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 Shabbat Parashat Ki Tetzei| 5764P’ninat MishpatThe Issuing of an Order of Separation - From Piskei Din Rabbani’im, vol. XII, pp. 161-163
Case: A couple presented the regional court with a divorce agreement, in which it was agreed that after divorce, the joint apartment would remain in the wife’s possession. Subsequently, the husband decided to back out of the agreement, and the matter was in the process of adjudication in the regional court. In the meantime, the court ordered a tzav hafrada (a court order that forces the husband to stay away from the place of their joint residence to date) until the end of the proceedings. The Court of Appeals heard the husband’s claim that beit din did not have the authority to give such an order, as that was not within the subject matter of the court case.
Ruling: We have decided to hear this appeal, even though it seems to be on a temporary matter, because of the potentially severe consequences of a tzav hafrada. Firstly, it may compromise the outcome of the question of continued marriage, a matter that has not yet been determined. Secondly, it forces a man into a situation where he may not have any reasonable living arrangements on short notice, and this predicament will not be remedied to make up for his expenses and hardships if it is determined that his wife’s claims were not valid.
That being said, after studying the matter at hand, we have decided to reject the appeal for the following reasons. The tzav hafrada was not made to prejudice the outcome of the decision on control of the apartment. Rather, beit din gave the order based on its feeling that continued joint residence is likely to be detrimental to the wife. This is certainly within the jurisdiction of the court, which was called upon to rule on the continued marriage of the couple or the giving of a get.
In general, beit din is hesitant to grant a tzav hafrada, because it is unclear how matters will progress, from the perspective of the beginning of the proceedings. It is also a major, and not always justified burden to put on the husband to find alternative living quarters without sufficient notice. However, this case is different. The couple had already produced a divorce agreement, which included the husband’s agreement to leaving the apartment, even mentioning a date for his departure. It is, therefore, reasonable to assume that the husband contemplated and planned to make arrangements by that time. It is, thus, fully reasonable that beit din acquiesce to the wife’s request for a tzav hafrada. This is not to say, though, that the regional beit din needs to turn the temporary tzav hafrada into a permanent one. That needs to be determined after they hear the claims of both sides and render a final ruling.
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