Friday, November 02, 2007

Kesubos 63b - Who is deserving of a get?

A Rav and big Talmid Chacham from Los Angeles once visited our Kollel in palo alto, I asked him to give a shiur. He chose to share with us a perspective that at the time seemed somewhat radical but seems to be sourced well in halacha. Is a woman who wants a get automatically deserving of one and classified as an "aguna" if she does not receive one?
The gemara says that a woman who wants out of a marriage because she claims that her husband is repulsive to her, is different from a woman who wishes to stay married but rebels to abstain from relations, in that the latter case we penalize her to stop rebelling by deducting her kesuba but in the case where she claims he is repulsive to her, we recognize her claim and allow for an immediate divorce without collection of a kesuba. It is not clear from the gemara whether or not we would force the husband to give a get. Tosafos brings those who maintain that her claim of finding him repulsive would entitle her to a divorce to the point that the beis din would force him to give her a get. Tosafos explains that the concern that she wants out because she is interested in someone else is not a concern since she would be loosing her Kesubah. Furthermore, even this opinion maintains that we must have some sort of evidence or indication that she truly finds him repulsive and cannot live with him, otherwise we would not force him to divorce her. However, Tosafos quotes Rabbeinu Tam who holds that the discussion in the gemara is whether we would exempt him from paying a kesuba to encourage divorce (when she claims he is repulsive) or whether we would require him to pay a kesuba to prevent him from divorcing her (when she rebeles), but one way or the other we would not force him to divorce her just because she finds him repulsive, and certainly not for a case where she just wants out for other reasons (that don't have a basis in halacha). In Shuchan Aruch 77:2 we pasken like Rabbeinu Tam (the Gr"a points out that the majority of rishonim rule like rabbeinu tam) and therefore we would not force him to divorce her.

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