Words of Wisdom

"Truly, I have treated this matter (of agunah) at great length because I am aware of the tendency of some of our contemporary sages … to avoid all possible doubts and controversy in their quest for clear and indisputable halachic rulings, free of any objection or dissent.  And while it is true that this the good and proper approach with regard to all other halachic questions, when dealing with the chaining of women, I do not follow it.  Rather, I follow the paths trodden by early and later sages who exerted their maximum efforts in searching for any and all conceivable ways to be lenient in the matter of agunot."

Rabbi Benjamin Aaron ben Abraham Slonik, 16-17^th century Poland, in his responsa Masat Binyamin.

AGUNAH INTERNATIONAL Inc. – A LIFE IS A TERRIBLE THING TO WASTE 

Articles and Halachic Material

1. “Halachic Principles and Procedures For Freeing Agunot,” Aranoff, Dr. Susan.  The Jewish Week.  August 28, 1997.

Abstract: The first formal statement setting forth the halachic foundations of The Beit Din L’Inyenei Agunot.

Click here to view this item.

2. “Some Thoughts On The Problem Of Agunot,” Toledano, Rabbi Haim.  June 13, 2000.

Abstract: A description of the contemporary agunah problem, a compilation and analysis of relevant halachic sources, and halachic approaches for solving the problem.

Click here to view this item.

3. “A Response To The Beth Din of America,” Aranoff, Dr. Susan.  Winter, 1998

Abstract: A rebuttal of the Beth Din of America’s letter to the membership of the Rabbinical Council of America in which they challenge the halachic decisions of the Rackman Beit Din

Click here to view this item.

4. Two Views of Marriage – Two Views of Women,” Aranoff, Dr. Susan.  Nashim, Spring/Summer, Number 3, 5760/2000.

Abstract: A brief history of The Rackman Beit Din; a restatement of the beit din’s  halachic foundations; and a rebuttal of Rabbi J. David Bleich’s critique of the beit din.

Click here to view this item.

5. “An Introduction to the Approach of the Rackman Beit Din To Solving the Agunah Problem,” Freilich, Estelle.  July, 2002.

Abstract: A description in layman’s terms of the halachic underpinnings of the Rackman Beit Din in light of the Orthodox rabbinical establishment’s refusal to recognize it.

Click here to view this item.                                                                                                                             

1. Halachic Principles and Procedures For Freeing Agunot

This exposition of halachic principles and procedures,
written by Dr. Susan Aranoff
First published in August 1997 in the New York Jewish Week.

The procedures that batei din, rabbinic courts, may use today to free agunot rely on a well known halachic concept, kiddushei ta’ut.  A finding of  kiddushei ta’ut is a determination that a fundamental mistake occurred at the time the couple we so that the marriage is void ab initio, from the very beginning.  Such a determination obviates the need for a Get and allows the beit din, rabbinic court, to issue a p’tur, which frees the woman without her recalcitrant husband’s cooperation.
   

KIDDUSHEI TA’UT I: A SALIENT DEFECT
 

      One category of   kiddushei ta’ut is the voiding of the marriage because a salient defect was not disclosed to one party, in our case the bride. When the salient defect reveals itself, the wife has the right to declare to a beit din “Had I known of this defect, I would never have married him.”    The groom’s  failure to disclose does not have to be with fraudulent intent on his part.  It may be that he   himself was not aware of this problem.    For example, a groom may be impotent and unaware of this at the time of the marriage.  When this condition becomes apparent, the marriage is voidable even though the groom did not willfully conceal this information. (Rav Moshe Feinstein  Igrot Moshe EH I:79)  Of course, in the case of willful concealment, a fortiori, the marriage is voidable.(ibid. 80)  See also Or Zarua (c.1180-1250) who records (761) a case in which his contemporary Rabbenu Simchah of Speyer ruled that a wife should be released without a Get on the grounds of kiddushei ta’ut when an unknown defect in the groom is revealed. 

      Building on this concept of kiddushei ta’ut, a beit din may recognize other intolerable defects in the husband as grounds for a declaration of kiddushei ta’ut.  These defects – which are in total discord with any reasonable concept of marriage – include:  physical and psychological abuse, adultery (which more than ever endangers the life of the spouse), sexual molestation, abandonment, criminal activity, substance abuse, and sadism (the withholding of a Get may be viewed as indicating a sadistic nature). A beit din, applying a psychologist’s or psychoanalytic concept of human nature, may hold that the seeds of such deviant behavior are present in the groom at the inception of the marriage though they may not yet have expressed themselves in overt behavior.  These personality defects are so categorically unacceptable in marriage  that the wife may testify, “Had I known that he had these personality defects, I never would have married him.”

     The method of freeing a woman based on a finding of  kiddushei ta’ut I is buttressed by the insight of Rav Yitzchok Elchanan Spektor who wrote   a century ago that when a defect in the husband justifies coercion of the Get, the Talmudic presumption of  tav l’metav tan du mi’l’metav armelu -- a woman is better off  married to anyone than being alone --  is not applicable. (Ein Yitzchok Vol.I 24:41.)  Once this presumption is suspended, a woman can credibly testify that had she known of salient defects in her husband she would have chosen not to marry, the marriage was a mistake, she would be better off alone.

      The argument that women prefer to remain single rather than endure a miserable marriage is even more persuasive today given the increased economic and social autonomy women have achieved in our times.  Rav Moshe Feinstein, in discussing tav l’metav (op. Cit. 79), considers the remote   theoretical possibility that the inability to be self-supporting might induce some women to tolerate marriage to highly undesirable men.  He goes on to say that only a small minority of women, if any, might be so economically desperate.  In 1998 still fewer, if any, women would fall into this category.    All the more reason to maintain that  women today would rather be single than be married to abusive men. The concept of  tav l’metav is outmoded and no longer an impediment to declaring kiddushei ta’ut.  

      In every case before our beit din, the latent defects of the husband gave rise to such abusive behavior as to render them unfit to be husbands.  The agunah’s testimony that had she been aware of her husband’s true nature she never would have married stands. The marriage is void ab initio – KIDDUSHEI TA’UT I.  The beit din may dispense with a Get and release the woman with a p’tur.

KIDDUSHEI TA’UT II: LACK OF INFORMED CONSENT

WHEN KEFIYAH (PHYSICAL COERCION) IS IMPOSSIBLE

    The availability of kefiyah  (physical coercion) in the past, when Jewish courts had the power to enforce their own orders, did much to achieve the liberation of agunot from impossible marriages. Today the unavailability of kefiyah is the firm halachic basis for liberating agunot on the grounds of KIDDUSHEI TA’UT II, a lack of informed consent by the bride.  For had these women  known at the time of marriage that they were agreeing to a union in which they could be literally imprisoned by an unscrupulous husband,  they never would have consented – kiddushei ta’ut.    When rabbis tell these women that they are shackled forever to vicious husbands, these women can rightfully say, “Had  I known that this was the nature of the marriage relationship, I never would have wed.  I did not enter this marriage surrendering control of my life to my husband no matter how abusive he might be.” Our experience has shown that agunot are stunned when the rabbis they turn to, often the same rabbis who taught them in school or officiated at their marriages, tell them that rabbis have no power to sever such oppressive marriage bonds.
 

The Historic Role of Kefiyah

     Probably the best known halachic authorization of kefiyah to secure a Get is found in the Rambam.  Writing in the 12^th century he lays down the rule that a Get should be coerced when a woman says her husband is ma’oos,  repugnant to her. (Hilchot Ishut 14:8)   Elsewhere, the Rambam (ibid., 25:11, see also the Mishnah Ketubot 7: 9,10) calls for kefiyah when the husband develops certain physical odors or assumes certain malodorous or repulsive occupations.  The Or Zarua cited above authorizes kefiyah in a case where the woman involved  wanted to exit her marriage not because the husband was guilty of unconscionable behavior, but rather because he had tragically become blind.  How much more is kefiyah warranted in cases where a man is no longer a husband but a tormentor.

