Tuesday, December 18, 2007

Divorcing a Woman Against her Will

The Gemora (Kesuvos 109a) cites a case where the father-in-law stipulated to give money to his son-in-law, and he stretched out his leg to him (an expression meaning that he doesn’t intend to fulfill his commitment), he may divorce her against her will.

The commentators discuss the halacha nowadays, where there exists the ban from Rabbeinu Gershom against divorcing a woman against her will (there is an extensive discussion among the poskim if this applies to an arusah as well). Is the husband permitted to forcefully accept the bill of divorce or not?

It is brought in the name of the Rashba that Rabbeinu Gershom did not issue his decree in cases where the husband was not negligent; the edict was only established for unethical husbands who wish to take advantage of their wives, and therefore, in this case, the husband may forcibly divorce her. Or, perhaps, even in this case, he should not divorce her against her will, for the wife did nothing wrong.

The Mishna Lamelech cites an incident that occurred with the Mishpitei Shmuel in the town of Kushtantina. The groom betrothed a woman and promised that he will perform the nisuin on a certain day. On the appointed day, the groom asked for her dowry, but his father-in-law refused, claiming that he lacked the necessary funds. The ruling was that the groom is not obligated to perform the nisuin, for he has a legitimate claim that his promise to marry her was only based upon his receiving the dowry from his father-in-law.

The Pnei Moshe derived from this ruling that in our case, the husband may forcibly divorce his arusah, for Rabbeinu Gershom’s decree would not be applicable in that case.

The Mishna Lamelech states that there is no proof from that ruling. The ruling there was only that the groom is not obligated to fulfill his promise to her and perform the nisuin, but they did not rule that he may forcibly divorce her.