Sunday, August 30, 2015

A Shiur on the Agunah Inyan--and Its Almost Immediate Impact

In the current halachic battles surrounding the struggles of women to obtain Gittin from recalcitrant husbands, one never knows what might actually facilitate the resolution of a previously difficult predicament.  In the following story a well-timed shiur on the very topic actually leads to a breakthrough in what had been previously intractable proceedings.

Part I—The Shiur

Dayan HaRav Moshe Gutnick, in the New York area celebrating the recent birth of a grandchild, addressed an audience of nearly 90 participants on April 28 at the United Lubavitcher Yeshiva in Crown Heights, with a short lecture about Gittin and the halachic processes involved, which was then followed by a rather lively question-and-answer session that lasted for nearly two hours.

Dayan HaRav Gutnick began his lecture noting that the seeds for this shiur were essentially planted by one of his niece’s facebook groups where questions about Gittin arose, and it became apparent that people didn’t understand the the halachic process or Gett process; the misunderstandings had a tendency to lead to unrealistic expectations, or lack of awareness of available options.   “Knowledge of the halachic process is supposed to be empowering.  The Church l’havdil burned books to maintain power and keep the masses ignorant.  In our context  for Torah to have its proper place we have to know it, and understanding the process empowers us." 

Dayan Harav Gutnick illustrated the process by retelling the Talmudic story of the Oven of Akhnai in Baba Metzia and how the debate ended with the proclamation of “Lo bashamayim hi!" [“It is not in heaven!”], to underscore how “Torah is partnership:  Hashem gave the Torah to us; it’s our responsibility to find the halacha;  and that’s why Chazal and gedolim have grappled to always find solutions to help people.”  He explained this by saying that, while certain halachic issues could be called “neutral” in that they “don’t relate to people in terms of personal pain or the circumstances in which  they find themselves”, in other cases “crises developed with people having real difficulties and solutions where possible had to be found to help those people.”

He then addressed the core of the shiur: the issues surrounding the withholding of Gittin, the salience of a halachic prenup as a possible remedy, and possible communal responses to recalcitrant husbands which he considered to be the most effective tool outside of Israel.  Dayan HaRav Gutnick was unequivocal about the immutability of hilchos Gittin and kiddushin—specifically that the man always has to be the one to give both the kiddushin and the Gett, and the Gett has to always be given beratzon with drastic halachic consequences ensuing from a forced Gett (“This requirement that the man must give the Gett willingly creates all sorts of difficulties and we don’t know why Hashem created those difficulties but we must uncompromisingly adhere to His will.”)  He then elaborated on the halachic concepts of kofin and ma’us alai, their history and timeline, and the circumstances where they might apply, and the "difficulty of knowing those circumstances.   In the old days, If Halocho required a man to give a Gett, under the auspices of a Beth Din you would beat him until a Gett was given. Nowadays, allowing a husband to abuse his wife by not giving her a Gett when required to do so is apparently deemed by our secular society to be more civilized than allowing corporal punishment to force him into submission. We therefore need to find different solutions." 

As the evening progressed and the Dayan received questions, it became further apparent what he hoped would result—especially outside Israel:  “the only thing that works is that [a] community gets behind it and won’t tolerate it…[w]hen a woman doesn’t want to stay married I call that woman an aguna.  There are technical terminologies [], but the community has to view a woman who wants a Gett and doesn't get one immediately as an aguna.  Now of course there is a difference between a week and 6 months…everything is relative to particular circumstances.  However...a woman who wants a Gett is entitled to get one.  In an ideal world, the Gett is the last thing to be finalized between the parties, [but] using the Gett as tool is not acceptable; if a man uses any sort of settlement between the parties as a reason to unreasonably delay a get or uses it as a bargaining chip this should be totally unacceptable. Rav Moshe Feinstein said if there’s any delay, then it DOESN’T go last.”  Addressing the issue of prenups, the Dayan said “we need to work towards” a time where no chuppah is done without one provided the pre-nup is 100% halachically acceptable. 

Finally—in a way summing up the entire evening—a challenge was issued from the male side of the mechitza: “If you want to make the marriage work it will.” 

The Dayan replied: absolutely not. 

“How do you know?”  

“Because the Torah said so.  You hope every marriage will work.  But the get is there for a reason.  You can’t force two people to stay together against their will…Ain neshosenu shevuyos charev [“our women are not prisoners of war”].

Part II—Tali Roytman’s Story

Tali Roytman—a Crown Heights resident undergoing a divorce battle at the time of the lecture—described how Dayan HaRav Moshe Gutnick’s shiur opened up the possibility of exercising a previously untried halachic option in her own divorce battle.

“I've been waiting for my get over 4 years. We were involved with Rabbi Weismann at Beis Din Of America. In a weird twist it was my husband who 'invited' me there. I replied I would go but that I want a hearing. Rabbi Weismann called him to come in and sign arbitration - a normal process. But he didn't want to. Rabbi Weissmann actually called me very surprised. Usually the person who initiates the process doesn't have an issue with arbitration. So the BDOA was put on hold, making the process even longer.

“I knew in my mind I wouldn't be able to get him to an actual Beis Din in America. He is an avoider. He had signed and notarized agreements which he discarded. We had appointments for the get which he didn't show up for. Honestly no one really knows why he even went to BDOA or why he thought he would have it better there.

"There is an option of getting a Beit Din to issue an injunction to detain my husband for withholding the get in Israel - the Tzav Ikuv Yetsiya-a restraining order to leave the country. Some people mentioned that option to me in passing but I never gave it a second thought. I just didn't have enough knowledge or strength.

“My husband and I are both Israeli citizens and we married in Israel. We moved to NY soon after we got married. He went back for a family simcha, so he sent me a note with the children. The note said he would be away for 2 weeks. Within those 2 weeks - min hashamayim - Rabbi Gutnick spoke.

“A light bulb went on in my head when I heard Rabbi Gutnick's thoughts on this option. Then another friend told me: ‘If he is in Israel, why don't you look into this option?', which pushed me even further.

“I had some local connection contact Yad La-isha for me. We made it clear that it's time sensitive because he may or may not be in Israel for another week. Possibly, this connection who has some association with the government caused it to go quicker. I can't say for certain. But I believe within 3 days he was served.

“He wanted to leave Israel right away but clearly just wanted this over with…since we are both currently living in America with kids and any other issue must be taken care of in the US.

“I was then called to come to Israel right away.

“It was almost Shabbos so I checked flight possibilities. I confirmed with the Yad La-isha lawyer. She let the Rabanut know. They were ok with the court date which was on my birthday.

“I always feared that he would possibly change his mind, even this time. In the back of my mind, I was thinking that because he has his family in Israel he may just say 'forget leaving the country. I'm ok to stay here in Israel' and then I didn't know what the next step would be. But once he let the Rabbanut know he was coming to the Diyun, he would probably at least show up.

“Rav Shlomo Shtasman, Av Bes Din Rabbani Azuri Tel Aviv-Yaffo spoke to him privately and then to me privately. Within 2 hours it was done and I was a free woman. On my birthday. In Eretz Yisroel."