes:",
+ "From what the Sefer ha-Agudah wrote, we see . . . that such conduct of the husband usually leads to him losing his money, and detracts from sexual intimacy with his wife and causes the woman suffering, that is, his conduct in its very essence entails repulsion and justifies compelling the husband to divorce . . . [in the case of] repulsion that is recognized and normal in such circumstances for all women – the husband is to be compelled.",
+ "As we said above, because there is no possibility of compelling the get in the United States, therefore, in reliance on the facts and the testimony presented to us, the kiddushin may be invalidated by means of implementation of the clear expectation that “she did not give herself in marriage with this in mind” (meaning that there is an implied condition in the constitution of the marriage and its validity.",
+ "Rabbi Aharon Levine of Rzeszow notes as follows:",
+ "One may add a further consideration to our argument regarding this case, namely, that in light of the fact that we now know that the husband is a despicable criminal engaged in human trafficking, his marriage has been voided, notwithstanding its formal validity. There can be no doubt that had she known of these activities; she would never have consented to marry him. They constitute an umdana, i.e., a compelling circumstantial presumption in favor of voiding the marriage. This is analogous to the case cited in Bava Kama 106b regarding a levirate wife whose levir is suffering from a serious skin disease. The Talmud suggests that in such circumstances, the levirate wife may claim that she is no longer bound by the levirate bond, since she would never have married her husband had she known that this situation would arise in the future; hence, her original marriage has now been voided. The reason that the Talmud rejects this claim is the adage of Resh Lakish that “women will accept defective men rather than remain unmarried.” This adage is, however, inapplicable in our case, since by virtue of his criminal activities the husband’s life is constantly in danger, and the couple lives in constant fear and dread. Moreover, what woman could be expected to live with such a despicable and loathsome person? There can be no doubt that she would never have knowingly consented to marriage in these circumstances and this case is a classic one for the application of the umdana principle. Now, it is true that Hatam Sofer (Teshuvot EH 82) rejected umdana as a basis for voiding a marriage, but the reason was because of the weak nature of the umdana in that case, i.e., the husband told the wife that he was rich and he turned out to be poor, and that he was a learned man but he turned out to be an ignoramus. The weakness of the umdana lies in the fact that he may very well have been rich but, in the meantime, he lost his fortune. Likewise, he was once learned but, in the meantime, he forgot his learning. At the most, the marriage in this type of case is of doubtful validity. In our case, however, the umdana is strong and powerful and free from all doubt as to the absolute unacceptability of the marriage on the part of the wife. Hence, we rule that she would never have consented to marry had she known the facts about her husband.",
+ "It therefore may be said that according to numerous opinions concerning this issue, kiddushin can be invalidated by virtue of a major or a proven assessment. As opposed to some authorities who object to the implementation of the technique of major umdana, we have adopted the approach of many authorities who used the mechanism of a clear expectation (major umdana) in order to invalidate kiddushin.",
+ "Therefore, in the present case, there is a major umdana that a woman does not want to live with a philanderer. In any case, the kiddushin are invalidated for the reason that she did not give herself over to marriage with this in mind. This, in addition to what we said about the voiding of the kiddushin due to the husband deceiving his wife by hiding the fact that he was a pedophile – these are cases of mistaken kiddushin due to pedophilia and due to deceit and misrepresentation.",
+ "7. Implementation of a Double Doubt as to the Halakhah in Matters of Biblical Law",
+ "It has been established that it is possible to invalidate kiddushin by means of the technique of “mistaken kiddushin” due to two matters that had not been disclosed to the plaintiff before the kiddushin, i.e., that the husband was a pedophile and acted deceitfully and misrepresentation, and also due to a proven assessment that a wife is not prepared to marry a man who is having intimate relations with her sisters.",
+ "Alternatively, in light of the fact that there are many authorities who object on principle to implementation of “mistaken kiddushin” and “umdana” as techniques for invalidating the kiddushin, the kiddushin can be invalidated through use of “double doubt as to the halakhah in matters of biblical law.”",
+ "One of the rules of decision-making in relation to the halakhot of doubts is that we rule strictly in relation to doubts in biblical law, and leniently in relation to doubts in rabbinic law. Rambam argues as follows:",
+ "It is well known that all these and other similar instances which are ruled impure, although there is a doubt involved, are rabbinic safeguards. According to biblical law, only one who has definitely contracted impurity is deemed impure. All stringencies stemming from doubt, whether with regard to ritual impurity, forbidden foods, forbidden intimate relations or the observance of the Sabbath, are only rabbinic in origin . . .",
+ "The principle that under biblical law, doubtful cases are to be resolved leniently has already been stated in other rulings in Rambam’s Mishneh Torah. In his Teshuvot ha-Rambam, Rambam teaches us: ",
+ "“That we rule strictly in relation to a doubt of biblical law is a rabbinical dictate and not by biblical law.”",
+ "On the assumption that we accept the position that we rule strictly on a biblical doubt by virtue of a rabbinic ruling, as opposed to most of the authorities, in the said case, we have relied on a string of later authorities in general, and legists of Ashkenaz and Sepharad alike, that a double doubt can be invoked in order to restore the woman to her original presumed unmarried status.",
+ "According to Rambam and those who agree with him, the double doubt is effective because the first doubt reduces the biblical prohibition to a rabbinic prohibition, leaving the second doubt, which is a rabbinic doubt, with regard to which we practice leniency.",
+ "As opposed to this posture, according to Rashba, Ran and those who hold a similar opinion that doubtful cases on a biblical level are to be resolved strictly, the double doubt is effective because the single doubt is “like a fifty percent chance”, whereas the two doubts constitute an absolute majority.And indeed, Rabbi Hizkiya Medini notes: ",
+ "“From what we have written, it emerges that when the need arises due to a situation of igun, if there is a doubt regarding disqualification, and it is accompanied by another doubt, she may be released by virtue of a double doubt.”",
+ "In the present case, the first doubt regarding invalidation of the kiddushin due to the fact that the husband is a pedophile is the dispute amongst the decisors as to whether the mechanism of mistaken kiddushin can be applied in these circumstances. The second doubt is that the arbiters disagree as to whether the technique of mistaken kiddushin can be applied regarding a husband who acted deceitfully in order to invalidate the kiddushin. The third doubt is as to whether the clear expectation that “she did not give herself in marriage with this in mind” can be invoked in a case in which the husband is a philanderer.",
+ "In applying the double doubt to the present agunah, we presume:",
+ "(1) Since all the rivers run into the sea and in effect, all the various doubts distill into one large doubt as to whether or not the marriage is a valid one, Tosafot maintain that we are confronted with a halakhic situation in which “all the factual doubts fall into one conceptual category” and, according to Tosafot, the principle of double doubt – sefek sefeika – is inapplicable in such a situation. Nevertheless, it has already been proven at length by the Kereti u-Peleti (Beit Safek, ad. loc.) that the principle of double doubt is applied ubiquitously both in the Talmud and the Shulhan Arukh even in this type of situation, in order to reach lenient decisions.",
+ "However, according to Shakh and Rabbi Reicher, the double doubt can be implemented in the same rubric (“shem ahad”) only if the second doubt is more lenient. In the present case, the second doubt is more stringent, but several authorities are of the opinion that it is only at the biblical level that a double doubt cannot be applied in the same rubric. Under rabbinic law, however, as is the case before us, a double doubt is applicable even if they both belong to the same rubric.",
+ "(2) An opinion that was not cited in Shulhan Arukh may not be a component of a double doubt (a sefek sefeika).",
+ "In the present case, the three doubts that are found in the disagreements of the decisors who are not mentioned in the Shulhan Arukh, and apparently a double doubt is not effective in such circumstances. However, according to several authorities, the above rule does not pose an obstacle, and it is possible to attach to a double doubt militating for leniency another view that was either not mentioned in the Shulhan Arukh or that contradicts it.",
+ "(3) Regarding invalidation of kiddushin on the grounds that the husband is a pedophile: there is a dispute amongst the legists as to whether the mechanism of mistaken kiddushin can be applied in such circumstances. Regarding a husband who deceitfully hid his defect, i.e. that he is a pedophile, prior to the marriage; there is a dispute amongst the decisors as to whether this would allow for recourse to the mechanism of mistaken kiddushin in order to invalidate the marriage. Furthermore, can the clear expectation that “she did not give herself in marriage with this in mind” be applied? The case in which the husband is a philanderer is a subject of dispute amongst the decisors. The common denominator of all these disputes is that the number of arbiters permitting and the number of authorities prohibiting in each dispute are never even (“shakul”). And therefore, the doubts are not evenly balanced.",
+ "As opposed to some decisors who require a balanced double doubt, in accordance with their approach that a Torah doubt entails Torah-mandated strictness, according to other authorities who support Rambam’s approach, ruling strictly in the case of a Torah doubt is only rabbinically mandated, it is not necessary to have a balanced double doubt (sefek sefeika).",
+ "We accepted this approach.",
+ "(4) We apply double doubt in relation to kiddushin and permit a woman to remarry in order to avoid being chained to her husband (igun); a fortiori when there are three doubts (as in the present case), even when there is disagreement amongst the authorities.",
+ "8. Conclusion",
+ "On the basis of the above, Mindy is permitted to marry any Jewish man, even a Kohen. In short, in the wake of a get recalcitrant husband, we deem the matter as “an hour of emergency” (sh’at ha-dehak) and a priori (le-hatehillah) we can void the marriage based upon a double halakhic doubt."
+ ],
+ "i) A childless widow whose lot fell to an apostate brother in law": [
+ "I. A childless widow whose lot fell to an apostate brother-in-law:",
+ "Sarah Stein v. Andrew Stein",
+ "The facts of the case",
+ "Sarah Stein (hereinafter: the plaintiff) and the brother of Andrew Stein (hereinafter: the defendant), Isaac Stein, married according to Orthodox Torah law on January 1, 1988. They did not have children and they adopted two boys.",
+ "Approximately ten years ago, the defendant informed his brother, the husband of the plaintiff, that he converted to the religion of The Jehovah’s Witnesses. We spoke to a rabbi who is a family relative and he conducted a few conversations with the defendant regarding his undergoing baptism and becoming a minister of this religion.",
+ "On June 2, 2015, the brother of the defendant passed away and the family notified the defendant of his brother’s demise. However, due to the dictates of his religion, he refused to participate in his brother’s burial.",
+ "After his brother’s death, the family notified him that he is obligated to participate in the ceremony of halitzah in order that the plaintiff would be permitted to marry another Jewish person. However, due to his religious beliefs, he refused to participate in this Jewish ceremony of halitzah.",
+ "After the third summons of the defendant requesting him to appear for a hearing at our beit din, we received an e-mail dated February 6, 2019, which states the following:",
+ "I, Andrew Stein, became an ordained minister of Jehovah God and underwent baptism to show my loyalty and allegiance to the true God Jehovah. I took an oath disavowing my previous beliefs and promised not to follow any practices of any other religion and thusly I am not under Mosaic Law. Please respect my feelings and do not contact in this matter (halitzah – AYW) again.",
+ "It is our understanding that any person who affiliates with this religion becomes a member and a priest simultaneously via baptism. In his role as a minister, he communicates to the wider community the beliefs of his religion.",
+ "We summoned the defendant three times for a hearing, but he refused to respond to the summons and therefore the deliberation regarding this matter was conducted with the plaintiff in the absence of the defendant.",
+ "The issue that we will address is the halakhah regarding the tie (zikah) between the plaintiff who is a yevamah and a yavam who is a Jew who converted to another religion (hereinafter: an apostate-mumar).",
+ "Discussion",
+ "1. The halakhic duty of halitzah",
+ "It is prohibited for a Jewish man to marry his brother’s wife, and the execution of kiddushin (loosely translated – a marriage) under such circumstances is invalid. The notable exception to this proscription is the case of the kiddushin of a yevamah, where the brother of the husband who died without having children (a yavam – levir) is obligated to marry his widow, known as a yevamah. If the yavam does not desire to marry the yevamah, she is prohibited from marrying another man unless the yavam fulfills the duty of halitzah. There is a debate among the sages of the Talmud and post-talmudic decisors whether the duty of yibum has priority over the duty of halitzah. Normative halakhah is that halitzah assumes priority over a levirate marriage primarily because the levir did not intend to marry the yevamah for the sake of performing a religious duty. Upon completing the halitzah, the widow (the yevamah) is permitted to marry a Jewish man.",
+ "The prohibition of the yevamah to marry any other man prior to the performance of the halitzah is contingent upon the notion that the duty of yibum is upon them. In other words, if there is a tie between the widow and her brother-in-law (a zikat yibum), there is an obligation of halitzah. If not – there is no halitzah.",
+ "We must address the question of whether the yavam’s conversion to another religion (Jehovah’s Witnesses) via baptism which establishes him as an apostate Jew (mumar meshumad) severs the tie between the yavam and yevamah.",
+ "2. A yavam that converted to his faith after his brother’s marriage – Views of the Authorities",
