By Rabbi Yair Hoffman
Most people are already sensitized to how horrible it is to withhold a get from one’s (would-be) ex-wife. It causes needless pain and suffering, not to mention major chillul Hashem. Recently, this author posed the following question to a major posek: “Is it ever permitted to withhold the giving of a get?”
The posek responded that it was never permitted to withhold a get in order to try to negotiate better divorce terms, but it is permitted to do so in response to false legal accusations that are causing a continuing negation of the father’s rights to see his children. The posek claimed that when a false report has been filed against a husband and the husband is not allowed to see his children as a direct result of the false report, he may, with the permission of a reliable posek, withhold the get as leverage to ensure that the situation is rectified.
The reason behind the ruling is not, heaven forbid, to punish the woman, but rather to effectuate the relief of an untenable ongoing situation. Halachically, this dispensation is a form of the Talmudic concept of Rav Nachman in Bava Kamma (27b), cited by the Beis Yoseph (Choshen Mishpat 4), Avid inesh dina lenafshay, a person may under certain circumstances effectuate unilateral action.
When asked who should be the arbiter as to whether accusations are false, the posek responded that it definitely cannot and should not be the husband. It must rather come from the ruling of a competent rav or beis din, and only after a forensic evaluation has been conducted, where both parties have been spoken to, and after the determination that there doesn’t exist any other evidence that corroborates the accusations.
But who is to choose the rav or beis din to rule on the case? It should not be the wife, because she may choose rabbis or dayanim who are biased and on her side. It cannot be the husband, because he will choose people who are biased toward him. And, in a society where there are no longer any kehilos to speak of, it is very difficult to come up with a nationwide Aâ€‘list of competent and reliable rabbanim and batei dinim.
As a society, we have become more tolerant and accepting of repulsive behavior. This is a most unfortunate state of affairs that must be changed. A person who pursues false criminal allegations against a spouse, resulting in arrest and legal consequences where the other parent cannot see the children, has crossed a horrifying and abominable line in conduct, and has placed his or her very own Olam Ha’ba in jeopardy (see Rambam Hilchos Chovel UMazik 8:9 regarding the repercussions of mesirah where there is no pikuach nefesh involved). The further prohibitions of motzi sheim ra and lying are also not inconsequential.
Several lawyers have informed this author of the unfortunate reality that false accusations abound in contemporary divorces.
The need for resolving this quandary of making sure that we do not create agunos and at the same time ensuring that false accusations are not made against a spouse is most acute. Both scenarios are very serious, for just as causing an arrest on false abuse charges jeopardizes Olam Ha’ba, so too does the notion of making agunos.
The Chezkuni (Bereishis 3:16) cites a Midrash and writes that if someone is betrothed to a woman and leaves her stuck as an agunah, then he is a denier of the World to Come. Consequently, he loses his share in it. The Baalei HaTosfos cite the same exposition and come to the very same conclusion. Making an agunah causes one to lose Olam Ha’ba.
In the case they discuss, the status of the agunah began at the very beginning of a marriage–upon halachic betrothal. Nevertheless, the idea is the same–these Rishonim hold that the husbands have lost their share in Olam Ha’ba. Their fate and future no longer lie with Avraham, Yitzchak, and Yaakov and their grandparents and great-grandparents for generations. Rather, the fate of these husbands is with the likes of the evil Bilam and Gechazi.
But what if it was the woman who caused the marriage to fall apart? Is there then a rationale for holding back the get? There is a fascinating Chasam Sofer (Nedarim 29) that even in an extreme case where a wife sinned with an extramarital relationship, “Ein lanu l’agein osa–we are not to make her into an agunah.” The Chasam Sofer continues that this is both obvious and clear.
What should our reaction be when we see an agunah? In the Responsa Yeshuas Malko (EH #54), Rabbi Yisroel Yehoshua Trunk of Poland (1820—1893) writes, “All of Israel is obligated in trying to help such a woman.”
Rav Moshe Shternbuch of the Eida HaChareidis in Jerusalem (Teshuvos v’Hanhagos Vol. V #44) writes regarding someone who is refusing to give a get to his wife that it is “permitted and proper to publicize” that no one should have anything to do with him. The posek mentioned at the very beginning of this article would qualify this ruling of Rav Shternbuch as applicable only when the husband is not trying to have the spouse remove false charges, and only when the charges have not been accompanied with corroborating evidence.
The Shulchan Aruch (Even HaEzer 1:11) rules that it is proper to enact laws and stipulations regarding marrying an additional wife (this was according to those who had not adopted the ban of Rabbeinu Gershom on polygamy). The Vilna Gaon explains that the Shulchan Aruch writes this in order to avoid situations which may cause or tempt the husband to make his first wife an agunah.
We can make two observations regarding this explanation of the Vilna Gaon. The first is that the notion of husbands making their wives into agunos as a means of retaliation is certainly not new. The second is that we see clearly that steps should be taken to avoid this tragic reality of agunos from coming about. It is our communal responsibility.
Rav Moshe Feinstein, zt’l, in a letter to Rabbi Chanina Simcha Posner written in the summer of 1976 (Igros Moshe YD Vol. IV #15), writes categorically that no one party has the right to be me’agein the other party for financial purposes. (Me’agein is the verb form of making someone into an agunah.)
Elsewhere, the Shulchan Aruch rules that it is generally forbidden to judge on Shabbos (Orech Chaim 339:1). The Rema adds that even if someone needs to be punished it is forbidden to place him in jail so that he not run away. The Mishnah Berurah (329:14) rules that this ruling of the Rema does not apply to husbands who are refusing to give their wife a get. He writes that one is allowed to put such a husband in jail over Shabbos so that he will not run away and will thus be present on Motzaei Shabbos to give a get to his wife.
Not one of these sources is denying the right of a husband to present his side of the story to a beis din. What these sources all do, however, is demonstrate that the refusal to come to the table–and the withholding of a get to inflict psychological harm or pressure to capitulate in other matters–is an abominable form of behavior that causes people to lose their share in the World to Come and justifies jailing them on the Sabbath itself.
There are only two justifications for withholding a get, according to the posek. First is if the wife has falsely accused and filed charges against the husband and the husband is therefore suffering legal repercussions. And even then, it is only if there is a rabbinic finding that the charges are false. In a further discussion, the posek delineated one other situation wherein the husband would be justified in withholding the get, and that was when the wife had vindictively taken the children without his assent and began living far away from the husband. This too, however, may only be done under the advisement of a posek or beis din, and only after rigorous investigation that the facts are correct.
What we need to do is create a protocol where neither party is in charge of figuring out which rabbis or which beis din will determine whether the charges are true or false, or whether the facts of the vindictive relocation are true. Until then, we should carefully warn both parties that filing false accusations and causing a wife to be an agunah are actions that cause the violator to lose his or her share in the World to Come.
May Hashem relieve the suffering of all parties involved–especially children caught in the middle. v
The author can be reached at Yairhoffman2@gmail.com.