       As early as the 13^th century, the Rashba must have discerned that brides would not wed if they did not trust that rabbis could free them from bad marriages by coercing a Get. (See Hiddushei HaRashba Gittin 88B)   It is very relevant here, even if parenthetical, to describe fully the rationale of the Rashba and his reason for justifying the exercise of physical coercion against recalcitrant husbands despite the incontestable Talmudic affirmation that rabbis have only limited power to decree corporal punishment since the conferral of Biblical Semicha (ordination) came to an end a thousand years earlier. Yet the Rashba  approved  of physical coercion of the husbands of  “chained”  women using the same reasoning that prompted the rabbis to exercise their rabbinic power to force debtors to pay their creditors what is due them, because  otherwise the poor would not be able to borrow money.  “The doors of creditors would be closed to them.”  In a similar way, the Rashba said that women would not marry if they had no exit from marriage to a man who has become their tormentor. 

          Kefiyah Is Unavailable Today

      It is particularly in this decade that it has become apparent that physical coercion is both unacceptable and illegal.  In Israel, coercion is limited to non-violent means and is, therefore, limited in its effectiveness.   So vindictive are some recalcitrant husbands that they have elected to remain incarcerated in Israeli prisons rather than free their wives.  In the United States, violent self-help by rabbinical courts is unlawful and punishable. Several American rabbis are under investigation by government prosecutors because of suspected links to violence against recalcitrant husbands.

     Rav Moshe Feinstein was concerned with the fact that the power to coerce a Get was useless if the husband had fled from the jurisdiction of the court or his whereabouts were unknown.   He wrote “ V’af  b’zman sheh’yad Yisrael tekifah sheh’kofin ohto le’hotzi, yesh harbeh pe’amim sheh’lo to’il hakefiyah, sheh’lo yomar rotzeh ani oh she’lo yoochloo l’kofo, she’yivrach ve’chadomeh; ve’kol sheh’ken b’zman hazeh she’ein b’yad beit din yisrael l’kofo……Ee efshar le’hasig mimenu Get be’shum ofen, ein le’agnah ve’yesh le’hatirah mi’ta’am mekach ta’ut…   And even in the time when Jews had power to coerce the husband to release (the wife with a Get), many times the coercion would be ineffective, (he) would not say I am willing (to give the Get), or it would be impossible to coerce him, he would flee, or the like.  All the more so in these times when batei din do not have the power to coerce…… It is impossible to secure a Get from him by any means, she should not be left an agunah and should be released because of a fundamental mistake in the marriage. (Rav Moshe Feinstein, EHI:79)

      These words of  Rav Moshe Feinstein resonate in every case heard by us. In each case, our rabbis found that the husband’s behavior was ma’oos - intolerable to the wife - and warranted a declaration of kefiyah.   In each case the husband had refused to issue the Get despite various combinations of pleading, pressure and efforts by other batei din.  Like Rav Feinstein, our rabbis concluded:  When it is impossible to secure a Get by any means from such unfit husbands, the woman should not remain an agunah.  She should be released on the grounds of kiddushei ta’ut II.  It is not only pre-existing defects in the husband that make a marriage kiddushei ta’ut.  It is the woman’s mindset at the wedding that she was not delivering herself into a marriage with no exit.  The marriage is void ab initio – KIDDUSHEI TA’UT II.  The beit din may dispense with the Get  and release the woman with a p’tur. 
 

KIDDUSHEI TA’UT III:  LACK OF INFORMED CONSENT

TO KINYAN

          Recently, Professor Meir Feldblum, formerly of Yeshiva University and now of Bar Ilan University, published an incisive article (Dinei Israel, Tel Aviv University Law School, 1998) that focuses on the Halachic implications of the lack of informed consent by women at the time of marriage.  Feldblum writes that “in light of  women’s efforts in our day to achieve equality in all spheres of life, there is a presumption, even a categorical presumption (umdena d’muchah), that many women if informed would in no way agree to the kinyan/acquisition nature of kiddushin/marriage.” Consequently, Feldblum argues, many women seeking a divorce may not be halachically married, not mi’d’oraita-Biblically, and perhaps not even mi’d’rabbanan-rabbinically, and therefore may not need a Get to exit the marriage. 

      Our actual experience with agunot exceeds that of Professor Feldblum and has led us to conclude that no woman views marriage as a transaction in which her husband “acquires” her.    No one can credibly maintain today that brides are consenting to the concept of gufah kanui, that marriage is a kinyan in which the husband acquires title to the wife’s body. (See the Babylonian Talmud, Bava Batra 48B,Tosafot beginning Kaddish b’biah..) Thus there is no informed consent by women to kinyan at the time of marriage and the marriage is void ab initio, KIDDUSHEI TA’UT III.  The beit din may dispense with the Get  and release the woman with a p’tur.
 

CONTINUITY WITH  PAST WHILE ADDRESSING PROBLEMS OF THE PRESENT AND FUTURE

      Kiddushei ta’ut has been a central concept in halachah for centuries.  We have broadened the range of defects that constitute grounds for kiddushei ta’ut and reaffirmed that the absence of informed consent on the part of the bride constitutes grounds for kiddushei ta’ut.  We have acknowledged the dramatic change in women’s economic and social status which renders the Talmudic presumption of  tav l’metav rebuttable in every case, if not completely obsolete, and which undermines the fundamental concept of kinyan at the time of marriage.

                         HALACHAH PROVIDES A SOLUTION

        Our critics say there is no solution.  We are proposing one that is not only justified by the halachic authorities but mandated by them.

        To liberate an Agunah one must even rely on minority views. (Taz Even Ha’ezer 17:15, Taz Yoreh Deah 293:4)

        To prevent aginut, testimony does not have to meet standards of Biblical drishah and hakirah.   A single witness, circumstantial evidence, and hearsay are all admissible. (Rambam, Hilchot Gerushin, 13:29.)

        Fear of mamzerut is an illusion. (See the Responsa of the Maharsham 9)

        The pursuit of a more stringent post-Shulchan Aruch view of Jewish law is a reversal of a two thousand year commitment to the liberation of all suffering women and a reversal of  the thrust of Jewish law since the beginning of our history to liberate women from slavery of any kind, including ownership by her husband.

_______________________________
 

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 2. SOME THOUGHTS ON THE PROBLEM OF AGUNOT

BY: Rabbi HAIM TOLEDANO

It must be stated at the outset that the current agunah problem in the United States, France and elsewhere is fundamentally different from that of the past in two important respects.

First, until the last few decades, the typical problems of agunot involved women whose husbands disappeared in war or at sea or simply went on a journey and did not return leaving not the slightest clue as to their whereabouts. The task of the bet din in these cases was to assess the validity of whatever evidence there was, if any, of the husband's death and/or to weigh the particular circumstances of the case in order to ascertain whether the husband was to be deemed dead or not. In the current agunah crisis, by contrast, we deal with cases in which the husband is very much alive and present, but refuses to grant his wife a Get. In most cases, his refusal is motivated by subjective factors such as his wish to extort from his wife financial or custodial concessions, or simply out of vindictiveness or mean-spiritedness.

It is no wonder then, that in the vast corpus of halakhic literature comprised of thousands of responsa, one is unlikely to find any precedent for the current agunah problem. It simply did not exist in the past.

