A CONDITIONAL DIVORCE

In a dramatic pronouncement, the Rebbe Rashab established that all T’mimim are soldiers fighting the wars of Dovid. When soldiers go to fight, they give a conditional writ of divorce to their wives. * A fascinating study about the gittin that soldiers gave their wives in the event that they did not return, about the rabbinic approach to the matter, and when the soldiers refused orders and did not give a divorce like this. * “When you go out to war” – Parshas Ki Seitzei.

R’ Herzog, Chief Rabbi (center) with R’ Zislin (left)The large zal of Tomchei T’mimim was packed from wall to wall with the students of the yeshiva and the staff. All eyes were focused on the central table that was raised, where sat the Nasi of the yeshiva and its founder, the Rebbe Rashab, and at his side his only son, the Rebbe Rayatz, dean of the yeshiva. Around them, much like diamonds in a beautiful setting, sat the mashpiim and mashgichim and the distinguished Chassidim.

It was Simchas Torah 5661/1900, the third anniversary of the founding of the yeshiva. During the course of that farbrengen the Rebbe Rashab gave a talk directed at the T’mimim who sat before him.

The Rebbe instructed his son to have the T’mimim rise, saying, “I want to drink a l’chaim with them in honor of the establishment of a covenant on avoda.” After the Rebbe Rayatz had the T’mimim rise, along with the mashpiim and mashgichim, the Rebbe Rashab stood up and announced with great emotion: “Talmidim of Yeshivas Tomchei T’mimim who are learning today in all of the programs, and those who will learn in it over time and all times, those who are here and those who are not here, I hereby set forth with you a covenant regarding participation in avoda with mesirus nefesh for Torah and fear of Heaven and service of the heart without any concessions and without any compromises. ‘The din (law) shall bore through the mountain,’ the din of the ‘first Tzimtzum’ shall bore through the mountain of the Chevra Mefitzei Haskala (Society for the Promotion of Jewish Enlightenment).”

Those present sensed the momentousness of the occasion, and after a sign given by the Rebbe, they all sang the Alter Rebbe’s niggun of Dalet Bavos. Following that, the Rebbe went on to say, “T’mimim! Whoever goes out to fight the wars of the House of Dovid would write a writ of divorce for his wife. The ‘House of Dovid’ refers to the revelation of Moshiach ben Dovid… The war of the House of Dovid is needed to strengthen the emuna in the Geula Shleima and to ease the birth-pangs of Moshiach. In order to be a soldier in the war of the House of Dovid, it is imperative to write a writ of divorce to all bodily matters, to all ‘baalebateshe’ human practices, and to devote oneself completely to the administration of Tomchei T’mimim, which educates and guides the soldiers towards the war of the House of Dovid.”

Ever since that historic event, our Rebbeim, as well as mashpiim in the yeshivos, have mentioned time and again the fact that in the times of Dovid HaMelech, soldiers would issue their wives a conditional divorce before heading out to battle, so that in the unfortunate event they would not return from the field of battle, their wives would be able to remarry. This was the desire of the Rebbe Rashab, that the T’mimim divorce themselves entirely from the matters of this world and do battle without constraint against the forces of enlightenment that deny the truth of Torah, and at a later stage against those who present themselves as believers but “mock the footsteps of your Moshiach.”

This wondrous talk, cited here only in brief, inspired and continues to inspire generations of T’mimim to go out to the front lines, having issued a writ of divorce to matters of this world, and to dedicate themselves to the main battle of bringing the Geula.

* * *

The subject of conditional divorce given by those going to war to their wives is a topic that has come to the fore time and again in Jewish history from the days of Dovid HaMelech and until very recently.

In my mother’s family, there’s the story about her uncle, who during World War II was drafted into the British army to fight the Nazis who threatened to get close to Egypt. Before he left home, he wrote a divorce according to halacha and left it with his brother-in-law, my grandfather Rabbi Avrohom Yehuda Licht a”h. He told him explicitly, if I do not return, G-d forbid, then give this divorce to my wife.

