“He Sooo Grosses Me Out!”
One would think that the above headline is not so appropriate for a family newspaper such as the Five Towns Jewish Times. However, this is a halachah column, and the headline cuts to the essence of what is happening in the halachic debate regarding contemporary agunos.
The issue at hand relates to the rallies that are being held across the country in order to help agunos obtain their freedom. Some are claiming that these rallies are causing “forced gittin” and that they may be invalid. Since Pesach is almost upon us, it may be appropriate to ask four questions:
• What is the status of these rallies?
• Are people attending rallies considered halachically to be “forcing” a get, which may cause it to be invalid?
• Is the “No Get, No Peace” mantra a good thing or a bad thing?
• Is there a difference between “He soo grosses me out” and “He grosses me out?”
(Regarding the last question there may very well be a distinction according to Rav Elyashiv, zt’l.)
Let’s begin with some background and then with a debate.
A get may only be given with the consent of the husband. The Talmud enumerates certain times when a get may be forced upon a recalcitrant husband.
The Mishnah in Kesuvos (77a) lists a number of illnesses and professions regarding which a qualified beis din may force the husband to give a get. The Gemara in Kesuvos and Yevamos provides further cases, and the final halachah regarding forced cases has been quantified in Shulchan Aruch Even HaEzer chapters 154 and 77.
The Debate
Are the cases discussed in the Talmud the only such cases where a get may be forced upon the husband? Or are they just examples of cases that may include other cases, too? This is a debate among the Rishonim. The first view is that of the Rambam (Ishus 14:8), who rules that there are other cases where a get may be forced.
The next view is that of the Rosh and the Rashba. The Rosh, Rabbi Asher Ben Yechiel, rules in his responsum (43:3) that one may only force a get in the cases specifically mentioned in the Talmud. The Shulchan Aruch cites the Rosh in E.H. 154:5. The Rashba agrees with the Rosh in this respect as well.
Ma’us Alai
But most contemporary cases do not deal with the issues of these illnesses and professions. Rather, they deal with cases where the wife claims that the husband “grosses her out.” This is termed in halachah as “ma’us alai”—he is disgusting in my eyes. For these cases, the Rambam rules that a get may be forced. Other Rishonim disagree.
Those who agree with the Rambam are the Raavad, the Smag, the Ba’al Ha’Ittur, Rabbeinu Gershom, Rav Shrirah Gaon, Rav Hai Gaon, Tosfos Rid, the Ohr Zaruah, the Rif, and the Rashbam.
Those who disagree are Rabbeinu Tam, the Ran, the Rashba, the Rosh, the Ritva, the Raza, and the Tashbatz. The Shulchan Aruch (E.H. 77::2) seems to rule stringently.
Rav Yitzchok Zilberstein, shlita, in his Chashukei Chemed on Sukkah 53b states that his father-in-law ruled that there are two types of “ma’us alai”: (1) somewhat disgusted by her husband and (2) entirely disgusted by him. Thus, if the husband “sooo grosses her out,” Rav Elyashiv would permit it, but not if he just “grosses her out.” It is unclear if contemporary poskim have seen this Rav Elyashiv ruling. The ruling has significant repercussions, in this author’s view.
Rabbeinu Tam’s Harchakos
Going back to the Rishonim, however, in order to deal with the problems of a husband who is just not workable, Rabbeinu Tam devised steps that can be taken which would not be considered “forcing.” The Rema (E.H. 154:21) writes that while we cannot place him under a ban, beis din may enact these harchakos of Rabbeinu Tam. The Vilna Gaon is in full agreement with this Rema, as are a number of other poskim (see Maharshdam E.H. 41, Mahara Sasson #21, and more).
The harchakos of Rabbeinu Tam are as follows.
1. Don’t do business with such husbands.
2. Don’t host him with food or drink.
3. Do not escort him or visit him.
This is not considered forcing a get because we are not physically forcing him; we are just separating ourselves from him. The Levush (EH 134) writes that we can do this when the wife claims “ma’us alai” since he can technically not divorce and just move elsewhere.
Modern Families
Rav Moshe Sternbuch (Teshuvos V’Hanhagos Vol. V #344) writes that the terrain has changed significantly in modern times, and we should do what we can to address the challenges. Sometimes being excessively stringent can lead to grave problems. He mentioned two such problems. (A few years ago, this author discussed a third problem with Rav Zalman Nechemia Goldberg, zt’l, who agreed.) Rav Sternbuch advises against the immediate application of the harchakos of Rabbeinu Tam, and that beis dins should employ it judiciously so that marriages won’t needlessly be destroyed. Rav Sternbuch also states that the word “get” should not be used when applying such forms of indirect pressure.