Second, the new and changing social realities of the Jewish community in the U.S. and elsewhere make it very difficult if not altogether impossible for rabbis or bate din to compel a recalcitrant husband to give a Get even when the particular circumstances call halakhically for compelling him to do so. Nowadays, no bet din possesses the coercive powers which were once possessed, for example, by the bate din in Muslim lands where the Jews enjoyed absolute judicial autonomy and where the bate din were able to count on the civil government to back their decisions by force when necessary. Nor are the communal and congregational types of pressure as effective as they once were in the tightly organized and cohesive Jewish communities of Europe. In the contemporary communal setting, if the husband is 'ostracized' in one congregation, he can easily move to another one, or if need be, he can even change his affiliation to another religious denomination.

'Thus, the current agunah problem presents the rabbinic leaders with a new challenge for which no easy solutions or ready halakhic precedents are available. The new social and communal realities require creative and innovative applications of established halakhic principles. The task is indeed daunting, but it is incumbent on the rabbinic leadership to rise to the new challenge and deal with the problem boldly and forthrightly.

Following are several ideas and precedents culled from various sources as well as some of my own thoughts on the subject.I

Duty of Rabbis to Try to Alleviate the Plight of Agunot.

Rabbi Obadya Yosef relates that in the wake of the Yom Kippur War, he was asked by. Rabbi Mordechai Peron, the Chief Rabbi of TSAHAL (the Israeli Defense Forces) at the time, and his deputy, Rabbi Gad Navon to join them and set up a bet din [of three] for agunot. The purpose of this bet din, over which R. Yosef was to preside, was to deal with close to a thousand files of the war casualties who left behind them young widows and whose death had yet to be established legally in order to free their wives to remarry. Rabbi Obadya Yosef begins by stating that he felt too inadequate to deal with the all too serious problem of arayot (adulterous relations) and most especially, that of the prohibition of relations with a married woman (eshet 'ish) which entails great and heavy responsibility. However, after considering various statements by numerous halakhic authorities (which he quotes in full) regarding the duty of every decisor to try to alleviate the plight of agunot, as well as the great merit of one who succeeds in freeing even a single agunah, R. Yosef continues, he put his trust in God to enlighten him in his Torah, and acceded to the request of TSAHAL' Chief Rabbis. And so, together, they convened as a bet din for agunot. After studying and analyzing each file separately, they issued legal decisions to free those widows from their agunah status.

 Following this preamble, the rest of this lengthy responsum deals with the substantive halakhic issues involved. The various statements quoted by R. Yosef in the preamble to this responsum are most instructive in that they show how these decisors were ready to go to any length to alleviate the plight of agunot. sampling of these extraordinary statements follows.

A.

" He who resolves the problem of even one single aguna in these times [has the same merit merit] as he who rebuilds one of the ruins of the heavenly Jerusalem..."

B.

The Shebut Ya'akob (vol. I, no.14), states: "It is permissible for bet din to convene on Saturday(which is otherwise forbidden) in order to hear the testimony of a dying witness [with regard to the death of a husband] so that his wife may be freed from the status of agunah, and they must not wait until after Shabbat, for there is no greater emergency,(sha'at ha-dahak) than that of freeing agunot. And one must not tarry in the matter of agunot just as one may not tarry when the saving of life (pikuah nefesh) is involved."

C.

R. Haim Palagi in his Hikeke LeB and in his Hayim ve-Shalom quotes the opinions of later halakhic authorities (aharonim) at length to show that, "It is incumbent on every decisor to research and examine as many halakhic works as he is able to in order to find a solution (heter) for the agunot, and whoever exerts maximum efforts in trying to find some opening and in looking for any conceivable way to free the agunot is praiseworthy."

D.

The Dibre Emet states: If every rabbinic scholar (talmid hakham) refrains from issuing a ruling [in cases involving agunot] saying 'what am I getting into, a place of blazing fire! considering the seriousness and graveness of the prohibition of adultery'... Truly, [our sages] say, this is neither the correct way nor the proper approach. Rather, every rabbinic scholar, of major or minor stature (ka-katon ka-gadol), must search with a fine tooth comb [the author uses the interesting imagery of the search for chamets--hipus me-hipus ba-horim u-va-sedakim] in the hope of finding an effective remedy for the welfare of the daughters of Israel to deliver them from their agunah status."

E.

The Mishha di-Rebuta states: "I noticed how our sages, both early and later masters, exerted great efforts in trying to deal with the problem of agunot, and always came down on the side of freeing agunot, for it is a great mitsvah. And by implication, it is clear that ignoring the problem constitutes a grave sin (avon pelili). Wherefore I became freightened by the [implication of the] saying of Solomon, "He who stops his ears at the cry of the wretched, He too will call and not be answered' (Prv.21,13). I therefore took time out of my regular schedule of study and concentrated on examining the sources in the hope of [finding a way] to free women from the chains of igun. "

F.

The Teshuvot Memar Hayim states; " It is incumbent on whoever bears the title of rabbi to turn away from all his preoccupations and free himself from all his studies, and force himself to search and look for a way to help the daughters of Israel so that they do not end up as agunot."

G.

The Mas'at Binyamin writes, " Truly, I have gone to great length in treating this matter [of agunah] because I am aware of the tendency of some of our contemporary rabbis to avoid all possible doubts and controversy in their attempt to arrive at clear and indisputable halakhic rulings free of any objection or dissent. And while it is true that this is the good and proper approach with regard to all other halakhic questions, when dealing with the chaining of women, I do not follow it. Rather, I follow the paths trodden by our early and later sages who exerted their maximum efforts in searching for any and all conceivable ways to be lenient in the matter of agunot."

Belonging with these statements quoted by R. Obadya Yosef is a similar statement of R. Abraham Halevi, the Chief Rabbi of Egypt during the eighteenth century, with regard to agunot. He writes in his work, Ginat Veradim,

"Were we to require a thorough and exhaustive examination of the literature authored by all the great halakhic authorities, as we do with regard to all other rules of the Torah...to follow the majority opinion, no agunah will ever be permitted to remarry. As a result, the daughters of our father Abraham will remain entrapped in virtual widowhood (almanot tserurot hayot) with no one to have mercy or compassion on them. therefore, what we must do is follow the path paved by the early masters (rishonim) to follow any logical and straightforward opinion (sebarah yesharah) even if it is not agreed upon by all the great halakhic sages who are otherwise our authorities (lit., from whose water we drink).
 

II

General Precedents on The Application of HAFKA'AT_KIDDUSHIN (annulment of marriage retroactively)

A. MOROCCO......Historical Background.

When in 1492 many Spanish exiles (megorashim) made their way to Morocco, families were often separated in their wanderings. Often, one spouse arrived without the other and had no idea of the other spouse's whereabouts. After some time, it was assumed that the missing spouse was dead, and the surviving one remarried. Sometimes, the spouse presumed dead reappeared on the scene. The results shook the very foundation of the Jewish family. To remedy the situation, the rabbinic leaders of the exiles enacted a takkanah (ordinance) requiring the presence of ten men, one of whom a rabbi or a dayan (judge) for any marriage to take place. Any marriage not performed in conformity with this takkanah would be considered annuled ab- initio. The premise underlying the takkanah was that a rabbi or a judge will not perform a marriage without verifying thoroughly the status of the missing spouse. This takkanah was enacted in 1494.

The significance of this takkanah was that it established the precedent that, under certain circumstances, the rabbis had the authority to annul a marriage retroactively.

Some 100 years later, in 1592, another takkanah was enacted in Fes with a view to renewing and strengthening the one of 1494. It imposed on the husband who marries not in conformity with it a number of sanctions and fines including the right of the bet din to force him to give a Get. luckily, because of the special status of the Jews in the lands of Islam which granted them total judicial autonomy, the bate din were in a position to enforce their decisions. There is a controversy as to whether the new takkanah maintained or rescinded the earlier provision of hafka'at kiddushin.

