Do Gdolim have a new approach towards the Agunah crisis?

dancingqueen

Sun, Apr 26 2015, 1:16 pm

goodmorning wrote:

The situation of man remarrying without the death/divorce of his first wife has a very different halachic status than that of a woman doing the same. The latter is forbidden mid'Oraisa; the former is forbidden as a result of a cherem. Those are completely different halachic scenarios. (And of course, the cherem was created with "built-in" loopholes so it doesn't take much ingenuity to find them.)

The BDA prenup has a longer history (not entirely MO) that is not worth going into here. Suffice it to say that at least the chareidi rabbanim whom I know are not avoiding its use because it was created by MO rabbis.

Please do elaborate, thanks.

marina

Sun, Apr 26 2015, 1:17 pm

I think annulment is the way to go.

Rav Moshe Feinstein is famous for annulling the marriage of a woman to a gay man, concluding essentially that it was a fraudulent contract to begin with because she married him under false pretenses- surely, he says, no woman would voluntarily marry someone gay had she known that. Essentially, she doesn't need a get and can marry without one. It's a pretty radical position:

http://daattorah.blogspot.com/......html

Although he limits this holding, I think that it can be expanded. Women would not marry abusive men or men with addictions or even OTD people or those with severe severe uncontrolled mental disorders- just like they would not marry gay men, had they known ahead of time. You can argue that all of these were mistaken marriages, fraudulent ones, and that the woman doesn't need a get, especially if the situation existed to some extent before she married him, which is often the case.

The agunah problem would be much more limited then- the situation would apply to people who divorce for mundane reasons, such as general fights and disagreements. Presumably, a majority of agunah issues involve abusive husbands, for example, so by expanding rav Moshe's ruling, you'd really solve many agunah cases.

Last edited by marina on Sun, Apr 26 2015, 1:21 pm; edited 1 time in total

PinkFridge

Sun, Apr 26 2015, 1:19 pm

marina wrote:

I think annulment is the way to go.

Rav Moshe Feinstein is famous for annulling the marriage of a woman to a gay man, concluding essentially that it was a fraudulent contract to begin with because she married him under false pretenses- surely, he says, no woman would voluntarily marry someone gay had she known that. Essentially, she doesn't need a get and can marry without one. It's a pretty radical position:

http://daattorah.blogspot.com/......html

Although he limits this holding, I think that it can be expanded. Women would not marry abusive men or men with addictions or even OTD people just like they would not marry gay men, had they known ahead of time. You can argue that all of these were mistaken marriages, fraudulent ones, and that the woman doesn't need a get.

The agunah problem would be much more limited then- the situation would apply to people who divorce for mundane reasons, such as general fights and disagreements.

Marina, I give some weight to your thinking. You have a legal, analytical mind, and have likely studied it much, much more than I have. But I give more weight to Rav Moshe's limiting. One needs very broad shoulders to be able to expand where Rav Moshe limited. The stakes are too high.

happybeingamom

Sun, Apr 26 2015, 1:27 pm

I was wondering

When a husband gives a wife a kesuva (a document that he agreed to and has witnesses) he is agreeing to financial support. Now if a man refuses to give a Get can a civil court enforce the financial commitment that the husband made. This would then make it expensive for the husband to remain married so he would want to give the get rather then being financially responsible to his wife.

Garnish the man's wages put a lien on his assets etc. would these guys want to stay married then?

marina

Sun, Apr 26 2015, 1:28 pm

PinkFridge wrote:

So here's what he writes:

Quote:

It is also reasonable that the fact that the husband is involved in homosexual relations - which are the worse possible abomination and most disgusting thing - it is a disgrace to the whole family. And surely it is extremely degrading to his wife that her husband prefers this disgusting intercourse rather than intercourse with his wife. Thus it is definitely a mistaken marriage. It is clear to us that no woman would be willing to marry such a disgusting, repulsive and debased man as this. Consequently if immediately after she was informed about this she left him - that if it is impossible for her to receive a divorce from him - that she should be permitted to remarry because of having a mistaken marriage.

If you think about a wife beater, for example, it's difficult to understand why he shouldn't be viewed as worse than a gay man. Homosexuality, as we know, is certainly against halacha, but the gay person himself isn't evil or wicked- we can't really control whom we are attracted to.

But beating your wife? That's not an inborn issue. It could certainly be seen as an "abomination and most disgusting thing, a "disgrace to the whole family," and "degrading," and "repulsive," and "debased," don't you think?

Not to start the gay debate again, but I think it's very telling if orthodox Judaism views homosexuality as that much more offensive than domestic violence. Do you disagree?