In this case, the draft which began with high drama, ended with a sigh of relief when my uncle waited along with many other soldiers in the area of Eretz Yisroel. The decisive battle at El Alamein in Egypt, in which the British army defeated the Germans, meant that my uncle could return home.

“Conditional divorces” were often given during wartime throughout the generations. It has not been publicized enough, perhaps because of the complicated halachic and personal issues involved. Maybe some feared that people would do it not only during wartime, or would not do it correctly in accordance with halacha.

Some time ago, I got to see the archives of the gaon and Chassid, R’ Shaul Ber Zislin, who taught Torah and Chassidus to the “Soldiers of the House of Dovid” in Russia and Eretz Yisroel. He drafted conditional divorces for soldiers drafted into the British army to fight the Nazis. From other sources it turns out that conditional divorces were also given in Eretz Yisroel by instruction of the Chief Rabbinate.

APPREHENSIONS DURING THE RUSSO-TURKISH AND RUSSO-JAPANESE WARS

When the Rebbe Rashab spoke about a divorce to the T’mimim, surely none of them remembered that during the Russo-Turkish war that had occurred thirty years earlier, in 5637-5638, conditional divorces were made for soldiers going to war. Due to the many years that passed since then, there aren’t many details about gittin during that war.

Just three years after the Rebbe Rashab’s talk, when the Russo-Japanese war (Feb. 1904 – Sept. 1905) broke out, the Russian government drafted many reservists, including married Jews. Thousands died in battle somewhere on the border between China and Korea. During the war, many were missing in action. People feared that married soldiers would disappear and it would be problematic to enable their wives to remarry. Therefore, many rabbanim made these conditional divorces for the soldiers. However, some soldiers feared that if the conditional divorce was given and used, the woman would be considered a divorcee and would not receive government stipends that were allocated to war widows.

The following episode which occurred in Nikolayev was published in the newspaper HaTzefira (with some parts missing):

“Many of the reservists going to war are refraining from giving their wives conditional divorces, because they are afraid that this will disqualify their wives from receiving the support given to the wives of soldiers going to war. The government appointed Rabbi H. Wilensky, who came to see off the Jewish soldiers of the brigade [ … ] because it is a moral imperative for every soldier who is a family man to give his wife a conditional divorce and he should ignore the rumors that divorcees cannot receive support.

“‘There is no basis for these rumors because the duration of a conditional divorce (2-3 years) will only come into force when the conditional period has ended,’ said the rabbi, pointing to those soldiers who had already given their wives these divorces. Then twenty men stepped out of the line and said they too wanted to give their wives a conditional divorce.”

TENS OF THOUSANDS OF JEWISH SOLDIERS DURING WORLD WAR II

A decade later World War I began. It was so bad that people forgot the wars that preceded it. Millions of civilians and soldiers were killed on various fronts. Numerous Jews were drafted and sent to the front lines which were on many continents. During this time, conditional divorces were written already when the war broke out, in Av 5674 (1914).

Let us look at the newspapers of the time to get a glimpse at the complicated halachic solution for potential, future agunos. This is what was reported in the newspaper HaMitzpeh (published in Poland) shortly after the war began:

“… The rabbis in Russia and Turkey [whose countries were at war] instituted that Jews who were conscripted give their wives a conditional divorce lest they die in battle and there would be no kosher witnesses and compelling evidence to their deaths and the woman would remain unable to remarry. The wording of a conditional divorce is the same as any other writ of divorce but another document is written which is signed by three dayanim that explains the condition. Every rav knows the wording according to the poskim. With a divorce like this, if the husband returns in the designated time, the divorce is not a divorce retroactively and he does not need to remarry her. If he does not return in the designated time however, then the woman is free and can remarry.”