Sources: For the texts of these takkanot, see Moshe Amar, Ha-Mishpat ha-Ivri bi-Kehilot Maroko; nos.1,34; pp.2,211.
For a discussion surrounding the controversy as well as the application of these takkanot through the last several centuries, see Abraham H. Freimann, Seder Kiddushin ve-Nisu'in..., pp.265-269; see also Menahem Alon, in a special presentation on rabbinic jurisprudence in Morocco, made during a colloquium on the subject held in Jerusalem in early 1985.
See" Yihudah shel Halakhah ve-Hevrah be-Yahdut Tsefon Afrika mi-le-ahar Gerush Sefarad ve-ad Yamenu" in Halakhah u-Petihut: Hakhme Maroko ke-posekim le-Dorenu, pp. 15-38, especially the section on hafka'at kiddushin, pp.33-34.

B. ALGERIA.

Another extremely instructive takkanah reported by A.H. Freimann and M. Alon was issued by R. Haim Palagi, a great halakhic authority in Turkey, and R Elayahu Hazan of Egypt. It addressed new circumstances that arose in Algeria in the wake of the 1970 Cremieux Decree which granted French citizenship to all Algerian Jews. A new law required that all Algerian Jews must have had a civil marriage before they may have a religious one. Notwithstanding the repeated urging by the Jewish Consistoires of both Paris and Algeria to Algerian Jews to abide by the new regulation, many of them continued to have a religious marriage without bothering to have a civil one first. The rabbinic leadership feared negative consequences. A man could have a religious marriage with one woman and then proceed to have a civil marriage with another, resulting perhaps in the first wife ending up as agunah. The woman, likewise, could marry another man in a civil court, since in either case there was no record of their marriage to each other in the civil court.

To avoid such eventualities, Algerian rabbis addressed a she'elah (a legal inquiry) to Rabbi Haim Palagi, the leading halakhic authority in Izmir/Turkey at the time, seeking his halakhic advice. R. Palagi, seeing that the situation resulted in numerous cases of agunot and mamzerut, suggested to Algerian rabbis that they enact a takkanah rendering any religious marriage not preceded by a civil one null and void retroactively.

A similar takkanah, was enacted in Algeria sometime later by R. Eliyahu Hazan, an eminent Egyptian rabbi who was passing through Algeria. R. Hazan's takkanah of hafka'at kiddushin met with the approval of many Algerian and Tunisian rabbis. R. Haim Bleih, an eminent rabbi from Tlemcen, Algeria, wrote a special treatise (kuntris) supporting the idea of hafka'at kiddushin under the circumstances even after the consummation of marriage ( bi' ah ) . He is quoted by Freimann,
(pp. 328-339), Alon ( p.34 ) , and by R. Yoseph Messas ( in his Otsar ha-Mikhtaviml vol. II no.887, p.108). R. Hazan met also with some opposition by some rabbis in Algeria and Palestine who argued that hafka'at kiddushin is applicable only before the consummation of marriage but not after. But R. Hazan held firm to his position and he had the support of many contemporary rabbis. A detailed discussion of Rabbis Palagi and Hazan's position and the opposing opinions as well as the texts of these takkanot and the controversies surrounding them are reported by Freimann (pp. 328-339).

C. SYRIA.

Menahem Alon, in his major work on Jewish jurisprudence, Ha-Mishpat ha-Ivri ( vol.II, pp.708-711) reports that Syrian rabbis in the middle of the eighteenth century and again in the middle of the nineteenth century, headed respectively by R. Mordekhai Galanti and R. Yitshaq Abul'afia, issued a takkanah requiring the presence-of ten men of whom there must be at least one rabbi or dayan and two notables for the performance of any religious marriage, and that any marriage not performed in accordance with the takkanah is null and void retroactively. The text of this takkanah is reproduced by Alon (ibid.). According to the sources, this takkanah was meant to avoid a host of marital problems including deceit and trickery (rama'ut) on the part of the husband.

The above cases deal with the takkanah of hafka'at kiddushin in Morocco, Algeria and Syria. But the practice of enacting such takkanot was widespread in other communities as well. Clearly, the circumstances necessitating these takkanot were different from the present situation of agunot in the U.S., Israel and France. Nor do they deal with the annulment of marriage retroactively on the basis of mekah ta'ut (i.e. a purchase in error, or on false pretenses). Nonetheless, they reveal a certain boldness on the part of these rabbis. They were courageous enough to deal forcefully and decisively with the contemporary problems facing their communities.

It may be argued that the reason the rabbis in Morocco, Algeria and elsewhere were able to annul a marriage retroactively is that the takkanot they enacted took effect at the time of the wedding and the husband was bound by their terms. Therefore, if and when the husband failed to meet these terms at some later time, the rabbis had the absolute power to annul the marriage. However, the main point of my argument is that when the rabbis of these and other communities were faced with one crisis or another, they did not hesitate to enact such takkanot. The case of Algeria is a compelling example. Here we had a situation in which the people were ignoring the advice and pleading of both the religious and lay leadership to abide by the new French law which required them to have a civil marriage before a religious one. The situation was not acceptable to the Algerian rabbis on many counts, but especially because of the threat it presented to the stability of tile Jewish family, and the possibility of wives becoming agunot. So, what did the Algerian rabbis do? Instead of throwing up their hands in despair, they enacted a takkanah which rendered any religious marriage not performed in conformity with it null and void. They did so, of course, on the advice of two leading halakhic authorities of the time, R. Hayim Palagi of Izmir, Turkey, and R. Eliyahu Hazan of Egypt.

The equivalent, in terms of the current situation in the U.S., would be if the R.C.A. were to enact a takkanah requiring all its members to insist on prenuptial agreement before performing any marriage, and declaring any marriage performed by any member of the R.C.A. without a prior prenuptial agreement to be null and void. This assumes, of course, that these prenuptial agreements are as effective and as enforceable in civil courts (independent of the bet din's disposition) as the R.C.A. claims them to be.

III

Possible Solutions For The Current Plight of Agunot in the U.S. And Elsewhere.

A.   Rabbi Shalom Messas, the Chief Sephardi Rabbi of Jerusalem, reports that in the winter of 1984, he was invited by the R.C.A. to attend their convention held in a major hotel outside New York. Towards the end of the convention, he was approached by R. Clapperman and several of his aids seeking his help in solving the vexing problem of agunot. R. Messas imnediately referred them to a solution he had suggested in a responsum in his Tevu'ot Shamesh (vol. III, no.66).

His suggestion was to enact a takkanah requiring the groom to obligate himself in a separate legal document (enforceable in a civil court) that should he divorce his wife in a civil court and refuse to give her a Get, he obligates himself to pay her a certain sum of money each day for her expenses and those of her children-until he gives her a Get. This, R. Messas is sure, will eventually bring the husband around. R. Messas reports further that his suggestion was received enthusiastically, and that his responsum was duplicated and distributed widely. He was therefore surprised when the next day, several members of Aqudat ha-Rabbanim visited him in his hotel and insinuated that he had somehow slighted R. Moshe Feinstein, their president. R. Messas responded, “I did not mean to slight anyone, certainly not R. Feinstein with whom I visited recently and for whom I have great respect. But, you sought my advice, I gave it. It is up to you to do as you please”. R. Messas concludes that before leaving, he advised that they better act soon and enact some takkanah to solve the problem of agunot .