+ "Upon the completion of the Talmud, the majority of the Geonim who lived in the subsequent time period, including those who issued classical restatements of Halakhah such as Rabbis Hilai, Amram, Yosef b. Avitur, Natronai, Paltoi, Sherira, Hai and Shmuel b. Hofni argue that a widow who is childless and has a brother-in-law who is an apostate Jew remains an agunah for her lifetime until such time that he performs halitzah (release from levirate marriage). There is a tie between the yevamah and the yavam, she is not permitted to marry until halitzah is performed. Subsequently, other decisors endorsed this position. In accordance with this approach, there was no difference with regard to when the conversion transpired. As Rashi notes:",
+ "And there is no difference if the husband married her prior to his conversion to the other religion or if he converted subsequently after the marriage.",
+ "The emerging question is: what are the reasons for this view? Among the reasons that are mentioned in the responsa that the tie of yibum and halitzah remains intact when dealing with a Jewish brother-in-law who is an apostate are the following:",
+ "1. The well-known Talmudic dictum is “a Jew, even though he sins, remains a Jew.”",
+ "2. If an apostate Jew executes kiddushin – his kiddushin are valid.",
+ "While in pursuance to the above position, an apostate Jew is obligated to perform halitzah, the bond is of a rabbinic nature. The most compelling proof to this conclusion is found in responsa of Mahari Weill and Mahari Mintz which serve as a precedent for Rema’s ruling that if she remarried without the performance of halitzah by the apostate Jew, she may remain with her new husband. It is just a stringency, since ex post facto if she marries without halitzah, the marriage is valid. In other words, fundamentally (ikar hadin), the marriage is permissible and consequently, ex post facto we follow the fundamental stance. Similarly, Ridvaz concurs that the kiddushin of an apostate Jew is invalid on a Torah level since he is viewed as a non-Jew. Consequently, if he extended a kiddushin (marriage) offer to a woman, the marriage is invalid. Other authorities agree that the yibum bond is grounded in rabbinic law.",
+ "A contrasting opinion was adopted by Rabbi Yehudai Gaon and Rabbi Hanoch Gaon. In accordance with their position, apostasy which was executed before the brother’s marriage to the yevamah severs the yavam bond. However, if the conversion transpired after his brother’s marriage, as in our case, and at the time of the marriage he was presumptively a bona fide Jew (hezkat kashrut), in pursuance to the above Geonim, the apostate Jew has a bond for yibum. Some later authorities espoused this view.",
+ "Both views agree that in the situation of apostasy of the yavam after his brother’s marriage, the apostate retains a bond for yibum. Based upon the foregoing, in accordance with both opinions, we cannot permit the plaintiff to marry without receiving halitzah from the defendant since his apostasy occurred approximately ten years after the plaintiff’s marriage to his brother.",
+ "A third view which disagrees with the other two opinions and contends that a yavam who became an apostate after the plaintiff’s marriage to his brother severs the bond of yibum is memorialized in the words of Mordekhai, who writes:",
+ "It says in Ohr Zarua Katan . . . Rabbi Nahshon Gaon . . . and Gaonic responsa . . . that a yavam that was an apostate to idol worship during the marriage of his brother, and still when his brother dies remains an apostate, he is not bound to the wife of his brother and she is exempt from halitzah . . . And in the commentary of Rabbeinu Hananeil, from the moment of death she becomes subject to the levirate marriage . . . and Maharam advances a proof since on such an understanding (that she would marry an apostate Jew – AYW) she never would have married him . . .",
+ "In order to prove the absence of a yibum bond in the case of a yavam who converted to another religion after his brother’s marriage, Mordekhai directs us to the view of Rabbeinu Hananeil, who argues that “death creates the moment of subjection of the yevamah to the marriage.” In the Talmud there is a controversy whether the “first marriage subjects her to levirate marriage” or “death subjects her to levirate marriage.” If we adopt the former position, then if the yavam was already an apostate Jew during his brother’s marriage, the yibum tie has been established. On the other hand, if we endorse the view that “death creates the yevamah’s subjection to the marriage,” then if the yavam converted after his brother’s marriage, as in our case, the yibum bond has been severed and consequently she is permitted to remarry without receiving halitzah.",
+ "According to Rava, one must subscribe to the position that “death subjects the yevamah to marriage” and we follow his view due to the fact that “the halakhah is like the latter authorities” (hilkheta ke’batrai) and it is known that the application of this principle of adjudication begins with Talmudic controversies from the time of Abaye and Rava and onwards.",
+ "Mordekhai relies upon Rabbeinu Hananeil and Rabbeinu Barukh b. Shmuel who claim that “death subjects the yevamah to marriage.” Consequently, even if the yavam is a Jew and a member of the covenant Jewish faith community during the time of his brother’s marriage and he became an apostate after the marriage, a bond has not been established for yibum and halitzah.",
+ "In his presentation, Mordekhai offers three reasons why, in our circumstances, a yavam who is an apostate does not have ties to yibum and halitzah.",
+ "Firstly, yibum is dependent upon brotherhood, and an apostate is not construed as a brother. Secondly, zealots punish a woman who has sexual intercourse with an apostate. Therefore, consorting with an apostate is considered “a matter of licentiousness” (davar she’be’ervah), and consequently there is no bond of yibum and halitzah in such a scenario. Finally, if she had known that she would have to marry an apostate Jew, she never would have consented to the original marriage. As Rabbi Moshe Feinstein notes:",
+ "According to the rationale of Maharam [from Rothenberg] . . . even if he becomes an apostate after the kiddushin, if she had known that she would have to marry an apostate Jew she never would have consented to the original marriage.",
+ "We may now formulate our conclusion that an apostate has no ties to yibum and halitzah based upon the teaching of Rabbi Aharon Lichtenstein who astutely states:",
+ "If we ask, in purely descriptive terms, whether anyone born of Jewish parents is a Jew, the answer must be yes. As an epithet, the term ‘Jew’ remains applicable to any individual who was ever endowed with Jewish status – even to a meshumad (apostate). . . . However, if we ask whether a meshumad has anything of a Jewish personality and character, and whether, therefore, he continues to be endowed with the personal status of a Jew, the answer is a ringing no. He remains a Jew without Jewishness. . . . His personal status as a Jew – be it for marriage or any other purpose is lost. The hallmark of Jewry, what being a Jew essentially means, is effectively erased.",
+ "3. Umdana – “with this understanding she would not have married him”",
+ "In contrast to kiddushei ta’ut (loosely translated: a marriage in error), where the focus is upon a major defect (mum gadol ) that preexisted the marriage and a husband intentionally or unintentionally failed to disclose the flaw, the clear expectation (the umdana de’mukha – hereinafter: umdana) “with this understanding she would not have married him” deals with a major defect that transpired during the marriage. For example, “if I had known that my husband would become an apostate, a criminal, or psychologically dysfunctional during the marriage, I never would have married him.” These are examples of a clear expectation which under certain conditions can lead to voiding the marriage. An inquiry was submitted to Maharam of Rothenberg regarding an apostate yavam who refuses to perform halitzah and he teaches us the following:",
+ "Concerning an apostate we can say this, since we are witnesses that a woman is not ready to undergo levirate marriage with him . . . with such an understanding she didn’t marry him (the first brother) originally being that he was an apostate, and it is to be construed as if she conditioned (the marriage – AYW) that she would not undergo a levirate marriage with him.",
+ "Maharam establishes that there exists a clear expectation that the yevamah does not want to marry an apostate Jew. Furthermore, Maharam contends that there is an implied condition at the time of the establishment of the marriage that she would not undergo such a levirate marriage.",
+ "One must conclude that this clear expectation can only be applied in a case where a yevamah befell a yavam who converted to another religion prior to his brother’s wedding. However, if the apostasy transpired after the brother’s wedding, it is illogical to assume that the wife had this clear expectation at the time of the wedding. Clearly, the prospects that the yavam would become an apostate and that her husband would die without siring offspring are much too remote to imagine. Similarly, Rabbi Feinstein argues:",
+ "We are not concerned at all that every man who is presumptively proper (hezkat kashrut) would possibly convert to another religion.",
+ "On the other hand, if the yavam was an apostate at the time of the wedding, there are clear prospects that the woman was conscious of this possibility that she may fall to yibum. Therefore, one can contend that there was an implied condition of the woman at the time of the marriage and consequently, for the apostate yavam there was no bond for yibum and halitzah.",
+ "Nonetheless, though Maharam’s responsum focuses upon a case where the apostasy happened prior to the apostate’s brother’s wedding, one should not conclude that his ruling is limited to this situation. As Maharam Mintz duly observes:",
+ "We have not found that Maharam distinguished explicitly between when he was an apostate during the marriage or afterwards; rather, he permitted invoking the expectation under every circumstance even a priori.",
+ "Similarly, Rabbi Eliyahu Mizrahi insightfully teaches us:",
+ "It is not logical to claim that only if the apostasy transpired prior to her marriage to his brother that there was an understanding as if it was an explicit condition that she would undertake a levirate marriage without halitzah, and that if the apostasy happened after the marriage to his brother that at the time of the marriage she didn’t assume that apostasy would occur without halitzah. If this would be correct, then the Talmud should have asked: that a childless widow whose lot fell to a levir afflicted with skin boils during the time that she was married to his brother ought to be released without halitzah, one should have said on this understanding she never consented to marry him.",
+ "As such, in a situation of an apostate yavam, one should not differentiate between whether his conversion occurred before or after the marriage. Even though Maharam refrained from disagreeing with the words of Rashi who opines that a yevamah who fell to an apostate has to undergo yibum and halitzah, in theory rather than practice, he sanctioned the yavam of an apostate to remarry without halitzah.",
+ "In short, even a woman who claims, “had I known that my brother-in-law would become an apostate I wouldn’t have married my husband,” may serve as grounds to void a marriage.",
+ "A precondition for implementing this umdana is that the wife is Torah observant. Upon verification, we determined that the plaintiff observed Shabbat, dietary laws (kashrut) and halakhot dealing with family purity.",
+ "Though there are authorities who reject the deployment of the umdana as a means to void a marriage, as we noted earlier in our decision, we adopted the approach of decisors who utilize umdana as a vehicle to void a marriage.",
+ "4. Double doubt with a yevamah who was befallen to an apostate yavam",
+ "One of the rules of decision-making in relation to the halakhot of doubts is that we rule strictly in relation to biblical doubts, and leniently in relation to rabbinic doubts. Rambam rules as follows:",
+ "It is well known that all these and other similar instances which are ruled impure, although there is a doubt involved, are rabbinic safeguards. According to biblical law, only one who has definitely contracted impurity is deemed impure. All stringencies stemming from doubt, whether with regard to ritual impurity, forbidden foods, forbidden intimate relations or the observance of the Sabbath, are only rabbinic in origin . . .",
+ "The principle that under biblical law, doubtful cases are to be resolved leniently has already been stated in other rulings in the Mishneh Torah. In his responsa, Rambam writes:",
+ "That we rule strictly in relation to a doubt by biblical law is a rabbinical dictate and not by biblical law.",
+ "There are many authorities which cite Rambam’s opinion and/or subscribe to his position.",
+ "On the assumption that we accept Rambam’s position that we rule strictly on a doubt of biblical law by virtue of a rabbinic ruling, the double doubt is effective because the one doubt transforms the biblical prohibition to a rabbinical prohibition, and the second doubt is a rabbinic doubt and therefore entails leniency.",
+ "On the other hand, espousing the view that a biblical uncertainty ought to be resolved stringently on a biblical level, a double doubt is effective due to the rule of “following the majority.” The existence of one doubt creates a situation of a 50/50 uncertainty while the second doubt then creates a majority which results in treating the matter leniently on a biblical level.",
+ "Moreover, we have relied on a string of later authorities (Aharonim) in general, and Sages of Ashkenaz and Spain in particular, that a double doubt can be invoked in order to restore the woman to her original, presumed unmarried status.",
+ "In pursuance to the ruling of Rabbi Avraham Yudlovitz, Rabbi Ovadia Yosef formulates the double halakhic doubt as follows:",
+ "In the halakhah of apostate’s bond (for yibum and halitzah – AYW) – we have a double doubt which has ramifications towards leniency. Possibly the Halakhah is like the Geonim who permit it, and if you argue that the halakhah is according to ones who prohibited, possibly it is only according to rabbinic law, in pursuance to the words of Mahari Mintz and Knesset Yehezkel and their followers. Consequently, a double doubt grounded in rabbinic law is resolved in pursuance to its lenient implications since it entails a double doubt on a Torah level and one doubt grounded in rabbinic law.",
+ "Since we are dealing with a rabbinic doubt, thus there was no rabbinic mandate in this situation of a bond to yibum and halitzah.",
+ "5. Conclusion",
+ "Based upon the foregoing, there are three reasons which sanction the yevamah who befell an apostate yavam who converted after his brother’s marriage to remarry without performing the halitzah. Firstly, the apostate yavam does not have a tie of yibum and halitzah (zikkat yibum). Secondly, we invoke the umdana that her understanding is that she would not have consented to marry her first husband had she known she would have to subsequently marry an apostate. Finally, there is double doubt which is to be resolved in accordance to its lenient implications when dealing with a yevamah who was befallen to an apostate yavam.",
+ "As such, the plaintiff is permitted to marry any Jewish man without the performance of halitzah."
