Interviewer's Preface
There has been a significant amount of inaccurate and misleading
information disseminated in the Anglo/Jewish news media regarding the
laws of Jewish marriage and divorce. Much of this misinformation is a
reflection of the feminist and liberal opinions which tend to dominate
the Jewish media, including some of the so-called modern orthodox
publications. The viewpoints of learned, traditional, non-feminist
Orthodox Rabbis are all too often ignored. The consequences of ignoring
and misrepresenting Jewish tradition in the areas of marriage and
divorce can only contribute further to the Jewish divorce rate and the
birth of mamzerim, i.e. illegitimate children. We therefore present an
interview with a renowned Torah scholar and Orthodox rabbi, Rabbi Dovid
E. Eidensohn. Please be aware that the information below is intended to
be a general discussion of the issues, and is not intended as a
replacement for competent rabbinical and/or legal advice. Rabbi
Eidensohn can be reached by e-mail at Eid111@aol.com.
Interview with Rabbi Dovid E. Eidensohn
Q1. Rabbi, how many years have you studied halacha (Jewish law) or
served as a Dayan (judge) in various Jewish courts?
A1. I am the author of three works on Jewish monetary and family law,
with approbations from Reb Moshe Feinstein, Reb Yaacov Kaminetsky, and
other greats from the past and present generation. I founded the program
of Gittin in Russia under the auspices of Rav Yosef Shalom Elyashev
shlit"o, who gave his name to my Beth Din.
Q2. When a Jewish couple decides to divorce, are they allowed to submit
their case to a civil, i.e. non-Jewish court?
A2. A couple that decides to divorce has to do several things. One, they
must receive a GET in accordance with Jewish Law. Two, they must settle
monetary matters, the Kesubo, child support, division of the estate,
etc. Three, and most important, they must provide for the children, if
there are any. It is forbidden to submit a dispute to a civil court,
because we have a Torah, and must follow it. Any money gained by a civil
court not in accord with Jewish law is an act of piracy and theft. Even
if the court rules in accord with Jewish law, it is a serious sin to
have used it, and a profaning of G-d's Name, because one shows that
mortal laws are superior to the Torah.
Q3. How does Jewish tradition view the use of non-Jewish courts by Jews?
What is the halachic term for a Jew who utilizes non-Jewish courts and
refuses to obey the Jewish courts?
A3. One who unleashes civil authority upon a spouse or any Jew, without
the permission of a Beth Din, is a thief, a profaner of G-d's Name, and
may be in the category of MOSAIR, the heinous crime of "informing" on
Jews.
Q4. What is the concept of 'dino dimalchusa dina' (the law of the
kingdom is law)? Does it allow a Jewish person to use non-Jewish courts?
A4. A Jew living in a secular or civil society cannot ignore it,
especially as we are strangers in a land not our own and must pursue
peace and harmony with the people and the authorities of our host
country in the Diaspora. The rabbis taught, "Pray for the peace of the
government, for without it, people would devour each other." Therefore,
we have the "mipnei hashalom" (for the sake of peace) aspect of "dino
dimalchusa dina." Another aspect of "dino dimalchusa" is the right of
the government to certain monies, such as taxes. The Shulchan Aruch says
that one who does not pay taxes is a GAZLON (Robber), and has sinned
with LO SIGZOL (Thou shalt not rob). This has nothing to do with "dino
dimalchuso," the "peace" problem. The country has a right to charge
people who live in it to pay for services. Thirdly, we have a Torah that
governs our every move. How can we reconcile the Torah with the law of
the land? The answer is that within our sphere, between Jews, and
certainly between husband and wife, the law of the land does not change
the laws of the Torah. If, on the other hand, two Jews make a
transaction, and the conveyance is recognized only by the civil
authorities, and not by the Torah, the conveyance is valid because of "dino
dimalchuso" or even because of "astumso" which means that a conveyance
accepted by society or merchants is binding between two Jews. Therefore,
when Jews deal with each other as members of the business community in a
civil society, they use the conveyances of the civil society. When it
comes, however, to adjudicate a dispute, we must follow the laws of the
Torah, and not civil law. In the event that such could cause
anti-Semitism and create a furor, a Rov (rabbinical authority) should be
consulted. Therefore, a husband and wife cannot go to a civil court. If
they go to a rabbinical court, and certain transactions must be made,
these transactions can be concluded with civil conveyances.