R. Messas also pointed out that his suggestion was based on an identical takkanah adopted unanimously by the Fifth Council of Moroccan dayanim in 1954, and for the same reasons. R. Messas, who was then the president of the bet din in Casablanca, was one of the 22 dayanim who approved the takkanah. ( Shemesh u-Magen, vol. I, Eben ha-Ezer, no. 11,  pp.233-237; see also M. Amar, Ha-Mishpat ha-Ivri...,p.375 ).

In the same responsum, and more so in a subsequent one ( Shemesh u-Magen vol. II, Eben ha-Ezer, no. 36, pp.271-76) , R. Messas argues forcefully against those who opposed him on the ground that this Get is Get me'usseh (i.e., a Get given under coercive circumstances which invalidate it ). R. Messas' arguments are: a. the penalties stipulated in the separate document are no more than her mezonot (support) which the husband is obligated by Jewish law to provide for his wife until such time that the marriage is dissolved by his execution of a Get; b. The groom assumes such financial penalty voluntarily when he draws up the separate deed before marriage. In this connection, R. Messas points out that of all the early authorities, only the Rashba maintains that any coercion relating to the execution of a Get, even if self- imposed in the form of a voluntary assumed penalty for non- execution renders the Get invalid. On the other hand, the Bet Yosef and numerous posekim cited by him, including Rabbi Maimoun Nawwar, Rashbaz, Ramban, Ritba and others disagree with the Rashba and maintain that a self-imposed penalty does not constitute a coercion.

R. Messas adds that although in marital matters, we tend to follow the more stringent opinion even when it runs counter to Karo [whose opinion, otherwise, always prevails among Sephardim], in a case involving agunah, we do not do so. For clearly, this is a case where following the stringent opinion leads to opposite results (she-nimtsa humro kulo);” for were we to follow the opinion of the Rashba, we would be causing the woman to become agunah which in turn could lead to mamzerut. For as we have seen, many such women, having no other choice, end up marrying a secular Jew in civil marriage and give birth to mamzerim. Therefore, where there is the risk of igun and possible mamzerut, we follow all the posekim who disagree with the Rashba."

B.   R. David Bleich, in his Contemporary Halakhic Problems (vol. I, pp. 155-159), discusses various aspects of a similar proposal made by R. Elyakim Ellinson in a paper that appeared in the Tammuz-Sivan 1971 issue of Sinai. R. Bleich discusses also some of the possible objections to R. Ellison's proposal and concludes by offering a possible formulation of such separate document which eliminates all such objections.

C.    Incidentally, in a dialogue held in Paris (June 24,1999) between R. David Messas, the Chief Rabbi of Paris, and five representatives of different women's groups, on the subject of agunot, Ms. Annie Sebbag, an attorney who was herself an agunah, reports how she sued her husband in civil court on the grounds of “Abus du Droit” ( abuse of the law) and was awarded by the French civil court a considerable sum of money. This ultimately forced her husband to give her the Get. She is now advising other women to do likewise. ( Actualite Juive , no. 615, June 24,1999, pp.6-9). This is essentially similar to the solution suggested by R. Shalom Messas.

D.    R. Messas' suggestion is not much different from a proposal made by by R. Uziel ( discussed by R. Marc Angel in his book on R. Uziel ). The only difference is that R. Uziel's suggestion would include such a stipulation in the ketubbah. Also, R. Uziel's stipulation leaves it up to the bet din to draw from the husband's estate to provide for the wife and children. Unfortunately, in countries like the U.S. and France where separation of church and state prevails, the bate din lack coercive powers ,and therefore have no means of enforcing their decisions. In this sense then, R. S. Messas' suggestion is more practical and more doable since the separate document will be enforceable in a civil court independent of either the will of bet din or its disposition. ( Loving Truth and Peace...,pp. 195-196). R. Messas solution also overcomes all the objections raised by R. Uziel and others to a takkanah suggested by R. Yaacob Moshe Toledano in his Yam ha-Gadol (also discussed by R. Angel, ibid., p.197F).

E.    R. Moshe Feinstein, in his Igerot Moshe, rules that if after the marriage the husband is discovered to be impotent or insane (and he cites physical abuse as a sure sign of insanity), that the marriage may be annulled retroactively on the basis of mekah ta'ut ( i.e., a purchase in error or on false assumptions), and the woman does not need a Get. R.Feinstein's compelling argument is that no woman would agree to marry a man knowing that she can never have conjugal relations with him or that he is insane. Rab Moshe argues further that in such cases we do not say "tab le-metab tan du" (i.e. the assumption that a woman prefers any marriage, no matter how bad, to a life of solitude) since the woman cannot derive even the smallest benefit from such marriage. ( Eben ha-Ezer,Vol. I, nos.79-80, pp.182-192) .

In a separate responsum, R. Feinstein addresses the case where the woman lives with an impotent or insane husband for seven weeks before coming to the bet din or the rabbi with her complaint. His position is that the bet din must-ascertain why she did not complain immediately as soon as she discovered his condition, and if she offers 'reasonable explanation' (ta’am hagun) or 'valid excuses' (tirutsim nekhonim ) for her delayed complaint, then, we do not say sabra ve-kibla (i.e., that she has reconciled herself to her situation and therefore has no recourse later -Ibid., Eben ha-Ezer,Vol. III, no. 45, pp. 489-490).

F.     In the course of a dialogue on the subject of agunot between R. David Messas, Chief Rabbi of Paris, and five representatives of various women's groups in Paris ( alluded to above-II,C.), R. David Messas stated," I would like to add something important. A woman who is unable to obtain a Get
from her husband should be advised to seek the help of a rabbinic scholar ( talmid hakham ) or a dayan to explore what judicial means may be available to annul the marriage retroactively. One must not think that we can annul any marriage, but such a possibility exists. A number of problems
of mamzerut (illigitimate children) was resolved in this way. And when the marriage is annuled retroactively, the woman regains her freedom. (Actualite Juive, no.615; June 24,1999, pp.6-9) .

IV

Personal Thoughts About The Problem of Agunot.

A.   Let me begin with a story. The Talmud in tractate Guitin relates a very sad and instructive story about Kamtsa and Bar Kamtsa (pp.55/b-56/a). Following is my take on the story, that is, the lessons I draw from it.

1. Apparently/ suspecting what the betrayer was up to, and realizing the seriousness of the implications of his action, the rabbis were ready to overlook the halakhic rule that one may not "sacrifice blemished animals upon the altar" for the sake of shelom malkhut-i.e. to avoid harsh Roman retaliation. Similarly, when R. Zekharyah b. Abiklus objected to their suggestion on halakhic ground, they suggested executing the betrayer, knowing full well that causing blemishes in a sacrifice is not punishable by death, only to be overruled by R. Zekharyah again on halakhic grounds. This means that the rabbis were ready to bend the law because of the gravity of the situation. Alas, R. Zekharyah, who must have been the leading authority (seeing that they ultimately deferred to his opinion) prevailed. They did nothing and disaster ensued.

2. R. Yohanan introduces the story with the biblical verse, " Happy is the man who is anxious always, but he who hardens his heart falls into misfortune." Rashi explains that the Hebrew word mefahed refers to a person who is concerned and always anticipates the mishap or misfortune ( tekalah ) that may result from his action ( or inaction). R. Yohanan concludes the story by condemning R. Zekharyah as responsible for the national tragedy that followed. This means that R. Yohanan praises the rabbis for being willing to bend the law out of their fear of the consequences of inaction, and condemns R. Zekha:rya for being inflexible in his application of the law even in the face of extraordinary circumstances.

