Last week, Eliana Baer, Esq. of Fox Rothschild LLP, published in The Jewish Link an article entitled “Coercive Control Amendments Offer Potential Relief to Agunot.” The inference to be drawn from the title is that coercive control legislation may serve as a solution to the agunah problem. Regretfully, our readers who are affiliated with a covenant faith community need to be educated regarding the conditions that are required to determine the norms for agunah relief. In this brief presentation we will attempt to validate the use of this legislation in our community.
On Jan. 24, the New Jersey State Legislature amended the Prevention of Domestic Violence Act of 1991 by the recent passage of A-1475/S-1809, which provides legal relief for victims of criminal coercive control of a spouse or another individual. Coercive control may include, but would not be limited to, monitoring the person’s behavior, finances and basic necessities as well as threatening to injure or kill a person. Failure to comply with the law may result in criminal charges for domestic violence, which may carry severe criminal penalties depending on the degree of the charge, such as fourth degree up to 18 months in a New Jersey state prison and first degree up to 20 years. The imposition of such penalties not only averts fraud, duress or overreaching, but in a particular case that we are addressing the matter of a get (i.e., a writ of Jewish divorce) refusal it constitutes an instance of coercive control which results in sentencing the husband to a set period of imprisonment in accordance with the above legislation. In other words, seemingly the threat of prosecution would result in a coerced get.
It is well-known that if a husband gives his wife a get due to coercion, the get is void.1 Therefore, if he is imprisoned until he gives the get, or if he was threatened to be imprisoned, and he gives the get in order to secure his release from prison, the get is void.2
The question arises: Is there a halakhic basis for compelling a get by means of a criminal process in a non-Jewish court? In accordance with the Biblical passage (Deut. 24:1), “…he writes her a bill of divorcement and gives it in her hand, and sends her out of his house,” the Mishnah3 and the authorities state that a man may not divorce his wife except of his own free will.4 It is clear that the get must be given with the consent of the husband, and a get that is given without the husband’s volition is void.
On the other hand, the Mishnah states:5
A get compelled by a Jewish [court] is valid, but by [if he was compelled by] gentiles [it is] invalid. But with regard to the gentiles, they may beat him [at the request of the beit din] and say to him, Do what the Jews are telling you, and it is a valid [divorce].
And the Talmud states:6
And similarly you find [this halakhah] with bills of divorce, [that when the court rules that he must divorce his wife] they coerce him until he says, I want [to divorce my wife]. [The gemara (Talmud) rejects this proof as well.] But perhaps there it is different, because it is a mitzvah (a duty) to listen to the statement of the Sages.
In other words, although under certain conditions the husband is compelled to give his wife a get, his consent to accept the judgment of a beit din is effective for the purpose of considering the get to have been given “of his own free will.” In short, a get compelled by a beit din is valid, but compulsion of the get by a non-Jewish court is invalid.7 Seemingly, based upon the foregoing, a ruling by a non-Jewish court such as a New Jersey court is invalid and therefore halakhically a beit din cannot penalize get recalcitrance.
In the event that the beit din ruled to compel the get in a particular case, does compulsion of the get by non-Jewish courts invalidate it? Tur cites a dispute between his father, the Rosh, and between Ramah on the law in the case of a non-Jewish court that compels a man to give a get, when that court did not state, “Do what the Jews are telling you.” In such circumstances, is the get valid or not? Tur rules:8
If a beit din compels him through the non-Jewish court, and they say to him, Do what the Jewish court tells you, and they compel him, then the get is valid, and Ramah wrote that they must use those words, but if the non-Jews compel him and say to him, Give a get, even though they have been told by a beit din to compel him, the get is invalid. And is it not clear to my father, the Rosh, that because the beit din instructs the non-Jewish court to compel him, even if the non-Jewish court says, “Give a get,” the get is valid.
The focus of the disagreement between the Rosh and Ramah is explained clearly by Dayan Uriel Lavi, Presiding Dayan of the Jerusalem Regional Beit Din:9
Ramah and Rosh were in disagreement concerning a case in which a beit din ruled that the husband is to be compelled to divorce, and subsequently the non-Jewish court compelled him to give a get by virtue of their law, doing so independently, and not in order to comply with the ruling of the Jewish court. Ramah holds that because the non-Jewish court is not compelling the husband as an agent of the beit din, the get is not valid. According to the Rosh, however, because prior to the compulsion the beit din had already ruled that he is to be compelled to divorce, then whosoever enforces this compulsion, including the non-Jewish court, will be considered the long arm of the beit din, even if they have not said as much.
To state it differently, according to Ramah it is possible for a non-Jewish court to enforce the ruling to compel the get issued by a beit din, on condition that the former says “Do what the Jewish court rules.” As opposed to this, according to Rosh, it is sufficient that the non-Jewish court compel, on its own initiative and unrelated to the ruling of the beit din, provided that the beit din has issued a ruling to compel the get.10Pursuant to R. Shmuel Gartner, “the decisive majority of Rishonim (early authorities) endorsed the view of the Rosh.11
The question is whether, according to the approach of Rosh, every compulsion of a get carried out by the non-Jewish courts by virtue of their laws (i.e., that get refusal is an example of coercive control) will be considered as compulsion on the part of the beit din?
