In a precedent-setting ruling, the Safed Rabbinical Court has granted a woman a divorce even though her husband has been in a coma for seven years and therefore cannot consent.
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Jewish law requires both parties to consent to a divorce. But the court, invoking a rare legal procedure known as a get zikui, decided that under the circumstances, were the husband able to voice his opinion he would have wanted to make it possible for his wife to remarry.
The ruling has limited application to other women unable to obtain a divorce, since the court stated explicitly that it does not apply to a man who actively refuses to divorce his wife. Nevertheless, it could help other women whose husbands are in an irreversible coma.
Initially, the rabbinical court judges, or dayanim, sought advance support for their ruling from Chief Sephardi Rabbi Yitzhak Yosef, who heads the Rabbinical Court of Appeals. He refused, so instead they relied on the blessing of Rabbi Zalman Nechemia Goldberg, a leading dayan from an ultra-Orthodox rabbinical court that is outside the state-run system.
Although the 91-page ruling was issued over two months ago, the Rabbinical Courts Administration released it for publication only on Tuesday night. It is being reported now for the first time in Haaretz.
In 2007 the husband sustained severe injuries in a motorcycle accident and went into a coma from which he has not recovered. He and his wife have one daughter. Two years ago, the woman, who is now 34, applied to the rabbinical court for permission to remarry, in the belief her husband will never wake up. The case was heard by a panel of three dayanim, headed by Rabbi Uriel Lavi.
After visiting the man in hospital, consulting doctors and studying other evidence, the dayanim became convinced that he was unable to communicate in any fashion and therefore could not actually consent to a divorce. They considered annulment, but were unable to find a legal flaw that could serve as grounds for deeming the marriage invalid.
In the end, the judges decided on a get zikui. In their ruling, they acknowledged that this is a “huge innovation,” and that some of its foundations in halakha (Jewish law) are “controversial.” Nevertheless, they said, the decision is halakhically valid.
Their ruling is based on two of the greatest halakhic arbiters of the previous generation, Rabbi Tzvi Pesach Frank and Rabbi Avraham Yeshaya Karelitz (the Chazon Ish). They also cited dozens of other Jewish sources, from the Talmud onward.
The get zikui is based on the halakhic principle that it’s permissible to benefit someone even in their absence. This allows rabbinical courts to make a decision even without the affected person’s knowledge if they conclude that it is to his benefit – or in this case, that it’s in his subjective interest.
This is a radical principle usually used only in financial matters, such as awarding property to someone without his knowledge. Nevertheless, it is sometimes used in divorce cases as well – though almost always to bypass the woman’s consent rather than the man’s.
In their ruling, the dayanim said their decision was “based on the assumption that in this case, a get zikui is an absolute benefit for the husband, given that the husband is hospitalized and receives everything he needs, and all the care he requires, at the hospital, without limit and in the best possible manner, and therefore it makes no difference to him whether he is married or divorced, while on the other hand, arranging the divorce eliminates serious problems for the husband, who isn’t fulfilling his obligations to his wife and would be liable to a forced divorce if he were fit to appear at a divorce proceeding, as well as the fear that the current situation, without a divorce, is liable to be a severe stumbling block.”
Moreover, they noted, since the woman no longer supplies any of her husband’s needs – or he hers – her marital status is “doubtful,” and she “certainly no longer owes him anything.”
One open question is whether the ruling will affect Lavi’s candidacy for the Rabbinical Court of Appeals, given that Yosef and several other dayanim have already voiced opposition to it. At the end of their ruling, the Lavi’s panel offered responses to some of these objections.