+ ],
+ "j) The battered woman syndrome": [
+ "J. The battered woman syndrome: Response to a Question",
+ "Question",
+ "Sarah approached us and asked us as qualified expositors of Halakhah (mo’reih hora’ah rather than dayanim sitting in judgment) to void her kiddushin and to permit her to marry any other Jew without receiving a get from her husband.",
+ "Answer",
+ "1. The facts",
+ "Sarah and Michael were married in January 2011. The marriage was the third marriage for Michael and the second one for Sarah. They sired two boys from this marriage.",
+ "In the wake of being physically abused during her pregnancy of their first child during May 2012, Sarah left the marital home and decided not to return to her home. A copy of a letter from her doctor who observed the wounds caused by her battery was submitted to us, stating that she was a victim of Michael’s battery. Sarah remained with her mother for approximately a month, but subsequently she returned to Michael due to the acts of violence perpetrated by her mother, which were more severe than the acts of abuse that she had suffered from her mother’s abuse during her childhood. Michael promised to register for a course in anger management and that he would collaborate with his rabbi in order to improve his conduct. In light of his acts of spousal assault during June 2013, Sarah separated from Michael for the second time and she went to live with her mother. After eight months she decided to leave her mother due to the latter’s abuse.",
+ "In May 2015, Michael left her and filed for divorce in New Jersey. In July 2015, Sarah filed for divorce in Massachusetts. A civil divorce was executed in May 2017. Due to outstanding obligations for spousal and child support totaling $48,302.60, Michael fled the United States and presently lives in Moscow. Michael claims that he is prepared to give a get to Sarah on the condition that she waives her right to the aforesaid debts. However, in these types of cases, after the husband’s demands are successfully met by the wife, there is a slim chance that he will comply with his promise to give the get.",
+ "Sarah claims that during the time that the couple was living together, Michael assaulted her ten times in a cruel fashion, three times breaking the doors of their home. In addition to the physical abuse, Sarah argues that Michael degraded her and verbally abused her, including cursing her. She complained to the police regarding his reckless behavior. Additionally, there were four of five times that Sarah wanted to contact the police but she restrained herself because she feared that the acts of violence would escalate. In fact, she hid a cell phone under her bed should she need to call the police in an emergency, or to enable her to contact others who could assist in her time of need.",
+ "Three or four months after her wedding, Sarah discovered amongst Michael’s papers copies of a police report and restraining order dating back to his first marriage, as well as a letter authored by his first wife which provides a detailed report of the violence that he committed against her. Michael persuaded Sarah that everything written in his former’s wife’s letter was replete with lies. At the time, Sarah expressed confidence that Michael was telling the truth. Yet, a year and half later, after their marriage, a rabbi confided in her that Michael had battered his second wife.",
+ "As we noted earlier, in order to corroborate her claim that Michael engaged in domestic violence, she submitted a copy of the aforementioned doctor’s note to us. Additionally, Sarah provided us with copies of two police reports dealing with incidents of intimate violence during her marriage, a copy of a New Jersey domestic violence civil complaint and temporary restraining order, as well as a copy of a police report of domestic violence committed by Michael vis-à-vis his first wife, along with a copy of the aforesaid letter written by his first wife.",
+ "As we noted, during May 2012, approximately a year and half after the wedding, Michael assaulted her while she was pregnant for the first time and it was only then that she realized that his first wife was writing the truth and she then regretted that she had married Michael. Despite the fact that a series of domestic violence incidents followed her first pregnancy, nevertheless, notwithstanding two periods of marital separation, Sarah remained with Michael until May 2015 when Michael left her and filed for divorce.",
+ "Given that the marriage was marked by both physical and emotional abuse, we asked Sarah why she remained in the marriage. Sarah explained that she remained in the marriage for various reasons. Firstly, she needed to have a place to live with her two children. Her parents were divorced and her mother abused her during her childhood and continued this behavior while she resided with her during the time she had separated from Michael. Moreover, even though she was prepared to divorce him after the first three months of the marriage due to Michael’s intimate ties with his second wife after they were divorced, she remained with him because she desired to have children, to establish a family and didn’t want to live alone and she thought that the situation would improve. Furthermore, given that this was her second marriage, she was embarrassed as to what the community would say if she got divorced again. Finally, should she divorce him, she was scared that he would kill her. And despite living in an abusive environment with the fear of death lest she leave him, Sarah continued to express her love for him (as well as her love for her abusive mother). In other words, Sarah had emotional ties to Michael even though he battered her. A clinical expert in social worker who serves as a therapist for Sarah communicated to us the same reasons that Sarah remained in the marriage.",
+ "Though the couple went to marriage counseling and Michael took courses to deal with spousal abuse, nothing helped and the abuse intensified over time.",
+ "Discussion",
+ "1. A cognitive and emotional understanding of intimate partner violence",
+ "We are dealing here with a violent man who utilizes physical and emotional violence in order to physically and emotionally cause pain to his spouse. As a result, his spouse becomes “the beaten one” and the man is labeled “a batterer.”",
+ "Women who become victims of domestic violence are fearful that they do not have the capacity to deal with this violence. Emotionally, the beaten woman fears that she is responsible for the transpiring of the battery and therefore her self-confidence is undermined. The husband’s actions, the violence, the breaking of objects and even the husband’s facial expressions engender in the woman feelings of fear, the inability to confront the batterer, and the loss of hope. In the context of the domestic violence, the batterer has strategies such as attempts at loving contrition of his victim, abstention from clashes and surrendering to the batterer’s desires. The victim’s inability to confront the batterer explains her remaining in this environment of violence. Her inability to control her life transforms her into a being who lives in accordance with the directives of an external cause, namely the batterer. Nonetheless, the violence occurs intermittently. In other words, on one hand her share and responsibility in the initiating of the conflict via inappropriate conduct creates the provocation of the batterer to use physical and emotional violence. On the other hand, there are incidents of positive behavior from the batterer that are expressed as self-improvement, promises that he will refrain from touching her in the future, declarations of love, etc.",
+ "The batterer attempts to be a lover, and in particular, expresses pain regarding his conduct. And these feelings are significant because of the fears that the victim may leave him and for the purpose of being able to be in control in the future. Love and appeasement are the trap and snare of the woman that in the final analysis turn her into a victim. The batterer’s apology is a means to diminish the tensions and fights between the couple. The apology fulfills two purposes. Firstly, from the batterer’s vantage point, the apology expresses his rehabilitation. Secondly, the apology stems from the batterer’s feelings of guilt. To state it differently, the apology serves a significant and decisive factor that allows the batterer to remain with his spouse and thus allows him to continue to assault her!",
+ "The power of control leaves the woman bereft of the ability to confront the batterer and creates a relationship of traumatic bonding. As Dutton and Painter observe in their oft-cited essay:",
+ "Dutton and Painter (1981) have elaborated a theory of “traumatic bonding,” whereby powerful emotional attachments are seen to develop from two specific features of abusive relationships: power imbalances and intermittent good-bad treatment . . .
The process of detaching from, or emotionally leaving, an abusive relationship should be more difficult, since traumatic bonding is theoretically increased by relationship dynamics. Hence, intermittent abuse develops an emotional bond which interferes with leaving and remaining out of an abusive relationship. Dutton and Painter (1981) liken this attachment process to an elastic band which stretches away from the abuser with time and subsequently “snaps” the woman back. As the immediate trauma subsides, the strength of the traumatically-formed bond reveals itself through an incremental focus on the desirous aspects of the relationship, and a subsequent sudden and dramatic shift in the woman’s “belief gestalt” about the relationship. This shift in phenomenology alters her memory for past abuse, and her perceived likelihood of future abuse. The point of this original formulation by Dutton and Painter (1981) is that this belief shift is attachment-derived. That is, it follows from a shift from avoidance to return at an affective-attachment level.",
+ "In other words, traumatic bonding is established by power imbalance and intermittent abuse.",
+ "Another type of traumatic bonding is called Stockholm syndrome. As one researcher observes:",
+ "The term Stockholm syndrome was coined in 1973 by Bejerot, who used the term to describe the enigmatic behavior of three women and one man who were held hostage for six days in the vault of the bank in Stockholm, Sweden (Bejerot, 1974). These hostages developed an emotional bond with their captor that was so strong that they threatened the officials who were trying to help them. The captives refused to leave the vault before the captors, fearful that the police would harm the captors. The bond (also known as capture, traumatic of terror bonding) continued long after the release of the hostages, including scenes of the captives kissing and hugging their captors once freed from the vault. Reports that two of the female hostages were romantically involved with two of the captors surfaced some months later (Graham, 1994). This seemingly paradoxical response has also been seen in other contexts and populations, specifically concentration camp prisoners, prisoners of war, civilians held in Chinese Communist prisons, cult members, abused children, incest victims . . .
Graham (1995) developed the Stockholm syndrome theory, specifically linked to intimate partner violence, based on the psychology and behavior of these groups. She argued that four precursors were necessary for the development of Stockholm syndrome: perceived threat to survival, perceived kindness, isolation, and the perceived inability to escape.",
+ "In our case, Sarah told us that one of the reasons she did not leave Michael was due to feelings of love toward him. In light of what we have just explained, one can understand her feelings as reflecting her traumatic bonding rather than authentic love of a wife for her husband.",
+ "However, the emerging issue is how does one understand her claim that her feelings of love persisted for many years after their separation and the civil divorce? To understand the import of her claim, we sought out the advice of a practicing clinician in domestic violence with twenty years of experience, and this was her reply:",
+ "This is probably the most common question I’m asked in my work. It’s an incredibly important question, but I believe the answer to be incredibly complex and again, completely individual, based on the person who’s in the situation themselves.
As you and I have conversed about, no abusive relationship I’ve ever worked with is completely bad. Not one. There are always elements of positive in some way. These things, combined with sharing a life together, are the building blocks of connection and love for any one of us. Someone could be horrifically hurt by someone in a host of ways, and human nature dictates that this abuse often doesn’t erase the love and connection. So, what I have seen over and over again in my work – and is wholly supported by the literature – is that survivors love their abusive partners because it is a deeply normative human response to feel that way – and may well feel that love and connection in some form for the rest of their lives. Someone who shares a life together with their partner – even if so much of it was abusive – it does not necessarily erase the love that was built. The love likely takes many different evolving forms, but someone still stating they love their abusive ex-partner, in my view, is just being authentic. This emotion is both understandable and does not in any way contradict the abuse and pain that is also present in these relationships.",
+ "In other words, the authentic love that was developed prior to the acts of abuse continues to exist even after the divorce. These feelings do not in any fashion contradict the abuse perpetrated by a husband vis-à-vis his spouse. In short, in addition to traumatic bonding there is authentic love which continues to persist after the divorce. As such, victims of domestic violence continue to remain with their batterers in a coercive environment, akin to prisoners of war.",
+ "Clearly, the psychological realities of Sarah do not fit a singular profile. In fact her case, similar to other situations of battered women, vary considerably from each other. Yet, in pursuance to Sarah’s arguments and submitted evidence, the presentations of her therapist who specializes in social work, the expert advisory opinion of a practicing clinician in domestic violence and our research of the professional literature, we arrived at the conclusion that the intimate partner violence between this couple reflects the phenomenon known as Stockholm syndrome.",
+ "2. Kiddushei Ta’ut due to Physical Abuse",
+ "Prior to implementing the mechanism known as kiddushei ta’ut (loosely translated as an erroneous marriage) in order to void the marriage and advance the argument that an error transpired in the creation of a particular marriage due to the fact that the prospective husband failed to disclose the defect to his prospective wife prior to the marriage, three preconditions must obtain.",
+ "1. The flaw must be severe (a mum gadol) such as a husband’s sexual impotence, mental dysfunction, homosexuality, or if a wife was exposed to a contagious and dangerous disease such as syphilis or A.I.D.S. All these examples are crystalized in the responsa as major defects.",
+ "One of the yardsticks to determine whether a particular behavior is an example of a major defect is by ascertaining whether the behavior such as physical abuse serves as a ground for divorce (ilat gerushin) that a beit din may coerce the husband to give a get to his wife.",
+ "Let’s elucidate the various authorities who addressed the halakhah of a husband who is a batterer and discern whether there are grounds to coerce a get.",
+ "Ohr Zarua teaches us:",
+ "If he customarily assaulted and publicly shamed her, we coerce him to divorce her. Already there was an incident with one who frequently hit his wife, and Rabbeinu Simhah was asked, and he replied that we coerce him to divorce her . . . a person does not live with a snake in the same basket.",
+ "However, Rabbi Meir of Rothenberg argues:",
+ "Regarding a husband who assaults his wife, one must be more stringent than when dealing with somebody who hits his friend . . . And if she wants to leave him, he ought to divorce her and give her the ketubah (the value of ketubah – AYW).",
+ "Similarly, Ramban writes:",
+ "A husband ought to refrain from hitting and torturing his wife . . . and we inform him that if he hits in violation of Halakhah, that he will be obligated to divorce her and give the ketubah.",
+ "In other words, in opposition to Rabbeinu Simhah and Ohr Zarua who obligate get coercion, Maharam and Ramban only obligate the giving of a get.",
+ "And Beit Yosef opines:",
+ "It seems to me that one cannot rely upon the Sefer Agudah, Rabbeinu Simhah and Ohr Zarua to coerce since it is not found amongst the renowned authorities.",
+ "Yet, Rema in his Darkhei Moshe demurs:",
+ "I don’t see this matter accordingly, as we can rely upon Geonim. A fortiori, Ramban and Maharam agreed in their responsa in the matter of battering a wife and brought clear proofs to their words. And halakhic logic concurs with them . . . however not to coerce a get . . . rather to comply with what one is dutybound to do. In [Teshuvot] Binyamin Ze’ev (no. 68), he cites many responsa regarding this issue and concludes that if he is the cause, he is obligated to divorce her.",
+ "It seems from the language of Ramban and also from the language from Teshuvot Binyamin Ze’ev that one does not coerce, rather one is obligated to divorce, and the flow of the language from the passage of Darkhei Moshe seems to indicate the same conclusion. Similarly, other decisors align themselves with the position that get coercion is inappropriate.",
+ "Nonetheless, there are authorities who espouse get coercion even if the assaults are infrequent and do not endanger the wife’s life.",
+ "Based upon the foregoing and the circumstances of the abuse in our case, according to this latter position there is a basis to coerce a husband to give a get to his wife.",
+ "Given that in the Diaspora, generally speaking countries do not enforce a rabbinical court decision to coerce a get, Rabbis Spektor, Feinstein, Frank, O. Yosef and others argue that, under certain conditions, one can invoke the mechanism of kiddushei ta’ut in order to void the marriage.",
+ "In light of the fact that one cannot legally (and therefore halakhically) coerce a get in the United States, under certain conditions there are grounds to void this marriage.",
+ "Alternatively, even if we would have subscribed to the view that there is no basis of get coercion in the case of spousal physical abuse, there exists another approach that arrives at the conclusion that we are dealing with a major defect and consequently we can void the marriage.",
+ "In a judgment of Rabbi Shlomo Daichovsky, a former presiding Dayan of the Beit Din ha-Rabbani ha-Gadol, the highest rabbinical court under Israel’s Chief Rabbinate, he states as follows regarding the definition of defects on the part of the husband:",
