A Renegade Jew Leaves to an Island without Divorcing his Wife

 

gidike

Shemuel ben Shelomó
The Year 5511/1750
Peri Eẓ Ḥaim, Vol.3 simán 64 (pg 301)

Question:

Reuben was married to Leah. He left on a trip to an island and after a while, people began saying that he had abandoned the Torah and miẓwoth. Meanwhile, Leah was left agunáh in Amsterdam. She wants to divorce, but needs the get from Reuben and there is no beth din where he resides. Can a scribe write the get on his behalf before two kasher witnesses based on the testimony of someone that saw him in his apostasy?

Response:

Shemuel ben Shelomó begins his response by citing the relevant sugyá from the Gemará:

Rab Kahana says that Rab says: With regard to a deaf-mute who can express himself through writing, the judges of the court may write and give a bill of divorce to his wife based on his written instructions. Rab Yosef said: What is he teaching us? We already learned in the Mishna: In a case where the husband became mute, and the members of the court said to him: Shall we write a bill of divorce for your wife, and he nodded his head indicating his agreement, they examine him with various questions three times. If he responded to questions that have a negative answer: No, and responded to questions that have a positive answer: Yes, indicating his competence, they shall write the bill of divorce and give it to his wife based on the nod of his head (b.Gittin 71a).

Shemuel cites the Rambam on the halakhic understanding of the sugyá (Mishneh Torah, Law of Divorces 2:16). Then Shemuel cites Rashi to expound on the sugyá.

Shemuel ben Shelomó creates the debate by juxtaposing the case of a deaf-mute husband and the husband who can communicate, but does not express anything to the scribe. Accordingly, Shemuel cites the Rambam:

The husband must tell the scribe to write the bill of divorcement and tell the witnesses to sign (Law of Divorces 2:5). As such, the husband must initiate the divorce. He cannot be pressured, nor can the beth din initiate the divorce without his consent. If the beth din writes the get without his consent, it is invalid. 

Thus, even the deaf-mute must give consent for divorcement. Shemuel then cites a number of poseqim on the matter of consent and initiation of divorcement, including: the Rashba, the Ramban, the Rosh, Ribí Menaḥem Azariah, and Ribí Yosef Karo.

In his conclusion, Shemuel ben Shelomó returns to the Rambam and states that there is no way to stray from what he brings in the Mishneh Toráh. Unfortunately, Leah cannot be divorced without the consent from Reuben and unless he presents himself before a scribe and two kasher witnesses. 

After having analyzed this case, it is a sad reality that Leah cannot be released from her marriage to Reuben. Neither can a beth din pressure Reuben because this is against halakháh, and even if they could, he would not care because he had abandoned the Toráh. From this case, one can infer that the couple married out of blind love, without taking into consideration potential future complications within the marriage. Indeed, Reuben could have given Leah a get al tena’i upon embarking on a trip to a far away place. Reuben left and probably was looking for an escape from the scrutiny of the community. It was common in the seventeenth and eighteen centuries where Iberian converso men  arrived in Amsterdam and returned to the open practice of the mesorah, after which they strayed from the path due to theological dissatisfactions or problems with the Board of Trustees. 

I learn that it behooves women to add tena’im to their ketuboth, such that she can divorce if the stipulated conditions are met. Moreover, the community could have decreed a communal gezerah that no married man should travel to far away places without first leaving a get al tena’i for his wife, in the case that he does not come back. At the same time, one can infer that the communal leaders based the rule of law on trust between the parties involved in the marriage. However, when the hazaqah of trust is broken, the community must adapt to the socio-psychological changes of its members.  

This responsum confirms that the jurisprudence at Talmud Toráh Eẓ Ḥaim, establishes the halakhah in accordance with the Rambam. Therefore, all of the sources cited from Franco-German, Catalonian, Italian, and Castilian jurists are only brought to create the debate concerning the Talmudic references discussed within the case. However, the Rambam is called “ha-Rab” as the overarching halakhic authority  for the Nação community.