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Shabbat Parashat Vayigash| 5766

Pninat Mishpat



A Woman’s Demand to Nullify a Court Case Held With Only One Dayan - Adapted from Piskei Din Rabbaniim - vol. XIX, pp. 242-251
 
Case: A husband and wife were living separately for a long time. The wife sued him in regional court for support. The husband said he wanted a divorce, as there was no hope of living harmoniously as husband and wife, but the wife refused to accept a get, preferring that they continue living separately without divorce. The two agreed that the case be heard by a single dayan, instead of the normal three. Beit din decided that the wife should accept the get and in the meantime does not receive support. The wife appealed to the High Court, saying that she gave jurisdiction to the court of one only in regard to the monetary matters, not in regard to the requirement of a get, which is a matter of what is permitted and forbidden.
 
Majority Ruling: The woman’s claim that she did not agree to a single regional dayan to decide on the matter of her requirement to divorce, just on the monetary matters, is flawed. Firstly, she took part in the deliberations that discussed all the issues without complaint. Only after the ruling that she rejects was rendered did she object. This indicates that the agreement to hold the case in that forum was a general one. Furthermore, the husband’s response to the wife’s demand of support was his demand for divorce and, therefore, the two issues were linked and the acceptance applies to both.
 There is a concept that a side’s acceptance of court procedures that do not conform to the regular halachot are not binding in questions of what is permitted and what is forbidden. The Imrei Bina (Dayanim 13) discusses a case where a woman agreed that witnesses to her marriage could testify at night, and the question is whether that acceptance is valid. He makes the following distinction. Regarding the impact on other people other than the woman who allowed the testimony at night, the acceptance is not valid. However, because of the concept of shavya anafshei …, that one can accept upon himself assumptions about his or her status that can otherwise not be proved, she is personally bound by the testimony at night. Therefore, in this case, the woman agreed to follow the ruling of the beit din of one, as they apply to her, and, therefore, she should agree to accept the get, as the dayan ruled.
 Regarding the specifics of beit din’s ruling, it is understandable that it not accept the wife’s demand that she remain separated but not get divorced. That is not a viable situation on an open-ended basis. If she has indeed given up hope on the marriage, as it appears she did long ago, then they should end the matter with a get. Under the circumstances, the wife’s loss of support is not a sanction. Rather, if she is not fulfilling her obligations as a wife, she cannot demand of her husband to fulfill his reciprocal obligations.
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This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.

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