+ "The matter of defects for which a woman may sue for her get is not Torah-ordained law, but reason and logic, as Rambam writes (Hil. Ishut 25:2): “These matters are concepts that reason dictates; they are not decrees of the Torah.” The whole subject of defects is a matter of human reason, and the emotional unwillingness of one spouse to endure an intolerable situation on the part of the other spouse. For this reason, we have the halakhah of “he assessed and accepted” or “she assessed and accepted.” It is possible to say that if the general opinion concerning a particular defect changes, then it may not be said that “she assessed and accepted” on the basis of her past acquiescence. A defect may not necessarily be a physical one: defective behavior, such as consorting with prostitutes, may entail an order to give a get. Indeed, this halakhah concerning consorting with prostitutes appears in Shulhan Arukh 154, which is the section dealing with defects. In all civilized countries, it is very humiliating for a woman to share her bed with another woman, and a husband who takes another wife will be ordered to give a get, not only due to the ban of Rabbenu Gershom, but also due to the humiliation and the flaw in this. The parties came from Yemen, where it was acceptable to marry two wives. Here, this is considered a great disgrace, and must be regarded as a major defect. The wife’s past acquiescence does not obligate her at present, and therefore this is not only a matter of “he is repulsive to me,” but also a matter of a defect in the husband, due to which the wife cannot live with him. In the case of divorce due to a defect, the wife does not lose her ketubah. It is plausible to say that even if the wife married a philandering husband, and later repented of her decision and can no longer tolerate this situation, the husband will be ordered to give her a get, and will not be able to claim that she “assessed and accepted.” Equally, in my opinion, the claim “She assessed and accepted” cannot be made in a situation in which a woman married a man who was an avowed homosexual, even though she was perfectly aware of his proclivity, and later learnt about the severity of the prohibition, and wishes to divorce him due to the husband being repulsive to her. Here, too, there is no room to argue that “She assessed and accepted.”",
+ "Implicit in Rabbi Daichovsky’s understanding of the definition of what constitutes a major defect is that a husband’s defects (as well as a wife’s defects) are grounded under certain conditions upon defects found in real estate or personal property (see further in our decision), namely the universe of halakhic civil law (Hoshen Mishpat). In short, under certain conditions the buyer is entitled to void the sale if the community considers it a defect in the item. However, if the community does not deem a particular flaw to be a defect in the item, then the buyer cannot rescind the sale.",
+ "Following in the footsteps of Rabbi Daichovsky who argues that a major defect is defined by communal standards, Rabbi Shlomo Amar teaches:",
+ "In contemporary times, we must act stringently in regard to battered wives, since every man who is respectable and intelligent is embarrassed by this behavior, a woman cannot tolerate this at all and it is a major shame today in comparison to earlier times . . . battery of a wife is repulsive and disgusting in the eyes of a woman . . . that she can no longer live with him.",
+ "In accordance with Rabbis Daichovsky and Amar, a woman undoubtedly has a valid claim that her husband’s conduct is disgusting. As such, it is unsurprising that numerous contemporary Israeli rabbinical courts construe such behavior as an example of a woman who is pleading “he is repulsive to me - ma’is alai.”",
+ "Consequently, it is unsurprising that some legists argue that the Talmudic presumption “it is better to live as two than to remain in widowhood” (tav le-meitav tan do mi-le-meitav armalu) has been understood as inapplicable to a husband who engages in domestic violence.",
+ "Moreover, Michael’s behavior is not only “repulsive and disgusting” but is an outward expression of a psychological flaw in his persona.",
+ "In the absence of a psychological diagnosis of Michael, scholars have noted the following:",
+ "The initial theories related to IPV (intimate partner violence – Flynn) were based on the psychopathological orientation of violence. Based on studies conducted on known violent men in prisons, community based settings or victim women in shelters, some theorists believed that men who perpetuate violence and women who experience violence suffer from mental health problems such as depression (Hastings & Hamberger, 1994; Julian & McKenry, 1993; Murphy, Meyer & O’Leary, 1993; Pan, Neldig & O’Leary, 1994), personality disorders including antisocial personality, borderline personality disorder. . . . (Edwards, Scott, Yarvis, Paizis & Panizzon, 2003; Ehrensaf, Cohen & Johnson, 2006; Holtzworth-Munroe et al., 1997; Levy, Meehan Weber, Reynoso & Clarkin, 2005; Mauricio, Tein & Lopez, 2007; Porcerelli, Cogan & Hibbard, 2004)",
+ "During our hearing with Sarah, she submitted to us pictures of drugs with a conventional prescription on each bottle which states the name of Michael, the name of the medicine, the prescribed dosage and the date of the purchase of the medicine. In January 2014, he took venlafaxine for depression and in May 2014, he took divalproex for a bi-polar disorder. Michael admitted to Sarah that he suffered from depression and Michael’s second wife thought he had a bi-polar disorder. All the taking of medications did not assist Michael in addressing his problems. Since Michael never received a professional diagnosis, it is unsurprising that the various drugs did not help him. In the couple’s estimation, Michael was suffering from a borderline personality disorder. As noted above, studies show that a person suffering from this illness may become physically abusive.",
+ "In accordance with the above-cited studies, it stands to reason that Michael’s violent behavior was a by-product of his psychological disorder.",
+ "Dealing with an epileptic husband, contends Rabbi Yosef ben Moshe Trani of seventeenth-century Constantinople who writes:",
+ "Reuven married a woman and after the marriage she became aware that he had epilepsy . . . subsequently the illness became severe until he lost his mind and then Reuven, with his mental dysfunction (shetut), wanted to choke his wife in the presence of two witnesses. . . .",
+ "Similarly, centuries later, addressing a case of a man who assaulted people by throwing stones at them and hitting his wife, Rabbi Moshe Feinstein states:",
+ "From his conduct it is clear that he is mentally dysfunctional (“shoteh”) since in regard to his interpersonal relations he immediately (after the marriage ceremony - AYW) hit her as he does with other people, and from this we may conclude that he does not comprehend what it means to have a wife.",
+ "In the absence of a professional psychological diagnosis, Rabbis Trani and Feinstein argue that engaging in domestic violence ipso facto identifies a husband as mentally dysfunctional (a shoteh). In other words, his improper conduct is a by-product of the psychological flaws in his persona.",
+ "Consequently, in accordance with the views of Rabbis Trani, Daichovsky, Amar, and Feinstein, spousal battery is a major defect.",
+ "2. In order to void the marriage, it must be clear that the major defect existed prior to the marriage and the prospective wife was unaware of the flaw prior to their marriage.",
+ "Pursuant to one witness’s testimony, prior to the marriage he informed Sarah that Michael was suffering from depression and abused his second wife. Sarah admitted that she was told about his psychological condition prior to her marriage. However, concerning his past conduct of spousal abuse, Sarah claims that she was told about his behavior a few months after the onset of the marriage.",
+ "Firstly, when the witness submitted testimony in the presence of the rabbis, he testified with certainty that he disclosed to Sarah prior to the marriage her prospective husband’s psychological condition. On the other hand, when he testified regarding his past spousal abuse, he formulated his words utilizing the language – “I believe”.",
+ "We are of the opinion that it is illogical to assume that the witness told Sarah about Michael’s inappropriate behavior prior to the wedding. A woman is not prepared to marry a man who is known to have been violent to a previous wife. Should she have been aware of his conduct, she would have refused to marry him. Moreover, since she suffered many years living with her abusive mother, she would not have been ready to marry a man who exhibited violent behavior towards his previous wife.",
+ "A. The credibility of a wife to claim that that her marriage was “a marriage in error” (kiddushei ta’ut).",
+ "Rabbi Osher Weiss rules as follows:",
+ "Since there is a doubt concerning the essence of the kiddushin, it is to be construed as if she isn’t a married woman and therefore “one witness is trustworthy regarding prohibitions” in “a matter of nakedness” (davar she’bervah), when it is bereft of the status of being prohibited, in accordance to the view of Maharik, shoresh 72. Similarly, such as the opinion of Tosafot, Gittin 2b . . . as it is written in Teshuvot Rabbi Akiva Eiger, section 107. . . .
Though seemingly the majority of authorities disagree with this position, and in accordance with their opinion a single witness cannot be trusted in a matter of nakedness even if it is devoid of the status of being prohibited, as it is explained in the words of Ramban. . . . in the words of Rashi . . . and as in Rashba . . . Seemingly, one must stringent in this matter.
However, renowned later legists tended to be lenient, and that is what was written in the Teshuvot Noda be-Yehudah in numerous places. See Mahadura Kama, 54 . . . 59 . . . 38 and that is what he wrote in 43 . . . 61 . . . and 85. . . .
And study also Teshuvot Rabbi Akiva Eiger . . . 93 who cited the words of Noda be-Yehudah, who took a lenient stand, even though he had doubts due to the opinions of the early decisors. Nevertheless, he attached his position as an appendage (senif) to being permissive.
And they are worthy these pillars of the world, Noda be-Yehudah, Hayyei Adam and the Gaon Rabbi Akiva Eiger to rely upon them in an hour of emergency.",
+ "In other words, relying upon respected authorities, argues Rabbi Weiss that one can trust her as one witness in “a matter of nakedness”. Consequently, in our case we may impart credibility to Sarah’s representation that at the time of their marriage that she was unaware that Michael had been physically abusive to both his previous wives.",
+ "3. The halakhic propriety of a battered wife staying with the marriage after the realization that the marriage was “in error”",
+ "The emerging question is whether Sarah was obligated to leave the marriage immediately upon becoming aware that he was a batterer or not is a dispute amongst rabbinic authorities. Although among many of the scholars she was obligated to bolt the marriage immediately after discovery of this major defect, Rabbi Moshe Feinstein and Dayanim Goldschmidt and Bavliki contend that she may continue to remain in the marriage on the condition that there were reasonable explanations for this decision. However, if in the final analysis, the problem(s) could not be resolved, such as if the husband was mentally impaired and psychological counseling and/or medication did not improve the situation, then the wife must leave the marriage.",
+ "In order to analyze this matter, we must study the halakhot of a mistaken transaction (mekah ta’ut). The emerging question is whether an erroneous marriage may serve as a model in order to establish the principles of a mistaken transaction of Jewish civil law or the opposite.",
+ "Notwithstanding Ramah’s position, in pursuance to some decisors, under certain circumstances, the halakhot of an erroneous transaction are equivalent to a wife who discovers a husband’s defects after the onset of her marriage.",
+ "In opposition to the above, in pursuance to Magid Mishneh, the halakhah of waiving a defect when he used the item is derived from the halakhot of Jewish family law.",
+ "On the other hand, numerous legists derive many halakhot of dealing with an erroneous marriage from the halakhot concerning the discovery of a defect in a sales transaction.",
+ "Adopting this latter approach, let us shed light upon the principles of an erroneous transaction in order to apply them to the situation of a marriage in error.",
+ "Relying upon Rambam’s ruling, Shulhan Arukh states:",
+ "If one sells to his friend land, . . . or other moveable property, and a defect (appears), which the buyer was unaware of, the buyer may return it (to the seller and receive his money back) even if a number of years have lapsed (since the sale), given that the sale was based upon a basic error, provided that the buyer did not continue to use the object after he became aware of the defect, However, if the buyer continued to use the object after he saw (or became aware of) the defect, he has waived his right to rescission and cannot return (the defective object to the seller and receive his money back).",
+ "One may derive the above principle of an erroneous sales transaction from the halakhot dealing with price fraud (ona’ah). As we know, if the discrepancy in price exceeds one-sixth of the market price, the sale is voidable. However, if the buyer used the item after discovering the price fraud and he failed to protest the discrepancy in price, he waived his right to void the transaction.",
+ "In the event that the buyer informed the seller concerning the price discrepancy, even if he used the item after his notification, use of the item does not constitute a waiver of the discrepancy in price. As Ritva writes:",
+ "If the use was prior to becoming aware of the price discrepancy, he returns it “as is” . . . and if he used it after realizing the price discrepancy, he waived the discrepancy . . . if he became aware of the price discrepancy and he informed him and subsequently used it, he did not waive the price discrepancy. However, he is obligated to pay the seller for the use of the item or what he lost by using the item.",
+ "Notwithstanding some decisors, other authorities argue that we may equate the halakhot of erroneous sales with the halakhot of price fraud. In other words, just as in a situation of price discrepancy the buyer may use the item after notifying the seller and we do not say he waived his right of restitution, analogously we do not say he waived his right to voiding the sale marked by a defect and may use the item.",
+ "Based upon the foregoing, in accordance with halakhot of price fraud and a mistaken transaction, there is a duty to inform the seller that the sale is voidable due to the awareness of a defect. Similarly, in the context of “a marriage in error” (kiddushei ta’ut), there is a duty that the wife notifies her husband regarding his failure to disclose his major defect prior to the marriage. Yet, in our case, Sarah failed to inform Michael that she was divorcing him due to his failure to disclose prior to the marriage that he was abusive to his wives during his earlier marriages.",
+ "Nonetheless, the two marital separations may be understood not only as a protest regarding his behavior, a desire to distance herself from him, but even as an indication that she wanted to divorce him. One may say that these separations indicate the lack of a prospect for marital peace and therefore a desire to be divorced. As we know, some authorities posit that a separation for twelve or eighteen months with no prospects for marital reconciliation serves as a reason for a beit din to obligate a husband to give a get. Despite the absence of an explicit notification that she wants to be divorced (read: an erroneous sale – mekah ta’ut), nonetheless her two marital separations serve as an implied public statement (gi’lui da’at) that Sarah wants to be divorced.",
+ "However, as we observed, Sarah was embarrassed to dissolve the marriage since she had left her first marriage and therefore feared the reactions in her community upon finding out that she now decided to leave her second husband. Additionally, she needed a place to live, she was scared that he would kill her if she left him, and finally she was emotionally tied to Michael and therefore did not leave him. Consequently, after separating from him due to his behavior (read: using the defective item) and living with her abusive mother, she returned to him. One should not extrapolate from her decision to return to Michael that she accepted to endure the continuing violence, but due to the circumstances mentioned above and Michael’s promises that he would change his way, she was motivated to return to the marital home. In the final analysis, the presence of traumatic bonding propelled her to return to an environment marked by violence.",
+ "The power of control leaves a woman bereft of the capacity to confront her batterer, and as we explained, a traumatic bond is established between the batterer and his victim. The power of this emotional bond played itself out in an event that transpired after their marital separation in May 2015. At that time, Michael started to look for women on the internet and he interacted with a German woman. During the summer of 2018, one rabbi from another beit din asked her – “If you had known about his interaction before the separation, would you have left him?” Her reply was – “I don’t know”. The social worker explained to us that her reply was due to the emotional ties that Sarah developed with Michael due to the Stockholm syndrome.",
+ "Even if Michael had developed intimate relations with this German woman, the expert for domestic violence explained to us:",
+ "Certainly much of the answer centers on many reasons, leaving an abusive situation is so complex, layered and nuanced. It is assuredly something that has been shown to escalate the danger in the situation, even when there has been no prior violence, and simply speaking, so many of my clients have sincere hope that things can improve. So, although an extramarital affair is quite obviously a painful occurrence, I suspect the honest response of “I don’t know” was one that had to do with a likely fluid equation so many of my clients have expressed to me over the years – what are the trade-offs to leaving versus staying?",
+ "If we apply the aforementioned principle of an erroneous transaction which is grounded in the halakhot of price discrepancy to the matter of an erroneous marriage, we would arrive at the conclusion that if the wife separates from her husband due to inappropriate behavior (read: a public statement that reflects the desire to void a marriage), we would conclude the following in our scenario. In our case, though Sarah returned to her husband twice after leaving due to his abuse (read: using the item), one should not assume that she had accepted the abusive relationship. On the contrary, each time Sarah was promised by Michael that he would “change his ways.”",
