During the High Holidays, the synagogue transforms from a place of worship to the heavenly court. Instead of just offering prayers, we suddenly find ourselves standing in judgment before God, our merits weighed against our sins. There is no lawyer to defend us in this court, nor any higher court of appeals. God takes on all the roles in the heavenly court, as explained in Untaneh Tokef: “You are the judge, the one who presents evidence, the knower and the witness, who records and seals.” At best, we try to mend our ways and throw ourselves at the mercy of the divine judge.
A beit din and the heavenly court have certain similarities, but one significant difference exists between them. On Rosh Hashana, all living creatures pass through God’s courtroom. Choosing not to go to synagogue does not enable one to avoid God’s judgment. The same, however, cannot be said of beit din. Halachah requires that testimony only be received1 and a ruling given if both parties to the dispute have come to beit din.2 As a result, if one of the parties refuses a court summons, called a hazmana, nothing can be done to resolve the dispute.
Before modernity, a Jewish community could sanction and punish individuals who refused to come to beit din, thereby ensuring justice would ultimately prevail. The same applies today in Israel, where the batei din, empowered by the state, can send police to force individuals to come to court for matters solely under the beit din’s purview. But anywhere else, there is little that can be done. In many contentious divorce cases, it is common practice for husbands simply to refuse to come to beit din, knowing that little if any pressure will be applied if they do not. This is particularly distressing for many women desperate to have their day in court.
No legal system can function if it is so easily subverted. This fact was acknowledged by the Noda B’Yehudah (1713-1793), one of the most influential halachic authorities of the last few centuries. It once happened that a complicated case came before him involving claims against a married woman suggesting that she had engaged in illicit sexual behavior with various men in the community.3 Her husband was connected to the non-Jewish authorities and used his power to prevent her from coming to beit din, presumably to prevent shame to the family. As long as this occurred, the beit din could not receive testimony from those who claimed to have slept with her, and she could continue her actions without consequences. The Noda B’Yehudah correctly felt this created an impossible situation, for if a criminal could avoid judgment by not showing up to court, “one would never find a beit din having put anyone to death” for capital crimes. He points out that there are certain exceptions in which testimony can be received even without both sides present and goes on to argue that these leniencies should be applied in this case as well. The Noda B’Yehudah drives home how important this is by citing a Talmudic dictum that “the sinner should not be able to benefit from his sin.”4
Unfortunately, this is exactly what takes place in many contentious divorce cases. Not only is it frequently the case that the woman was abused during the marriage, but now in the divorce her husband continues to abuse halacha – and profit as a result. Though this is not the place for a comprehensive analysis of the issue, the following sources clearly outline that in certain circumstances, a beit din can rule on cases of divorce even if the husband chooses not to participate.
Though the Talmud does not explicitly address this question, Yevamot records a disagreement between Rabbi Tarfon and Rabbi Akiva on a related issue, whether the testimony to free an agunah can be accepted without derisha v’chakira (additional inquiry and interrogation). According to Rabbi Tarfon, derisha v’chakira is necessary because if the woman’s husband who has disappeared is, in fact, alive, any new marriage would be considered adultery. Therefore, every effort must be made to determine his status. However, Rabbi Akiva, whom the halacha follows, disagrees, and the Talmud explains his reasoning as follows:
Rabbi Akiva, holds that since there is the ketubah for the woman to take when her husband dies, it is considered to be like cases of monetary law and does not require derisha v’chakira procedures.5
Rather than focus on the possibility of adultery, Rabbi Akiva rules that the testimony in this case should be treated as if it were for a monetary dispute, which does not require derisha v’chakira. In commenting on this discussion, the Ramban notes that Rabbi Akiva’s logic makes little sense.6 Why should the husband’s possible death be treated as a monetary matter, for if he were alive, the wife’s relations with another man would be adultery and punishable with death? Therefore, he argues, Rabbi Akiva’s ruling must be seen as an extension of an earlier rabbinic enactment to eliminate derisha v’chakira for monetary disputes so as “not to close the door before the borrowers.”7 Eliminating derisha v’chakira would make it easier to collect loans, encouraging more people to loan money to the poor. The same logic, Ramban says, applies to agunot. The rabbis were lenient regarding testimony that might free an agunah, out of concern that being stringent would discourage women from getting married at all. Should their husband disappear they might remain an agunah forever.
The Ramban further explains that Rabbi Akiva’s ruling applies not only to agunot but to all marriage and divorce cases. Therefore, a beit din can receive testimony from witnesses that a woman is currently married or divorced without derisha v’chakira. Even though the Ramban’s comments are limited only to the question of derisha v’chakira, his student, the Rashba,8 rules that even testimony about whether a person is married or divorced can be received without both sides present.
