[Avodah] forcing a GET

[Micha Berger]

On Wed, May 09, 2012 at 01:02:33PM -0400, T613K at aol.com wrote:
: Letter from R' Dovid Eidensohn warning that certain types of  activity that 
: are becoming more common in the US, actions intended to  help agunos -- 
: namely, certain kinds of public pressure on husbands to  give a GET (including 
: ostracizing and public humiliation) -- may  result in gitten that are 
: halachically invalid, may be halachically forbidden...

But he is at the least pushing a daas yachid against how the entire world
holds, and at the worst totally wrong.

He notes that he is taking on RHS and RMJBroyde, but list rules don't allow
me to go into detail about how he dismisses not only their opinion, but their
entire ability to pasqen and remain loyal to Torah. His opposition alone
should tell you that there is something amiss in his position.

This is also against Israeli norm, where many gittin are given under the
threat of imprisonment.

And as Batmelech noted in a blog comment:
    So what happens if his mother, or worse: mother in law, insists he
    give a get???

    This would be a forced get in any case, because nothing is more
    fearsome than an angry mother, or worse, mother in law!!!

I went through the literature -- Otzar haPosqim and the Bar Ilan web
site. I also asked two friends who are dayanim. Consensus appears to be
variations of what we see in the SA and Rama, EhE 154:21. Yes, there
are some Israeli acharonim, really starting with the CI, who are more
machmir, but as noted above, not to the extent R Dovid E is advocating,
allegedly besheim RMShternbuch (5:344) and RYSE -- not that I think
either say what he thinks they do.

Both the SA and the Rama say that iqar hadin is like the Rambam and
we may use kefiyah even when the gemara doesn't explicitly require a
divorce. However, the SA has a "some say" not to, and the Rama lauds
the minhag of some areas not to allow kofin oso ad sheyomar "rotzeh
ani", and avoid the dispute. Where the gemara *does* require a divorce,
which I am not insisting is our case, there is not even a "yeish omerim"
against the Rambam. So yes, we do hold like the Rambam -- we just
prefer lemaaseh not to rely on him lekhat-chilah for beyond iqar hadin
reasons.

Second, the Rama says that bedi'eved (post facto) the gett is kosher
according to both, since it's only an opinion we try to avoid violating,
it's not going to create eishes ish problems or mamzeirus.

The Rama continues that all (even those who follow his "ra'ui lehachmir")
can implement harchaqos Rabbeinu Tam, and then gives a very broad
definition of what that includes. Including banning all Yisrael from:
doing him any favors, doing any business with him, give his sons a beris,
bury him ... "any chumera which BD desire they can be stringent in this
way, as long as they don't put him in nidui."

Last, the Rama says that anyone who doesn't fulfil "onah" can be put in
nidui until he does, or divorces her.

I would argue that someone who signs onto a civil divorce would qualify
for this last din. But even if not, the rest of the se'if says pretty
much the opposite of RDoE's position.

As for other sources. Supporting kefiyah:

Shu"t BY "Din Mayim sheEin Lahem Sof", siman 1. He explicitly says that
"we are nohagim to hold like the Rambam over the Ramban, all the more
so when dealing with an agunah" (tr. mine), and then procedes to dismiss
the relevency of the Rivash.

The Mabit 1:76 says that if the husband won't support his wife, kofin oso.

And others.

Supporting harchaqos RT, there is also the Gra (Biurim EH 154:67),
the Chakham Tzevi (shu"t #3, who raises RDoE's line of reasoning and
dismisses it) IM, TE (17:51 -- and R' Kulitz and ROY cosign), Yabia Omer
(EhE 7:23 -- ROY's view of the same case), etc...

See also RMJB's essay on "Protestin without Coercing" at
<http://torahmusings.com/2012/04/protesting-without-coercing>.

RDaE (our listmember, RDoE's brother) invoked EhE 77:2 in another forum,
saying that if she initiated the civil divorce, it's more relevent. But
that is in hilkhos kesubos, and therefore unsurprisingly is talking about
losing her kesuvah -- 154 is the last siman in hilkhos gittin. Yes,
someone who says "ma'us alai" and becomes a moredes forfeits her
kesuvah. Does that mean her husband is allowed to keep her married even
after he promised in writing not to provide onah?

Tir'u baTov!
-Micha

-- 
Micha Berger             Today is the 32nd day, which is
micha at aishdas.org        4 weeks and 4 days in/toward the omer.
http://www.aishdas.org   Netzach sheb'Hod: What type of submission
Fax: (270) 514-1507                 really results in dominating others?