+ "Despite his empty promises, the acts of violence continued and escalated (known in the scientific literature as “the cycle of violence”), and she remained with him due to her distress regarding housing accommodation, fear for her life and she loved him. Finally, he left her!",
+ "In the wake of the fact that he left the marriage, is there a basis for voiding the marriage due to Michael’s failure to disclose to Sarah prior to the marriage that he had abused both of his previous wives?",
+ "Our reply to this question is predicated upon the second principle of a mistaken transaction. Assuming a man purchases a horse and discovers a defect while traveling with it, continuing to travel with the horse does not imply that he waived his right to void the sale. Pithei Teshuvah advances the following reason for this position. Even though the purchaser is riding the horse, one may void the sale because he is under duress. Though Pithei Teshuvah concludes that this view requires further deliberation, others contend that he is riding the horse due to the necessity of the circumstances and therefore the sale may still be voided.",
+ "To state it differently, the premise here is that we are dealing with a case of voiding a marriage and upon her return to the marital home (read: using the item) she was under duress and therefore she never waived her willingness to void the marriage. Seemingly, the series of events demonstrates otherwise! We are dealing with a separation that occurred in May 2012, and a return to the marital home one or two months later. Subsequently, she left him for eight months and returned for a year and quarter and then Michael left her! Given the times of separation vs. the period of living together, it is somewhat difficult to believe that Sarah was under duress for two and quarter years and never wanted to sustain the marriage.",
+ "If we translate the above circumstances into concepts of a mistaken transaction, it would seem that the circumstances of the case are similar to a purchaser who placed the item in the domain of the seller, took it back before the seller took it, then returned it to the seller’s domain where it was again taken by the purchaser.",
+ "Due to the problematic nature of our position that she was under duress for a long time, we asked the expert on domestic violence to address our issue, and here is her reply:",
+ "What is also in countless pieces of literature, and I will say has absolutely been corroborated in my twenty years of practice in the domestic violence field over and over again – that it is simply not one or the other. I imagine this is quite true for this client – that she was not either under duress or accepting of the marriage and its myriad of abusive elements. Rather, she was likely under incredible amounts of duress (at various levels of escalation) and also aimed to find moments, pockets, etc. of acceptance in an effort to survive the abuse and perhaps be able to maintain her and her children’s lives with as little upheaval as possible. The “both/and” concept might serve as some part of the explanation why she, and countless others – return to and then leave abusive relationships many times (incidentally, the evidence-based average number of attempts to leave an abusive relationship is seven). As we’ve conversed about previously, no relationship I have ever worked with someone about is entirely bad – and so the confounding factor of someone having moments of peace, happiness, etc. in relationships that are also incredibly traumatic is a factor to note in response to your inquiry as well.",
+ "In other words, as an outsider casting one’s eyes upon the scene, it would seem that Sarah’s conduct is strange. Does her behavior reflect a wife who is under duress and therefore reluctantly submissive to Michael or is she a woman who wants to be married to him? The expert is informing us that we are dealing with the conduct of a battered woman who is traumatically bonded to a batterer who at times is living in captivity and at other times living outside of captivity. In short, we are focusing upon a woman who lives in captivity as well outside of captivity and under both sets of circumstances she is under duress.",
+ "As we noted, our conclusion is based upon the advisory opinions of experts in the field of domestic violence as well as the findings of professional literature.",
+ "A. There is no waiver of bodily pain.",
+ "Moreover, our position is rooted in the principles of the halakhic system. The Talmud and Shulhan Arukh have already established:",
+ "If a person says to his friend – “hit and wound me on the condition that you will be exempt (from responsibility)’’ and his friend maimed him, he is exempt.",
+ "Despite the fact that agreeing to being assaulted entails a violation of the prohibition of maiming (ha’valah), nonetheless, ex post facto, if the friend complied with the condition, the condition is valid and he is exempt from paying for the injury. To state it differently, there is an intrinsic distinction between the prohibitive result and the halakhically illegal obligation.",
+ "The issue is whether Sarah “accepted” (“savrah ve-kiblah”) the abuse. Based upon the foregoing, one cannot waive bodily pain. As Rabbi Asher b. Yehiel observes:",
+ "A condition is invalid if it sanctions a friend’s bodily harm which engenders pain.",
+ "Rivash concurs with this conclusion. In opposition to Rabbi Shaul Nathanson who validates a one-time waiver of bodily harm, others oppose any sanction of bodily harm in a continuous fashion.",
+ "Yet, when addressing spousal relations, the picture changes. In contradistinction to some decisors, the majority of authorities opine that one is proscribed from stipulating a condition regarding conjugal relations, since abstention from conjugal relations engenders pain for the wife.",
+ "In pursuance to the dominant view, though the wife waives her right to having intimate relations, we assess her expectations that she is not truly waiving it wholeheartedly. In other words, the waiver is effective assuming one can prove that it is being executed wholeheartedly. In the absence of executing an act to undertake an obligation (a kinyan) to waive or an explicit statement of waiving, if there is a fear that she did not waive wholeheartedly, the waiver is void. Furthermore, given that the duty of conjugal relations is incumbent upon the husband, the wife cannot waive his duty.",
+ "But as we mentioned in pursuance to the opposing view, the stipulation of a condition is effective in regard to intimate relations provided that an explicit condition was made. In the absence of an explicit condition, the duty of conjugal relations remains operative. Given that in our case, Sarah failed to execute a condition, there is a halakhic consensus that Michael was proscribed from assaulting Sarah.",
+ "Based upon the foregoing, accompanied by additional reasons, we do not conclude that Sarah acquiesced (“savrah ve-kiblah”) to the acts of battery.",
+ "Firstly, Sarah as a Torah observant Jewess did not waive bodily pain. The halakhic norm directed the appropriateness of her behavior. Secondly, as we noted earlier, the cultural norm prevalent in Western society is that spousal battery is generally abhorrent in the eyes of people, and of Sarah in particular as a victim of childhood abuse. In accordance with both the halakhic and cultural norms, Sarah understood that there is a need to bolt a marriage that is marked by domestic violence.",
+ "Moreover, as an Israeli beit din rules:",
+ "Even if she continues to live with her husband in a loving and affectionate manner, this is no proof that she waived, since she is in a situation where she has no choice.",
+ "Similarly, in our case, we described Sarah’s situation as one “where she has no choice.” Consequently, even though she engaged with Michael in conjugal relations, one cannot say that the notion that “it is better for a woman to be married” (tav le-metav tan du) applies to her, or that “a woman is satisfied with anything” (niha lah be-khol de-hu) in an environment of domestic violence.",
+ "Initially, Sarah thought she could tolerate and deal with the abusive behavior. However, with the passage of time, the abuse escalated. In other words, abusive behavior is ever-changing, and as such one cannot say that Sarah acquiesced to the situation. Said conclusion may be distilled from one responsum which focuses upon a man who married a mentally dysfunctional woman. It teaches us:",
+ "It was known when she was a virgin, that the majority of her life she was mentally dysfunctional and only infrequently was she mentally stable. And it seems that the husband knew before the marriage that her mind was feeble but not an idiot. And after the marriage, when he observed her moments of insanity he was comforted by his father-in-law and family members when they said the doctors said that after her pregnancy she will be cured from her lunacy. He trusted their words and continued to live with her . . . However, it did not last long and the sickness of lunacy overwhelmed her . . . and now she was placed in a hospital for lunatics. . . .",
+ "In his ruling, the authority provided various reasons to lift the excommunication of Rabbeinu Gershom and permit him to divorce her against her will, and among the various reasons, he states the following:",
+ "This logical argument that he acquiesced (“savur ve-kibel”) does not only apply to a defect that is constant and does not change unlike idiocy which changes with the passage of time . . . and one cannot say he acquiesced.",
+ "Similarly, the Sanzer Rov writes:",
+ "A man was engaged to a virgin when they both were minors, and the father of the bride told the groom’s father that sometimes the girl becomes weak. But there is no need to worry because she is weary and that is due to being physically weak and after she grew . . . and the groom’s family was scared that possibly she suffers from the illness of epileptics. . . . Another time, the bride’s father said there is no need to worry, it is only weakness, and the groom and his father believed him . . . and the groom married the young woman. And after the marriage, with the passage of time, the sickness overcame her to the point that it became clear to the husband that she had epilepsy and he left his wife. . . . Until now (before the marriage – AYW) before it became clear they said she did not have epilepsy . . . but seeing now that she is epileptic, he separated from her and there was no waiver.",
+ "Analogously, relying upon Divrei Hayyim, Rabbi Meir Arik contends that regarding an illness that changes with the passage of time, a man who suffers from such a sickness is not obligated to continue to remain in the marriage. To state it differently, his agreement was contingent upon the fact that the illness was less severe.",
+ "Though the above responsa deal with a wife’s defects, one can extrapolate (employing a hekesh) from the halakhot of a wife’s defects to the halakhot of a husband’s defects.",
+ "Based upon the foregoing, notwithstanding Shulhan Arukh and Rema, we can argue in our case, which deals with the husband’s defect, that one cannot say that she acquiesced after conditions deteriorated. As Rabbi Tzvi Hirsch Orenstein notes:",
+ "When there is a change, one can say, “it is unacceptable to me.”",
+ "Moreover, addressing the illness of epilepsy, Rabbi Arik contends:",
+ "And concerning these major defects, which, in accordance with the doctors, deals with the disease of the nerves and the brain, and it is known that this illness intensifies each time . . . Consequently, the rule of “she is acquiescing” is inapplicable.",
+ "And the identical conclusion is applicable to our case. The act of physical assault by its very nature becomes more severe. Therefore, the rule of acquiescence is inapplicable under our circumstances.",
+ "Her real will was to leave him. However, her will was impaired by a coercive environment which was marked by a traumatic attachment to her batterer, loneliness, embarrassment and fear which motivated her to stay with her abuser and therefore there is a basis to void this marriage.",
+ "In light of the above, Sarah is permitted to remarry without a get any man except a Kohen.",
+ "Final afterthoughts",
+ "Based upon the cumulative evidence submitted to this panel and in light of the absence of a professional psychological evaluation of Michael, it was the couple’s estimation that Michael was suffering from a borderline personality disorder, while his second wife’s impression was that he was suffering from a bipolar disorder. Despite the absence of a professional identification of Michael’s disorder, nevertheless, according to Rabbis Yosef ben Moshe Trani, Yosef Steinhardt and Moshe Feinstein, a husband who is a batterer is ipso facto deemed by Halakhah as a mentally dysfunctional individual.",
+ "Upon accepting their view that a husband who engages in battery is deemed mentally dysfunctional, we can examine this behavior in terms of two grounds for divorce, namely the inappropriateness of the conduct as well as the psychological underpinnings of the behavior.",
+ "Let’s begin by examining whether there ought to be grounds to coerce a mentally dysfunctional husband to give a get to his wife. The criteria for being classified mentally dysfunctional are set down in Tosefta and subsequently cited in Talmud:",
+ "Our Rabbis taught: Who is a shoteh? One who goes out alone at night, one who spends his night in a cemetery and one who tears his clothing.",
+ "Given that Michael did go out alone during the night and appeared naked on a highway, there is a relevant Talmudic controversy as to whether one requires one type of erratic behavior to be deemed mentally dysfunctional or one requires all three types of abnormal conduct to establish mental incompetence. Related to this, a subsequent passage in the Talmud adds a fourth form of aberrant behavior, namely one who destroys that which is given to him.",
+ "Notwithstanding some authorities, as we learn from Rabbis Yosef Karo’s and Moshe Issereles’s rulings regarding the disqualification of witnesses, the list is not a closed list but encompasses any form of irrational conduct which may establish him as mentally incompetent. In fact, numerous decisors endorse their rulings and contend that the list is not exhaustive. In our case, implicitly endorsing the latter approach, both Rabbis Trani and Feinstein view the batterer as a mentally dysfunctional personality. Moreover, numerous authorities argue that the psychotic behavior must have occurred at least three times in order to label him mentally dysfunctional, a shoteh. In our situation, as we mentioned earlier, it happened ten times.",
+ "Given that Michael refuses to give a get to his spouse, are there grounds to coerce a get? Mishnah Ketuvot states:",
+ "A man in whom defects arose; we do not compel him to divorce (his wife – AYW). Rabban Shimon ben Gamliel said: When is this case – when the blemishes are minor. But in the case of major flaws, we compel him to divorce (her – AYW). And these are (the flaws) for which we compel (a man – AYW) to divorce (his wife): one who is afflicted with skin boils, one who has a polyp, and one who collects excrement, the copper smelter, the tanner, etc.",
+ "Accordingly, there is a list of major defects concretized in the Mishnah (as well as in the Talmud) which serve as the grounds to compel a husband to give a get. Consequently, it is unsurprising that numerous authorities will invoke only these specific flaws as grounds for issuing a get compulsion judgment. The implications of this approach, namely that the scope of get compulsion is defined by a list of specific grounds enumerated in the Mishnah and the Talmud, means that certain conduct and types of illness such as insanity, homosexuality, child abuse or a contagious disease such as AIDS or syphilis will not be a ground for compelling a get. As the famed ruling of Rabbi Asher b. Yehiel (known by the acronym: Rosh) notes:",
+ "One cannot add to what the Scholars enumerated.",
+ "The identical conclusion ought to apply to a case of a husband’s mental dysfunctionality.",
+ "Moreover, Rabbi Yosef S. Elyashiv argues that given that there is a halakhic controversy as to whether one can coerce a mentally dysfunctional husband to give a get, constructive consent of the husband to give the get is nonexistent. Relying upon Rabbi Moshe Sofer’s classic position, Rabbi Elyashiv contends that a husband’s constructive consent to a give a get is predicated upon the fact that all legists agree that in the given circumstance, a get ought to be coerced. Should one opinion disagree, one cannot speak of “a husband’s real will” to give a get. Despite the view of Rabbis Sofer and Elyashiv as well as others, there are authorities who will mandate coercion regarding a get recalcitrant mentally dysfunctional husband. In sum, there is a debate as to whether a mentally dysfunctional husband may be coerced to give a get to his wife.",
+ "The second ground for divorce is the question of whether the acts of domestic violence perpetrated by Michael serve as justification for get coercion. One approach, which first appears in the writings of Ohr Zarua, Rabbeinu Simhah and is later espoused by others, is to issue a compulsion order in the wake of a husband who assaults and insults his wife. A contemporary rationale for get coercion is articulated by an Israeli beit din, which teaches:",
+ "The halakhah of get coercion is not due to the sins committed by the individual, but rather for the havoc wreaked in family life which is a result of the husband’s behavior and therefore the wife is entitled to a get.",
+ "Responding to this posture of Ohr Zarua and Rabbeinu Simhah, Rabbi Yosef Karo in Beit Yosef demurs, stating:",
+ "We cannot rely on their words . . . to coerce . . . since it is not mentioned by any one of the renowned authorities.",
+ "In light of the view of the Beit Yosef’s predecessors who argue that since the Mishnah and/or Talmud failed to explicitly mention that spousal battery is a ground for divorce (ilat gerushin) which mandates get coercion, a beit din may not issue a compulsion order. And this view was subsequently established in Rabbi Karo’s Shulhan Arukh. Yet, Rabbi Karo concurs that a husband may be obligated to give a get.",
+ "Therefore, the rationale for the opposition to coercing a husband who is a batterer to give a get is based upon their understanding that the resultant get is deemed “a coerced get” (“a get me’useh”) and consequently it is invalid. Consequently, should the wife remarry relying upon this get and have children, the offspring would be labeled as halakhic bastards (mamzrerim). Since a halakhic bastard is the product of an incestuous relationship, the fact that the get was invalid means that in effect she was still married to her first husband when she had children with her “second marriage.”",
+ "In the wake of Beit Yosef’s posture, Darkhei Moshe rules:",
+ "I don’t see his words at all because it is worthwhile relying upon the Geonim, a fortiori given that Ramban and Maharam [also] agree in their responsa concerning assaulting a wife (that these are grounds to obligate a get – AYW) and they brought clear proofs to their words and logic agrees with them.