What if there is no chance of reconciliation at all? Rav Chaim Palagi recommended that beis din take greater action if possible when the couple has been living under a separate roof for 18 months. Many batei dinim in Israel have taken Rav Palagi’s recommendation to heart.
What The Rally Organizers Might Consider
• The rallies perhaps should only be held when a recognized beis din has issued a ruling allowing it.
• The mantra of No Get, No Peace should probably be discontinued.
• The 18-month recommendation of Rav Chaim Palagi should be considered unless the situation is quite dire.
How Does A Forced Get Work?
Although the Mishnah in Yevamos (112b) clearly states that a man can only divorce his wife of his own will, we find that the Mishnah in Eirachin (21a) states that we can force him until he says, “I want [to do it].” How are we to understand how this works?
To answer this question, there seem to be four different approaches.
Rambam. Rambam, in the laws of geirushin (2:20), explains that since the husband essentially wishes to be part of Israel, he does not truly wish to go against the Torah. He wishes to fulfill the mitzvos and distance himself from sin. It is just that he is subjugated to his evil inclination. However, once he receives corporeal punishment, his evil inclination is weakened and his true desire comes forth.
Rashbam. The Rashbam in Bava Basra (48a “Hasam”) explains that it is tantamount to the case of a forced sale when the seller receives consideration. He writes that just as the seller does not end up losing anything so, too, this husband doesn’t lose anything since his wife hates him anyway and without a get as well she will not remain with him; he loses nothing. The get is only a means that permits her to others and has no bearing upon him.
Radbaz. Radbaz (responsum 1228), explains the way a forced get works is dependent upon the power placed in the sages of Israel—that the rabbis were empowered by the original formula of the marriage ceremony, “Behold you are betrothed to me in accordance with the law of Moses and Israel.” The law of Moses is Torah law, while the law of Israel refers to the rulings of the sages of Israel. In the cases of a forced get in the Mishnah, the Radbaz explains, the rabbis essentially revoked the marriage from the onset. In rabbinic Hebrew this is called, “Afkinhu rabbanan l’kiddushin minei—the rabbis revoked the marriage from him.”
Most Acharonim understand that the Rosh’s position explained earlier is virtually the same as that of the Radbaz.
Tosfos. Tosfos in Bava Basra (48a “Eelayma”) states that since the giving of the get under such circumstances is a mitzvah, it is likened to a sale, which is effective when forced. Some Acharonim (e.g., the Rashash) understand the Tosfos to mean that the mitzvah has a financial value to it and thus it is like the sale.
The Upshot
According to the Rosh and Radbaz, which whom the Shulchan Aruch seems to rule, the case of ma’us alai would not be included in the cases where force may be used and the principle of “afkinhu rabbanan l’kiddushin minei” would not apply. Thus, the marriage would still be intact and a forced get would be ineffective. According to the Rambam, a forced get would work, but only in the circumstances wherein it was truly the correct Torah thing to do.
Poskim Who Qualify The Shulchan Aruch Ruling
There are also poskim who draw a distinction between the cases in the Gemara and Shulchan Aruch and cases where the wife is no longer under the same roof as the husband. These poskim write that the entire issue of limitation of forcing was only when they were under the same roof, but otherwise forcing when there is a concern that the wife would be an agunah, left alone, is always permitted. The responsum of the Chacham Tzvi (Siman 1) seems to indicate that he holds of this distinction. He writes that one may force a get either because of igun or because of the issues that Chazal enumerated. This is also the position of the Z’kein Aharon (Rabbi HaLevy) in his responsum (#149). According to these poskim, a forced get would be kosher.
It is pretty clear, however, that our gedolei ha’poskim did not seem to subscribe to this view.
Indeed, a friend of this author’s was once present when a certain rabbi’s name came up in front of Rav Elyashiv, zt’l, and Rav Elyashiv, zt’l, said, “Oh, him? His gittin are invalid.” This was said in reference to his forced gittin. Whether Rav Elyashiv’s ruling applies to each person’s individual case is another story, and a competent posek or beis din should be consulted regarding each case.
The author can be reached at Yairhoffman2@gmail.com. Read more of Rabbi Hoffman’s articles at 5TJT.com.