The doctrine of the consensual nature of halakhic divorce

Addressing the dynamics of how a Posek arrives at his decision, we observe elsewhere,

Prior to rendering a decision, the arbiter must acknowledge his own finitude in terms of the level of his own halakhic knowledge compared to his contemporaries and predecessors, as well as recognize the importance of rendering a psak (a decision) pursuant to normative halakhah regarding the matter he is addressing. Should compelling reasons dictate the need to deviate from normative halakhah, utilizing the canons of decision-making, he may render an autonomous judgment. To arrive at a psak, the Posek must delve into commentaries of the Talmud and responsa literature, which generally reveal their reasoning processes, as well the restatements and rabbinic court judgments, which are frequently devoid of proofs and explicit reasoning ...

The ability to analyze and potentially overrule one's predecessor, whether he is the author of a teshuvah or a sefer psak, requires the arbiter ... possesses yirat shamayim (religious piety) and scholarship. In his decision-making, he must weigh the significance of contrary precedent opinion and exercise logic as well ...

... an arbiter must engage in a special type of logic, "medameh milta le-milta" (applying analogical inferences for the purpose of discerning the similarities and differences between cases), in order to address new situations ... the practice of analogical reasoning reflects the ongoing dialectic between deference to early authorities and creative innovation ... the engagement in medameh milta lemilta is thus concomitantly a stimulant and a depressant — a spur to creativity, but equally a motive for restraint ...

In short, ko'ah ha-hiddush (the spur to creativity and originality) is tempered by a Posek'syirat Shamayim, his commitment to thoroughly investigate the wealth of sources, and the collaborative effort of numerous authorities in the past that have confronted similar and/or identical problems.

Once the arbiter enters into the world of issur ve-heter (ritual law), additional factors come into play prior to him arriving at a psak. Decisions emerging over the centuries dealing with halakhic divorce law, as we will show, either explicitly invoke these considerations or implicitly utilize some of these factors prior to rendering a psak.

One of these considerations emerges from the nature of halakhic kiddushin (betrothal) and nissuin (marriage). Both the acts of kiddushin and nissuin entail a consensual agreement between a Jewish man and Jewish woman. It is a very special agreement that establishes a personal status, namely that the mekudeshet (the betrothed woman) is designated for a particular man and prohibited to all others. The establishment of hezkat eishet ish (the presumptive status of a married woman) renders both the man and woman subject to various prohibitions — e.g. sexual relations with various relatives become prohibited. The act of kiddushin equally creates financial obligations that will become spousal duties upon the consummation of the act of nissuin.

The severing of matrimonial ties is predicated equally upon both parties' willingness to marry each other. We are taught in Devarim,

"When a man has taken a wife, and married her, and it come to pass that she find no favor in his eyes, because he found something inappropriate in her; then let him write her a bill of divorce, and give it to in her hand and he will send her from his house ..."

Elucidating upon this Torah verse, the Mishnah, various passages in the Talmud, and subsequently the classical restatements conclude that the execution of a divorce requires the volition of the husband. The potential normative status of this conclusion stems from the fact that this doctrine of a husband's free will concerning the execution of a divorce is found thousands of years ago in the Talmudic canon, whose rulings are authoritative due to the fact that there has been some metaphysical acceptance of these rulings by members of the Jewish community dating back from the days of Rambam until contemporary times.

On the other hand, normative Halakhah as recorded in the Tosefta, Mishnah, various passages in the Talmud and subsequent halakhic rulings until the early Middle Ages rule that a husband may deliver a get to his wife against her wishes. In other words, Halakhah required only the husband's consent in giving a get.

Subsequently, over a thousand years ago, in the eleventh century, Rabbeinu Gershom of Germany enacts seventeen pieces of rabbinic legislation (or the legislation was attributed to Rabbeinu Gershom), including one providing that Halakhah mandate that the wife's consent is required prior to the husband's delivery of the get. The enactment was complied with in the medieval Franco-German communities and though there was originally a time limit placed upon the validity of the takanah (rabbinic legislation), nonetheless it is widely accepted that the enactment is still operative at least with regard to Ashkenazic Jewry to this very day. Invoking the language reminiscent of a twentieth century liberal mind, R. Asher ben Yehiel (known by the acronym: Rosh), who resided in thirteenth-century Germany and Spain, characterizes the takanah in the following fashion:10

It [the legislation — AYW) equalized the power of the woman to the man's power; just like a man cannot divorce her against his will, similarly a woman cannot be divorced against her wish.

