ל׳ באדר א׳ ה׳תשע״ו (March 10, 2016)

Gittin 88a-b: Compelling a Divorce

As we have seen throughout Massekhet Gittin, according to Torah law only the husband can act to divorce his wife; the wife does not have the power to create a divorce. Are there any situations where she can appeal to the courts to force her husband to offer her a divorce?

The Mishna on our daf teaches that if a compels the husband to give his wife a geṭ, the divorce will take effect. If it is a non-Jewish court that forces him to give a geṭ, no divorce takes place. If, however, the Jewish court rules that the husband should divorce his wife, but they do not have the power to force him to present a geṭ, they can turn to the secular courts and arrange for them to force him to follow their ruling.

The Talmud Yerushalmi considers the possibility that a Jewish court will only compel someone to grant a divorce if the marriage is a forbidden union (for example, a kohen who married a divorcee). The Yerushalmi‘s conclusion, however, is that the court can make this decision for other reasons, as well, e.g. if he behaves inappropriately towards his wife.

The Rambam (Mishneh Torah, Hilkhot Gerushin, 2:20) asks how the beit din could compel someone to offer a geṭ – shouldn’t he be considered an anoos (someone forced to perform an action against his will) – whose actions are considered null and void? The Rambam explains that the idea of anoos is that a person is forced to do something that he is not obligated to do. Someone who is obligated to perform a certain action – for example, if he is instructed by the beit din to perform that action – cannot be considered forced against his will to do it, since we believe that every Jewish person wants to do what is right and just. Therefore we perceive the situation as being different than what it appears to be – really this individual wants to give the geṭ, and it is his yetzer ha-ra – his evil inclination – that is keeping him from doing the right thing. Thus, forcing him to agree that he desires to give the geṭ, in actuality is allowing him to do what he really wants to do.

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