The war lasted a few years and created chaos in many countries, but was then eclipsed by World War II, when the Germans conquered country after country and tens of millions of soldiers and civilians were killed, including millions of Jews who were systematically murdered, as well as tens of thousands of Jewish soldiers who participated in various military battles, may Hashem avenge their blood.

More than 4,000 Jews in Eretz Yisroel volunteered to serve in the British army which ruled Palestine at the time. Some of them were sent to various fronts in Europe while others were sent to defend the front in nearby Egypt.

This war also had people afraid for the wives of soldiers who would not return home. Rabbi Yitzchok Isaac Herzog, the Chief Rabbi of Eretz Yisroel, declared that every married Jew who was drafted into the British army had to give his wife a conditional divorce that would be used in the event that he did not return after a certain amount of time elapsed after the war.

These divorces were made by battei din and Rabbanut offices in every city in the country. Among those who were involved in making these conditional divorces, as mentioned, was R’ Shaul Ber Zislin, member of the chief rabbinate in Tel Aviv. During the war he was appointed as member of the beis din of the rabbinate in Tel Aviv and over the years he was very involved in matters of divorce and agunos. He was also very involved in having soldiers sign conditional divorces. (His son, R’ Dovid, who lived in the Soviet Union at the time, was sent to the front and never returned.)

In R’ Zislin’s archives are many piskei din having to do with gittin and kiddushin, ishus, and the like. Within all this, I found a number of documents that shed light on his involvement in conditional divorces during the war.

From a short letter that was sent to the rabbanim of Tel Aviv, it appears that in Adar II 5703/1943 a convention of rabbis was held in Tel Aviv in preparation for a Shabbos devoted to explaining the implications of the draft. In the archives there is also a text for the “authorization for a conditional divorce,” i.e., the husband’s affirmation that if he is declared missing or he doesn’t return, then a divorce should be written for him and given to his wife. According to this document, the husband appoints any resident of Tel Aviv and Yaffo to write a divorce for his wife.

Under what conditions would the divorce be written?

One possibility: The chief rabbis of Tel Aviv-Yaffo receive notification from the military authorities that the husband is missing. A second possibility: If they receive notification that he died or was killed but there is insufficient halachically acceptable proof to release his wife so she can remarry – all this is only after a full year will have passed following the release of all POW’s by the enemy.

Interestingly, among the conditions is a condition that says that even if the husband returned from war and then was drafted again, and it was after the second draft that he vanished, then too, the conditional divorce is still in force. At the bottom of the authorization form are lines for the dayanim to sign in the presence of the husband and two witnesses.

A similar practice was employed in the United States. At the end of 1941, the United States joined the world war and rabbanim in the US followed the rabbanim in Eretz Yisroel and instructed rabbis all over the country to prepare conditional divorces for married soldiers. This is a sampling of excerpts from an article published in Iyar 1942 in HaPardes that was published by Agudas HaRabbanim in the US, under the heading, “For the Agunos:”

“The chaos of war which is being waged on land, sea and in the air, and under the sea, is liable to increase agunos and living widows, and because of the need to provide for the benefit of Jewish women, and as Chazal enacted (K’subos 9): Whoever goes out to fight the wars of the House of Dovid writes a writ of divorce for his wife, and this is what our sages did during all wars till this day, so that with the death of the husband (G-d forbid) which nobody knows about, his wife will not be bound with chains all her life.

“Every Rav among the Jewish people knows from experience how hard it is to get those called to war to arrange the proper writing and signing of a divorce when they leave home. They think that even with a conditional divorce, there is some undermining of their marital status, and they do not want to consider the possible consequences of the obliteration of the name and memory of the husband. And so, in order to uproot the evil of cases of ‘igun’ in advance, the Agudas HaRabbanim has established a committee of rabbanim, geonim, and g’dolim who will arrange easy and acceptable solutions.” They then add rules and enactments so that the divorce is done according to halacha as well as the text of the document to be appended to the conditional divorce.

