The Laws of Jewish Divorce: In-Depth Look at Halacha
When FORCE is Used to Pressure a Husband to Divorce his Wife According to Halacha There are situations outlined in the Gemara where a Beit Din must force a husband to give his wife a divorce. There are many situations in the Gemara where the husband is required to divorce his wife (Yotzi Vyiten Ketubah). In the cases where the Beit Din forces a husband to give a get, the language that the Talmud uses is Kophin (to force). But first, what does force constitute?
What is Force according to the Torah? The Rambam (Maimonidies) defines force in Sefer Nashim Hilchot Gerushin Chapter 2:20 : בֵּית דִּין שֶׁל יִשְׂרָאֵל בְּכָל מָקוֹם וּבְכָל זְמַן מַכִּין אוֹתוֹ לְגָרֵשׁ אֶת אִשְׁתּוֹ וְלֹא רָצָה לְגָרֵש שֶׁכּוֹפִין מִי שֶׁהַדִּין נוֹתֵן" וְאָמְרוּ לוֹ עֲשֵׂה וְכֵן אִם הִכּוּהוּ עַכּוםּ אוֹתוֹ עַד שֶׁיֹּאמַר רוֹצֶה אֲנִי וְיִכְתֹּב הַגֵּט וְהוּא גֵּט כָּשֵׁר מַכִּין '' עַד שֶׁיְּגָרֵשׁ הֲרֵי זֶה כָּשֵׁר מַה שֶּׁיִּשְׂרָאֵל אוֹמְרִין לְךָ וְלָחֲצוּ אוֹתוֹ יִשְׂרָאֵל בְּיַד הָעַכּוםּ Translation of the Rambam: "If the law requires that a man should be forced (Kopin) to divorce his wife and he refuses to do so, the Jewish court anywhere and anyplace beat him until he says 'I am willing', and he should write the get and it is valid"
According to the Rambam wherever it says Kopin (force) in the Talmud, the Beit Din beats the husband until he says 'I am willing (to divorce)'. He writes the get and it's a valid get. A man is supposed to willingly sign the get. So how does the Torah advocate the use of physical force to pressure the husband to give a get? The theory behind this is that it's not really considered force. Every Jew has a divine spark. Deep inside his soul, the husband really wants to comply with G-d's commandments and give his wife a divorce, even if at the moment he is under the control of his evil inclination and is refusing to divorce her. He has a Yetzer Tov buried deep inside him and its obviously not very powerful. Through beating him we're are pushing forward the Yetzer Tov briefly, weakening his evil inclination, and allowing him to follow his hearts true desire which is to give his wife a get. But if the Beit Din threatens him with death, the get would be pasul (invalid), so he's beaten without threats. He is beaten with whips or sticks, not with weapons that can kill (such as a knife or sword). This is according to Jewish Law.
The Shulchan Aruch expounds upon this topic as well: (Shulchan Aruch Even Haezer 154:21)
Shulchan Aruch Translation: All of these cases in which they said he must divorce her (Yotzi Vyiten Ketubah), we force (Kopin) him, even with whips. There are other opinons that say that anyone, whom it doesn't say in the Talmud specificaly that we force him to divorce her, rather only that he must (Yotzi) divorce her, we don't force him with whips. But we say to him "the rabbis obligated you to divorce and if you don't, it is allowed to call you a sinner." Explanation: The Shulchan Aruch states that wherever it says in the Talmud "Yotzi Vyiten Ketubah" "he must give her a Get and Ketubah" or "Kopin Oto LHotzi", we force him (Kopin) to divorce his wife, even with whips. Other opinions hold that if it doesn't specifically state in the Talmud force "Kopin", rather it says 'Yotzi Vyiten Ketubah'- i.e. he must divorce her, we dont force him with whips. However, the Rabbinical Court must tell him "the rabbis obligated you to divorce and if you don't, it is allowed to call you a sinner."
