It is my considered opinion, that no matter what the circumstances, a Get should NEVER be withheld in a divorce case. Once it is determined that the marriage cannot be saved, for whatever reason, legitimate or otherwise - the Get should be the first thing executed. The reason for that is really quite simple. The Get is a weapon. There is no other way to see it. It is a weapon available to only one side of the dispute.
Imagine a duel between 2 gentlemen in revolutionary times. The one that has the most believable and provable grievances is given the gun, the other side is denied a gun. Is there anyone in the world that would consider that a fair fight? Of course not. If the one with the gun shoots the one without one, it is 1st degree murder no matter how badly he aggrieved the shooter is.
What about those grievances? In our day there are for example cases of divorce where men are victimized by their wives who seek full custody of their children. It is not unknown that they will accuse their husbands of sex abuse when there was never any there. Should that not be considered? I used to think so, but I no longer do. The Get as is a weapon in the hands of only one party and should never be part of the equation. Issues like this can and should be taken care of through legal means.
The reason I feel so strongly about that is because of the way the Halachos of Jewish divorce are structured. I am not one to question why the Halacha was structured this way. But it should be obvious to anyone that it is unfair to the woman.
The Halacha – the letter of Jewish Law - is clear. Only a man can divorce (i.e. give a Get to) his wife. He can divorce her pretty much at will. A woman does not have that option at all. If she wants to divorce her husband, and he refuses, she has no recourse and stays married, no matter how much she desires to get out of it. This is what creates the Agunah situation of which Tamar Epstein is a victim. It is an unfair advantage given to a man by the Torah for reasons I do not fully understand. But that is the way it is.
It has been argued that in our day, a man too has limitations. He too cannot marry another woman if he does not give his wife a Get or she does not accept it. While this is true, it is not an impenetrable barrier. The nature of the prohibition for man to remarry has loopholes. Loopholes based on the fact that on a biblical level a man may marry more than one wife. A woman on the other hand may not have more than one husband. There prohibition today against a man having more than one wife was established by a medieval commentator, Rabbenu Gershom.
But that is not even a rabbinic level prohibition. It is just a Cherem. Which essentially means that anyone violating it would be ostracized from the Jewish community. Sephardim do not have this prohibition at all. (Although I don’t know too many Sephardi bigamists even in countries where that is legal. But I digress.)
So that if a wife does not accept the Get, the husband can technically marry without it. And any children of that union will be full fledged Jews without any taint. What about the Cherem? Is that not a deterrent? To some extent it is. But there is something called a Heter Meah Rabbonim. Which means that if a husband gives his wife a get and she refuses it, he can petition 100 rabbis to sign a document that allows him to have 2 wives. But even without that if he violates the Cherem, his children will still be full fledged Jews without any taint.
So that if a wife does not accept the Get, the husband can technically marry without it. And any children of that union will be full fledged Jews without any taint. What about the Cherem? Is that not a deterrent? To some extent it is. But there is something called a Heter Meah Rabbonim. Which means that if a husband gives his wife a get and she refuses it, he can petition 100 rabbis to sign a document that allows him to have 2 wives. But even without that if he violates the Cherem, his children will still be full fledged Jews without any taint.
A woman has no such option. If her husband does not give her a Get she is married to him. Marrying another man in that state is one of the most severe biblical level violations of Halacha. Any children from that union are Mamzerim.
This is the deal breaker for me. It is absolutely clear that Halacha makes this an un-level playing field. And as such should never be used by a man as leverage under any circumstances.
Rabbis are not totally insensitive to this inherent unfairness. The RCA has for example devised a prenuptial agreement that- should the marriage break down - requires a heavy financial burden of support paid to the wife if he denies her a Get. There are other things things rabbis can do via a Beis Din. Like putting all kinds of social pressures on the recalcitrant husband - making him a pariah in his community. Or like in Israel where a man can be jailed indefinitely for refusing to give his wife a get.
In some cases extreme methods are used that go way too far. So much so that many have crossed lines in a variety of ways misapplying Halacha or using tortured interpretations of circumstances to use the rare loopholes that allow an Agunah to remarry. In some cases methods used are both unethical and illegal. Those who have tried are paying a very high price for it now. Nevertheless, what all that shows is that there are rabbis who do care and are trying - one way or another - to remedy the situation.
I should add that there are unfortunately many rabbinic courts set up for this purpose are corrupt. If I had it in my power I would throw the so called Dayanim (judges) running those courts in jail. But that is beside the point of this post.
Bottom line - the system is fundamentally unfair. And the playing field must be made level by assuring that the Get is given immediately. What about egregiously unfair allegations – like sex abuse made by some wives against their husbands in custody battles? …allegations that are untrue? That is an outrage and should be fought with everything one has. But not with the use of a weapon unavailable to his wife. Retain the best lawyer you can and fight for your rights that way. Not with a loaded gun in your hand pointed at your wife.
There. I got it off my chest.