3. In condemning R. Zekharyah , R. Yohanan declares, " It is the forbearance of R. Zekharyah which caused the destruction of our Temple, etc. "It seems to me, however, that translating the Hebrew word 'anvetanuto' as forbearance misses the point of the story. This rendition is based no doubt on Rashi's explanation that anvetanuto refers to the forbearance of R. Zekhary (savlanuto) who suffered the man and did not kill him. The problem is that literally anvetanuto is not synonymous with savlanuto; anvetanuto derives from the word anavah-humility, excessive modesty or even timidity. The question then arises what does humility or timidity have to do with R. Zekharyah's behavior? A more apt adjective would have been akshanuto, his stubbornness and inflexibility in the face of danger. Therefore, it seems to me that the deeper lesson that the talmudic story means to convey is this: Rabbi Zekharyah was the rabbinic leader of his time ( everyone, it seems, listened to him). He was faced with a grave situation. But, instead of taking a bold initiative that was demanded by the extraordinary circumstances, he timidly barricaded himself, as it were, behind a technical application of the law, making no allowances whatsoever for the gravity of the situation facing the entire nation. Unlike the other rabbis, he was too timid. He lacked the halakhic spine to do what was required by the situation. Indeed, anvetanuto , his timidity, not his forbearance, led to national disaster. He failed miserably the ultimate test of rabbinic-leadership.

B.   Another example that comes to mind is Maimonides’ bending of halakhah in his "Epistle of Martyrdom" dealing with the anusim under the al-Mohads in twelfth century Fes, who were forced to accept Islam outwardly, but continued to practice Judaism in the privacy of their home. The case is too involved and complex to be dealt with here, but it is very instructive. Lately, R. Haim Soloveitchick attacked Maimonides' position rather harshly as being in violation of halakhah; but R. David Hartman defended Maimonides forcefully, adducing many arguments in his defense. One of the arguments offered by Hartman is that the Epistle was not a responsum or a halkhic treatise. Maimonides' overriding concern was to save an entire Jewish community and give them hope to continue to cling to Judaism. Maimonides was convinced that the rule of the al-Mohads was temporary. History proved him right. Not long after, the al-Mohad dynasty was overturned and the Jews of Fes returned to Judaism openly. For a fine translation of Maimonides Epistle, and the Soloveitchick-Hartman controversy, see Crisis and Leadership: Epistles of Maimonides, trns. by A. Halkin and discussion by David Hartman (J.P.S.;pp.46-90).

C.  What do these and similar case-studies have to do with the problem of agunah ? They have to do with the role and quality of rabbinic leadership. The timidity of R. Zekharyah b. Abiklus led to national disaster, while the enlightened boldness and flexibility of Maimonides saved an entire Jewish community from extinction. It seems to me that the clear lesson conveyed by these cases is that rabbinic leaders must be the 'masters' of halakhah, not its slaves.

What do I mean? Halakhah has by design a built-in elasticity, and when handled boldly and creatively it can be made to respond to all sorts of new situations that may arise, either by means of appropriate interpretation, innovative application or, if need be, by the enactment of takkanot. According to R. Eliezer Berkowits , in his book Not in Heaven, this is the main reason why the oral tradition (torah she-be-al peh) was not put in writing; that is, in order to be malleable enough to adjust to new contingencies. Indeed, the Talmud, in tractate Sanhedrin, states, "Only one who knows how to prove creeping things (sherets) to be clean (tahor) may be appointed to the Sanhedrin. (17a). This very statement presumes the possibility of doing just that.

Also, some situations call for the application of the principle that sometimes, in order to serve the greater cause of God, one might have to violate some law. This principle is based on the inverse reading of the biblical verse, "It is time to do for the Lord, for they have infringed Thy Law (heferu toratekha - Ps .119- 126); that is to say, they infringed Thy Law in order to do for the Lord. (B.T., Berakhot, 63a ). See also other talmudic examples of the application of this principle cited by M.Alon ( Ha-Mishpat ha-Ivri , vol. I I, p. 412); see also, Maimonides’ second introduction to the first part of his Guide to the Perplexed. It seems to me that this principle of "et la-asot. la-Shem" underlies also Maimonides' position in his "Epistle of Martyrdom".

D.  Moroccan rabbinic jurisprudence from 1492 through 1956, and down to the present (in Israel), as a model of bold and innovative rabbinic leadership.

Throughout the last 450 years, the rabbinic leaders of the Spanish exiles in Morocco enacted all sorts of takkanot to respond to social, communal, economic and spiritual needs of the community. Many of these ordinances were designed to protect women and children, and to promote and protect the integrity of the Jewish family. One may cite numerous examples, but the following examples will suffice to illustrate my point.

1. The takkanot of 1494, 1592 ( I/A) and the one of 1954 (II/A) discussed above.

2. Takkanat Get Shekhib me-ra' .

In 1494, the Spanish rabbis in Morocco also enacted the following takkanah: When a childless man is dangerously ill, he must give his wife a valid Get, should she request it, in order to spare her having to marry her brother-in-law as required by the law of yibbum (levarite marriage-which was still operative in Morocco). However, the husband did not have to worry about having to pay his 'wife the ketubbah; he was not required to do so. Nor did the wife forfeit her right to inherit from him as his widow. In other words, this takkanah was no more than a legal fiction designed to spare the woman from being chained to the brother-in-law (zekukat yabam ).

3. Takkana yerushat ha - bat.

Normative halakhah does not allow daughters any share in their parents' inheritance. The Third Council of Moroccan dayanim, held in 1949, readopted an old takkanah of the early Spanish rabbis which granted non-married daughters equal shares with their brothers in their parents' estate. In 1952, during the Fourth meeting of the Council, R. Michael Ankawa proposed to amend this takkanah so that it will cover married daughters as well. Members of the Council were ordered to publicize the amended takkanah in their respective communities (usually by reading it in all the synagogues) and report back on the reaction of the communities. In 1956, during the Sixth Council (which turned out to be the last), R. Yehoshua Maman proposed making the new takkanah uniformly binding on all Moroccan communities. Because of the objection of one of the dayanim that the takkanah ran contrary to din torah, they decided to act on it in the next Council, scheduled for 1957, after each one of them had a chance to consult with other rabbis in their respective communities. Because of various historical reasons, no further meetings of the Council were ever held. M. Alon, in his presentation on rabbinic jurisprudence (quoted above) notes that had the Council met again, he had no doubt that the new proposal would have been approved.

Commenting on these proposals, Alon is most impressed not only by the boldness of the proposals themselves, but even more so by the tenor of the discussions that ensued and by the spirit animating them. He cites for example, the opening statements of both R. Ankawa and R. Maman who offer such justifications for their proposals as:

         "Compelling modern conditions agitate and move the people with regard to these matters..."

          "Today~ girls also work and earn their keep,
          provide for their own trousseaus, and help
          their parents, no less than sons, in
          providing for their families."

As another example of this spirit, Alon quotes the opening remarks of R. Shaul Danan, (who was later to become the president of the Supreme Rabbinic Court (bet din ha-gadol ) in Rabat, at the time of the founding of the Council of dayanim in 1947. After reviewing the various halakhic opinions with regard to the issues facing the Council, R. Danan declares:

"Anyway, this is no time to engage in long and intricate discussions of the complex halakhic sources. The need is to act decisively in order to meet the pressing demands of the times. This has been the way of our sages since the destruction of our Temple, to enact takkanot as needed, even if the takkanh runs against legal doctrine. Clearly then, the source of our adjudicating authority is unquestionable. And therefore the binding authority of our takkanot is uncontestable. And all our
decisions are firm, clear and binding ( ve-ha-kol sharir barir  ve-kayyam.

