Lily’s Room

April-23-2018 A study of Judaism (2)

Regarding this topic, please refer to my previous posting(http://d.hatena.ne.jp/itunalily2/20180422). (Lily)

https://www.chabad.org/library/article_cdo/aid/560113/jewish/The-Get-Procedure.htm

The Get Procedure

by Reuven P. Bulka

Unfair Disparity

・There is an obvious anomaly concerning the Get procedure, an anomaly that is manifest in all countries outside Israel.

・This is the reality that a Rabbi who is authorized by the appropriate authority can supervise and finalize a marriage, with that marriage being recognized by the state and country in which it is performed as legally binding.

・When it comes to divorce, the religious and the secular do not meet. The secular requirements for divorce must be finalized in a civil court.

・It should be noted that until a few generations ago, a religious divorce was recognized as valid by the courts. Marriage and divorce (which was quite rare) were in the hands of the religious authorities until relatively recently, when civil divorce became a possibility. Governments began to legislate divorce laws, and now civil divorce is a generally prevailing requisite even for those who receive a religious divorce.

・This means that when it comes to divorce, the couple must go through two procedures. In addition to the secular divorce, the couple must go through the procedure of a religious divorce, a Get. The religious divorce serves to terminate the sanctity of the union at the other end, much as havdalah, or the separation ceremony at the end of Shabbat (Sabbath) or Yom Tov (Festival) brings to an end the sanctity of the special day.

Marriage too, as a sacred union, is sanctified at both ends; through Kiddushin and Nisuin (Sanctification and Uplifting) to bind the union, and a Get to dissolve the union.

・In Israel, a divorce which is finalized in Rabbinical Court is recognized as binding, and accepted as divorce for all purposes. And, at the risk of Israel becoming a Las Vegas or Mexico, a couple who goes to Israel and resides there for the necessary length of time to establish residence by prescribed statute, and then is divorced via a Rabbinical Court in Israel, could then have that divorce accepted in other countries as the legally binding civil divorce.

・The fact that the secular courts do not recognize the Rabbinical Court when it comes to divorce is unfortunate, since such recognition could alleviate the burden of the divorcing couple, and also significantly cut down the legal expenses that are incurred at the time of the dissolution of the marriage. Additionally, the prospect that a Rabbinical Court can dissolve the marriage in all its aspects would serve to increase the chances that the couple would divorce via Jewish law, rather than submit their claims and counterclaims to a civil court, whose parameters of judgment often run contrary to Jewish law.

・There is a critical difference between the divorce procedure in a civil court, and the divorce procedure that unfolds in a Rabbinical Court. In a civil court, the couple who seeks a divorce is pronounced as divorced by the court. It is the court, through its power, which decrees that the husband and wife are no longer a marital unit. However, in a Bet Din, the supervising Rabbis are not the ones who pronounce husband and wife as divorced. The divorce action is effected through the wife accepting the bill of divorce, called Get, from her husband. The Rabbinical Court gives its imprimatur to the fact that the divorce has been carried out properly, and that it is therefore in effect. But they do not make a pronouncement by decree; they make a pronouncement about an act that has taken place between the two litigants, husband and wife.

Straightforward Procedure

The divorce, or Get procedure, is relatively simple. It involves the husband instructing a scribe (sofer), in the presence of the presiding Bet Din (Rabbinical Court), to write a Bill of Divorce, a Get, on his behalf, for his wife. The scribe undertakes this charge of the husband, and writes the Get. The Bill of Divorce, the Get, is then given by the husband to his wife in the presence of the Rabbinical Tribunal of three individuals, and two witnesses to the actual transmission of the divorce from the husband to the wife.

The Get Procedure Precise Requisites

Firstly, the scribe must write the divorce specifically for the husband who is making the request, and for his wife. This must be the scribe's intention. Each divorce is reserved exclusively for the couple for whom it had been written.

The Rabbinical Court, for its part, takes great pains to be one hundred percent sure about the exact names of the couple that is involved.

The couple must be aware even beforehand, that any responsible Rabbinical Court takes the matter of divorce very seriously, and looks upon the Get, as well as the procedure of transmitting the Get, as sacred. It is sacred because it is via this Get that the mitzvah (commandment), the obligation to separate via a Get, is fulfilled.

A Mitzvah

It does sound odd that to divorce one's wife is a mitzvah, a fulfillment of a sacred obligation. However, it is not a mitzvah that one must run after, such as the mitzvah to give charity, or the mitzvah to place a mezuzah (parchment scroll of biblical excerpts), on one's door.

Similarly, when the couple has reached the stage wherein divorce is the only alternative, then it is a mitzvah to do so via a Get. Marriage is holy, and its holiness endures to the very last moment, inclusive.

With Full Wits

A matter of overriding concern to the Rabbinical Court in the granting of the divorce is the need to be reassured that both husband and wife are involved in this procedure of their own free will. Questions will be asked of both the husband and wife, to assure that the husband is giving the Get and the wife is accepting the Get free from duress or coercion, and also free from any sworn undertaking that may have the effect of being under duress or coercion.

This is vital because the element of free willingness in divorce is critical.

The husband who delegates the scribe to write the Bill of Divorce must assure the court that he is doing so with his full wits and with his free will. Before the wife accepts the Bill of Divorce, she likewise must reassure the court that she is accepting this Bill of Divorce of her own free will, and is not being forced into it.

Proof of Divorce

The Get, which is a document written in Torah (Five Books of Moses on parchment scroll) type script on twelve lines, twelve lines being the Hebrew numerical equivalent of the word Get (ג-gimmel = 3, ט-tet = 9), is then given by the husband to the wife. The wife takes the Get, lifts it up, and walks with it a little bit to indicate having taken title to it. The Get is then read aloud by the Rabbinical Court once again, it having been read previously in the divorce procedure. It is then cut, to prevent its being used again, and put away.