And the fact that it isn’t mentioned (the reason that spousal battery is not mentioned in the Talmud as a ground for a get – AYW), one possibly could say that it was obvious in their eyes . . . and it did not happen in their days (that there was a phenomenon of spousal battery – AYW). . . .",
+ "Numerous decisors subscribe to Beit Yosef’s and Darkhei Moshe’s posture that one cannot coerce a husband who assaults his wife to give a get when he is mentally dysfunctional and physically abusive is a matter.",
+ "In sum, there are two grounds for divorce (ilot gerushin), namely that Michael was mentally dysfunctional and engaged in spousal battery. Whether there are grounds to coerce him to give a get is a matter of debate.",
+ "In terms of translating these two disputes in terms of doubts, we may state that there exist two halakhic doubts (sefeikot de’dina): one doubt is whether one can coerce a get when dealing with a mentally dysfunctional husband, and a second halakhic uncertainty is whether one may coerce a husband who assaults his wife to give her a get. The doubt regarding domestic violence emerged later than the doubt dealing with his psychological state. In other words, initially Michael suffered from a psychological disorder and subsequently he engaged in battery.",
+ "Lest one challenge the position that we are dealing with a double doubt due to the fact that both doubts did not emerge at the same time, clearly there is a debate as to whether two factual doubts must emerge simultaneously. However, in our case when dealing with a halakhic doubt, the two doubts may emerge one after the other.",
+ "As we examined in the earlier portion of this monograph, there is a Yerushalayim Regional Beit Din ruling which addresses our issue. As we stated earlier:",
+ "The aforementioned decision of the Yerushalayim Regional Beit Din focuses upon a suit for divorce filed by a woman on grounds of repulsion of her husband following a verdict in the civil court that convicted the husband of obscene acts carried out on minors. In its argumentation, the panel addresses whether there is a basis for coercing a get when a wife advances a plea of “he is repulsive to me” accompanied by a clear pretext. Though there were a few decisors who subscribe to get coercion under these circumstances, the majority reject this view. Moreover, some authorities would not even obligate a get in these circumstances. Secondly, the beit din explores whether there would be grounds to coerce a get due to the fact that the husband acted deceitfully when he refrained from disclosing to his wife prior to their marriage that he was a convicted pedophile. Here again, upon beit din review; it was found that the propriety of a get compulsion order was equally a matter of halakhic debate.",
+ "Without elucidation, the panel posits that since a doubt regarding the propriety of get coercion entails a biblical doubt, therefore we are dealing with a double halakhic doubt on a biblical level, where a get may be coerced.",
+ "As we mentioned, it is clear from reading the Yerushalayim Regional Beit Din’s decision that the fact that most authorities rule against the propriety of get coercion prevents the invoking of a double doubt, and said conclusion is also supported by other authorities. However, it is our understanding that Bahag, Rif, Rambam, Rosh (possibly), Ra’avad, Semag, Ramah, Meiri, Ritva, Rabbi Yosef Karo (possibly), Rabbi David ibn Zimra, Rabbi Mordekhai ha-Levi, Hida, Rabbi Ya’akov Emden and Rabbi Ovadiah Yosef all rule that under certain conditions (e.g. a doubt as to what the Halakhah ought to be), a Torah doubt (a sefeika de’oraita) ought to be resolved stringently on a rabbinic level. In pursuance to this tradition that we are dealing with a rabbinic matter, there is no requirement that the double doubt represent that the authorities are equally divided (i.e. shakul) to determine whether one may coerce a get in order to free the wife without a get. Even if one side of the doubt reflects a minority opinion, the double halakhic doubt will be effective. Finally, given that the rule of “following the majority” is applicable only to resolving issues within the confines of a beit din proceeding, one cannot speak of a majority opinion and minority opinion concerning intergenerational disputes. As such, the requirement that the decisors be equally divided regarding a pending issue is not mandated regarding a double doubt.",
+ "Moreover, even according to Rashba and others that a doubt by biblical law ought to be resolved stringently on a biblical level, that does not necessarily mean that the application of a double uncertainty will be ineffective. The consequent leniency associated with the implementation of a double uncertainty is due to the rule of following the majority (“aharei rabbim le’hattot”). The existence of one doubt creates a situation of 50/50 uncertainty (“ke-mehtza al mehtza dami”), and then the second doubt creates a majority which results in treating the matter leniently on a Torah level. In accordance with many legists, this approach is the dominant understanding as to why the employment of a double doubt will be effective. Given the above lines of reasoning, there is no prerequisite that the doubt must be even, namely that the arbiters would be equally divided concerning the propriety of the issuance of a get compulsion judgment prior to employing the rule of the double doubt. As such, relying upon a well-trodden tradition (mesorah) of Ashkenazic as well as Sephardic legists that sanctions the employment of a double uncertainty concerning a matter of personal status (ishut), the invoking of the double doubt regarding get coercion under certain conditions will trump the presumption that she is a married woman and will reinstate the original presumption of being a single woman (a penuyah).",
+ "Based upon the foregoing, in our case, we have a double doubt which is grounded in the two halakhic debates whether there are grounds for get coercion when dealing with a husband who is mentally dysfunctional and engaging in domestic violence. Relying upon the precedential opinion of the Yerushalayim Beit Din, we have grounds to void the marriage based upon invoking a double halakhic doubt regarding get coercion. In short, in the wake of a get recalcitrant husband, we deem the matter as “an hour of emergency” (sh’at ha-dehak) and a priori (le-hatehillah) we can void the marriage based upon a double halakhic doubt."
+ ]
+ }
+ },
+ "Epilogue": [
+ "In the wake of rabbi or a beit din’s inability to persuade a husband to give a get to his wife, there are various techniques, one of them dating back to early thirteenth century Ashkenaz, which empower halakhic authorities under certain conditions to free a wife to remarry without the issuance of a get by her husband. Yet as we have noted elsewhere, there are decisors who are reluctant to void a marriage.",
+ "Addressing a situation of an agunah who requests that her marriage be voided due to the fact that both witnesses during the kiddushin were invalid, as they violated the Shabbat and committed other sins, following implicitly earlier rulings, Rabbi Aharon Walkin, who resided in Pinsk-Karlin, Ukraine, responds to such a petition in the most trenchant terms:",
+ "It is improper in my eyes to adopt this path, to criticize the act of kiddushin eight years after the wedding. . . . You must understand that such advice can destroy the purity of Israel . . . to multiply mamzerim in the midst of a holy nation; the marital bond from now will not be sustained. . . . And the stringency of being married will be nullified. . . . Therefore, eight years after the wedding . . . we should not inquire for guidance to void the marriage. . . .",
+ "His view is by far not one of “a lone ranger”. Concerned about “the slippery slope,” Rabbi Hayyim Berlin, the son of the renowned Rabbi Naftali Tzvi Berlin, lambasts those arbiters who engage in voiding a marriage (bittul kiddushin) via invoking a clear expectation (umdana de’mukha), by stating the following:",
+ "One cannot imagine the damage and the breaches that can emerge from this in our dissolute generation . . . they will begin comparing one matter to another one – in the beginning, they will permit based upon umdanot (assessed expectations) . . . they will permit (to remarry) every wife whose husband who has traveled overseas to America or Africa. . . . And afterwards they will permit . . . if a person will promise a certain amount of nedunya (dowry) and subsequently it will be discovered . . . that he cannot keep his promise, they will say, “in her mind she would not have submitted to this marriage” . . . and mamzerim will multiply in Israel.",
+ "Finally, in situations where a husband fails to disclose to his prospective spouse prior to the marriage that he possesses a major defect, such as being impotent or being gay, these authorities will direct the husband to give a get on rabbinic grounds lest people would err, thinking that a married woman leaves her husband without the execution of a get. In other words, they will not know that the voiding of the marriage in the particular case was due to an error and therefore that execution of a get is otherwise required. Clearly, based upon this line of reasoning, some decisors may equally oppose utilizing the techniques of the double doubt as well as “a clear expectation” (umdana de’mukha) of the wife to void a marriage involving a get recalcitrant husband.",
+ "In the wake of this strident opposition to voiding marriages, it is unsurprising to encounter today numerous rabbis and rabbinical courts throughout the world that endorse this halakhic tradition, and staunchly refuse to void marriages. The net result is that there are many women, whether they are Orthodox, Conservative, Reform or unaffiliated Jews, who remain victims of get recalcitrance. Though many of these women remain committed to their values and continue to live for years exhibiting fidelity to their estranged spouses, regretfully others become irreligious and engage in promiscuity.",
+ "In light of the Orthodox rabbis and rabbinic courts who adopt the posture that voiding a marriage is not an option for addressing the plight of the agunah, what can be done to deal with the plight of the agunah? As we will see, both the rabbis as well as the rabbinical courts may be capable of improving the state of affairs, namely, the husband’s willingness to give the get or the wife’s readiness to receive a get without deliberating as to whether there is a possibility to void a marriage.",
+ "For many years, we have observed situations where a recalcitrant spouse chooses to condition the giving or the acceptance of a get upon a prior resolution of all end of marriage matters such as dividing marital assets, parenting and custody arrangements, child support and the execution of a civil divorce. Regretfully, on at least two occasions, there is one beit din located in Monsey, New York which has allegedly given the dispensation of 100 rabbis (heter me’ah rabbanim) enabling a get recalcitrant husband to marry a second wife. In both situations, a get has been deposited at the beit din and would be given to the wife on the condition that the husband’s demands regarding custody and renumeration of hundreds of thousands dollars would be met. Given that in both cases, the wife wants to receive her get, in accordance with the views of Rabbis Elyashiv and Feinstein one cannot place any obstacles in her receiving her sought after get and consequently there is no basis for such a dispensation. Such conduct raises a variety of halakhic issues which we will address here in the context of get recalcitrance on the part of the husband.",
+ "To understand the ramifications of conditioning the giving of a get, let me share a few cases that I have encountered in recent years in my work as a dayan (a rabbinic arbitrator).",
+ "A couple has been separated for over eighteen years. Approximately a dozen years ago, a civil divorce was executed. To this day, the defendant has made the giving of a get conditional upon the withdrawal of the plaintiff’s threat to file a claim in civil court for the defendant’s failure to pay alimony by executing a post-divorce agreement that states that the parties mutually agreed that all of their end of marriage matters have been resolved. Given that the plaintiff refuses to accede to his request, she remained an agunah until we recently freed her. Such egregious conduct is not an isolated incident. In another case, after ten years of litigation in civil court followed by the subsequent issuance of a civil divorce, the wife then received her get. The delay in resolving the end of marriage matters such as the division of marital assets and alimony was due to the fact that on numerous occasions, the husband changed his attorney. In other scenarios, albeit very common ones, from the time of the onset of litigation in a civil court, the process generally takes one to two years to be completed before a civil divorce has been executed, and only then does the wife receive her get.",
+ "During this period of litigation, many American rabbinical courts do not address whether there is a duty of the husband to give a get to his wife. Halakhah recognizes two distinct grounds for obligating a get. Firstly, as we know, whether a husband is obligated to give a get, generally speaking, hinges upon whether there exists an ilat gerushin, a ground for divorce which would require a man to give a get. These grounds for divorce may be subdivided into two categories. One category is a wife’s physical defect such as the inability to conduct conjugal relations with her husband, such as being afflicted by a contagious and/or dangerous disease or by dint of her revulsion of his body odor which is linked to his occupation. On the other hand, a husband’s inappropriate behavior may serve as a justification for divorce. For example, spousal rape, refusal to cohabitate with his wife, physical and/or emotional divorce of his wife, or refusal to financially support her may serve under certain conditions as a claim for coercing or obligating a husband to give a get. Secondly, according to various decisors, a get ought to be given in the wake of a couple being separated for over a year or eighteen months where there are no prospects for marital reconciliation (shalom bayit). Numerous contemporary Israeli rabbinical courts adopt this position. Clearly, these American rabbinical courts may be espousing the opinion of others who argue that “a dead marriage” per se will not serve as grounds for obligating the husband to deliver a get to his wife. As such, they generally refrain from issuing a divorce judgment based upon irretrievable marital breakdown. Yet, generally they equally refrain from rendering a divorce decision stemming from a ground for divorce.",
+ "Even assuming a beit din would hand down a divorce decision that obligates a husband to give a get, and, assuming the husband readily agrees, can a get be properly executed while resolution of other end of marriage matters are still pending? In other words, the emerging issue is whether all the end of marriage issues, such as awarding the value of the ketubah, parenting arrangements, child support and the division of marital assets must be resolved prior to the execution of the get. Many American rabbinical courts (battei din), as well as American Orthodox rabbis, will counsel their clientele and constituency respectively that a get must be given only after all end of marriage issues have been resolved and/or a civil divorce has been executed. Consequently, it is unsurprising to encounter situations such as the ones described above in which a wife remains halakhically married to her spouse despite the fact that there has been longstanding marital breakdown and separation, a period marked by the absence of conjugal relations, no spousal support, and no prospects for marital reconciliation accompanied by years of divorce litigation. Yet, relying upon the aforesaid rabbinic counsel under such circumstances, the woman has no realistic expectation that the get will be forthcoming in an expeditious fashion.",