The Shulchan Aruch continues in the Even Haezer: "The Rem'a (quoting the Tur in the name of the Rosh) holds that since there is a disagreement of many, it is fitting to be stringent (Chumrah) and not force him with whips, in order so that the divorce should not be given under duress (Get Meuseh). (Rabbeinu Tam) 'But if he has a wife by sin, according to everyone, we do force with whips. And in every situation where we do not force with whips, we also do not excommunicate (put him in Nidiu). And in every situation, they (the Beit Din) can decree on all Jews not to do any favors for him or conduct business with him,' (Binyamin Zeev) or circumcise his sons or to bury them until he divorces her. (Mordechai Reish Hamedir) And any stringency (Chumrah) which a Beit Din wants to enforce, they can enforce in this type of case (Yotzi Vyiten Ketubah), as long as they don't excommunicate him. But if he doesn't perform his marital relations, we can excommunicate and banish him in order so that he either keeps marital relations or divorces her. This isn't considered force its only making him keep marital relations (or divorce), and also in similar cases. (Rivash) And so too he who divorces with a kosher bill of divorce and he (the husband) discredits it (even a little), it is permissible to force him to give another bill of divorce. (Mordechai Reish Hamedir) And any situation where we have a disagreement about whether or not to force him, despite the fact that we don't force him to divorce, in every case, we force (Kopin) him to give the Ketubah immediately and the Nedunia that he provides for her."
Explanation: In the Shulchan Aruch, the Rema quotes the Tur in the name of the Rosh: Since there is a disagreement between the Rabbis about if we force the husband to give a get in a case of Yotzi Vyiten Ketubah and not Kopin, its a Chumrah (a stringency) not to force the husband to give a divorce. However, a get that is forced is not a get pasul (an invalid get), it's Bdieved, it is called a get Mauseh which is still an acceptable get. According to the Rabbis who hold that in the case of Yotzi Vyiten Ketubah we don't force the husband to divorce, it's fitting not to force, but if the husband is forced, the get is not a Get Pasul. A Get Mauseh is not a get pasul! The Mishnah itself advocated the use of force in certain situations therefore the use of force doesnt make a get pasul. A get that is derived through physical force in a case of Yotzi VYiten Ketubah is not not the best but it's not invalid.
The Rabbeinu Tam says that in cases of Yotzi Vyiten Ketubah although we don't force the husband with whips, however, anything else that the Beit Din wants to do to him to force him to give his wife a get, they are allowed to do. For example, the Bet Din can decree on all Jews not to do any favors for him or conduct business with him. Binyamin Zeev adds on that the Jewish community can refuse to circumcise his sons or to bury them until he divorces her. Mordechai Reish Hamedir says that any stringency (Chumrah) which a Beit Din wants to enforce, they can enforce in this type of case (Yotzi Vyiten Ketubah), as long as they don't excommunicate him.
Here the Shulchan Aruch quotes Mordechai Reish Hamedir who says something truly amazing. Mordecahi Reish Hamedir says that if a husband doesn't perform his marital relations, the Bet Din can excommunicate and banish him in order so that he either keeps marital relations or divorces her. If he decides not to keep marital relations he is forced to divorce her but its not really considered force in this case since the point was to force him to keep marital relations which he is refusing to do.
Authors Note: This is unbelievable! According to the Shulchan Aruch which quotes Mordechai Reish Hamadir: a man who refuses to perform marital relations i.e. he runs off & leaves his wife has to either go back to his wife and perform his duties or he must be forced to give his wife a get. This is a very common situation. Any husband who is a no show must be forced to give his wife a get. This is the responsibilty of the Beit Din! As we are seeing this whole agunah crises could be easily averted if the Jewish courts would actually keep Halacha. Mordechai Reish Hamadir makes another amazing Chidush: In a situation where there is a disagreement whether or not to force a husband to give a get, in either case, the Beit Din must force the husband to give the Ketubah immediately and the Neduniah up front! In either case of "Kopin" or "Yotzi Vyeiten Ketubah", the husband must pay the Ketubah money and the Nediniah immediately, even before the get is signed. Again as I wrote before if the Judges in the Jewish courts followed Halacha, the husband would be forced to pay the Ketubah up front, instead of a wife waiting years for the get and her Ketubah money.
Background: In the times of the Talmud, when the Rabbinical Courts ruled that force must be used, they would bring 7 - 8 Kohanim to beat the husband until he agreed to give a get.
Cases Where the Beit Din FORCES (Kopin) the Husband to Divorce His Wife: Shulchan Aruch
Remember: The Rambam and the Shulchan Aruch are some of the biggest Poskim (Halachic Authorities) in Jewish history, but they come after the Mishnah and Gemara. Therefore, in a situation where there is a unanimous decision in the Gemara made by all the Rabbis, it is almost impossible for the later Halachic Authorities to oppose the ruling. There have been situations where laws have been added on to a ruling. Only in a situation where there is a debate in the Gemara or Mishnah then the later Poskim like the Rambam and the Shulchan Aruch can decide which side to take. I will try here to provide the sources in the Mishna & Gemara for the following rulings of the Shulchan Aruch.