Always Traumatic

The divorce procedure is relatively straightforward, and when compared with the more complicated procedure that is involved in the civil divorce, stands out for its relative simplicity. However, the fact that the divorce procedure is relatively simple does not mean that it is not traumatic.

Experience has shown that the procedure, even though entered into by the full agreement of the husband and wife, is a traumatic event. It could hardly be otherwise. The divorce carries with it many emotion-laden feelings, not the least of which is the feeling that so many years of life have been wasted; that an investment in time and emotion has gone awry.

It is quite likely that even a spouse who is eagerly looking forward to getting rid of a terrible mate will still be overcome with emotion at the time of the divorce. This is so because it brings back all the memories of the terrible marriage, and all that had been endured over a protracted period of time.

Usually, the husband handles this situation with less difficulty than the wife. This does not mean that the husband feels less affected; only that often the male feels constrained to put up a brave front to maintain the male macho image of imperviousness to emotional feelings. The wife, on the other hand, almost invariably is emotionally overcome at the divorce proceedings.

Continuing Responsibility

The Talmud urges the husband to be extremely sensitive to the vulnerability of his wife, and to the reality that any pain that is inflicted upon her may cause her to cry (Baba Mezia, 59a). This is an ethical imperative within marriage that continues to the very end. Specifically with regard to the divorce procedure, it speaks of the husband's obligation to be sensitive to the wife's feelings at the time of the divorce.

Divorcing is painful enough as it is. The husband's insensitive, callous, or biting attitude at that point in time only makes matters worse, and is effectively a breach of his ethical responsibilities as a husband, which do not end until after the divorce is finalized. The wife too should avoid comments or gestures which pour salt on open wounds.

Jewish Divorce Ethics Court Sensitivity

Likewise, the Rabbinical Court must be singularly aware of the sensitivity of the wife who is receiving the divorce, and must take great pains to assure that the divorce procedure does not leave the wife permanently traumatized, through her being treated more as an object than as a human being.

The Rabbinical Court has an obligation to properly carry out not only the legal details of the divorce procedure; it must also be attentive to the ethical, person-to-person responsibilities. The ways of the Torah are the ways of pleasantness (Proverbs, 3:17). The ways of the Torah must be so pleasant that even in unpleasant circumstances, they project an aura of pleasantness.

The members of the Rabbinical Court dare not, in their attention to legal detail, overlook their obligation to human detail.

The Get Procedure Helpful Gestures

How can a Rabbinical Court help to make the divorce procedure more pleasant? The first thing that the Rabbinical Court invariably must do is to assure that the divorcing husband and wife feel comfortable. Inquiring of their welfare, asking how they feel, offering a glass of water, are all helpful approaches which will personalize the encounter, and raise it up from being a simple legal transaction.

Another helpful gesture on the part of the Rabbinical tribunal would be to reassure the husband and wife that the procedure is harmless and painless. They should explain in advance the significance of the Get, the nature of the procedure and its importance, and exactly what will take place during the procedure. Quite often, the anxiety of the woman in anticipation of the divorce process is related to the normal anxiety associated with venturing into the realm of the unknown. The divorce is traumatic even with all its details known in advance. But with some of the unknown elements becoming clear, the level of trauma is significantly reduced.

Post-Divorce Restrictions

The divorce is final at the precise moment the wife accepts the divorce. Sometimes, especially when the divorce is delivered in a different city from where the Get was written, it may take a few days before the wife receives the ptur document. However, she is effectively considered divorced from the time of acceptance of the divorce document, the Get.

The husband and wife who have divorced are allowed to remarry each other, as long as the divorcing husband is not a kohen (member of the priestly family). A kohen is not permitted to marry a divorcee. Even though here it would be the kohen reuniting with the woman he himself divorced, he still is not permitted to remarry her. However, as long as the husband is not a kohen, and the wife has not married someone else after the divorce, the couple, if in fact they do reconcile, would be permitted to remarry.

Under normal circumstances, the woman who is divorced may not remarry for 92 days after the granting of the divorce. This includes the day of transmission of the divorce plus the day of the marriage itself, so that there is a full 90-day interval between divorce and remarriage.

Removing Doubt

Simply put, should the divorced wife become pregnant within the next few months, having remarried almost immediately after the divorce, it will be impossible to discern whether her child is a nine-month baby from the first husband, or a seven-month baby from the second husband. Because the true paternal partner will not be known, the child will be in the untenable position of not knowing who is the real father.

That doubt will effectively deprive the child of the paternal guidance the child needs throughout life, aside of course from the child being deprived of the financial support that is the obligation of the father. Each possible father can legitimately claim that it is the other one who is the real father, and is the one who has the attendant financial obligations. The child falls between the cracks.

In order to prevent this, the simple enactment of waiting 90 days before remarrying creates the time interval that assures precise knowledge of who is the paternal parent. Should the divorced wife have a child within seven months after remarrying, it will be obvious that this child is from her second husband, since they had already passed through a three month interval.

A major exception to this proviso concerning having to wait after the divorce is when the divorcing husband and wife decide to remarry each other. Should they remarry, they can do so even within those 90 days, since the first husband and the second husband are actually one and the same. We therefore know without doubt who is the father.

Do Not Delay

This, in general, is the divorce procedure, with its main components and its main implications. The exact manner in which the procedure is carried through is slightly more complicated, because there are many details that must be satisfied, but the most important concerns in the carrying through of a divorce are that it be done in strict conformity with Jewish law, and according to the sensitivities that are a basic component of Jewish ethics.

(Excerpts)

トラックバック - http://d.hatena.ne.jp/itunalily2/20180423