That being said, one of the ramifications of marriage is the creation of the status of eishet ish — which means, amongst other matters, that the Posek must tread cautiously in releasing a married woman from the bonds of matrimony prior to ascertaining whether there are grounds for executing a get. Absent any grounds for permitting the divorce, should a get be executed it may be viewed as a "get me'useh" (a coerced get) and according to the majority of Poskim the get would be null and void. Therefore, should the wife rely upon this get and subsequently remarry and have children, her offspring would be halakhically stigmatized as mamzerim (halakhic bastardy-children born out of incestuous relationship).

Assuming a couple mutually agrees to execute a halakhic divorce, the couple, with the assistance of an attorney and/or a rabbi who has expertise in halakhic divorce law, would draft a settlement agreement that deals with the end of marriage issues such as division of marital assets, child support, parenting arrangements in terms of custody, and visitation privileges.

In the absence of an agreement between the parties to divorce, it becomes a beit din's responsibility to determine whether are grounds for obligating or — in cases where it is permitted by Halakhah — for compelling the husband to give or the wife to receive a get.

Citing and expounding upon the sources of Halakhah, Professor Schereschewsky elucidates,

The wife is entitled to demand a divorce on the grounds of (a) physical defects of her husband or (b) his conduct toward her ... in order to obtain a divorce on the grounds of physical defects the wife must prove that these preclude him, or her, from the possibility of cohabiting with each other ... or because the defects are likely to arouse in her feelings of revulsion when in his proximity, and the like. In the case of the unreasonable refusal of the husband to comply with the judgment obliging him to give a get of his own free will in these circumstances the court may compel his compliance ... unjustified refusal of conjugal rights on the part of the husband entitled his wife to claim a divorce ... similarly, the wife may claim a divorce on the ground that her husband's unjustified refusal to maintain her when he in a position to do so ... the wife will have a ground for divorce if, e.g. her husband habitually assaults or insults her, or is the cause of unceasing quarrels, so that she has no choice but to leave their common household ...

The grounds on which the husband may demand a divorce ... are mainly similar to those that afford the wife this right against him ...

In effect, these grounds of compelling the issuance of a get by a beit din, namely physical defects and inappropriate behavior of a spouse, are mentioned in the Mishnah and Talmud. After the Talmudic period, the question arises whether a beit din may compel a husband to deliver a get to his wife or compel a wife to accept a get from him in circumstances not mentioned in the Mishnah and Talmud. The question hinges upon whether grounds for compelling a get is limited to the specific examples of physical defects such as a husband who has a contagious disease or who is sexually impotent or examples of inappropriate conduct of a spouse such as wife-beating or refusal to support his wife mentioned in the Mishnah and Talmud; or could the list be expanded based upon drawing inferences by way of "hekesh" (analogical reasoning) to encompass other instances not mentioned in these halakhic compendiums? For example, if a wife claims "my husband is repulsive to me" are there grounds to compel a get (or obligate a get)?Given that this claim isn't mentioned in the Mishnah and Talmud, many authorities conclude that there are no grounds for compelling (or obligating) a divorce. However, some of these authorities who refuse to validate such a plea will recognize this claim provided there exists an amatla mevureret (a clear reason that the husband is repulsive). There are yet other decisors who will reject such a plea even where a clear reason is provided.

Or to place this matter in a contemporary context, what grounds, if any, are there to compel a husband who is infected with HIV or who is a drug addict to deliver a get to his wife? Such issues would be subject to the same debate that began in the Middle Ages. Given that AIDS and drug use aren't mentioned in the Mishnah or Talmud as examples of behavior that potentially poses an endangerment to a spouse, would there be grounds under these circumstances to compel a get?

