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 Shabbat Parashat Pekudei| 5766P’ninat MishpatValidity of a Divorce Settlement Prior to the Giving of a Get - Based on Piskei Din Rabbaniim - vol. XI, pp. 89-96
Case: A couple decided to get divorced and signed a divorce settlement, which stated, among other things, that the wife would receive the store they owned and operated jointly, and the husband would receive their apartment. The husband now refuses to give a get, and since there is no divorce happening, he claims that the divorce settlement should not be implemented.(Thehusbandhad already signed over his rights to the store.)
Ruling: [Editor’s note- we will not discuss the issue of whether and why the husband was required to give a get in this case, which he was.] As the husband has already signed over his rights to the store, he cannot, in this case, back out of that “present” with the claim that it was based on the expectation of an imminent divorce. We must consider that he already received concessions from his wife, including that she already and moved out of their apartment and rented her own and stopped receiving financial support from him. But let us address the more fundamental issue.
In a ruling by a different court (see vol. V, p. 207- ) it is claimed that when a divorce settlement does not end up in divorce, the monetary arrangements are carried out as long as one side still wants divorce. (One cannot obligate oneself in advance to carry out a divorce in a way that can be enforced [for reasons beyond our present scope].) We disagree with that court’s application of the responsa of the Rosh and Mabit and understand that if either side made monetary concessions based on the expectation of divorce, and he or she no longer desires divorce, the obligation may be invalid, because it was based on a false assumption.
However, we agree that in a case like the one before us, the monetary agreement stands. That is because the husband still desires to be divorced. It is just that he now wants to change the monetary agreement before giving a get. Thus, the monetary decision was not based on a false assumption of divorce, and his desire to change an agreement to which he already obligated himself is not accepted.
The same conclusion applies in the type of cases that the Rosh and Mabit discussed. Their context was one of breaking ties to a sister-in-law through chalitza as opposed to divorcing a wife, but the cases share parallels. There, the men backed out of their agreements to do chalitza and wanted to back out of the accompanying monetary agreement. The Rosh and Mabit did not allow it, because they remained obligated to perform chalitza. So too in a case where the man is obligated to give a get, his refusal to do so does not exempt him from the financial settlement he agreed to when he agreed to give the get. The reason is clear, as the assumption of divorce or chalitza was not a mistake, given that beit din ruled that it is indeed what he should do.
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