Last edited by marina on Sun, Apr 26 2015, 1:30 pm; edited 1 time in total

PinkFridge

Sun, Apr 26 2015, 1:28 pm

happybeingamom wrote:

I have vague memories/impressions of the NY get law. Wasn't this a part of it?

goodmorning

Sun, Apr 26 2015, 1:29 pm

amother wrote:

back when we had a Besdin that was a real Besdin with real legal authority, it would give the recalcitrant husband malkos until he agreed to give a get "of his own free will" and it was not considered coercion. The malkos were punishment for violating the law, refusing to give a get where halacha requires it. There are many situations in which halacha REQUIRES a man to divorce his wife if she demands it. One of these is if he makes her life unbearable in some way, such as developing a repulsive physical condition or habit that his wife finds it impossible to live with, or engaging in a trade that gives him an offensive odor that she can't stand. Being physically or verbally abusive also comes under the rubric of making her life unbearable. If he is a "mored" and refuses her conjugal rights, if he forces her to violate taharat hamishpacha, if she wants to move to EY and he refuses, he MUST give her a get. There are many others, these are just a few examples. If he refuses to do so, the Besdin has the authority to give him malkos as long as he continues to violate the law. Unfortunately, today's Besdin has no such legal authority.

I agree that Beis Din had authority to compel gittin under certain circumstances. Actually, the malkos were not a punishment for violating halacha; they were k'fiya, forcing to follow halacha. For example, shaking arba minim on Sukkos is a mitzvas asei, and a violation of a mitzvas asei does not incur malkos as a punishment. However, Beis Din had the power to force a person who did not shake arba minim on Sukkos to do so through malkos.

However, the situations in which Beis Din had the power to force a get were limited. For example, you mentioned the refusal of conjugal rights, but according to one opinion (I think the Shach), a husband would have to refuse all three of spousal obligations (food, clothing, conjugal rights) in order for Beis Din to compel a get.

Briefly, having a Beis Din with legal authority would go a long way towards solving the agunah crisis but I don't think it would solve it completely, or even mostly. A wife's desire for a get does not necessarily equal her husband's obligation to provide it, and a husband's obligation to give a get does not necessarily equal Beis Din's permission to compel him.

marina

Sun, Apr 26 2015, 1:30 pm

happybeingamom wrote:

He only owes the money once he gives the get.

goodmorning

Sun, Apr 26 2015, 1:33 pm

marina wrote:

He only owes the money once he gives the get.

happybeingamom is referring to, I think, a husband's ongoing obligation to support his wife (mezonos) which is owed the entire time that they are married. Unless, of course, his wife leaves the marriage and is a "moredes," in which case he owes nothing.

And the amount that he owes her as mezonos is not very much. That's why prenuptial agreements tend to work with "tosefes mezonos."

Ruchel

Sun, Apr 26 2015, 1:35 pm

A frum guy who didn't give the get is also stuck, just if he transgresses the consequences aren't quite as bad (if he finds a frum lady willing to not get married or get married somewhere away pretending he is single or if he agrees to a non frum lady who is ok with civil wedding etc)... if he is OTD then he doesn't care and that's a big problem because he has zero reason to give it if he's a j**rk.

I know of annulated weddings, and (not personally) of "agunim" who didn't get a heter mea rabbanim. I also know of a few men with heter mea rabanim (for good reasons) and their shidduchim are extremely hard.

I assume rabbis are afraid to find a solution others will deem as not working and to create some kids that will be mamzerim to some. There was such a story with a married surrogate iirc.

goodmorning

Sun, Apr 26 2015, 1:45 pm

marina wrote:

It's been tried, by Rackman in the 90's. And was shot down by most of the Orthodox world, including, IIRC, the non-chareidi BDA.

I don't recall all the reasons offhand, but among them were a) you'd need to prove that the defect existed before marriage (and the husband has a chazaka that they do not) and b) the wife has to claim mekach ta'us immediately upon finding of the defect (and leave the marriage immediately), which is very rarely the case.

goodmorning

Sun, Apr 26 2015, 1:48 pm

goodmorning wrote:

Also, recall that all of the wife's earning go to her husband (unless she opts out of mezonos). So he'd have to support her but all of her wages would go to him. And again, mezonos obligations are fairly low.

marina

Sun, Apr 26 2015, 1:49 pm

goodmorning wrote:

In the link citing Rav Moshe's psak, it doesn't seem like he spent much time proving the person was gay/acted on it before marriage. How would you prove that anyway?

And women can be taught that to make it easier to receive an annulment, they need to leave immediately. I think that would be in line anyway with teaching women what to do in abusive situations.

causemommysaid

Sun, Apr 26 2015, 1:55 pm

what about requiring every Jewish man to leave a "get al tenai" with a central bais din before they actually get married.

The central bais din can have rules about releasing this get to the woman if she requests it such as

1- couple must be separated for 3 months before releasing it
2- all secular court stuff must be completed first
3- a kohains wife waits an extra couple months since she can never change her mind

etc.

That way the get will be out of the husbands hands even before the marriage starts and the added rules will ensure that it doesn't become a free for all that every time newlyweds get mad the wife requests her get.

animeme

Sun, Apr 26 2015, 2:03 pm

marina wrote:

And women can be taught that to make it easier to receive an annulment, they need to leave immediately. I think that would be in line anyway with teaching women what to do in abusive situations.

I'm with you on proving it was there before- it usually is. But I'm skeptical that even the best education will get women to walk out the first time they get hit. Most aren't thinking about how they'll get out at that point.