The use of the word Kopin indicates physical force such as beating with whips or sticks according to the Rambam and Shulchan Aruch.
The following cases are learned from the Shulchan Aruch Even Haezer Chapter 154
Case #1: This is a great one. To be Updated soon....
Case #2: Re'ma: The Husband is a Mumar (Apostate). An apostate is someone who sins not for pleasure but only to upset G-d. In the case where the husband is a Mumar, some Rabbis hold that the Beit Din forces him to divorce his wife. The Beit Din may even hire gentiles to force him. Other Rabbis hold that a Mumar or someone who is an "Over Al Daat" is not forced to divorce his wife unless he harms her. An Over Al Daat is someone who can't be relied upon to keep basic Mitzvot which directly involve his spouse. In other words, the wife can't trust him to keep Halachot that affect her. Three examples are brought down in the Shulchan Aruch: 1) The husband feeds his wife non-kosher food. 2) The husband breaks his promises to his wife. For example, the husband promises not to mock or hit his wife and he breaks his promise. A promise is not a Neder (a vow), meaning he promises without the use of G-d's name. 3) The husband breaks his Nedarim (vows). A Neder is a vow using G-d's name. The Gemara states that a a man who breaks a vow causes his children to die, his wife to die, loss of his property and ultimately his own death. Because of the damage a husband would come his wife by breaking a vow, the Beit Din forces him to divorce her. All of the Poskim (Halachic Authorities) agree that a Mumar or Over Al Daat who harms his wife is forced to divorce her.
Author's Note: If a woman wants to divorce her husband and he is either a Mumar or an Over Al Daat, there is an easy way out for her. She can bring her husband to the Bet Din and ask him to promise to stop hitting or mocking her (in front of the judges). If in the coming weeks or months he breaks his promise, the Beit Din must force him to divorce her. (Since most Rabbinical Courts don't use physical force, they must at the very least order him to give a get, call him a sinner, announce to all to refuse to do business with him, etc....) CASE #3: If its known that the husband wants to go to another country the Beit Din has to make him to swear not to go or force him to sign a get for his wife (that if he's not back by a certain time she's divorced). Obviously, if he returns within the set time she remains married.
Hebrew Quote from Shulchan Aruch: "יַשְׁבִּיעוּהוּ שֶׁלֹּא יֵלֵךְ אוֹ יִכְפּוּהוּ שֶׁקֹּדֶם שֶׁיֵּלֵךְ יְגָרֵשׁ אוֹתָהּ לִזְמַן אִם יָדוּעַ שֶׁהָאִישׁ רוֹצֶה לֵילֵךְ לְאֶרֶץ אַחֶרֶת" Translation: "If it is known that a man intends to travel to another country, we make him take an oath that he will not go or we force him to issue a time bound divorce before he leaves."
Authors Note: For women living in Israel, the Israeli Rabbinate should definitely force a husband to sign a get if his wife knows that he's planning on running away. The get is conditional that he returns within a certain time. If he doesn't return, she receives the get. The Beit Din should also issue a Tzav Ikuv for him preventing him from leaving the country if he refuses to sign the get. This would prevent the common problem of husbands who run off, leaving their wives behind as agunot for years or sometimes decades. In the United States, it is almost impossible to prevent someone from leaving the country or even her state, unless he has an arrest warrant out for him. Nonetheless, if a husband is planning on leaving the country, and the wife suspects that her husband may not return, she may summon him to the Rabbinical Court as quickly as possible and demand that he leaves a get for her there which would be given to her in the event that he doesnt return within a specified time. If this doesn't work and she wants a divorce, there are a few avenues she can use to do so- see author's notes on all the cases.
CASE #4: If a husband and wife have been married for 10 years and the wife doesn't have children from him, the husband must give her a get and Ketubah (Yotzi Vyiten Ketubah) or he should marry another woman who can have children (this would not apply today since Rabbeinu Gershon's decree prohibiting polygamy). If he refuses to divorce his wife, the Beit Din must force him to divorce her. Auhors Note: In a situation where a husband and wife have no children for 10 years, the Halacha clearly states that the husband must be forced by the Beit Din to give his wife a get. Why the Rabbinical courts leave childless women agunot for decades, really makes no sense Halachically and morally.
CASES #5, #6, #7: The Bum & The Wife Beater Shulchan Aruch 154:3 This Siman is very long so I divided it into 3 cases.
Case 5 &6 : Translation: "If someones says, "I will not give food nor provide for [my wife]," we force him to give food. And if the court cannot force him to give food, such as one who doesn't have anything to provide and doesn't want to make money to become profitable and provide food [that way], if she wants, we force him to divorce her immediately and give her her ketubah. The law is such to someone who does not want to perform marital relations (sexual relations)."
