2001/5761

Introduction

In general, the function of a Get is to dissolve a marriage in which the man and woman no longer love each other as they did when their marriage began.  It is therefore viewed in a negative light.  This is expressed in the Gemara (Gittin 90b), which says that even the Mizbeach cries when a man divorces his first wife (see Rav Soloveitchik’s Family Redeemed for a full discussion of this point).  However, a Get does not have to be a representation of the lack of love between a husband and wife; on the contrary, the Get itself can be a representation of the love that exists between the husband and wife.  One example of this is a Get Shechiv Mera.  In this situation, the husband, who is a Shechiv Mera (a person on his death bed), gives his wife a Get so that she will not be required to do Yibbum or Chalitza with her brother-in-law.  There are many complex laws that are involved with a Get Shechiv Mera that must be studied and analyzed in order to fully grasp how this Get works.  For a full discussion of this type of Get, see Encyclopedia Talmudit 5:742-758.

It should be noted that although the Torah (Devarim 25:1) speaks of divorcing because the man dislikes his wife, divorce is permitted even if the man is motivated by love for his wife.  We find that Moshe Rabbeinu temporarily divorced his wife Tzipora out of love (see Onkelos and Rashi to Shemot 18:2).  Similarly, before soldiers went to fight in King David’s army they wrote Gittin to their wives so that they should not become Agunot (Shabbat 56b).  For further discussion of this issue, see Aruch Hashulchan (Even Haezer 145:1).

Special Condition for a Get Shechiv Mera

The first issue that must be dealt with is the language that the husband uses when presenting his wife with this type of Get.  This is extremely important because according to many Rishonim the statement that the Shechiv Mera makes to his wife is not incorporated into the text of the Get, and therefore the writing of this type of Get does not differ from others.  What makes this Get unique is the statement the husband makes to his wife when he hands the Get to her.  (Other Rishonim believe that the statement is included within the writing of the Get itself; see summary of the views in Encyclopedia Talmudit 5:746.)  In essence, the husband gives his wife this Get on the condition that the Get will only take effect if the husband dies from his current illness.  The obvious reason for this is that he wants the Get to take effect only if and when he dies.  Therefore, if he were to recover from his illness, the Get would be void.

However, a problem arises when making such a condition.  There is a rule in conjunction with Gittin known as אין גט לאחר מיתה, a Get is not effective after death (other Halachic documents also cannot take effect after death).  As a result, if the husband were to say to his wife, “This is your Get if I die from this disease,” or, “This is your Get if I die,” the Get would only take effect after the husband has already died.  This would invalidate the Get.  In order to circumvent this problem, the husband must declare that the Get goes into effect before he dies.  In order to do so he must say, “This is your Get from today if I die,” or, “This is your Get from now if I die.”  In effect, what the husband is saying is that if he dies, the Get retroactively takes effect from the present time (Gittin 72a and Shulchan Aruch Even Haezer 145:1-2).

Rabbi Yosi and Rabbi Yehuda Hanasi believe that the Get would be effective even in a situation where the husband did not mention this condition because they believe that זמנו של שטר מוכיח עליו, the time written on the Get expresses the husband’s intent for the Get to take effect from the present time, so it is as if he had said “from today” (see Gittin 72a and 76b).  Yet there are those, such as Rashi (Gittin 77a s.v. L’chi Nafka), who explain that even Rabbi Yosi agrees that if the husband explicitly said, “This is your Get for after my death” the Get is void because the husband definitely did not intend for it to take effect from the present time.  The Rishonim disagree as to whether Rabbi Yosi’s ruling is considered normative (see Encyclopedia Talmudit 5:743).

Additionally, when presenting his wife with the Get, the husband’s statement must be absolutely unambiguous.  If he were to make a statement that seemingly contradicted itself, it would create many problems.  For example, a problem arises in a situation where the husband says, “This is your Get from today and after my death.”  This statement is a problem because the second half of the statement (which says that it takes effect after he dies) contradicts the first half (which says that it takes effect retroactively).  The Halacha in this scenario is a debate between the Rabbis and Rabbi Yehuda Hanasi.  Rabbi Yehuda Hanasi says that the Get is valid because the condition says that the Get works retroactively.  The Rabbis, on the other hand, say that it remains a Safek whether or not the second statement was retracting the first, and therefore if the husband dies the woman should perform Chalitza (Gittin 72b).

