Jewish Divorce and the Role of the Bet Din
Rabbi Yona Reiss
It is vital that a Jewish couple obtain a Get upon their divorce. Without a Get, a couple remains married according to halakha even if they may have obtained a civil divorce. Until the husband has given his wife a Get, neither party may remarry. Should the wife bear a child from another man, that child will be a mamzer, and prohibited to marry within the Jewish community.
Because of the importance of obtaining a valid Get, parties should ensure that the Get is supervised by an experienced rabbi whose Gittin (pl., Get) are respected throughout the Orthodox community. One of the major roles of the Bet Din today is to supervise Gittin for interested parties. At the Beth Din of America, which is sponsored by the Orthodox Union, we supervise hundreds of Gittin each year. Because of the expansive resources and networking abilities of the Beth Din, we are also able to coordinate with other batei din and rabbis across the country and throughout the world to help resolve difficult cases and to arrange for Gittin to be delivered by proxy in cases where the spouses are far apart geographically.
Another role of Bet Din is to resolve dispute and adjudicate cases. According to halakha, when Jewish parties have a dispute, they are obligated to submit the dispute to Bet Din, rather than to the secular court system. Therefore, if a husband and wife are getting divorced, and are unable to settle their differences without litigation, they are, as a general rule, obligated by halakha to submit to a qualified Bet Din.
Additionally, one of the functions of a Bet Din proceeding is to bring peace and harmony into the world. In the context of a divorce case, this function includes taking measures to ensure that a Get is given when a marriage is over, and that possible mamzerut situations are averted. The halakha requires that special sensitivity and attention be extended to a woman unable to marry because she is an Agunah. Accordingly, the Beth Din of America expends much of its resources resolving numerous Agunah or potential Agunah: situations.
To summarize, the role of a Bet Din in Jewish Divorce cases is multifold:
- to supervise the Get process;
- to decide (or help mediate, if possible) financial and custodial issues when such issues cannot be resolved by the parties; and
- to help “unchain” a woman in an Agunah situation, or for that matter, a man in an analogous Agun situation, unable to remarry because her or his spouse cannot or will not cooperate in the Get process.
An important way in which the Beth Din of America facilities Gittin is to encourage the use of prenuptial agreements which (a) require the parties to submit to the Beth Din of America in the event of divorce and (b) memorialize the support obligation incumbent upon the husband while the marriage is still in existence. The Beth Din of America has arranged for Gittin in many cases where the couple had previously signed a prenuptial agreement agreeing to submit to the Beth Din the event of marital separation. Indeed, the prenuptial agreement has proven to be most potent device to prevent Agunah situations. The Beth Din strongly encourages marrying couples to enter into legally binding and halakhically endorsed prenuptial agreements submitting to the jurisdiction of the Beth Din of America in the event of divorce.
We should note that, as an additional protection to the parties and the integrity of the process, the Beth Din of America, as a matter of policy, does not allow Toanim (rabbinic advocates) to participate in proceedings before the Beth Din. We also discourage the use of ZABLA except in limited cases whereby parties choose their borerim from a roster of dayanim who are members of the Beth Din and have been found to be trustworthy and scrupulous individuals.
In America today, many divorcing couples unfortunately choose to adjudicate their marital dispute in secular court rather than in Bet Din. This phenomena can be explained in part based on the following concerns:
- Parties fear that a decision of Bet Din will not be enforceable.
However, decisions of a Bet Din are routinely upheld by courts provided that the parties have entered into a binding arbitration agreement and the Bet Din has complied with the procedural requirements of arbitration law (such as allowing each party to be represented by counsel, providing the parties with a fair opportunity to present their cases, not exceeding the scope of the jurisdiction, etc.) The Beth Din of America, for example, requires parties to enter into a legally binding arbitration agreement (Shtar Berurin) in accordance with New York law CPLR §78 and also presents the parties with a brochure of its Rules and Procedures prior to each hearing so that the parties are fully aware of their procedural rights. A copy of the Beth Din’s Rules and Procedures is available at our website at www.bethdin.org.
- Parties sometimes justify their failure to go to Bet Din on the grounds that a Bet Din lacks the ability of a secular court to handle a divorce case, especially a complicated one.
Parties are not wrong to search for a “proper” Beth Din (see Sandedrin, 32b) which should, at a minimum, be competent, fair, through and professional. However, the fact that competent Battei Din do exist. Perhaps the more relevant concern is that parties want to make sure that the Bet Din which hears their case is in touch with their values or the dynamics of their community. The best way to ensure that such a Bet Din hears the divorce case is for couples to stipulate in their prenuptial agreement that in the event of a dispute upon divorce, they will submit to a particular Beth Din which both parties deem acceptable.
Situations sometimes arise whereupon one spouse is prepared to submit to a competent Bet Din to handle the divorce but the other is not. Often, it is the woman who refuses to submit to Bet Din for all aspects of the divorce (other than the Get), based on the fear that Bet Din is “prejudiced” in favor of men. However, as a matter of Jewish law, a Bet Din is not permitted to be prejudiced in favor of either party. Certainly, competent Battei Din are careful not to violate this basic tenet of Jewish legal procedure. In addition, if one spouse refuses to come to a Bet Din when the other spouse is prepared to come to Bet Din, that spouse is considered “recalcitrant” as a matter of Jewish law and may thus be subject to a Seruv (public contempt order) for refusal to appear before Bet Din.