Authors Note: The first case is a husband who refuses to provide for his wife which includes food & medical bills. In the Mishnah it explains that Medical Bills are part of the Mezonot that a husband must pay. A husband must not only provide food for his wife, but the food also has to be on the level which she was accustomed to eating in her fathers home. For example, if she ate caviar every day in her fathers home, her husband has to pay for that. If he refuses to pay her medical bills he is whipped until he does so. If he refuses to pay Mezonot, the Beit Din forces him to divorce his wife immediately and give her the Ketubah money. The second case describes the husband who refuses to perform conjugal relations with his wife. The same rules as in the previous case would apply. Simply, if he doesn't want to have relations with his wife, the Beit Din forces him to either perform marital realtions or divorce her.
Case #7: Translation: "Rem"a: Similarly, a man who gets angry often and consistently kicks out his wife from his house, we force him to divorce her, for because of this he will not provide food for her sometimes, and he will separate from her from sexual relations more times than her rights to conjugal relations, and that is like refusal to provide food and marital relations [which are grounds for divorce] (Teshuvat HaRashba Siman 693). And see earlier Siman 70 and Siman 77.
Authors Note: A husband who gets angry often and consistently kicks his wife out of the house, is forced to divorce his wife.
Case #8: Translation: "....A man who hits his wife, has a transgression in his hand as much as striking his fellow. If he does this often, the court had the right to cause him pain and to excommunicate him, to whip him, to use all types of force, and to make him swear he will not do it again. And if he does not obey the court, some say we force him to divorce her, as long as he is warned once or twice, for it is not the way of Jews to hit their wives, that is the actions of the gentiles. This only applies when he starts it, but if she curses him for no reason, or mocks his father and mother, and she contradicts what he says and he has no authority over her, some say it is permitted to hit her. And some say that a bad wife is [also] prohibited to strike. The first opinion is the essential one. If it is not known who started it, the husband is not believed to say that she started it, for all women are assumed kosher, and they place others among them to see who is the bad one. And if she curses him for no reason, she is divorced without her ketubah. And it seems to me that this is only when this happens often, and after warning, as was explained earlier siman 115. If she left his house and borrowed [money] and ate [food], if she left because of him hitting her so often, he must pay her back (all of this note can be found in the Mordechai Perek Naara in the name of the Mohar"am and the B"Z Siman 88), and as is explained earlier Siman 70."
Authors Note: A husband who hits his wife commits a sin as much as if he is striking any Jew. As Moshe Rabbeinu said when he saw a Jew about to hit another Jew "Rasha Lama Takeh Reecha" "You evil person why are you hitting your friend?" A Jew who hits another Jew is committing a grave sin and called a Rasha. The same as someone who hits his wife. As the Shulchan Aruch explains if the husband does this often, the Beit Din can whip him, beat him, excommunicate him, anything they want to get him to stop. They can force him to swear that he wont do it again. If he doesn't obey the court some Rabbis say the Beit Din forces him to divorce his wife as long as he is warned to stop hitting her once or twice. It clearly states that its not the way of the Jewish people to hit their wives. If the husband says its the wife that started the fights (by cursing him or his parents) he is not believed. Case #9: A man who sleeps with prostitutes, and his wife complains about it, if there are witnesses, and they see him with goyot/prostitutes/adulterers or he admits to it, some say we force him to divorce her, but we do not think that he's the father of the goya's children, for they are lying about him.
Cases Where the Beit Din FORCES (Kopin) the Husband to Divorce His Wife: The Rambam The Case of Maus Ali: The Rambam's (Rabbi Moses Maimonidies) Amazing Ruling
If a woman is repulsed by her husband and she wants a divorce, she may go to the Bet Din (Jewish Court) and declare "Maus Ali, Maus Ali". According to the Rambam one of the biggest Poskim (Halachic authorities) in Jewish history, if a woman declares that she is repulsed by her husband, the husband is forced (Copin) to give her a get on the spot (lshaato). However, she loses her Ketubah money. She keeps whatever possessions she brought into the marriage, but returns any gifts, clothes, or property her husband gave her (unless he allows her to keep them).