Timing

It is also important to discuss when exactly the Get takes effect and the practical differences between the various opinions.  According to Rashi and the Rambam, the Get takes effect from the time it is handed to the woman.  Others, such as Tosafot, believe that the Get may not take effect until immediately before the husband dies.  One practical difference between the two opinions is a situation where the Get is lost or destroyed before the husband dies.  According to Rashi the Get would be effective anyway, but according to Tosafot the woman would not be divorced.  (For a summary and further discussion of this issue, see Encyclopedia Talmudit 5:752-754.)

This debate also has relevance in determining the status of the woman between the giving of the Get and the death of her husband.  This is debated amongst the Tannaim in Gittin 73b.  Rabbi Yehuda is of the opinion that she is considered to be his wife for all purposes except that she does not require a second Get.  Therefore, if another man were to engage in relations with her, he would violate the prohibition of having adulterous relations with a married woman.  Additionally, the husband is entitled to her מעשה ידים, handiwork, as well as מציאתה, objects that she finds, and retains the right to nullify her vows.  Rabbi Meir, however, believes that her status is not defined until her husband dies.  In other words, if someone were to engage in relations with her during this time, his status as a sinner would be determined by whether or not the husband dies from his illness.  If the husband dies, the woman was divorced at the time the action, and the man would not be accountable.  If, however, the husband does not die, she will not have been divorced and the man will be guilty.

A third opinion on this issue is that of Rabbi Yosi, who says that she is “divorced and not divorced” as long as the husband eventually dies.  Some Rishonim explain this debate as regarding a case where the husband says to his wife, “This is your Get from the time that I am in this world.”  \Rabbi Yehuda believes that he intended that the Get should take effect immediately before he dies.  As a result, she is considered to be his wife up until that point.  Rabbi Meir believes that the husband intended for the Get to go into effect from the time that it was given over to the woman.  Therefore, when the husband dies, the Get retroactively goes into effect from the time that it was handed over.  Rabbi Yosi believes that the husband wanted the Get to take effect as of the hour before his death, but it still remains a Safek from the time of the giving of the Get until his death because any moment could be within the moment of his death.  Even though it will later be clarified when that hour was, the principle of אין ברירה (the matter cannot be determined retroactively) is applied.

Furthermore, between the time of the giving of the Get and the death of the husband, the husband is not permitted to be alone with his wife except in the presence of two witnesses (Gittin 73a).  The reason for this depends on whether the word מהיום (literally, from the day) means from the time of the giving of the Get or from the hour before the husband’s death.  If the Get works retroactively from the time he handed it over to the woman, then the husband cannot be alone with her because we are afraid that he may have remarried her through relations.  Even if that is not a concern, she is nonetheless an unmarried woman and one is not permitted to be alone with an unmarried woman.  However, according to the opinion that the Get only works immediately before the husband dies, they cannot be alone because they will create a Get Yashan (when the couple are alone together after the writing of the Get).

Mental Status

Moreover, when dealing with a Shechiv Mera, it is necessary to make sure that the man is sane.  Occasionally, sick people are unable to think clearly.  Therefore, it is important to check to see if he is thinking clearly at the time of the signing of the Get, the time of the giving over of the Get, and especially when he makes the command for someone to write the Get.  If the man is not sane at any of these times, the Get is void.

Conclusion

It is clear that there are many complicated laws involved with a Get Shechiv Mera.  There are many problems and difficulties that may arise when dealing with this type of Get.  However, if it is done in the proper fashion, a Get Shechiv Mera is an effective way for a man to prevent his wife from having to do Chalitza, thereby showing his love for her.

It should be noted that Rabbeinu Yechiel of Paris made an edict that a Get Shechiv Mera should not be made on a condition.  This was done to avoid the Halachic complexities and pitfalls associated with performing a conditional Get (see Mordechai to Gittin 142 and Rama E.H. 145:9).  From this developed the current universally accepted practice to never conduct a conditional Get (see Aruch Hashulchan E.H. 154:Siddur HaGet HaTemidi:1).