Q5. What type of court should a divorcing Jewish couple submit their
case to?
A5. A court for a divorcing couple is one renowned for learning, piety
and honesty, as well as wisdom and experience in the field. It is
accepted by the senior rabbis of the generation, does not radicalize the
Torah, and strives to maintain the ancient and holy standards and
procedures.
Q6. What is a "Get" and where is it obtained? Is the defendant in a
Jewish court automatically required to give or receive a "Get"? Is a Get
always required to be given or received?
A6. A GET is a twelve-line document of divorce, written by a scribe for
the husband, and given by the husband to the wife. The GET must be
physically given by the husband or his agent to his wife or her agent,
and must be given willingly. In very rare circumstances, a rabbinical
court may force a husband to give a GET. In very, very rare
circumstances, a marriage may be void and annulled. Such forcing and
annulment should only be done with the direct involvement of the senior
rabbis of Israel. The laws of writing a GET are quite complex, and
therefore, only one thoroughly trained and competent may give one.
Q7. Should a divorcing Jewish couple submit their financial and child
custody issues to the non-Jewish courts and then only apply to the Beis
Din for the Get?
A7. It is forbidden to go to a civil court for the financial and other
aspects of a divorce. The couple must go to a Beth Din. A defendant in a
Jewish court is not automatically required to give or receive a "Get."
The Torah does not look to break marriages, but to sustain them. If,
however, one side wants out, the rabbinical court must see how to handle
it. If and when a GET is given is not automatic, but is determined
individually by the merits of each case. Surely one who sins and forces
the case into a civil court is not rewarded with an automatic GET. A
divorcing Jewish couple should submit all of their issues to a
rabbinical court, including the financial ones, and the issues of child
custody. They should not go to a civil court.
Q8. Is there any concept of "equitable distribution" within traditional
Jewish law? Are there any traditional halachic authorities who require a
man to accept such a concept?
A8. Is there a concept in Judaism of "equitable distribution"? There is
not, in the sense that it is applied in civil law. In other words, in
Judaism, marriage and money have nothing to do with each other. A man's
money does not belong to the woman, and the woman's money does not
belong to the man, although he has use of it, and benefits from its
"fruits" or income, for the duration of the marriage. The woman does not
have the man's money, but he is obligated to support her, not because
she owns his money, but because he has a marital obligation to support
her. The idea that monies are shared is a violation of common sense, as
well as a negation of the concepts of the Torah. If two people marry,
they both invest equally into the marriage. Why should one person invest
more than another, because that person is wealthy? In some gentile
religions, marriage is considered an absolute, a cardinal status that
cannot be removed even by divorce. In other religions, there can be
divorce, but it is utterly discouraged, to the point of declaring an
utter unity or communal ownership within the status of marriage. In
Judaism, marriage is sacred and important, but it does not create
equitable ownership of assets.
Q9. What does Jewish law have to say regarding child custody issues?
A9. I have received from the senior rabbis of the past and present
generation that with children the primary concern is the children. They
are not chattels or property to be "owned" by parents, but are human
beings who must be given the best opportunities to thrive, especially
after the tragedy of parental divorce. On the other hand, there are
suggestions, available to rabbis, how to deal with a child, in accord
with their gender and age.
Q10. When a Jewish couple divorces, are there any sources in Jewish law
which require a man to move to a different neighborhood or city in order
not to make the ex-wife uncomfortable?
A10. Your question is whether in Jewish law there is a concept forcing a
husband to leave his neighborhood or city in order not to embarrass his
divorced wife. Jewish law is concerned that divorced people do not live
juxtaposed, in close proximity where they may come to sin. Other than
that, they continue to live where they always did. The idea that a
divorced spouse can force the other one to leave a city is wrong and
ridiculous, unless there are really extenuating circumstances, such as
the fear of a nervous breakdown, or other medical matters. Even then,
the legalities are that the sick person must leave, not the well person.
If that is not feasible, we have a problem. Certainly, however, on a
general basis, the claim of being embarrassed does not suffice to force
someone to leave town or even a neighborhood, as long as the two are not
near each other, and do not have to see each other regularly by their
choice of residence.
Q11. If a Jewish man or a woman sues their spouse in a non-Jewish court,
is their spouse then automatically required to give or accept a "Get"?
