An interesting question was asked of us by a Chaplain in a Veterans Hospital. The question is substantially as follows: The wife of a patient in the Veterans Hospital secured a divorce in the State courts but also desires a "get." Unfortunately the patient is psychopathic and the Chaplain does not describe the type or degree of his insanity. He is under the care of a guardian committee, and through these guardians she obtained her State divorce. Now she wants a "get" and the Chaplain asks whether it is possible for her to obtain one.
Our Committee had decided during the war not to give Responsa with regard to divorces chiefly on the ground that a "get" concerns civil life more than military life. However, now we have much more to do with civilian patients (ex-military patients) than we anticipated. Nevertheless, in the spirit of our earlier decision, we will not give a decision on this matter but merely discuss it because of general interest in the subject. We will send this discussion to the Chaplain for his information and direct him to consult competent Rabbinical authorities.
The question of the status of insane people with regard to marriage and divorce is referred to quite frequently in Rabbinic literature but has never been systematically analyzed and developed. This is not an attempt to do so but to cite the relevant material.
Marriage: Of course, the rabbis group deaf-mutes and minors with the insane. But with regard to marriage, the status of the insane is somewhat different from that of minors and deaf-mutes.
The Talmud in b. Yevamos 112b says, that the Rabbis did not ordain marriage for the insane man or woman since the Rabbinical ordinance could not endure among them, i.e., they could not live in peace.
This is evidenced by the fact that such a marriage does not require chalitza. This law is confirmed by Maimonides (Yad Ishus XI,4,6). So, the Shulchan Aruch in Even Hoezer, 67 #7 and #10, repeats the law that the Rabbis did not ordain marriage for them at all and that the court does not marry them (as guardian). If, however, such marriage has taken place by the action of the parties involved, then the law goes into discussion as to how much dower right the woman has, etc.
Divorce: As for divorce, the earliest discussion is in Mishna Yevamos XIV, 1, in which it is clearly stated that an insane woman cannot be divorced and an insane man cannot give a divorce.
Rabbi Jochanan, explaining the Mishna, says that a man cannot divorce except by his own free will, hence an insane man is incompetent to do so.
But suppose it is a case of periodic insanity in which a man has lucid intervals? This is discussed rather extensively. The Boraita quoted in b. Rosh Hashonah 28a, gives the principle that if a man is insane at one period and lucid at another, when he is in an insane period he is considered entirely insane from the legal point of view (therefore, of course, cannot give a divorce). But when he is in a lucid interval, he is considered legally to be sane in every respect (therefore, can give a divorce). This distinction comes from the Tosefta Terumos 1, 3, where there is also given the famous description of the insane, namely, that he goes out alone at night, that he stays overnight in a cemetery, and he is unable to take care of what is given him. In consonance with this reference to lucid intervals, the law works out quite clearly. The Mishnah, Gittin VII, 1, speaks of a man who has been taken with a seizure (cordiacus), and asks that a divorce be written for his wife; his command is of no validity. Rashi implies that this "cordiacus" is a delirium due to drunkenness, but Maimonides (in Yad, Gerushin II,17) extends the idea and applies it to all mental seizures. ("He who is terrified by an evil spirit and says, 'Write a divorce, etc.,' his word has no validity because his mind is not composed.") So the Shulchan Aruch (Even Hoezer, 121,1: Tzarich sh'yehay b'daato b'shoah sh'mtzaveh l'kosvo) says it is necessary that a man should be in his right mind when he gives orders that a divorce be written. And in 121,3, the Shulchan Aruch, basing itself upon the Boraita mentioned above about lucid intervals, says distinctly: Im gayresh b'oso shoah, gito get, "when he is in a lucid moment, if he then gives a divorce, his divorce is valid."
This whole question became a cause celebre in Jewish law in the eighteenth century and is known in the Rabbinic literature as "the get of Cleves." A young man of the city of Mannheim was married to a girl from Bonn; during the marriage week, he ran away on the Sabbath, hid in the house of a Gentile, claimed to be persecuted, etc. Later, the two families met in the city of Cleves and Rabbi Israel Lifschitz of Cleves permitted the young man to give the divorce. This started a controversy which convulsed the Rabbinic world and drew in some of the greatest Rabbinic lights of the day, such as Ezekiel Landau, Jacob Emden, Joseph Steinhardt of Furth, and others. The Rabbi of Mannheim had persuaded the authorities at Frankfurt to declare the divorce void, but the Rabbinic authorities mentioned above defended it because Rabbi Israel Lifschitz, who gave the divorce, insisted that he found the boy quite lucid when he discussed the matter with him and when the divorce was written. The whole controversy and all the documents involved were gathered into one book, "Or Ha-Yashar" (second edition, Lemberg, 1902). These decisions, by the great authorities mentioned above, printed in this book, are of especial value because they are not mentioned in the Responsa collections of these authors. A contemporary writer has conveniently gathered much of the relevant material with regard to this type of divorce in a book published recently, namely, Rabbi Menachem Z'vi Eichenstein, in "Peri Yehoshua." However, he deals not with a case of divorce and not quite with an insane man, but with getting Chalitza from a feeble-minded man. See Responsum #55.
The question, therefore, involves the degree of insanity, the periods of lucidity; and, if it is a periodic insanity, it is important to know the stage in which the person is at the time when the divorce is given. Is he, for example, at the beginning of a period of lucidity or at the end of such a period? This is discussed in Choshen Mishpot, 235,21. In general, therefore, we suggest to the Chaplain that he consult the proper Rabbinic authorities, who will consult the doctors, examine the patient, and will, in all likelihood, decide along the general lines discussed above.