A recent letter to the editor of this publication (“IBD Rulings Invalidated; Women Languish,” September 10, 2015) touched on the critical question of when in the divorce process a get should be issued. In general terms, the Beth Din of America recommends that a get should be executed once a marriage is functionally over and the couple has separated, even prior to the resolution of other end-of-marriage issues (i.e. finances, custody, etc.). [While not the topic of this article, it is important to note that any unsettled financial dispute between two Jews, including disputes arising from end-of-marriage claims, must, as a matter of Torah law, be adjudicated in front of beit din and not secular court. A beit din decision on such matters, when governed by a binding arbitration agreement, is legally enforceable in the Unites States.] About 15 years ago, the Beth Din of America publicized “Standards for Batei Din” (endorsed by the Rabbinical Council of America and the Orthodox Union and signed by leading rabbinic figures including Rabbi Gedalia Dov Schwartz and Rabbi Hershel Schachter) that included the provision that “in all divorce proceedings the get will be given as the first item of business.”
Removing the get as a matter of contention eliminates the inappropriate and unethical possibility of the get being used as a bargaining chip in subsequent negotiations. Furthermore, any delay in issuance of a get could always lead to the possibility of a get never being given. Let us briefly attempt to explain the theoretical basis for objecting to this approach and how these concerns may be alleviated.
Rema (Seder Haget 81) writes that prior to the husband’s giving a get to his wife, the wife should either return the ketubah or formally waive her right to collect it. The reason for this is to prevent the possibility of the husband subsequently calling into question the get’s validity. Were the wife to later demand the monies owed to her as per the ketubah, the husband may claim that the get was issued under false premises, as he never would have given a get had he known that it would lead to unexpected financial liability.
The most celebrated case of get muteh (a get given under false pretenses) in rabbinic literature was the Get MiVien (the Vienna Get) of the early 1600s. A young man from Poland married a young lady from Vienna and shortly after the wedding contracted a severe illness. As the couple did not yet have children and the husband’s death would have created a complicated situation of chalitza (the procedure performed with a brother-in-law instead of levirate marriage), the wife’s family convinced the husband to give his wife a get, providing written and oral assurances that were he to recover he would be allowed to remarry his wife. When the husband did recover, a fight ensued between him and his wife’s family, and they did not allow the remarriage. Maharam Lublin, one of the foremost authorities of the generation and a relative of the husband, claimed that the original get was invalid as it was issued under false pretenses. The Sema, one of the primary commentaries on Shulchan Aruch, as well as many other contemporaries of the Maharam Lublin, argued that the get remained valid, as there was no explicit condition attached to the get itself.
Some have argued that in the spirit of the above Rema, a get should only be issued upon resolution of all end-of-marriage issues and the finalization of the civil divorce. Such a practice would prevent the possibility of a husband claiming subsequently that had he known the eventual outcome of financial litigation he would never have given a get.
However, standard get protocol counters the possibility of such a claim. The beit din typically cautions the parties that the get is issued unconditionally and any subsequent claims have no bearing on the effect of the get. Even were the husband to later claim that he gave the get under false pretenses, the halachic consensus views such a claim as being without merit if he did not articulate any condition at the time of the get proceeding (see Maharam Alshich cited in Pitchei Teshuva Seder Haget 36).
R. Gedalia Felder (Nachalat Zvi Vol. 2 pp. 462-3), a prolific author and leading halachic authority of a generation ago, ruled this way regarding a couple who had settled all end-of-marriage issues in beit din and agreed to undergo a civil divorce proceeding. Upon completion of the civil divorce in Mexico, the husband moved to Israel and remarried there, and then the wife initiated judicial proceedings in Canada (where she was now living), accusing her ex-husband of bigamy and demanding spousal support, as apparently Canadian law did not recognize the Mexican civil divorce. Rabbi Felder ruled (with the endorsement of R. Moshe Feinstein) that there was no concern about the validity of the get in this case, as the husband made no stipulation at the time of the get conditioning his participation on the wife’s not pursuing subsequent judicial remedy.
Even in situations where other financial claims may be advanced subsequent to the issuance of a get, a responsible beit din will ensure that the parties understand the unconditional nature of the process to avoid any future claim of get muteh. As there is always the chance that a cooperative party may turn uncooperative down the road, it is prudent and halachically sound to execute a get as soon as possible in a divorce proceeding.
Rabbi Michoel Zylberman serves as S’gan Menahel (Associate Director) of the Beth Din of America. Information about the Beth Din may be accessed at www.bethdin.org.
By Rabbi Michoel Zylberman
