I had a few thoughts about the recent scandal involving a
married woman who was allowed to marry another man without having
received a get.
A word of introduction about my concern and involvement in
the case: I am an attorney practicing family law, almost entirely in the
religious/haredi communities, although I have non-religious and
non-Jewish clients as well. L’affaire Kaminetzky, therefore, has major
ramifications for me, on a professional level.
Regarding the halachic issues – I’ll leave them to the
dayanim and poskim to decide. As for the broader communal ramifications
of allowing people to remarry without a get, the leaders of the
respective Jewish communities will make their voices heard. I would like
to present a few remarks from the perspective of a layman who has dealt
with divorce as a legal professional. A word of caution: my comment
here is not based upon scientific literature or academic studies, but,
rather, on the many, many couples I have dealt with.
The underlying theory of the “psak” written by Shalom
Kaminetzky is that the husband suffered two separate mental “illnesses”
and that, taken together, the two “illnesses” are a “מום גדול,” a great
defect.
This is all based upon a naïve and simplistic assumption
about why people get married – and when and why they stay married.
Marriage is mysterious: some couples stay together despite a spouse’s
having serious personality flaws – and even disorders. Let’s take the
example of a narcissist. While being married to a narcissist can be a
nightmare for most people, there are some people that not only can deal
with being married to a narcissist but actually seek out such people. We
might be correct in saying that someone married to a narcissist is
unhealthy, codependent, or self-destructive, but this doesn’t change the
fact that the person is willing to remain with the disordered spouse.
A related point is that there are people who almost appear
to seek out a disordered spouse or a spouse with what we might consider
negative character traits. As absurd as this might seem, I have seen
clients on a second or third marriage, where they married the same type
of disordered spouse in each case – and in each case, it was the
disordered spouse that wanted the divorce. One client in particular
comes to mind: he was married to a woman with Borderline Personality
Disorder (BPD), who, after 4 kids and many years of marriage, sued for
divorce. His next wife also had BPD – and he was, and is, happy to stay
with her.
Human behavior and relationships are incredibly complex and
can rarely be distilled to statements like “no one would have married
to such a person.” People do get into relationships with flawed partners
– and often stay with them, flaws and all.
My observations might appear to contradict the entire
theory of מקח טעות, and, as a consequence, go against the basis for
several teshuvos in the response literature. However, it should be
pointed out that most of the flaws mentioned impeded the consummation of
marriage (impotence or homosexuality). There are teshuvas about a
husband with mental illness, yet - at least from the descriptions in
those teshuvos - it appears that the illness made the marriage
impossible, not simply difficult or not enjoyable.
Since I am not a posek, I will leave it to the our halachic
authorities to decide if and when מקח טעות can form the basis of
allowing a woman – or man – to marry without a get. In any case, it
would be tragic to rely on views of marriage, predicated upon untenable
assumptions, that purport to state objective claims about relationships.
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