In Kovetz Sha’arei Torah, several of the contemporary authorities deliberated on the law applicable to a husband who refuses to appear in court in a divorce suit, where his wife claims and can prove that he is a eunuch, and she asks whether she can sue for divorce in a non-Jewish court that will compel him to divorce her according to their laws: would the get be valid?
An answer to this question may be found in the words of R. Joseph Shalom Halevi Feigenbaum, who decided in accordance with the opinion of Rosh:12
Indeed, according to both Rosh and Tur, and this seems to be the opinion of the Beth Shmuel at the end of 134:15, and in accordance with what we said, viz., that it turns on the above-mentioned distinction, he was correct in his ruling, for this is [also] the ruling of Rema in Orah Hayyim 11 and 32 and see there Magen Avraham 11, and Siftei Kohen, Yoreh Deah 271:5, that even if the beit din said nothing at all, the get is valid, and only beyond what is required did he say that the beit din should give some help. In any case, in the present case it is clear that also according to the words of Rosh and those who support his view, the get is not valid. This is because when the State authorities compel him to divorce, this is not due to the laws of Israel but is rather in accordance with their own conventional State law, which aims to save the oppressed from the oppressor. And even should it emerge that a law to divorce has its antecedents in Jewish law, this would not help, because what we need is that the compulsion be attributed to the beit din. But if the non-Jewish court administers the beating in light of its own procedure, as is pointed out by Ran, unless the beating is given specifically on the basis of a directive of the beit din in accordance with Jewish law, it is not effective [for the purpose of a valid get]. Even if the non-Jew says to the husband, Do as the Jews command you, according to the law of the Torah, this will not result in a valid get.
From what R. Feigenbaum writes it emerges that if a beit din compels the husband to give a get to his wife, the get is not valid if the non-Jewish court then compels him to do so by virtue of their own laws. This is so even if the non-Jewish court says, “Do what the Jewish court orders according to Jewish law”: the get is not valid.
- Meir Arik, author of Resp. Imre Yosher and Minhat Pittim, disagrees with R. Feigenbaum:13
Surely the beit din can designate the wife herself to be an agent, who will compel the husband through the non-Jewish courts, and in that case the get would be valid because she is an agent of the beit din, and what she does is as if the beit din did it. Therefore, the beit din should issue a ruling that the matter be considered by the State court, and if what she says is true, he is obligated to divorce her, and it is valid, because the State compulsion is due to the wife being an agent of the beit din.
- Ya’akov Shor agreed:14
It is clear to me that in fact, as long as the beit din orders that he must divorce his wife, and they warn him that if he does not comply they will allow the wife to sue him under their [non-Jewish] laws to force him to divorce her, then even though their compulsion is not by virtue of the orders of the beit din, but by virtue of conventional State law, the get is a valid compelled get under Jewish law, and it is acceptable ab initio as if he divorced her in a beit din.
In accordance with the position of R. Arik and R. Shor, together with the adoption of Rosh’s approach, if the beit din ruled that the husband must give a get and he refused, and he was compelled by a non-Jewish court to divorce, even if not by virtue of the ruling of the beit din but rather by virtue of State law, the get is valid ab initio. This is also the opinion of the late R. Leibes, formerly a rabbi in Brooklyn, New York.15
In light of the above, in order to eliminate the possibility that a get that is given due to a criminal proceeding in the non-Jewish court will be deemed a coerced get and therefore invalid, bringing charges against a get refuser in a non-Jewish court should be pursued only in the above cumulative circumstances:
- From a procedural point of view, a beit din is permitted to decide on a matter of divorce with the participation of both spouses, or in the presence of the wife alone, on condition that the husband was summoned to the beit din and refused to appear for the hearing in the beit din.16
- The lack of legal and therefore halakhic capacity of batei din outside of Israel to render a compulsion get order does not prevent them from issuing an order for compulsion, with a proviso that the compulsion will be enforced only by means of the non-Jewish courts and in accordance with their laws. In other words, the decision of the beit din must be in accordance with the facts of the case that require compulsion of the get, and nothing more!
- Prior to filing a claim for coercive control in the secular court, the beit din must convene and issue ruling to obligate a get (hiyyuv get).17
- If the husband refuses to give a get, a “heter arkha’ot” — permission to turn to a non-Jewish court — must be obtained in order to bring a criminal action in the non-Jewish court to compel the get. The purpose of the action is to prove that get refusal constitutes an instance of coercive control that occurred in the course of the marriage. In other words, a precondition of bringing this action in a non-Jewish court is that the beit din issued a judgment ordering that the get (hiyyuv get) be given.
- If the husband gave the get in order to prevent an indictment under the above law, the get is valid.
In light of all the above, a judgment issued by a beit din together with enforcement through a criminal process in the non-Jewish court may save Jewish women from the state of igun, and this can help prevent serious violations of Jewish law pertaining to married women, as well as preventing the proliferation of mamzerim [bastards under Jewish law] in Israel — May Hashem save us!