+ "The question is whether there is a basis for such a halakhic posture. Relying upon Mahari Mintz’s guidelines for executing a get, Rema states:",
+ "And the scholar who is preparing the execution of the get says to her: “Please know that you will be divorced with this get from your husband.” And the rabbi will inquire after the ketubah (the husband paying the value of the ketubah – AYW) that the husband will return the (value of the – AYW) ketubah or she will waive her right to it lest they start quarrelling due to the (value of the – AYW) ketubah with the result that the husband will say, “on this condition I didn’t divorce her.”",
+ "As such, given that that the get was given in error (a get mut’eh – AYW), the consequence will be a retroactive annulment of the get. Other authorities, albeit only a few, agree with this position.",
+ "Addressing this minority view, Taz notes that it was rejected:",
+ "And it is not on the side of truth and that nearly all rabbis have already disagreed with it, and forcefully rejected it.",
+ "Explaining this view, Rabbi Ya’akov Ettlinger writes:",
+ "Since not everyone is versed in Halakhah, Rabbi Mintz argues that there will always be slander if the husband shouts that he divorced her in error and therefore the get is null and her children will be halakhic bastards (mamzerim), even though the truth is otherwise.",
+ "Based upon the fear of a wrongful get, we can understand the position that all end of marriage issues ought to be resolved prior to executing a get.",
+ "However, the majority of authorities argue, explicitly or implicitly, that the get procedure (the seder ha-get) entails a husband’s nullification of all prior conditions (bittul moda’ot). Consequently, there is no basis for a husband claiming that it was an erroneous divorce due to the fact that his wife reneged on an earlier commitment concretized in a divorce agreement, or that had he known that a particular matter which was resolved after the execution of a get was to his detriment, he never would have divorced her.",
+ "Even if one adopts the majority opinion that opposes the retroactive annulment of a get due to a breach of the divorce agreement or the resolution of a matter to the husband’s detriment after the execution of the get, there is an additional reason that all matters must be resolved before the giving of a get. One arbiter states that with the advent of the execution of a Jewish divorce, “the husband and wife should not be bound by any connection or condition in the world,” which has been understood to mean that neither spouse should file any claim after the execution of the get, lest the couple remain susceptible to committing a sexual prohibition.",
+ "Upon a closer scrutiny of the Halakhah, we encounter a more nuanced approach to how a divorced couple ought to conduct themselves. On one hand, to avoid the engagement in intimate relations or even a suspicion thereof, an ex-husband shall refrain from living with her in the same courtyard, and to avoid social interaction, the couple ought not to proceed to a beit din proceeding together. However, according to certain opinions, should he enter a home or her house by chance there is no prohibition, since he is not living there or interacting with her. And some adopt a stricter opinion, lest such meetings lead to the engagement in prohibitions.",
+ "On the other hand, to minimize interaction with one’s ex-spouse, should a wife have lent money to her ex-husband, she should appoint an agent to demand its return. Similarly, an ex-husband may support his ex-wife on the condition that he refrains from interaction with her and that he appoints an agent to implement support measures.",
+ "Consequently, it is unsurprising that there will be instances when the value of the ketubah will be paid to the wife after the get has been executed. As we know, accompanying a decision to obligate a get there is a judgment to obligate the husband to pay the value of the ketubah. Though numerous legists argue that the value of the ketubah ought to be paid prior to executing the get, there are decisors who allow the ketubah to remain a debt which can be paid by the husband after the get is executed. Others argue that if the husband is giving the get voluntarily then the value of the ketubah must be paid prior to the divorce. However, if the beit din is obligating him to give a get then the value of the ketubah may be paid after the execution of the get. Finally, in a situation of a second marriage of spouses who despise each other, when there are no prospects for marital reconciliation and each one wants to be divorced, one may rely upon those authorities who argue that divorce ought to occur immediately and the value of the ketubah may be paid after the couple is halakhically divorced. In sum, under certain circumstances a husband may pay the value of the ketubah after the execution of the get.",
+ "In contemporary times, a cursory review of some of the rabbinical court judgments handed down by the courts under the Israeli Chief Rabbinate will show that in fact divorce judgments are rendered without being contingent upon a prior resolution of the outstanding financial issues and parenting arrangements of the divorcing couples. Regardless of whether the claims are being dealt with in beit din or in civil court, the beit din issued decisions which recommend, obligate or coerce the giving of the get. In fact, on January 26, 2020, I was invited to listen to five divorce cases at the Yerushalayim Regional Beit Din. In the midst of one of the cases where the parties were exchanging arguments regarding an end of a marriage issue, the beit din allotted time to execute the get procedure (seder haget) for this couple. By the end of the session, the discussion of the end of marriage matter by the parties was finished and the get had been given to the wife.",
+ "Rather than advising divorcing couples that the arrangement of the get may await the resolution of all their monetary issues either in a beit din or in civil court (halakhically sanctioned – heter ar’kaot) and the issuance of a civil divorce, American rabbinical courts and rabbis ought to follow the approach that once it is clear that there is a halakhic basis to give a get, its execution ought to transpire, and that any financial matters and parenting arrangements will be addressed afterwards.",
+ "In effect, the American Orthodox rabbinic network ought to adopt the protocols employed by Israel’s Chief Rabbinate rabbinical court which has been described in the following fashion:",
+ "The common practice in the rabbinical courts in Israel is that before the giving of a get, the beit din which executes the get (the mesadeir ha-get – AYW) informs the husband that he should know that there is no connection between the financial matters which were resolved and concretized in an agreement which was signed and reviewed by the beit din . . . and the get. And the husband should be aware that if the wife breaches the entire agreement or portions of it, he still is giving the get voluntarily . . . unconditionally and he cannot say (due to the breach – AYW) I have not divorced her . . . Only after he understands and affirms his agreement, the beit din executes the get.
The rabbinical courts make every effort to persuade the parties to resolve all the monetary issues and children (parenting arrangements – AYW) prior to the get. However, there are instances where it is impossible (to finalize these matters – AYW). . . . In such cases, the beit din agrees that each party shall retain its right to file a claim, and they warn the husband that he is giving the get unconditionally even if it emerges that he erred. Namely, a claim that he intended to submit against his wife was ultimately rejected in a proceeding which took place after the get, or a claim was advanced by the wife which he thought she would never succeed according to Halakhah (or secular law if the claim is occurring in a civil court – AYW), yet she won the suit. . . .
This “etched in stone” (“nehe’retzet” – AYW) determination that all financial matters are to be completed prior to the get is a stringency that may potentially lead to a leniency. . . . Delaying the arrangement of the get by a beit din when the parties are agreeable in order to wait until the monetary claims and children are completed . . . will cause many stumbling-blocks of remaining a married woman (potential of incestuous relationships – AYW) and God forbid the proliferation of bastards. And this is when the beit din is the one that delays the get, while the husband stands and screams that he is willing to give a get unconditionally.",
+ "In the aforementioned case of the couple who was separated for eighteen years, the husband was a secular Jew, who was only willing to give a get conditional upon the withdrawal of the plaintiff’s financial claims in the civil court. The fact that he was separated from his wife since 1998 and a civil divorce was executed in 2006 did not propel him to date to give a get to his wife. Since he is irreligious, he had no interest in having the matter of the get adjudicated in a beit din setting. Regretfully, even some divorcing husbands who identify themselves as being members of the Torah-observant Jewish community have equally refused to accede to their wives’ requests to address the matter of the get even after a civil divorce has been executed. As such, we need to execute the get prior to resolving the end of marriage issues lest we continue to experience get recalcitrance even after the execution of a civil divorce!",
+ "Invoking a Mishnah and a Talmud passage found in Tractate Ketuvot, post-Talmudic arbiters have endorsed this position, namely that end of marriage issues may be resolved after the giving of a get. As we know, halakhic engagement (kiddushin) entails a promise between a Jewish man and a Jewess to contract a marriage. One of the consequences of this engagement is the establishment of a personal status which remains until the death of either spouse or their divorce. As such, should the marriage fail to materialize, a divorce is mandated.",
+ "That being said, if one promises money to his son-in-law as a dowry and then he defaulted, the Rabbis argue that he may leave her in the state of engagement until the father-in-law redeems his pledge. However, Admon contends that the groom must marry her without the dowry or divorce her. In other words, according to Admon, the issue of the nonpayment of the dowry has no impact upon the giving of the get. And many authorities endorse Admon’s view.",
+ "Based upon the foregoing, we have shown that there is a persuasive and strident halakhic tradition of resolving financial issues and parenting arrangements after a get has been given. As such, both the American Orthodox rabbinate as well as the American battei din ought to insist that a husband address the matter of the get even prior to the resolution of end of marriage issues. Following their Israeli counterpart, American rabbinical courts ought to be willing and ready to recommend the giving of a get, issue a judgment of “mitzvah to divorce,” or obligate a get unconditionally to a divorcing couple who consent to their jurisdiction and will hopefully heed their rulings.",
+ "Should a beit din fail to summon the husband to a hearing regarding the matter of the get, American orthodox rabbis ought to function as arbiters of prohibitions and permissibility (“mo’reih hora’ah”), and rabbinic courts ought to function as arbiters of prohibitions and permissibility, addressing the wife’s inquiry as to whether there are grounds to give a get. Should the arbiter determine that there is a ground(s) for the husband to give a get, and if upon notification of that determination to the husband he refuses to give one, the beit din ought to direct the community to religiously, socially and economically isolate him, measures known in rabbinic parlance as “harhakot of Rabbeinu Tam.”",
+ "Furthermore, in the event that the beit din renders a judgment that he is obligated to give his wife a get and he refuses to give one, the husband remains obligated to support his wife. As such, a wife may advance a claim for this maintenance in the beit din should her spouse fail to pay her. In effect, the imposition of this support duty is a means to pressure the husband to give a get, a claim which does not run afoul of the strictures of “a coerced get” (a get me’useh).",
+ "This “etched in stone” (“nehe’retzet” – AYW) determination that all financial matters are to be completed prior to the get is a stringency that may potentially lead to a leniency. . . . Failure to follow such a procedure to address the enforcement of the get in beit din accompanied by mandating support due to get recalcitrance has and only will continue to exacerbate the suffering of women whose delivery of their divorces (gittin) are delayed, to pose “many stumbling-blocks of remaining a married woman (potential of incestuous relationships – AYW) and God forbid the proliferation of bastards” as well as potentially promote a husband’s engagement in illicit affairs.",
+ "On the other hand, those who invoke all or some of the techniques to void a marriage are well aware that “the conditions of the time” mandate such action. Distinguishing between the period of the Talmud and contemporary times, Rabbi Tzvi Pesach Frank observes:",
+ "During the time of the Talmud there were Jewish arbiters who were empowered to coerce him (a husband to give a get- AYW) and today where we are not authorized to coerce him, we may say that it is a transaction in error.",
+ "Moreover, in the wake of the absence to mete out get coercion, the empowerment to void a marriage under certain conditions is not based only upon “a marriage in error” (kiddushei ta’ut) but as Rabbi Frank argues is equally upon utilizing “the wife’s clear expectation of the marriage” (umdana de’mukha).",
+ "Finally, the fear “lest that the daughters of Yisrael may succumb to licentiousness” (shema tetzena benot Yisrael le’tarbut ra’ah) due to their husband’s recalcitrance in giving a get has propelled authorities throughout the ages to find solutions for both the classical agunah whose husband has disappeared as well as the modern day agunah whose husband refuses to give a get. As recently noted, a husband or wife engaging in illicit affair(s) is a prevalent phenomenon today in the world of orthodox Jewry. As such, the fear of promiscuity may emerge in a case of get recalcitrance (igun). And in the over 155 cases that I have dealt with during the span of over six years, unfortunately licentiousness does exist in all segments of the orthodox Jewish community and has transpired either when the couple is living together and/or when a couple is separated and no get has been forthcoming. Though in the past, this fear has driven arbiters in Israel to coerce a get under such conditions, today in the Diaspora such an option fails to exist and as we mentioned earlier we are instructed by our decisors that under such conditions we may void marriages.",
+ "Whereas others who refuse to void a marriage are being lenient regarding the prohibition of halakhic bastardy (mamzerut) since a husband’s get recalcitrance may and has resulted in the wife engaging in an illicit affair(s) and/or the siring of offspring from this relationship, there are those rabbinic arbitrators (dayanim) or arbiters of prohibitions and permissibility (“morei hora’ah”) who are being stringent regarding this prohibition by invoking under certain conditions various techniques to free the wife without a get lest promiscuity and/or halakhic bastardy transpire."