During the five years of World War II, many Jewish soldiers were taken captive and some disappeared never to be heard from again. For those who signed a conditional divorce before leaving for war, their wives could remarry without any doubt. However, there were many others who did not sign a conditional divorce and the rabbanim had to come up with various complex halachic solutions to free them from their aguna state.

REBELLION IN THE YOUNG ARMY

A few years passed and the War of Independence was raging. A small number of Jews faced tens of thousands of Arabs from many countries in battle. It was terribly dangerous and once again, there was fear for the married soldiers who would not return and whose whereabouts might remain unknown. The chief military chaplain, Rabbi Shlomo Goren, consulted with Chief Rabbi Herzog and it was decided that in this war too, every married soldier had to execute a conditional divorce before going to fight. But then something unexpected occurred. When they tried signing up the soldiers on the authorization documents the soldiers adamantly opposed it, as R’ Goren related many years later in an interview for the newspaper Davar:

“I sat with R’ Herzog zt”l, who was the Chief Rabbi, and we worded a power of attorney text, i.e., authorization to deliver a divorce, that the married soldiers had to sign before going to war so that their widows would not remain agunos. It was a legal military document and there was a directive from the General Staff which made signing it obligatory. But when I tried to get soldiers to sign, they refused. They thought it was a trick that would exempt the government from its obligations toward their families. The officers also strongly opposed signing it, saying that signing this document before going to war lowered the morale of the fighters. There were some soldiers from Germany who came to sign on their own, but this permit to remarry is halachically acceptable only if the soldier signs it of his own free will, and not when he is ordered to do so.”

The unexpected opposition caused a cessation in the signing and unfortunately, many thousands fell in battle and some were taken captive. In the vast majority of cases, the wives were allowed to remarry based on testimony of those who were there, but there were cases that were not resolved and the wives remained agunos and could not remarry.

A serious problem was discovered at the end of the Yom Kippur War, when the Chief Rabbi, Rabbi Ovadia Yosef, received a petition from the chief military chaplain, Brigadier General Mordechai Piron. There were nearly one thousand missing soldiers, all married men. R’ Yosef, who was starting out as chief rabbi but stood out as a courageous posek, took on this thorny halachic assignment and was appointed head of a beis din to deal with IDF agunos.

In his Yabia Omer, he dedicated two large chapters to the topic of agunos and to halachic principles by which he permitted about a thousand women to remarry based on various partial testimonies that their husbands died. It wasn’t easy for him and he spent hours collecting reliable testimonies in order to release the women. As he wrote in the introduction to his t’shuva (Shevat 5734), “In the matter of a woman trapped in a state of igun this is not my way, I only follow in the footsteps of the Rishonim and Acharonim who sought aspects and aspects of aspects with all their strength to be lenient in the matter.”

The most famous example of a soldier whose wife is an aguna is Ron Arad whose wife Tammy is an aguna even though decades have passed since her husband was taken captive and perhaps killed.

“RETURNING HOME IN PEACE”

We began with a description and announcement by the Rebbe Rashab about how the T’mimim, the “Soldiers of the House of Dovid,” have to give a writ of divorce to their wives, i.e., matters of this world.

The Rebbe MH”M said in a sicha of Hoshana Raba night 5743/1982:

“[The T’mimim, Soldiers of the House of Dovid] need to work on every single Jew, that he too be included among those who go out to the ‘War of the House of Dovid,’ i.e., to work on him that all his bodily and physical matters do not mean anything to him at all (which is what writing a writ of divorce to his wife is about) and he is entirely devoted to the ‘War of the House of Dovid,’ Dovid Malka Meshicha.

“And since he is going to the ‘War of the House of Dovid,’ surely he will be successful and victorious etc. and return in peace to his house … whole in body etc., whole financially etc., whole in his Torah, in a way of l’chat’chilla aribber, and then he lives with his wife and they have sons and daughters involved in Torah and its mitzvos – with increased strength and might, since we speak of the ‘Soldiers of the House of Dovid.’”