Monday, March 19, 2007

Conditional Divorces?

I came across this rather disparagingly-titled article in Ha'aretz. It discusses the case of a woman in Israel who received her get several years earlier, with a condition attached that stated that any issues that had been discussed at the outset in the beis din (rabbinical court) have to be continued there. Recently, a dispute broke out over the education of their children (which was not discussed in the beis din, according to a representative for the woman) and the woman went to the (secular) Family Court to have the problem adjudicated. The man claimed that this was a violation of the agreement and went to a Tel Aviv beis din who ruled that by going to the secular courts, she may have violated the condition and invalidated her get.

The big problem here is that the woman has since remarried and had a child. If the get in invalidated, then she would have to divorce her (second) husband and her child could be declared a mamzer. She appealed to the Supreme Rabbinical Court, but the case has been delayed for a year already.

As the article states:

The delay also puts the woman in an impossible situation: If it is eventually decided that the get is invalid, she is already forbidden to have conjugal relations with her present husband.

The rest of the article goes on to describe (unflatteringly) some of the edicts that R. Eliyashiv has decreed in the past few years. I don't really wish to discuss that... my feelings about both the edicts and the disparaging of a talmid chochom (even if you disagree with him) are well known. What I do want to discuss is the very idea of a conditional divorce itself.

Now, I'll be the first to admit that I am no expert in Hilchos Gittin. You certainly won't find me sitting on a beis din that terminates marriages - I am certainly not learned enough, nor am I particularly anxious to take on the responsibility. However, one thing which I am pretty sure that I remember learning is that a conditional divorce can only be valid if the condition is limited. The classic case is someone issuing a divorce on condition that the woman never drink wine or never visits her father's house is null and void, because it is not a document of separation -- she is still bound to him forever by the condition. However, a temporary condition is valid (i.e. she not drink wine for thirty days), since at the end of the condition period, she is fully separated from him.

Now, I don't know if the condition in the get mentioned at the start of this post was only temporary -- I'd have to assume that it was (and that the members of the beis din know halacha better than I do). But, to be honest, I find the whole idea of allowing conditional gittin to begin with to be bad public policy. The situation that the woman now finds herself in is surely an untenable situation -- she doesn't have her first marriage, she doesn't really have her second marriage either and is simply stuck until the Supreme Court hears her case (why does it take a year, anyway?!). It's bad enough when there are situations when a husband will not give a get to begin with, but it's even worse when he gives a conditional get and can trap her ex post facto on a real or imagined violation of a condition.

I certainly don't have a problem with a husband having a say in where his children are educated. If there is a dispute as to where the child should go to school, it certainly should be adjudicated in the agreed upon manner -- and there should be penalties that can be applied to those who break the agreements, but invalidating a get should not be one of them. The potential for damage to not only the woman but to her new husband and any children born of the marriage is just simply too great.

In short, let's leave a get to what it should be - a davar hakores (a thing that separates) - and not something that leaves the woman still bound to her first husband and the potential for multiple ruined lives down the road.

The Wolf

8 comments:

Barbara said...

Thank you for this post! I am going to share it with a couple friends of mine who also work with domestic violence victims.

I divorced a malignant narcissist and yet he is using the courts to terrorize me - just as this Conditional Divorce is doing. That's what it is about, Wolf - CONTROL. The exhusband does NOT want to lose control. Its abuse. Get or not she is still an agunah. And the ex is now using the children to maintain his reign of terror.

Don't get me wrong I have seen women do this to men. No matter who does it - its wrong.

Thank you again!

Sanctuary for the Abused

Reb Yudel said...

The question isn't whether it is good public policy; the question is whether it is R. Eliyashiv's public policy.

It might be worth enquiring of R. Eliyashiv's apologists over at Cross-Currents whether or not the story is accurate or not.

Michael Koplow said...

Wolf, my antenna may be less sensitive than yours (getting my animal metaphors mixed here, wolves don't have antennas), but I didn't find the tone of the article disparaging. The author was disagreeing with Eliashiv in very strong terms.

"The disparaging of a talmid chochom." Maybe it depends on how you define "disparaging," and on how you define "talmid chochom." You strike me as a menshlich guy who disparages almost nobody. But this t"ch business is more important. How often does someone have to issue a p'sak shtut before we reevaluate his disparagement-proof status? Carried to an extreme, this will never happen if we assume that because he's a t"ch, nothing he says is a p'sak shtut.

BrooklynWolf said...

Michael,

Disagreeing with someone is not disparaging... I myself made clear in my article that I disagree with some of the things that Rav Eliyashiv has said and done. However, you'll notice that I didn't refer to him as "Eliyashiv" but "Rav Eliyashiv." Referring to someone without a title they have earned is, IMHO, disparaging. By titling the artile "The Edicts of Eliyashiv," I found it to be disparaging. (In addition, you'll note that I was judgemental about the title of the article, not the article itself.)

The Wolf

BrooklynWolf said...

Reb Yudel,

Respectfully, you're wrong. The policy is the point I'm trying to make. It doesn't really matter if the story about T is true or not (well, it matters to T... but that's not the point I'm trying to bring out). I was addressing the idea of having conditional gittin as public policy. And that, IMHO, is a very, very bad idea.

The Wolf

Pesky Settler said...

I'm not sure there's any validity to anyone's claim. Unless there's proff in writing to the specific matter of the education of the child, it becomes a matter of he said/ she said.

He has to prove that she violated the conditions of receiving the Get and she needs to prove that this particular matter was never specified.

Issues like this was the main reason I filed for divorce in the Israeli civil courts. I wanted custody issues settled away from the Rabbis.

And personally, she was a fool to allow that conditional ax to hang over her head for the rest of her life.

The Hedyot said...

Wow. People have been pushing for this sort of retroactive nullification when it comes to freeing agunos, and have had it shutdown, but now they're allowing it for retroactively nullifying gittin and keeping women agunos for longer?!

Sick!

SephardiLady said...

Agreed. Bad public policy if this is allowed.