+ ],
+ "Addendum": [
+ "Page 12, n. 4. What is the difference between voiding a kiddushin (halakhic betrothal-loosely translated as marriage) and annulling a kiddushin?",
+ "The four scenarios in six discussions in the Talmud Bavli serve as the Talmudic precedents for empowering our rabbis (“kol ha’me’kaadesh adata de’rabbanan me’kadesh”) to annul a kiddushin. One type of annulment addresses a husband who instructed a get ought to be delivered to his wife and either granted it to her contingent upon the fulfillment of a certain condition or forwarded it to her via an agent and subsequently changed his mind and attempted to annul the get. Under such circumstances, Halakhah allows for the retroactive annulment of the kiddushin (“afk’inhu rabbanan le-kiddushin minei”).A second type of annulment transpires after the kiddushin and/or the marriage (nissuin)where a get was drafted and delivered either to an agent of the wife or to the wife herself but was subsequently invalidated. In both instances, the annulment is contingent upon the wife receiving a get (a get kol de’hu) even if the giving of it is against the husband’s will.",
+ "However, the two Talmudic cases recorded in Yevamot 110a and Bava Batra 48b dealing with annulling a kiddushin due to a prospective husband acting inappropriately during the time of the kiddushin does not require the giving of a get. Lest one argue that we are empowered to annul a marriage without a get based upon the above Talmudic precedent in other situations such as the modern-day agunah where a husband refuses to give a get, our authorities rule that annulment is limited to the cases memorialized in the Talmud.",
+ "On the other hand, there are various techniques recognized under certain conditions by our authorities for voiding a kiddushin. For example, if a husband intentionally or unintentionally fails to disclose to his prospective wife before the marriage a major defect(mum gadol) such as being mentally dysfunctional, gay, a criminal, impotent, or sterile. In other words, it is “a marriage in error” (kiddushei ta’ut) and if the marriage is voided the wife is free to remarry without a get. In sum, whereas invoking marital annulment mandates the giving of a get, voiding a marriage has no such requirement. Whereas, marital annulment is premised upon a bona fide halakhic kiddushin, voiding a kiddushin is predicated upon the conclusion that there never was a halakhic kiddushin.",
+ "Page 13, n. 4. On the one hand argues Rabbi Avraham Sherman that given that the Torah scholars of the Jewish community are capable of identifying who are “the Torah giants of their generation” therefore we are dutibound to comply with their rulings in particular in the realm of marriage, divorce and conversion.",
+ "Consequently, as we noted some contemporary authorities rely upon this position to invoke the argument that voiding a marriage is within the jurisdiction of Torah giants of the generation only.",
+ "However, as we have observed, there is well-grounded tradition (mesorah) that opine that voiding a marriage resides in the hands of credentialed halakhic decisors.",
+ "Similarly, Rabbi Dovid Babad, a renowned 19th century authority communicates to us the following tradition that he received:",
+ "“I heard from ha-Gaon Rav Barish Rappaport . . . that he had a tradition from his Rav, ha-Gaon Noda Bashearim, ha-Av Beit Din of Lublin, that upon receiving a question to address, he would first weigh in his mind the truthfulness of the matter according to what human reason dictates and if in his estimation human reason the matter is true, then he will delve into Halakhah to arrive at a decision.”",
+ "By invoking this tradition which addresses the mission of the credentialed arbiter in rendering a ruling in every realm of Halakhah, twentieth century Torah giants, Rabbis Ya’akov Breisch and Yitzhak Weiss convey to us that resolution of all cases including classical agunah questions where the husband is missing is within the purview of a rabbinic authority rather than only to be addressed by a Torah giant. Moreover, a credentialed decisor may overrule a Torah giant provided that he submitted proofs to support his position.",
+ "Clearly, when dealing with an issue such as the propriety of introducing the solution of a conditional marriage (tenai be-nissu’in) as one of the avenues of establishing marital procedures for the Jewish community, there exists a practice (a nohag) to enlist the consensus of Torah giants of the generation in order to validate these procedures.",
+ "However, when dealing with private matters of conversion and marriage and divorce, every beit din and/or rabbinic authorities are empowered to resolve these issues.",
+ "Page 17, n. 17. Voiding a marriage may under certain conditions be executed in a situation of a dire need upon the reliance of a singular view entailing the Biblical matter of the prohibition of a married woman (an eishit ish).",
+ "Given that the application of following the majority rule is limited to resolving issues within the confines of a halakhic-judicial proceeding (a moshav beit din) where give and take transpires face to face between the dayan and the minority may express his view, throughout the ages we usually are dealing with an intergenerational and/or international dispute where we do not have the ability to decide which opinion carries greater or lesser weight.",
+ "That being said some arbiters contend that even if normative Halakhah is reflective of the majority issue regarding a particular issue, nevertheless one may invoke a double halakhic doubt even with the minority view in variance with the majority opinion.",
+ "Page 55, n. 12. Upon a pending divorce where a beit din obligates a get and a wife refuses to accede to her husband’s demands, it may be viewed by the Israeli rabbinical courts as “chaining herself” (me’agenet et atzma) to the marriage . Said conclusion is contingent upon the beit din understanding that these demands are rational such as a husband requesting custody be given to him rather than to his parentally unfit wife or recovering monies stolen from him by his spouse. In other words, the beit din panel may attempt to persuade the wife to remit stolen assets or other benefits which are reasonable demands in order that he may be willing to give a get. Under such conditions, should a wife refuse to comply with such demands, a husband’s get recalcitrance is halakhically legitimate.",
+ "Page 61, n. 31. On the other hand, we should note that there are many authorities who will invoke as a supporting argument for leniency (senif le’hakeil) Rambam’s controversial posture memorialized in Mishneh Torah, Ishut 14:8 that upon a wife advancing a plea of repulsion rather than attempting to torment him, a get may be compelled in a situation of “an hour of emergency” and get recalcitrance.",
+ "Page 80,n. 23. Lest one contend that one should validate the witnesses and thus the act of kiddushin based upon the adoption of the stringent view, Rabbi Yitzhak Elhanan Spektor opines otherwise. In Rabbi Spektor’s mind, in a case of invalid witnesses one ought to follow the lenient opinion which he characterizes as “the letter of Halakhah”(ikar hadin) and concludes that the kiddushin be voided rather than act strictly based upon a stringency.",
+ "Page 83, n. 37. For precedent for those decisors who argue that “we are witnesses” may be employed as a means to validate testimony for the establishing the act of kiddushin, see Mordekhai, Kiddushin 531; Beit Shmuel, SA EH 42:12.Cf. additional antecedents for those arbiters who reject the mechanism of “we are witnesses” as an avenue to validate testimony, see Teshuvot ha-Rashba 1:1193; Rema, SA EH 42:4; Tumim, HM 90:14.",
+ "Page 98, n. 7. Pursuant to Israeli law, all marriages are to be conducted by rabbis who are recognized by the Chief Rabbinate. Accordingly, private marriages are a contravention of Halakhah and may be subject to an annulment (hafka’at kiddushin) or voiding of the marriage (bittul kiddushin).",
+ "Page 128, line 21. As we have demonstrated in the wake of the controversy between Rosh and Rashba, the propriety of utilizing a borrowed ring generates a halakhic doubt regarding the validity of the act of kiddushin. As such one may combine this doubt with the other doubt(s) which we presented concerning the act of kiddushin and rule leniently. Cf. other authorities who mandate the existence of at least three doubts prior to ruling leniently.",
+ "Page 181, n. 74. Construing the voiding of a marriage based upon an “error in the marriage” (kiddushei ta’ut) to be grounded in “the meeting of the minds” (gemirat da’at) which is consummated by the act of kiddushin or based upon the violation of a condition (tenai) is subject to debate amongst other decisors.",
+ "Page 315, n. 30. Clearly, if the proceeding dealing with end of marriage issues will not be lengthy, the get ought to be executed after the completion of the proceeding.",
+ "Page 230, n. 74. Cf. other arbiters who argue that if epilepsy is viewed as a major defect (a mum gadol), then the wife never accepted her husband’s epilepsy.",
+ "Page 318, n. 36. . . . January 25, 2018. There are some rabbinical courts who refrain from obligating a get due to the decisors who contend that should there emerge a halakhic error in obligating a husband to give a get in the particular circumstances, a coerced get (a get me’useh) is generated. In other words, his willingness to give a get was predicated upon his perception that Halakhah mandated that a get ought to be given. As such, he willingly gave a get to his wife. In the wake of the emergence of the error, it became clear that Halakhah did not mandate a get ought to be given. As such the giving of it is halakhically construed as being coerced. And there are others who argue “a get in error” (a get mut’eh) has been produced. In other words, had the husband known that there was no basis to execute a get; he never would have given it. Consequently, the divorce via the get is null and void.",
+ "For one of the most systematic and comprehensive treatments of the halakhic concept of “a get in error”, see Ateret Devorah 1:86. For a recent practical application of this concept, see File no. 1066559/12, Yerushalayim Regional Beit Din, March 27, 2020."
+ ]
+ },
+ "versions": [
+ [
+ "Rabbinic Authority: The Vision and the Reality, Urim Publications. Jerusalem, 2013",
+ "https://www.nli.org.il/he/books/NNL_ALEPH997009861531405171/NLI"
+ ]
+ ],
+ "heTitle": "סמכות רבנית כרך ה",
+ "categories": [
+ "Halakhah",
+ "Modern",
+ "Rabbinic Authority Series"
+ ],
+ "schema": {
+ "heTitle": "סמכות רבנית כרך ה",
+ "enTitle": "Rabbinic Authority V",
+ "key": "Rabbinic Authority V",
+ "nodes": [
+ {
+ "heTitle": "פתח דבר",
+ "enTitle": "Preface"
+ },
+ {
+ "heTitle": "חלק א",
+ "enTitle": "Part 1; Rabbinic Authority; The Vision",
+ "nodes": [
+ {
+ "heTitle": "פרק א",
+ "enTitle": "Chapter 1; The varying definitions of a halakhic doubt"
+ },
+ {
+ "heTitle": "פרק ב",
+ "enTitle": "Chapter 2; The foundations for invoking a double halakhic doubt to void a marriage"
+ },
+ {
+ "heTitle": "פרק ג",
+ "enTitle": "Chapter 3; The employment of a double halakhic doubt regarding get coercion in order to void a marriage"
+ }
+ ]
+ },
+ {
+ "heTitle": "חלק ב",
+ "enTitle": "Part 2; Rabbinic Authority; The Reality",
+ "nodes": [
+ {
+ "heTitle": "פרק ד",
+ "enTitle": "Chapter 4; Case studies of a wife's claim for voiding a marriage and levirate marriage (\"yibum\")",
+ "nodes": [
+ {
+ "heTitle": "א",
+ "enTitle": "a) The halakhic impropriety of a marriage ceremony"
+ },
+ {
+ "heTitle": "ב",
+ "enTitle": "b) A marriage conducted by one who is not an expert in the nature of kiddushin"
+ },
+ {
+ "heTitle": "ג",
+ "enTitle": "c) The wedding ring; A borrowed ring or a gift on the condition to return it?"
+ },
+ {
+ "heTitle": "ד",
+ "enTitle": "d) A husband who does not engage in conjugal relations (\"onah\")"
+ },
+ {
+ "heTitle": "ה",
+ "enTitle": "e) A husband who is a philanderer"
+ },
+ {
+ "heTitle": "ו",
+ "enTitle": "f) A husband who engages in spousal battery and child abuse"
+ },
+ {
+ "heTitle": "ז",
+ "enTitle": "g) An epileptic husband"
+ },
+ {
+ "heTitle": "ח",
+ "enTitle": "h) A husband who is a pedophile and a philanderer"
+ },
+ {
+ "heTitle": "ט",
+ "enTitle": "i) A childless widow whose lot fell to an apostate brother in law"
+ },
+ {
+ "heTitle": "י",
+ "enTitle": "j) The battered woman syndrome"
+ }
+ ]
+ }
+ ]
+ },
+ {
+ "heTitle": "סוף דבר",
+ "enTitle": "Epilogue"
+ },
+ {
+ "heTitle": "השמטות",
+ "enTitle": "Addendum"
+ }
+ ]
+ }
+}
\ No newline at end of file