Seemingly, these ongoing discussions and debates in Halakhah relating to the grounds to compel a divorce fly in the face of our conclusion that the execution of a Jewish divorce is a consensual process. How does a beit din compel a spouse to give or accept a get if a divorce if the voluntary agreement of the parties is required? One of the rationales given for this anomaly — which is briefly alluded to in the Talmud — is expanded upon by Rambam, who writes,

A person regarding whom the Law indicates that we should force him to divorce his wife and who refuses to divorce, a Jewish court in every place and at every time beats him until he says "I am willing" and he writes a get and this get is valid ... Why is this get not void, as it was the product of compulsion ...? Because we do not talk of compulsion apart from one who was pressured and forced to do a thing that he is not commanded by the Torah to do — for instance someone who was beaten until he executed a sale or donated a gift; but in the case of one whose evil inclination drives him to avoid doing a religious commandment or to commit a sin, and was beaten until he did the thing that he was obligated to do ... this (subsequent conduct) is not compelled from him rather he compelled himself due to bad judgment. Therefore, someone who does not want to divorce (when Halakhah states that he should divorce — AYW), it follows from the fact that he wants to be part of the community of Israel that he wants to perform the religious commandments ... and it is his (evil — AYW) inclination that is driving him and because they beat him until his inclination was subdued and he stated "I am willing" he has divorced willingly ...

Aware of the doctrine of the consensual nature of halakhic divorce as well as the legitimacy of a beit din compelling divorce under certain prescribed conditions, Rambam suggests that one must distinguish between "the real will" and "the actual will" of a Jew who is committed to Halakhah. The real will of this Jew is to comply with the dictates of our mesorah (Jewish tradition), including — but not limited to — delivering (or receiving) a get if Halakhah mandates such an action. However, his actual will, which may be driven by desires that are beyond his control, direct him (or her) to disobey the law. In such circumstances, by coercing the miscreant to obey the beit din by acquiescing to the divorce, we have not forced him (or her) to do what he does not want; on the contrary, we have enabled him (or her) to do what he (or she) really wants! Hundreds of years later, Immanuel Kant — and even later John Rawls — speak of the rational will as the expression of what is required or demanded by reason; a will that is free of inclinations and desires that, although rational, is imperfectly so. Whereas Kant and Rawls depict this will as controlled by reason, Rambam — as a religious philosopher — defines this notion of rational choice in terms of subservience to the norms of Halakhah. Subsequent to Rambam's understanding, many authorities endorse his approach that coercion serves as a vehicle to reinstate the recalcitrant spouse's authentic will to comply with Halakhah and give (or receive) a get. For example, even though a husband may feel the economic pressure to pay the value of the ketubah, at the end of the day the fact that there are halakhic grounds to give the get ensures that the husband is acting voluntarily by granting a get. And in contemporary Eretz Yisrael, where in certain instances a beit din will compel a recalcitrant husband to deliver a get to his wife, the beit din panel informs him that in actuality he is giving the writ of divorce voluntarily.

As Rambam explains, the logic behind the legitimacy of a coerced get is that the husband does indeed want in his heart of hearts to obey the teachings of his tradition. The question is whether the "real will" to obey Torah scholars means that there must be a rabbinical consensus that there are grounds to coerce a divorce or is it sufficient for a beit din to render a decision even if it does not reflect the rabbinic consensus? Is the real will actualized when there is unanimity of halakhic opinion or when a beit din hands down a ruling regardless of whether it would be accepted by all decisors?

One ramification of our question emerges in the following context. Addressing the case of a husband who became epileptic, there was a dispute between Rosh, who advocates compulsion to effect a divorce, and Mordekhai, who rejects it. In light of this controversy, Hatam Sofer, a nineteenth century Hungarian rabbi, invokes his approach to this question. He states,

Even if it is clear in Heaven that halakhah follows Rosh, since there is the opposing opinion of Mordekhai, and we do not have anyone who can decide between them, if one forced him to divorce she is still a definitely married woman ... The reason I say this is that a coerced get, even when it is enforced according to the Law and he says "I agree", is nevertheless only fit for the reason that the authorities gave; it is presumably agreeable to fulfill the words of the Rabbis who said one should compel him to divorce — as Maimonides beautifully explained. However, this is only when it is clear to the husband that the coercion is in accordance with the Law according to every authority for if so it is a duty [in the husband's case] to comply with the teachings of the Rabbis. However in this situation the husband will say, "Who says it is a duty to heed the words of Rosh, perhaps it is an obligation to follow the words of the Mordekhai? So if said, 'I agree' it was coerced and did not emanate from his heart" ...

In reply, in accordance with nineteenth century medical opinion, Hatam Sofer contends that living with an epileptic does not pose a danger to oneself; therefore there are no grounds for coercing a get.