Nonetheless, it is our view that a refusal by a woman to come to Bet Din to handle all aspects of her divorce case (other than the Get) does not exonerate her husband from his moral obligation to give her a Get in a situation where the marriage is clearly over. This is for a number of reasons. First, many such women today are under the mistaken impression that there is no obligation to go to Bet Din when it comes to divorce matter (other than the Get) and therefore it is hard to categorize them as “willfully” recalcitrant. Secondly, even if one party acts wrongly to the other, it is never correct for either the husband to withhold a Get or for the wife to refuse a Get when a marriage is clearly over. Thirdly, there are certain cases where the Bet Din may conclude that the husband himself is not observant and ordinarily would not come to Bet Din, but is only coming to Bet Din in his divorce case because he thinks that by doing so he will be able to “get a better deal” or be able to embarrass his wife with a Seruv because he knows that she will not submit to a Bet Din. In such cases, there is no obligation upon Bet Din to accommodate the husband’s newfound “piety” to the detriment of the woman. Of course, when appropriate, the Beth Din of America will issue a “Seruv” against any party who refuses to submit to Bet Din, including a divorcing spouse, but this in no way derogates against the Beth Din’s insistence that a Get be delivered at the conclusion of the marriage. A Get should never be used as a “weapon”.
Regrettably, there are certain people who try to abuse the institution of Beth Din to their personal advantage. For example, there are cases in which a non-observant man and wife agree to be divorced through the civil courts, and the man only “dons his kippa” and demands that the wife come to Bet Din for a rehearing after he is unsatisfied with the civil court verdict. It is improper to issue a Seruv against the woman in such a case for refusal to come to Beth Din, and certainly wrong for the man to refuse to give her a Get. It is a requirement of Battei Din to preserve the dignity of Bet Din and not allow the institution of Bet Din to be abused by such unscrupulous individuals.[Footnote] Fortunately, most individuals within our community, respectful of our Torah values system, would never take measures to prevent their spouse to remarrying once a marriage has ended. It is the role of Bet Din to reinforce Torah values and to sanctify the name of Heaven in the process.
1. See Kiddushin 6a: “Kol Sheayno Yodea”, and the commentary if Rashi thereto.
2. See Shmot 18:37-27.
3. As a general rule, the Beth Din of America encourages divorcing spouses to resolve their differences through mediation (and employs the services of an experienced divorce mediator). Through the mediation process, which is strongly encouraged in Jewish law, the parties can avoid much of the acrimony that often results from litigation.
4. As a general rule, in order for a person to go to secular court, he/she must obtain a “Heter Arkaot” (written permission to go to secular court) from a respected Bet Din or other rabbinic authority. Examples of cases where such a “heter: may be issued are: (a) where the other party refuses to submit to Bet Din, or (b) if the case is deemed by a competent halakhic authority to by a type of case which the Bet Din is incapable of handling (see Choshen Mishpat 26, Kol Kitvei HaRov Henkin 2:174-177). Some authorities are of the opinion that there is no need for a heter arkaot when the defendant is a secular Jew who would clearly not submit to Bet Din. In any individual case, a competent rabbi should be consulted.
5. See Beit Yosef, Choshen Mishpat 1; Avot 1:22; Sefer Meirat Eynaim, Choshen Mishpat 12:8.
6. This article does not address marital counseling issued in cases where a marriage can still be saved. When appropriate, the Beth Din of America refers parties to qualified marital counselors.
7. See, e.g., Igrot Moshe Y’D 1:249. Minchot Yitzchak 1:1, 1:98, Tzitz Eliezer 5:24, Teshuvot Chatam Sofer, 1:145, She’alat Ya’abetz 1:32.
8. An “Agunah” is a woman who is no longer in a functional marriage and who cannot remarry because her husband cannot or will not give her a Get and is also not known to be dead. As a general rule, a marriage is no longer functional and a Get should therefore be given in any case where a husband and wife no longer desire to live together as husband and wife or if a Beth Din concludes that there is no chance for “Shalom Bayit” between them. See Igros Moshe, Y’D 4:15, Kol Kitvei ha-Rav Henkin 1:115 a-b.
9. See Taz, E’H 119:12, Maharsham 6:140.
10. See Pitchei Teshuvah, Choshen Mishpat 17:15.
11. “ZABLA” is a procedure whereby each litigant selects one of the arbitrators in the panel and then the two arbitrators (“borerim”) select the third and final arbitrator.
12. One area where courts exercise a very strict standard for review of Beth DIn decisions is in the area of child custody. However, not every case involved child custody determinations. Additionally, many divorcing couples do submit to Bet Din for custody issues as well, based on their readiness to comply with the decision of the Bet Din. In fact, the reality is that, provided that a Bet Din demonstrates that its decision is based on the”best interest of the child”, most courts are more than happy to ease their caseload and enforce a decision of the Bet Din even in child custody matters. The Beth Din of America has decided a number of cases involving child custody issues and regularly employs child therapists and professional experts to assist in the Beth Din’s determination. No child custody matter resolved by the Beth Din of America has ever been overturned in secular court.
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