1*Rabbi Dr. Warburg serves as a dayan in the Hasidic, Modern Orthodox and Yeshiva communities of New York and New Jersey. He is the author of “Rabbinic Authority,” vols. 1-5.This article is an excerpt from an essay originally published in 32 Hakirah 247(2022). Mishneh Torah, Hilk. Gerushin 1:1; Shulhan Aruch, Even Ha-Ezer 134:7.
2 Talmud Bavli Gittin 88b; Shulḥan Aruch, Even Ha-Ezer 134:7; Beit Shmuel, ad. loc. 13; Aruch Ha-Shulḥan Even Ha-Ezer 134:22
3 M. Yevamot 13:1.
4 Mishneh Torah, Hilk. Gerushin 1:1–2; Rashbam, Bava Batra 48a, s.v. ve-ken atah omer.
5 M. Gittin 9:8.
6 Talmud Bavli Bava Batra 48b.
7 Mishneh Torah,Hilk. Gerushin 2:20; Tosafot, Bava Batra 48a, s.v. alima maha; Rashbam, Bava Batra 48a, s.v. dilma;.
8 Even Ha-Ezer 134.
9 File 622918, Jerusalem Regional Beit Din, 4 Sivan 5777.
10 The position of Rosh dovetails with the general principle in Ḥoshen Mishpat that it is permissible to enforce a judgment issued by a beit din via a non-Jewish court. See Tur, Ḥoshen Mishpat 2; Drisha ad. loc.; Sefer Me’irat Einayim, Ḥoshen Mishpat 26:5; Beit Yosef, Ḥoshen Mishpat citing Sefer Ha-Terumot; File no. 846913, Haifa Regional Beit Din, 18 Sivan 5777 citing Rabbis Elyashiv and Shlomo Zalman Urbach. Whether the non-Jewish court serves as the agent of the husband or whether the wife serves as an agent is subject to debate.
11 Kefiyah Be-Get, chapter 14, p. 145.
12 Kovetz Sha‘arei Torah, pt. 3, kuntres 11:63,173 ff.
13 Kovetz Sha‘arei Torah, pt. 4, kuntres 15, 25 ff.; Kovetz Sha‘arei Torah, pt. 4, 34:2, 68ff.
14 Kovetz Sha‘arei Torah, pt. 4, 34, pp. 68.
15 Resp. BeitAvi 4:169(14).
16 Resp. Ha-Rashbash 46; Resp. Maharashdam Ha-Ḥadashot, Zikhron Aharon ed., 5775; Resp. Ramah Me-Fano 86; Resp. Ha-Mabit 1:76, 2:138; Resp. Lev Mavin, Even Ha-Ezer 130; Resp. Mishpatim Yesharim 1:436; Resp. Maharsham 6:161; Resp. Avnei Nezer, Even Ha-Ezer 238R. Dr. Eliav Shochetman, Procedure in the Rabbinical Courts (2 ed., Heb.) 521–522; see this writer’s Rabbinic Authority, vol. 4, 216, note 2.
Whether the contentious claims and the submission of evidence must be heard in the absence one party is subject to debate. Whether it is essential to turn to a beit din or whether a scholar(s) who is an expert in Even ha-Ezer and Ḥoshen Mishpat may issue a ruling regarding marriage and divorce such as coercing and obligating a get is subject to debate amongst the authorities. See Yam Shel Shlomo, Bava Kamma 3:9; Ketzot Ha-Ḥoshen 3:1–2; Netivot Ha-Mishpat, Ḥoshen Mishpat 3:1; Resp. Yehudah (Gordin), Even Ha-Ezer 51:2; Resp. Ma‘aseh Ḥiya 24; Resp. Ḥatam Sofer, Even Ha-Ezer 2:64–65, Ḥoshen Mishpat 177; Resp. Avnei Nezer, Even Ha-Ezer 167:1; R. Z.N. Goldberg, Lev Mishpat 1:149–150.
17 In the Diaspora where, generally speaking, rabbinical courts refrain from issuing a ruling of obligating the giving of a get, our presentation demonstrates the significance of a beit din’s acute need to issue this type of ruling in order to address the plight of the agunah who is seeking relief via the services of a non-Jewish court. There is a minority of authorities who argue that rendering a judgment to obligate the giving of a get, similar to coercing a get, runs afoul of the strictures of a coerced get (a get me‘useh). See Ḥazon Ish Even Ha-Ezer 99:2; Teshuvot Yabia Omer 2 Even Ha- Ezer 10; R, Shimshon S. Karelitz, Resp.Ateret Shlomo 1:32 (6) in the name of Rashba and Rivash; PDR 7:201, 204 (Rabbi Elyashiv in the name of Rosh); File no. 8211227/2, Jerusalem Regional Beit Din, December 12, 2013; File no. 1083672/1, Haifa Regional Beit Din, January 25, 2018. However, the majority of authorities including but not limited to the majority of the Israeli rabbinical courts under the network of Israel’s Chief Rabbinate issue decisions of obligating a get. See further, this writer’s Rabbinic Authority, vol. 5, pp. 306–324.