At the end of this presentation, reflecting on the development of rabbinic jurisprudence in Morocco during the past 450 years, Alon says: " Moroccan decisors (poskim) show great sensitivity to changing circumstances and the new exigencies of modern times. They show a readiness to deal with the new issues head on and when the situation demands bold initiatives, they do not hesitate to resort to enacting takkanot." He adds that "the Israeli Chief Rabbinate is timid by comparison," and suggests that the Chief Rabbis of Israel and elsewhere can use Moroccan rabbis as a model of openness and innovation. (see Alon, Yihudah shel Halakhah ve-Hevra..., pp.33-34; see also, M. Amar, Ha-Mishpat ha-Ivri bi-kehilot maroco, pp.304, 412-413, 424).

E.    It may be asked, what is so unique about Moroccan rabbis? what made them so flexible? After all, these rabbis were not liberals in the modern sense of the word. They were the very pillars of 'orthodoxy'. They were all great Torah giants, true gedolim, all men of great personal piety and saintliness. Yet, they had no hesitations or misgivings about making very lenient halakhic decisions. Several explanations come to mind.

1. As M. Alon points out (in his presentation quoted above) , theirs was a unique case of 450 years of continued jurisprudence covering all aspects of Jewish law including ritual, family, civil and commercial law. They dealt with all the parts of the Shulhan Arukh. In the process, they produced a most impressive corpus of halakhic works including collections of takkanot, responsa, and legal commentaries. They were truly "masters' of halakhah. This situation was the result of, among other factors, their special status under Islam which granted them absolute judicial autonomy.

2. As Dr. Marc Shapiro correctly pointed out (in his presentation in a seminar on the subject at Congregation Shearith Israel- winter, 1999) , Moroccan Jewry was not fragmented into various denominations as European Jewry was and as America Jewry is. As a result, Moroccan decisors did not have to look over their shoulders, so to speak, worrying about what the reaction of this haredi group or that ultra orthodox or right wing faction would be. They therefore called the cases as they saw them, their only concern being the welfare of their community.

3. Moroccan rabbis, like other Sephardim, were heirs to the well known Sephardic tradition of leniency and tolerance-the bet-Hillel tradition.

4. Finally, even when they differed with each other with regard to any halakhic issue, Moroccan rabbis showed respect and deference ( kabod ) to each other. There was never the sort of name-calling and negative labeling that goes-on in orthodox circles in the U.S. This was a Jewry unified under the respected and revered leadership of its rabbis and judges. No wonder then that M. Alon ,the most eminent historian of Jewish jurisprudence, considers them to be the perfect model of "openness and innovation".
 

V          

Conclusion.

It seems to me that what is needed is for the rabbinic leaders to recognize the seriousness of the agunot problem and summon the halakhic courage to deal with it boldly and decisively. The current unreadiness on the part of the rabbinate to deal with the problem head on, results not only in the untold sufferings of its victims, but also tarnishes the image of halakhah and orthodox Judaism in general. It projects a very negative image of halakhah as being cruel and insensitive, which leads to a great hillul ha-Shem. In worst cases, inaction on the part of the rabbinate could lead to mamzerut if and when the chained women despair totally from ever gaining their freedom through halakhic means. In such case, they might just give up and engage in illicit relationships. This very argument was advanced by R. Shalom Messas in the responsum quoted above.

Essentially, the problem is twofold, and it must be dealt with on both levels. On the one hand, something must be done very soon to solve the problem for the future. For this, R. Shalom Messas' suggested solution (see III/A above) seems appropriate and most practical, unless of course, the rabbis in the U.S. or Israel can come up with a better solution. On the other hand, we must deal with those women whose recalcitrant and wicked husbands resist any attempt at persuation. For them, R. Moshe Feinstein has paved the way with the innovative concept of annulling the marriage retroactively on the basis of mekah ta'ut in several cases (see III/E above). These cases can be expanded to include physical abuse, abandonment, refusal to provide support for wife and/or children, as well as similar cruel situations in which it becomes humanly impossible to live with the husband, which seems to be the underlying principle of R. Feinstein's responsa on the subject.

It has been suggested that the two cases in which R. Feinstein evoked the concept of mekah ta'ut (marriage contracted on false pretenses) are very specific in that (a) they involve pre-existing conditions, and (b) the husband's flaws were discovered immediately after the wedding and the wife immediately separated herself from him. But this is not as clear-cut as that. First of all, in the responsum quoted above ( Eben ha-Ezer, vol. III, no. 45), R. Feinstein deals with a woman who discovered similar flaws in her husband and stayed with him seven weeks before separating from him. R. Feinstein, of course, states that the rabbi or the bet din must investigate why she stayed with him seven weeks before complaining. He concludes however that were she to offer a 'reasonable explanation' (ta'am hagun) or 'valid excuses' (tirutsim nekhonim) we would not say that she reconciled herself to his flaws (sabrah ve-kibelah).

It seems to me that where the wife offers a reasonable explanation or valid excuses for the delay, it should not make a difference whether she stayed with the flawed husband seven weeks, seven months, or seven years. Clearly, R. Feinstein's argument is not that seven weeks is a relatively short period and is therefore a tolerable delay. He does not say that. His argument is rather that she offers a reasonable explanation and/or valid excuses and these reasons are independent of the duration of the delay. Otherwise, there is no clear criterion as to what is a tolerable delay. To quote the talmudic dictum, “im ken, natata debarekha la-shiurin" i.e. "you have left the matter subject to circumstances," for where do you draw the line, seven weeks, and why not ten or more?

As for the argument that R. Feinstein evoked the concept of mekah ta'ut only in the two specific cases of impotence and insanity, it is really not valid. As the Talmud states in a different context, "atu tannah ke-rukhlah lihshib ve-lizil – is the tannah like a peddler who enumerates all his wares." ( T.B. Gittin, 32a). In other words, no halakhic authority, be he a talmudic sage, a codifier (such as Maimonides or Karo), or any subsequent decisor can be expected to list, let alone anticipate all possible contingencies. But even if it were so, still, normative halakhic process has always allowed for the application of principles drawn from specific cases to parallel situations. Clearly, R. Feinstein evoked the concept of annulling the marriage retroactively on the basis of mekah ta'ut in the cases of impotence and insanity for two fundamental reasons. They are: (a) these were pre-existing conditions of which the respective wives were totally unaware, and (b) no woman would knowingly agree to spend her life with an impotent or an insane husband.

Logically, then, any situation where both these conditions apply falls automatically under the category of marriage contracted on false pretenses. It just happens that most of the cases of agunot that R. Rackman's bet din deals with involve women whose husbands are either abusive towards them and/or their children; or husbands who refuse to support their wives and children; husbands who abandon their wives for other women; or husbands who take off to another country leaving their wives and children stranded. A number of women who appeared before R. Rackman's bet din complained of having been subjected to one or more of these abuses. It seems clear that the second reason given by R. Feinstein for mekah ta'ut applies equally to all these situations. No woman in her right mind would marry a man if she knew in advance that he was capable of such behavior. This applies also to a recalcitrant husband who, out of cruelty, greed or vindictiveness, refuses to give his wife a Get knowing full well the devastating consequences for his wife of his refusal. A woman entering into a Jewish marriage does so on the assumption that in the event that her marriage fails, for whatever reason, she should be able to obtain a Jewish divorce, i.e., a Get, in order to be able to go on with her life. After all, Judaism is not Catholicism. It is therefore eminently reasonable to assume that no woman would marry a man if she knew that he was capable of denying her a Get in the event of the failure of their marriage.