A11. A person is not obligated to give a GET just because the spouse
sued them in court. The spouse who sued in court did a sin, a serious
one, and must leave the court and repair to a Beth Din. If the spouse
continues to disobey the Torah, this is a sin, and surely does not
confer any privileges upon the sinner to force a GET.
Q12. If a Jew sues another Jew in non-Jewish court and obtains money
they were not entitled to by Jewish law, how does Jewish law view the
plaintiff in the case? Is the plaintiff required to give or entitled to
receive a Get before compensating the defendant for the property stolen
from them?
A12. A Jew who sues another Jew in civil court and obtains money that he
is not entitled to in Jewish law is a thief and a Profaner of G-d's
Name. Such a person may fall into the category of MOSAIR, one who
informs and slanders a Jew to the authorities. If, for instance, the
wife sues the husband in court, and then demands a GET, must he give it?
He surely is not obligated to give a divorce based on the finding of a
civil court, and he cannot be forced to give a GET just because his wife
sinned and committed a serious breach of Jewish law and tradition.
On the other hand, the husband may feel, on his own, that such a wife is
not a good mate, and seek a divorce. I received from my rebbe Rav
Elyashev shlit"o that it is wrong for a husband in such circumstances to
devote his life to punishing the wickedness of his wife by denying her a
GET. He must allow HaShem to run the world and punish the wicked while
the husband goes on with his life. There are terrible tragedies of
people who live out their lives in the past, struggling with their ex
and not divorcing and finding a new life. In such a situation, some
husbands claim that if they give a GET they will endanger themselves,
because the wife will rip them apart in the courts once she gets a GET.
I cannot believe that people must live out their lives without a mate
because of this. A person must seek a solution, and it is not living in
the past, and it is not living in fear. Perhaps a good counselor can
reduce the anger and find a formula so that two people can divorce and
find a life. Perhaps a good lawyer cannot find some protection. All of
this is not a clear decision or adjudication, because such can only be
provided on a strictly individualized basis, by a Beth Din that heard
both sides of the story, or, if one side won't come to Beth Din, by a
Rov who knows the situation clearly and is capable of offering advice in
the matter. However, in a general sense, the main ingredient in these
issues it to reduce the anger and the irrationality by having a
qualified and experienced third party intervene and work out a solution.
We usually don't deal with monsters, only with people who, because of
fear and other factors, may act like monsters. The monkey or monster
wants to climb down from the tree, and needs help. The community should
provide it. If not, let the monster find someone who can help. Inside
every monster is a mentsh who is so anxious to appear.
In the event that a spouse steals property and demands a GET, there is
surely not obligation to honor thievery and obey its demands. On the
other hand, being robbed doesn't qualify someone to live alone, because
"it is not good for a man to be alone" and that applies to women.
Surely, however, the thief cannot make demands based on thievery.
Q13. What are some other grievances which may be need to be rectified by
one party or another before a Get is required to be given by the husband
or accepted by the wife? For example, if a woman engages in a slander
campaign against her husband?
A13. The obligation to divorce is the same as the obligation to marry.
When one is not married he must do so to escape the bad state he is in,
"it is not good for a man to be alone;" so when it comes time to
divorce, when halacha requires it, a person must do so. This is true
today more than ever, because without a divorce, the person cannot
remarry. No monetary or personal grievance can be confused with the
obligation to make the divorce and remarry. If a person's spouse does
something bad, like stealing or slandering, the aggrieved party deserves
compensation and may seek it, but this has nothing to do with the
obligation to divorce and remarry. The state of pre-divorce is spiritual
destruction, a time of anger, revenge, loneliness and frustration. It is
a time when we cannot fulfill our duties as parents, because we are
hurting our children with the constant strife and unsettled conditions.
"There is no joy like the resolution of doubts." Once it is over, there
is relief, as terrible as divorce is; a marriage that needs a divorce is
a worse state.
This does not mean that somebody can slander, steal, and then wave the
obligation to remarry in the face of the other and demand a GET. It is
not a right of the wicked; it is the obligation of the righteous. If the
thief-spouse asks where the righteousness of the one refusing to divorce
is, the one refusing can reply, "Fix yourself first, then fix others."
Q14. If a Jewish woman uses a non-Jewish court to coerce her husband to
give her a Get in Beis Din, is that Get valid? Does it matter if the
coercion by the non-Jewish court is a threat of imprisonment, or just
financial sanctions if the husband refuses to give the "Get"? If the
woman remarries after receiving the coerced Get, what will be status of
any children born to her next marriage?
