By Rabbi Yair Hoffman
The New York Times recently ran a front-page story about someone who took advantage of a heter mei’ah rabbanim to marry a second wife, without having to issue a Jewish divorce document to his first wife. According to the NYT article: “Meir Kin, the new husband, has been divorced for more than seven years, under California’s civil law. But he has refused to give his previous wife the document known as a get, as required by Orthodox Jewish law to end a marriage. In the eyes of religious authorities, the woman he married in 2000 is what is called an agunah—Hebrew for chained wife. Without the get, the woman, Lonna Kin, is forbidden under Jewish law to remarry.”
The Prohibition Of Polygamy
What is a heter mei’ah rabbanim?
In Judaism, polygamy was not forbidden until the time of Rabbeinu Gershom (960–1040?). Roughly in the year 1000 CE, Rabbeinu Gershom of Mayence issued a decree forbidding taking more than one wife. This is known as the Cherem Rabbeinu Gershom. Aspects of the decree and subsequent halachic developments concerning it are found in the Prague Edition of the responsa of the Maharam MiRottenberg, siman 1022 (see also Be’er HaGolah, Y.D. 334).
What was Rabbeinu Gershom’s reason for prohibiting polygamy? The Rashba (cited by the Maharik #101) explains that people were mistreating their wives and taking them for granted. The Mordechai (Kesubos 291) explains that the rationale was to avoid the excessive fighting that multiple spouses bring on. There is a third opinion that it was to prevent siblings from two different countries marrying each other by accident. Others write that it was on account of economic reasons (Maharam Paduvah #14). Others write that it was on account of socio-religious factors in that the surrounding Christian gentiles only married one wife (Yaavetz Vol. II #15; it is not a violation of ‘chukas ha’goyim’ because it is a non-action rather than an action).
With the prohibition against polygamy, there will be times when the woman will be unable to receive a get due to illness, will refuse to receive a get, or will have run away and the husband will be unable to give a get. These three factors will cause a situation where the husband will be unable to remarry. Therefore, to enable the husband to remarry in these three situations, the heter mei’ah rabbanim was enacted.
There are a number of requirements for the heter mei’ah rabbanim. One hundred rabbis from at least three different countries must sign on to giving the husband permission to remarry. They must be scholars and may only do so after having looked into the details of the situation to ensure that the heter not be abused. They must also issue a get and place it with a third party, along with the money that they had originally promised the first wife in the kesubah.
There is great debate regarding who exactly first promulgated the leniency of the heter mei’ah rabbanim. Rabbi Yoel Sirkes (Bach old responsa #93) explains that the heter mei’ah rabbanim was handed down orally from Rabbeinu Gershom himself. The Mordechai in Yevamos #108 also indicates that it was Rabbeinu Gershom himself who promulgated its use.
Rav Menachem Mendel Krochmal, author of the first responsa of Tzemach Tzeddek (#67), writes that a subsequent beis din was the one that initiated the concept. The Mishkenos Yaakov (siman #1) explains that the beis din that first promulgated its use was acting on behalf of Rabbeinu Gershom.
Finally a third theory is presented by the Chasam Sofer (Responsa E.H. Vol. I #3) that Rabbeinu Gershom outlined a general path for a future beis din to undo the prohibition against polygamy on an individual basis through 100 rabbis, and the parameters of this general path were further expanded upon.
Must the rabbis be communal leaders? The response of the Noda BiYehudah explains that there is no such requirement. They must, however, be worthy of ruling.
In the United States, some rabbis have utilized the heter mei’ah rabbanim in a manner that has never been discussed in the poskim. They use it to allow husbands to remarry while not giving the first wife a get.
Strangely, we do not find a discussion of this new use in the poskim. The reason is that historically, there was no need to “even the playing field” while Jews lived in Europe. And in Eretz Yisrael now, the legal infrastructure is there to deal with such cases. The problem is primarily an American one—where the halachic infrastructure does not really exist to deal with problems and abuses. Thus, some have used this tool incorrectly.
So what is motivating the Rabbis who incorrectly provide husbands who, against Daas Torah, are vindictive in not giving their wives a Get? There are always three motivations behind a person’s actions: the motivation they want you to think they have, the motivation they think they have themselves, and the real underlying motivation that they may not even realize they have.
The first motivation often has to do with the fact that husbands do not always get a fair shake in terms of visitation and custodial issues. The second motivation involves the fact that there is remuneration. Their perception is that the remuneration is warranted and necessary in order to continue the selfless task of helping the downtrodden. What is the third motivation? Perhaps the astronomical cost of a heter mei’ah rabbanim—$100,000 at times or even more—should be indicative of what motivation number three is.
This is not to say that the husbands are not suffering. The unfortunate reality is that, in contemporary divorces, false accusations abound about husbands. Fathers are also denied the right to see and visit with their children. This horrific situation needs to be resolved, but we should not try to even the playing field by making agunos and circumventing the Cherem Rabbeinu Gershom.
But what if it was the woman who is at fault? Is there then a rationale to hold 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 le’agein osah—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? The Responsa Yeshuas Malko (E.H. #54) by Rabbi Yisroel Yehoshua Trunk (Poland 1920–1893) 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, it is “permitted and proper to publicize” that “no one should have anything to do with him.” One poseik qualified this ruling of Rav Shternbuch as applicable only when the husband is not trying to get the spouse to remove false charges, and only when the charges have not been accompanied with corroborating evidence. If false charges are alleged against the husband with no corroborating evidence, then the poseik ruled that one should not necessarily publicize that no one should have contact with him.
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 that 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 that may cause or tempt the husband to make his first wife an agunah.
Rav Moshe Feinstein, zt’l (Igros Moshe, Y.D. Vol. IV #15) in a letter to Rabbi Chanina Simcha Posner written in the summer of 1976, 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), written by the saintly Chofetz Chaim, 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. These sources 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.
What do the beis dins that perform the heter mei’ah rabbanim do about the fact that the get must be given to a third party? They claim that the husband did indeed issue a get. However, they will not be forthcoming with that information unless the first wife agrees to certain demands.
It is clear that the use of the heter mei’ah rabbanim is not at all in keeping with the halachos and underlying reasons for the heter mei’ah rabbanim. This author would like to add another point as well.
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 Olam HaBa—the World to Come. The Ba’alei HaTosefos cite the same exposition and come to the very same conclusion: Making an agunah causes one to lose Olam HaBa. Presumably, this would apply to the enablers of such activities as well.
There, the status of the agunah was created at the very beginning of a marriage—upon halachic betrothal. Nonetheless, the idea is the same—these Rishonim hold that the husbands have lost their share in Olam HaBa. Their fate and future no longer lie with Abraham, Isaac, and Jacob and their grandparents and great-grandparents for generations. Rather, the fates of husbands who improperly use the heter mei’ah rabbanim and, it seems, of those rabbis who falsely provide a heter mei’ah rabbanim are with the likes of the evil Bilaam and Gechazi. v