A women who is repulsed by her husband and refuses to have conjugal relations with her husband is called a Moredet out of Repulsion. In the case above the women is a Moredet because she is repulsed and disgusted by her husband. But there is also a Moredet out of malice. This occurs when a women is not repulsed by her husband but refuses to have marital relations with him in order to punish him or take revenge for something he did to her. In this situation The Beit Din warns her that she will lose her Ketubah if she doesn't change her ways. For 4 consecutive weeks they announce in the shul or beit midrash that "So and so has rebelled against her husband". After the four weeks are up she is consulted by the court again. If she hasn't changed her mind, she loses her Ketubah money. If her husband wants to get divorced, he gives her a get. If her husband doesn't want to get divorced, the court waits 11 more months (full 12 months from the start), to give her a chance to change her mind. If she still hasn't changed her mind, the court gives her a get.
Even in a case of a Moredet out of malice, SHE IS NOT KEPT AN AGUNAH FOR MORE THAN 12 MONTHS.
Author's Note: If a woman wants a divorce and she is repulsed by her husband she can go to the Beit Din and declare "Maus Ali, Maus Ali" According to the Rambam, the court forces the husband to give her a get, without a Ketubah immediately. This is a law that many Rabbis in Rabbinical Courts know. However, the woman should make sure that Rabbis acknowledge her statement, preferably there should be a male witness. The woman should fight hard to uphold this Halacha. The Rambam is one of the biggest Poskim in Jewish history, therefore, this Halachic ruling has a lot of legitimacy and has been used for hundreds of years in Rabbical Courts.
Quote from the RAMBAM, SEFER NASHIM, HILCHOT ISHUT, CHAPTER 14
Translation: "A woman who withholds marital intimacy from her husband is called a moredet ("a rebel"). She is asked why she has rebelled. If she answers: "Because I am repulsed by him and I cannot voluntarily engage in relations with him," her husband should be compelled to divorce her immediately. For she is not like a captive, [to be forced] to engage in relations with one she loathes. [In such an instance, as part of] the divorce [settlement], she does not receive any of the money promised her in her ketubah. She is entitled to whatever remains of the possessions she brought into the marriage arrangement, both those for which her husband assumed responsibility and those for which he did not assume responsibility - i.e., nichsei m'log. She is not entitled to anything that belongs to her husband. She should remove even the shoe on her foot and her head-covering that he gave her and return them to him. [Similarly,] she should return to him any presents that he gave her. For he did not give them to her with the intent that she take them and [leave his home]. [Different rules apply, however,] if she rebelled against her husband with the intent of causing him distress, saying: "I intend to cause him distress this way, because he did this or this to me," "...because he cursed me," "...because he has caused me strife," or the like, she is sent a messenger from the court, [who] tells her: "Take note. If you continue your rebellious conduct, you will forfeit your ketubah, even if it is worth one hundred maneh." Afterwards, announcements are made concerning her in the synagogues and the houses of study each day for four consecutive weeks, saying: "So and so has rebelled against her husband."
After the announcement has been made, the court sends her a messenger a second time. He tells her: "If you continue your rebellious conduct, you have forfeited your ketubah." If, nevertheless, she continues this conduct and does not retract, she is consulted by the court. [If she does not change her mind,] she then forfeits her ketubah and has no rights to a ketubah at all. She is not given a divorce until twelve months pass. During these twelve months, [her husband is] not [required] to provide for her subsistence. If she dies before being divorced, her husband inherits her [property]."
Authors Note: The laws of a Moredet are discussed in the Gemara and the Shulchan Aruch. The Rambam didn't pull this ruling out of a hat. Below we will examine what the Gemara says and also what the Shulchan Aruch says. One very interesting thing that we will see in the Gemara is that IN ANY CASE A MOREDET IS NOT TO BE LEFT AN AGUNAH FOR MORE THAN 12 MONTHS! It is the responsibilty of the Beit Din to give her the get. As it says in the Gemara "Beit Din Notnim La Get" No one can argue with the Gemara. In short, if a women refuses to perform her marital responsibilities, i.e. refuses to have marital relations with her husband or refuses to cook and clean the house (if the couple has money the wife is not obligated to do all this- maids can do the work for her as well), she is considered a Moredet. However, a Moredet is not left an AGUNAH for more than a year. This could be a good strategy for a woman thinking about divorce. Any which way, if a couple has been separated for a year- there is no reason to keep the women an agunah since obviously the husband is not performing his duties and she is not performing hers vis a vi each other, and its the responsibilty of the court to give her a get. Its one of the only times in the Gemara that responsibilty is 100% on the court to get the get. In other places, the court forces the husband (with whips or sticks) to give a get, or they tell him to give a get, but in the case of a Moredet, the Beit Din are the ones who actually give the woman the get.