This position is also cited in the name of the Ramban in an important teshuvah of the Rashbash (1400-1467).9 In the case before the Rashbash, a husband had abandoned his wife and fled to another city. When the local beit din discovered this, they questioned whether they were permitted to compel him to give his wife a gett even though she had not appeared before them and requested it. In the teshuvah, the Rashbash not only says that testimony can be received without both parties present, but he goes a step further and states that the beit din can even rule on matters of divorce without both parties present. For this reason, he permits the beit din to compel the gett.
The Rashbash offers compelling reasoning. He argues that even though the wife is not present in beit din,“all Jews are considered party to a case of iggun.” This means the beit din has standing to rule as if the wife was present in court. He goes on to clarify that this applies because “all Jews are considered party to matters of possible sexual transgressions.” In the case of an agunah, whose husband has disappeared, being trapped in a marriage without escape will eventually cause her to find partners elsewhere, leading her and them to sin. Therefore, the beit din must step in to resolve the situation and can even coerce the husband to give the gett.10
Other authorities have made similar rulings. The most prominent of these involves a case from the 16th century, the Gett M’Venitzia.11 In this circumstance, a couple had only been married for three months before the husband and his father-in-law got into a serious financial dispute. As a result, the father-in-law demanded that he divorce his daughter, causing the husband to flee Venice. Though the husband refused to come to beit din, they and others eventually ruled he was obligated to give his wife a gett, and they put him in cherem as long as he refused to do so.12
In addition, some poskim, such as Rabbi Yehuda Miller (1660-1751, Germany), have gone so far as to rule that a husband may be obligated to give a gett even without being summoned to beit din.13 In his particular case, the husband had a long history of abuse and had used his relationships with the non-Jewish authorities to keep his wife under his control. When she could finally flee and bring her case before Rabbi Yehuda Miller, he ruled without even issuing a summons that the husband was obligated to give a gett. This was because he knew the husband would likely seek to manipulate and subvert the beit din process.
The position of the Rashbash and others mentioned above have been repeatedly affirmed in rulings of the Israeli Chief Rabbinate14 and in a private opinion submitted by Rav Asher Weiss.15 These cases have primarily involved husbands who have fled Israel, leaving the beit din with no authority to compel them to return. While the examples above are mostly cases where the husband abandoned his wife, there is no reason to assume the same legal reasoning would not also apply in cases where there are other clear grounds for divorce, such as the death of the marriage.
As I have elaborated on elsewhere, many poskim rule that if a husband and wife have been separated for 12 or 18 months and there is no chance of reconciliation, a husband is obligated to give his wife a get and she is obligated to receive it.16 In situations where the couple has been separated for such a time, and it is clear there is no possibility of getting back together, a beit din should be able to rule that the husband is obligated to give the get, even if he refuses to appear before them. This is implicit in the words of Rabbi Moshe Feinstein, who writes that in such a situation:
The law of the Torah is such that they are required to divorce, and permission is given to neither side to chain the other [in marriage], not the husband to his wife nor the wife to her husband with any delay by making financial demands.17
Halacha typically requires both sides to appear in beit din because parties to a dispute should have the chance to argue the charges raised against them before a ruling is issued. However, in circumstances like death of marriage, where it is publicly known that the couple have not lived together for many months, there is no need for extra stringency. The same should apply in cases where the grounds for divorce are clear, such as when a husband has been convicted of abusing his wife or engaging in other criminal behavior that would mandate him to divorce her.
Though many batei din in America will not obligate the husband to give the gett if he is unwilling to come to a hearing, it is the policy of the IBD and others to do so, as long as the grounds for obligating the divorce are clear and not subject to dispute.18 The logic of this position is clear. As stated by the Noda B’Yehudah, halacha cannot permit a situation where one can simply avoid coming to beit din and escape judgment for one’s crimes. Furthermore, the Ramban and Rashbash make clear that halacha waives certain procedural requirements of beit din to ensure women can leave marriages rather than be trapped in them forever. Allowing husbands to escape the beit din’s judgment by not showing up undermines halacha and the entire framework of Jewish marriage and divorce.
The Maharam Schik (1807-1879), who lived through the emancipation of Hungarian Jewry, was one of the first to acknowledge that the loss of Jewish autonomy had profound consequences on beit din in that Jews could no longer be forced to come to court. When asked whether a beit din could rule in the absence of one of the parties, he initially hesitated but eventually ruled that if the beit din cannot compel parties to come, “one must make a fence around the Torah through a temporary measure, so that a person can be judged even without coming to beit din.”19 Enabling husbands to take advantage of the beit din’s powerlessness creates a profound chilul hashem. It makes a mockery of the Torah, especially when legitimate halachic alternatives exist that could prevent it.
By: Rabbi Zachary Truboff, Director of the IBD Institute for Agunah Research and Education