By Rabbi Yair Hoffman for 5tjt.com
The person pictured above, Mordechai Ovadia, has left his wife without a Get for ten years. He has been missing for the past eight years. His wife has no way of contacting him. There is a Seruv out on him, and he appears in the weekly column of the Jewish Press of those under a Seruv. But unless someone who knows where he is reaches out, then Mrs. Ovadia will be stuck- never to be able to halachically remarry.
Recalcitrant husbands and their supporters must ask themselves – is this what Hashem wants? Do they and their supporters want Jewish women, particularly those who are dedicated to observing Jewish law, to suffer more than other women in their position? Ten years is an incredibly long time.
Also, what have they accomplished over all of this time? Have they enamored themselves to their children? To others? Have they created Kiddush hashem?
IT SHOULD BE THE AGENDA OF THE ENTIRE TORAH WORLD
For some inexplicable reason, supporting the plight of Agunos has been associated with a more feminist outlook or agenda. The fact is that these women do have choices in front of them – choices that are against halacha – but, nonetheless, these women could have decided to ignore Jewish law, or they could have gone to a radical Beis Din that engages in negating the validity of the original wedding.
They did not do so. Instead, they suffer the slings and arrows of an untenable situation. A situation where they are chained. The fathers, by and large, do not provide financial support to the children. They should be hailed as models of dedication to halacha. It seems we have it all wrong.
“Uhm,” we say delicately, “please do not mention to anyone that you are an agunah when you work here at our insurance company. We do not want to make anyone uncomfortable.”
Yes, we have it all wrong. We should make a gathering at Madison Square Garden and the Javitz Center with a hookup – filled with hundreds of thousands of people – all of them honoring the dedication and loyalty that these women have had to Yiddishkeit, to Torah, and to Shulchan Aruch.
We should be supporting them and offering them jobs.
We should be taking our children to them to receive brachos.
What should our reaction be when we see an Agunah? The Responsa Yeshuas Malko (EH #54) by Rabbi Yisroel Yehoshua Trunk (Poland 1920-1893) writes, “All of Israel is obligated in trying to help such a woman.”
There is, Baruch Hashem,agreement among the batei Dinim in both Israel and even in the United States that the situation should not go on without resolution. A time limit has been placed not to let things go for more than 18 months.
This is based on Rav Chaim Palaji in his work entitled, “Chaim v’Shalom” (Volume II Siman 112) writes as follows: In general, I say that whenever it appears to Bais Din that they have lived apart for a significant amount of time, and there is no chance of reconciliation.. I give a time limit to this matter, that if there is an argument between a man and his wife and they have attempted mediate and there is no chance, the maximum time that should be allowed to pass without a get is 18 months. After that there should be a get that is forced to be given until the husband declares “I want it!”
Rav Ovadiah Yoseph zatzal was very much behind the Rav Palagi maximum date and writes so several times in his responsa.
On the other hand, Rabbeinu Yerucham in Meisharim (Nesiv 23 Section 8) writes that if the woman says I don’t want him, he should give me my get and my kesuvah” and the husband says, “I also don’t want her, but I am not giving her a get.” In such a case, Rabbeinu Yerucham writes that he should be forced to give the get at 12 months.
At the same time, it is not a one way street. As a society, we have become more tolerant and accepting of repulsive behaviors that were once anathema to all decent people. 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 their very own Olam haba 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 Shaim Rah, and lying are also not inconsequential.
Several lawyers have informed this author of that unfortunate reality – 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 HaBah, 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 Olam Ha’Ba — the world to come. The Baalei HaTosfos cite the same exposition and come to the very same conclusion. Making an Agunah causes one to lose Olam Habah.
There, in the Midrash, the status of the agunah began at the very very beginning of a marriage–upon halachic betrothal. The contemporary Agunah is, of course, after marriage. Nonetheless, the idea is the same–these Rishonim hold that the husbands have lost their share in Olam Ha’Bah. Their fate and future no longer lie with Abraham, Isaac, and Jacob and their grandparents and great-grandparents for generations. Rather, the fate of these husbands is with the likes of the evil Bilaam and Gechazi.
WHEN THE WOMAN IS AT FAULT
But what if it was the woman who caused the marriage to fall apart? 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 osa–we are not to make her into an agunah.” The Chasam Sofer continues that this is both obvious and clear.
RAV SHTERNBUCH’S POSITION
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
THE VILNA GAON’S INSIGHT – OUR COMMUNAL RESPONSIBILITY
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 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 observation 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 FEINSTEIN’S VIEW
Rav Moshe Feinstein, zt’l (Igros Moshe YD 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.)
JAILING SUCH A HUSBAND
Elsewhere, the Shulchan Aruch rules that it is generally forbidden to judge on Shabbos (Orech Chaim 339:1). The Remah 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 Remah 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.
LOSS OF OLAM HABAH
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.
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