Responsum: On Forcing a Man to Divorce

I feared to stand up and express my opinion to my close companions, Rabbenu Samuel and our teachers in Paris, lest the enemies slander it within twelve months as a coerced bill of divorce. For all those who know the law and the times [see Esther 1:13] know that the law is in accordance with Rava, who ruled that the law follows the rabbis, who say that a man who developed blemishes is not forced to divorce his wife, and certainly not if he already had these blemishes beforehand [see b. Ketubbot 77a]. One who explains this in any other manner may be considered in complete error, and he increases bastards. For I already taught this matter when the practical case came to hand. [ . . . ]

Without any fear of refutation at all, I can say that we do not find [any evidence of] the husband being compelled in the entire discussion. A great proof is Rabbenu Ḥananel’s explicit comment that if the husband says, “I will give her a bill of divorce,” we delay for him, etc. All those who have understanding will comprehend from the law; they will hear and say “it is true” [see Isaiah 43:9]. Even the statement of the author of Halakhot gedolot [Simeon Qayyāra, mid-ninth century] that we grant a divorce immediately; it must all be explained as with the husband’s consent. This is how I taught it when the case came to hand—the incident involved the groom R. Yeḥiel—before you, and I analyzed it in your presence. If we are willing to change a custom and thereby uproot a law, God forbid that we should do so in a case involving a prohibition, the punishment of strangulation, and the status of a bastard.

As for what our teachers in Paris wrote: “We hereby give our consent to whatever you do in order to force the man, through all kinds of persuasions by which you can force and compel him, until he says ‘I am willing,’” this too is incorrect in my opinion. Perhaps it is an oversight on my part, but we do not find that [the law says that] he is compelled to divorce her. [ . . . ]

I myself was involved in an incident of this kind, concerning one who betrothed the daughter of R. Samuel from Chappes, and they decreed that the man who betrothed must divorce her. I took action to ensure that they would release him from the decree, but they then suspected him of financial impropriety and other matters, until he divorced her. What happened there is well known and has been recorded, so that it should not be said about me that he takes issue with his teachers, for this is how I had already taught it when the case came to hand, and my opinion should be heard.

Furthermore, I am stringent, in that I nullify rumors, whereas the children of the wicked among our people exalt themselves by establishing rumors, slandering their own mother’s son, and one should not rely on them for anything, not even in exigent circumstances. But the day is pressing, and they preach against the house of Isaac [see Amos 7:16]. However, if all of our teachers agree with this, you should issue a decree, under pain of a severe oath, that will be imposed on every man and woman from the descendants of the house of Israel who will join with you, that they will not be permitted to speak with him, engage in business with him, invite him, feed him or give him to drink, accompany him, or visit him when he is ill. They may add such severities as they wish upon all other people, if that man refuses to divorce and release this girl. For in this fashion, the act of compelling is not applied directly to him, since if he wishes he may maintain the marriage, and he will not be physically afflicted on account of this excommunication. However, I separate myself from him, and whoever remembers their decree and our decree will observe it. If someone violates it by mistake, its penalties will not apply to one who acts by mistake. If our teachers do this, it seems to be the upright path, for it is better to leave her in her deserted state than to have rumors spread about her children, since the prohibition has already spread due to the terrible events. May the Rock of Israel add courage and many years, more than those which have passed, and to our teachers in Paris: “Peace, peace.”