Rav Eliashiv – No Forced Get on Demand

There is no arbitrary divorce on demand in Jewish law, regardless of how many “agunot” activists and politicized pulpit rabbis are screaming “agunah” in every divorce case. According to Torah law, a decent Jewish husband who seeks to remain married to his wife is not “recalcitrant”, or committing an evil of “withholding a GET”, or “using a GET for leverage”, regardless of the agunah propaganda slogans.

This TSHUVAH from Rav Eliashiv ZT”l explains how a GET ( Jewish divorce ) is not forced when the wife claims MA’US ALEI ( her husband disgusts her ).

Rav Eliashiv (Kovetz Teshuvos 174):

Question: We are dealing with a case in which it apparently has been shown that the wife hates her husband – heart and soul – because of his behavior which is simply abnormal. The woman therefore has the claim of ma’us alei with a clear basis. This couple has lived separately for over 6 years. The question is whether the beis din will comply with the request of the wife and require him to give her a get. 

Answer: Even if you grant that this woman has the status of one who says ma’us alei with a clear justification, that in itself does not require that the husband give her a get. Look at Shut HaRashba (# 135 – attributed to Ramban), Question: When a woman claims ma’us alei… is the husband obligated to divorce her….? Answer: … You should know that she is not able to force her husband to divorce her since  a woman goes out of the marriage sometimes according to her desires and sometimes not according to her desires. On the other hand the man only leaves the marriage only when he want to leave it… From all these you see that when a woman claims ma’us alei we do not force the husband to give a divorce… Even though the Rambam writes that when a woman says ma’us alei the husband is forced to divorce her – the Rambam is not correct in this matter… Concerning the kesuba and dowry that she brought him – according to the din she does not lose anything unless she insists on being a moredes for 12 months and all these 12 months she is not forced… However if she remains a moredes for 12 months and her husband wants to divorce her – she loses everything…. That is her din when her husband divorces her according to his wishes after 12 months. But if the desire to divorce comes from her – as we said before – he is not forced to divorce her. The words of the Rashba imply not only is the husband not forced to divorce her when she claims ma’us alei but that he has no obligation to give her a get! This is also apparent from the words of Tosfos(Kesubos 63)…. Shulchan Aruch (E.H. 77:2): If she says that he disgusts me and I can not have relations with him – if the husband wants to divorce her she does not get any money from the Kesuba at all. Rema (E.H. 77:2)… All of this is only when she doesn’t give a reason and justification for her words as to why she finds him repulsive. But if she does give a reason for her words… And we don’t force him to divorce her  nor do we force her to remain with him. And if you want to claim that he must divorce her – it is obvious that since we don’t force her to remain with him then of necessity that there can’t be an obligation of the husband to give her a get. It is the same thing.

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