Lesson # 331 • Marital (Marriage and Divorce) Cases In the State of Israel, by Knesset legislation, many of the matters dealing with marital cases are adjudicated by the official State Beth Din. In the halachic system the Beth Din of three judges, in addition to all the other cases under their jurisdiction, (as seen in previous lessons) also had jurisdiction over marital cases. The hardest of the marital cases is the situation of compelling a husband to divorce his wife under certain circumstances. In halacha, this was most common in cases where the couple had contracted a prohibited marriage. There are in halacha, situations where the Beth Din can compel the husband to authorize the writing of a divorce (“GET”). (See Shulhan Aruch Eben haEzer 154.) The Talmud in T. Gittin 88b discusses situation of compelling a husband to divorce his wife. The Talmud discusses whether the non-ordained judges in Babylonia are authorized to compel a husband to divorce his wife. (We are discussing a situation where the Beth Din has authority as contemplated in halacha.) Can a Beth Din consisting of non-ordained judges compel the husband to divorce his wife? As has been discussed throughout these lessons, all the judges of the Beth Din are nowadays non-ordained, since ordination ceased in the 4th century c.e. The Talmud states that if the divorce that was compelled by the Beth Din accords with Torah law, it is valid; if not, the coerced GET is not valid. The Talmud has an opinion that if a Gentile courts compelled the husband to divorce his wife, under certain circumstances the GET would be valid. The Talmud states that the reason that the Sages rule invalid a GET coerced by the court of Gentiles is the wives would go to those courts who would threaten the husband to granting the GET. From this passage there are certain rules derived: 1) according to Torah law only ordained judges can compel a man to divorce his wife. 2) non-ordained judges have, at present, been give jurisdiction over this matter. One reason given by the major codes is that there is a need to protect a Jewish woman, who might not ever be able to be free to remarry without this divorce. But regardless of the reason given, the authorities agree that, where circumstances are such that halacha requires it, non- ordained judges have jurisdiction to compel a man to give his wife a divorce. Many of the reasons deal with his physical condition that renders him repulsive to his wife; sometimes it may be his occupation that he now works in that makes him repulsive to his wife. In those situations where the Beth Din compels the husband to divorce his wife, at her request, he usually has to pay her the ketuba settlement. This power of a Beth Din of three persons can, of course, be abused. Theoretically, a woman can tell some friend that she wishes to be divorced from her husband, for a reason known only to her. The friend tells her own husband and he calls two other men and they give a summons to the husband to appear and the husband not knowing why he is summoned to the Beth Din is ordered to divorce his wife. He was not even aware that that he was having family difficulties. This, of course, could lead to ridiculous situations. Any three men could bust up marriages by convincing the husband they had the jurisdiction to compel him to give his wife a GET. I suggest that the situation should go before great scholars who would then determine if there is even a basis for having a sitting of a Beth Din to hear the complaint of the wife. If the scholars saw no reason for the convening of such a Beth Din, that should be the end of the matter. If, however, the scholars see justification to her complaints, they can authorize a special Beth Din to summon the husband and have both parties, the husband and wife, and their attorneys and experts appear, and then Beth Din can have a full trial of the issues. If after such a trial Beth Din decides to grant her a divorce, it will instruct the husband to authorize the writing of the bill of divorce (the GET). What is unique in this situation is that the Beth Din consists of non-ordained judges who cannot under ordinary circumstances compel a husband to grant a divorce to his wife. If the non-ordained judges could not compel a divorce there would be situations where the only thing to do for the battered wife is to compel continue her life of drudgery. In these circumstance the Beth Din must have the authority to act. Every community, where there is no fixed Beth Din, whether by law or by custom, should make rules to have a Beth Din that can compel the husband, subject to the laws of the land, to authorize the writing of a divorce. There is another matter regarding marital cases where the Beth Din of non-ordained judges has jurisdiction. Of course they have jurisdiction over the ketuba which is an undertaking by the husband at the time of the marriage that he will pay to his wife a set sum of money in the event of a divorce. (The ketuba also contains stipulations that in the event of the death of the husband, the wife will be paid a set sum by the estate of the husband in addition to other rights that she has in the estate of the deceased husband.) That is marriage contact settlements. This is in addition to the ketuba. The husband and wife entered into pre-marital agreements settling upon the wife a set sum and other rights in case of a divorce. The Beth Din of three non-o ordained judges may adjudicate such cases in the event of a dispute. Ramban states that if the non-ordained judges did not have jurisdiction over marriage contracts (and the ketuba) and debts arising there from, a wife would be at her husband’s mercy. That is, he would be able to divorce her with impunity since she would have no Beth Din to turn to in order to collect the sum provided for in the ketuba and the marriage contracts. This might, in some cases, close the door to marriage, that is they were ready to get married and the bride-to-be inquired of her rights in case of a divorce or death of the husband and the husband refused to offer any contract to protect her. She learned from a friend of hers who was in that position and suffered as a result, and this bride to be does not desire to be in a similar position. Since as has been pointed out by the great authorities, the collecting of the money provided for in these agreements are of a frequent nature and certainly entail a potential loss of money for the wife if she cannot collect her ketuba and other money matters, she might be reluctant to marry this man. Consequently, non-ordained judges have been granted jurisdiction over marriage-contract and ketuba settlements. The subject matter of this lesson is more fully discussed in volume I chapter 4 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat
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