The Supreme Court has been discussing a petition this morning (Wednesday) filed by Attorney Batya Kahana-Dror, Executive Director of Mavui Satum, demanding to prevent the Rabbinical High Court in Jerusalem to invalidate the divorce granted a woman which would mean she is an aguna once again.
In 2014, seven years after a serious accident that left her husband in a vegetative state, a panel of three judges headed by Rabbi Uriel Lavi of the Tsfat (Safed) Beit Din, issued an innovative ruling, using a halakhic concept called "get zicui " in a new and unprecedented way and assuming the role of apotropus (legal guardian) for the husband. The rabbinic judges then granted the divorce instead of him, so that the aguna could receive a divorce from her husband.
Shortly after receiving the divorce, a man named Reuven Cohen from Bnei Brak, who is not related to the couple, filed an appeal against the ruling in the High Rabbinical Appeals Court of Tsfat.
President of the Supreme Rabbinical Court and Chief Rabbi of Israel, Rabbi Yitzhak Yosef, decided two months ago to adjudicate the divorce and summon a full session of the Supreme Rabbinical Court for the purpose of the appeal proceedings as the halakhic issue is a complicated one. Rabbi Yosef's decision provoked much criticism.
Remarks made by the President of the Supreme Rabbinical Court Rishon Lezion Rabbi Yitzhak Yosef, in which he implicitly refers to the conflict between state authorities and the rabbinical courts, were obtained by Arutz Sheva this morning.
The comments were made a few weeks ago at a rabbinical conference dealing with the issue of mixed gender IDF service orders which was attended by dozens of senior religious Zionist rabbis in the Chief Rabbinate.
Rabbi Yosef told the gathered rabbis, "I have sat in the Rabbinical Court for three and a half years. He have solved hundreds of cases, without noise, without advertising. Some agunot and others forbidden to marry came before us. We investigated matters in depth; we went deeply into the halakha."
"We care about the problem. We are doing all we can. But we do not own the Torah. G-d does. The Torah is not like 'clay in the hands of the artisan', plastic, something to be played with. We have a sacred Torah, we remain constant in our loyalty to Torah. Of course, the ability to be lenient is preferable, the halakha is like Beit Hillel (a Talmudic saying, ed.), there is no doubt, and this is what we are striving for."
A man must grant his wife a get in Jewish law and she must accept it. If the divorce is not halakhically correct, and she remarries, her children might be classified as mamzerim. So what is a get zicui? It is used regarding receiving a get on someone's behalf, when we assume they would like to receive it. The argument used here, however, was: "he would want his wife to be free if she was chained to a comatose man for six years." The late Chief Rabbi Isaac Herzog discussed the concept, and rejected it. He predicted that if we allowed it for the husband who is incapacitated or has disappeared, there would be attempts to apply it for a husband who is refusing to give his wife a get, arguing that he'd really rather give one. Rabbi Herschel Schachter of Yeshiva University has explained that the fundamental problem with zikui is that it only works (at least in all the Talmudic precedents) in a passive way, to receive something. Giving a Get requires deliberate action.