A14. If a woman uses a non-Jewish court to force her husband to give a
GET, is the GET valid? Again, such questions are most sensitive and must
be decided individually by a competent Beth Din or authority, after all
of the facts are ascertained carefully and by competent witnesses and
proofs. On the other hand, my rebbe Rav Yosef Shalom Elyashev shlit"o,
the gadole hador, told me that he revokes the authority of any Beth Din
that issues a GET given because the husband feared the New York State
Get law. A GET given only because the husband fears great harm from his
wife, be it physical or financial, or even other things, is a "forced"
GET and is not valid. Again, I cannot comment on individual cases, only
to say what my rebbe said.
A GET must be given of "free will." A woman who pressures her husband
with a lawyer may make grievous damage to her status as a divorced
woman, and her children may, heaven forbid, suffer the status of
mamzerut. The very phone call from a lawyer who means business is a
declaration of threat, with intent to get a GET with the powers of the
lawyer, which is the power of the civil courts, and may automatically
destroy the GET's validity. The fear of being dragged through the court
system, for years and years, with constant bills for legal help, using
the top attorneys to defend against top attorneys, is on par, in my
humble opinion, with the fear of being robbed. What is worse, to be
robbed of a thousand dollars, or to spend your whole life struggling
with suits in the legal system, one weighted heavily in favor of a
non-Torah objective? Of course, anyone would rather be punched in the
nose than suffer in the legal system. So why should we reject a GET made
by a threat of a robbery or punch, and yet accept a GET given because of
the threat of legal action?
In this regard, it is important to note the gemora in Kesubose,
regarding Chananyo, Michoel and Azaryo, the friends of Daniel, who were
flung into the flaming furnace because they refused to bow to the king's
image. The gemora says, "If they were beaten constantly, they would have
bowed to the image." In other words, a human being can survive a
momentary sacrifice, even being flung into the fire. If, however, he is
smacked with a stick, again and again, he cannot take it, and will bow
to the image, even if he is righteous. Thus, an open-ended torment is
the worst suffering. The fear of an open-ended legal action, winding
through the courts, returning again and again to fight about this and
that, dealing with child support, visitation, etc. and etc., is surely a
hideous suffering that is worse than a one-time, limited robbery, or a
punch in the nose.
Q15. If a Jew's actions result in the imprisonment of another Jew or
confiscation of his property by the non-Jews, what is the term for this
action in Jewish law? How does Jewish law view the perpetrator of this
deed?
A15. A Jew who causes another Jew to be imprisoned, without the
permission of a competent rabbinical court or authority, is a MOSAIR, an
informer. Jails are filled with people who are sick physically and
mentally. The experience of going to jail is frightening and can lead to
physical danger. There is even a fear of TB in American jails today. If
someone causes one to be incarcerated in a lovely hotel, without pain or
suffering other than the incarceration, we might want to discuss if this
is MOSAIR, but a jail is a dangerous place, and is probably a situation
of MOSAIR, although, of course, each case must be decided on its merits
by a competent rabbinical court or authority.
Q16. What is the halachic definition of an agunah? Can a man have the
status of an igun? Is it possible that as many male igunim exist as
there are agunos?
A16. The term AGUNAH is usually used to refer to a woman whose husband
went on a trip and was lost. Perhaps he died, perhaps he ran away, and
the woman sits and sits. This is the classical AGUNAH. On the other
hand, the word AGUNAH comes from the word AGUN or anchor of a ship, that
holds it back from sailing. Any woman who cannot go on with her life
because the husband refuses to divorce her may claim, with or without
justification, a status of a wronged and "anchored" woman. Only a
competent rabbinical court or authority can determine the veracity of
such a claim after hearing both sides of the story. If a woman with
children, whose husband never wronged her, is influenced by evil people
to hate men, and the husband refuses a GET, such a woman is not
necessarily an AGUNAH. Only HaShem really knows what goes on between two
people. If there is a problem, and one side wants a divorce, they should
work through the rabbinical system.
A man can be an AGUN, if his wife leaves him, or refuses a divorce when
a rabbinical court wants one. Unfortunately, the literature exists about
women who ran away from their husbands, often with gentiles, and left
him high and dry. A man, however, has more hope, because of HETER MAYO
RABBONIM, and other devices not available to a woman.
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