As for the argument that the flaw in the husband must be a pre-existing one, this too can be shown to be true in most cases of agunot. Thus, an abusive husband can be considered to suffer from a pre-existing condition of which the wife is unaware. Psychologists nowadays often attribute the behavior of abusive persons to their having been abused in childhood. It may be argued, however, that in cases of abandonment by the husband or his refusal to provide support for his family, the notion of a pre-existing condition does not apply, since by their nature, these are flaws in character that manifest themselves only after marriage. Yet these character flaws can not be compared to the sudden onset of illnesses such as heart attack, stroke, cancer, and the like, or blindness and similar disabilities which are, so to speak, 'acts of God' over which the victim has no control and which are totally unpredictable. Rather, these character flaws of the husband may be described clinically and therefore also legally as pre-existing predispositions or conditions of which the woman was totally unaware.

Similarly, a recalcitrant husband who cruelly refuses to give his wife a Get holding out for unreasonable monetary concessions, or simply out of vindictiveness, refuses to free his wife, such a husband may be considered to suffer from a pre-existing innate serious flaw of character of which his wife was totally unaware when she married him. After all, one does not become a scoundrel overnight or out of the blue. Nice and normal people do not do these things.

And so, using R. Feinstein's concept of mekah ta'ut boldly creatively, and courageously can help resolve most cases of agunot all within the framework of halakhah and by means of long accepted halakhic processes.

If it is objected that R. Messas' and/or R. Feinstein's opinions do not enjoy the approval of other halakhic authorities, I invoke the statement of the Ginat Veradim (p.6 above) that in the case of agunot, we require neither a consensus of halakhic authorities nor a majority opinion. I would invoke as well various statements quoted by R. Obadya Yosef (pp.2-5 above) which consider it a great mitsvah and even a duty to look for and use any possible halakhic argument to free the agunah.

Haim Toledano

June 13, 2000

 ADDENDUM

Implications of the Ruling by Maimonides and the Shulhan Arukh with Regard to "Coerced Marriages-kidushe ones".

Maimonides in Hilkhot Ishut ( chapter 4 -1) and the Shulhan Arukh in Hilkhot Kiddushin (# 42-1) rule that if a man marries a woman against her will, the marriage is not valid. However, if a man is forced to marry a woman against his will, the marriage is valid. The Maggid Mishneh points out that the source for this rule is in Baba Batra, (48b); Rav Ashe states that such a marriage is invalid because the prospective husband behaved unfairly towards the woman, therefore the rabbis likewise treated him unfairly and annulled his marriage (hu 'asah shelo ke-hogen,u-lefikhakh 'asu lo shelo ke-hogen; ve-afki' inhu rabanan le-kiddusheh mineh) . Rashi explains that because of this consideration, the rabbis invalidated a marriage which is biblically valid.

The Maggid Mishneh explains further why the rabbis did not invalidate the marriage when it is the man who marries against his will. His explanation is that, were we to to uphold the marriage of a woman against her will as valid, should such a woman wish to free herself from this unwanted marriage, she would not be able to do so, since only a man can initiate divorce. Therefore, to avoid such an unhappy result, the rabbis annulled the marriage. Whereas when a man marries a woman against his will, he can always Get out of the marriage, if he so wishes, by divorcing her. For a man can divorce a wife against her will; therefore the rabbis saw no need to invalidate such a marriage.

What we have here then, is a case in which the rabbis annulled a biblically valid marriage in order to avoid the possibility of a woman being stuck in a marriage against her will. It seems to me that the implication of the principle of hu 'asah shelo ke-hogen. .. together with the explanation of the Maggid Mishneh opens new possibilities for dealing with the problem of agunot, and merits further exploration.

  H.T.

3. A Response to the Beth Din of America

By Dr. Susan Aranoff

On  Oct. 27, 1998 the Beth Din of America (BDA) issued a letter
which raised questions about the  Principles and Procedures for Freeing Agunot published in the Jewish Week in August 1997. This response to the BDA was distributed at several conferences. 

On October 27,1998 the Beth Din of America (BDA) issued a letter criticizing our principles and policies for freeing agunot, published in the Jewish Week on August 28, 1997.  In their letter, the BDA  takes the morally disturbing position that batei din cannot free women from husbands guilty of physical and psychological abuse, adultery, abandonment, sexual molestation, criminal activity, substance abuse or sadism.  A husband’s almost absolute power to retain control of his wife is so integral to the BDA’s concept of  Jewish marriage that the BDA calls our halachic approach, in which batei din free women from abusive husbands,  an eradication of the institution of  Jewish marriage.   The BDA is unable to recognize that our halachic reasoning does not eradicate the institution of Jewish marriage.  Rather, it removes the blemish of injustice and cruelty that has marred Jewish marriage for too long.  Our halachic reasoning restores justice, equity  and compassion to the laws governing Jewish marriage, and restores Jewish family law to its time-honored position as a source of pride for the halachic community rather than a source of embarrassment and shame.

Contrary to the BDA’s assertion, our approach does not mean that “no Jewish woman is married nowadays.”   According to our procedures, each case that comes before a beit din requires investigation and inquiry.  Each case requires a rabbinical finding of kiddushei ta’ut and a p’tur for the marriage to be nullified in the event that the husband refuses to issue a Get.  Thus until a beit din makes a finding of kiddushei ta’ut the woman has the status of a married woman.

The fact that a woman has the status of a married woman even though her marriage is destined to be voided by a finding of kiddushei ta’ut is evident from the rulings of Rabbi Moshe Feinstein.   In his teshuvot dealing with kiddushei ta’ut because of the husband’s impotence or insanity,[1]  Rabbi Feinstein indicated that a Get should first be sought to release the agunah.  But when securing the Get proved impossible,  Rabbi Feinstein voided the marriage on grounds of mekach ta’ut.   If   Rabbi Feinstein declared that there was never any marriage because of mekach ta’ut, how do we explain the initial pursuit of a   Get from a man who is ultimately declared never to have been the woman’s husband?  We must conclude that until a rabbinic declaration of mekach ta’ut, the woman is regarded as still married and requires  a Get or  rabbinic p’tur  to be free.[2]   If this were not true, then other women with similarly impotent or insane husbands could walk away from their marriage without consulting a rabbi and expect to be  remarried by an Orthodox rabbi without a  p’tur from any rabbi or beit din.   The reality is that each such woman must appear before a rabbi or beit din and secure a p’tur in order to be free to remarry.  Thus batei din findings of kiddushei ta’ut do not eradicate marriages, only the specific marriages that come before the batei din.

Rabbi Emanuel Rackman has spoken wisely and eloquently about the pivotal role of rabbinic authority in determining marital status:

“Does the fact that so many halachic authorities hold  that all marriages in which there was the use of  a ring or other benefit has only rabbinical validity mean that they don’t exist?  Is the second day of Jewish holidays without religious significance because it has only rabbinical status?  And if the fact that Jewish marriages have only rabbinical status helps minimize the threat of illegitimacy, are our controversialists such sadists that they would not be as compassionate as our ancient counterparts were when they deemed it unjust that a child should suffer the punishment due his biological parents?”[3]

AGUNAH International Inc. stands by the Halachic Principles and Procedures for Freeing Agunot published in the Jewish Week on August 28, 1997.[4]  Competent batei din should be able to lay to rest the fear of mamzerut with regard to women freed by virtue of these principles and procedures.  We now offer the following detailed rejoinder to the more specific points raised by the BDA.

KIDDUSHEI TA’UT I: THE SALIENT DEFECT

          In our publication, we outlined the arguments for kiddushei ta’ut based on a salient defect, citing the Or Zarua, Rabbi Yitzchok Elchanan Spektor and Rabbi Moshe Feinstein in support of our position.  The BDA, resisting our rational interpretation of  the relevant halachic sources and ignoring research in recent decades on domestic abuse, insists on restricting the types of defects that may be grounds for kiddushei ta’ut to those found in Rabbi Feinstein’s teshuvot. The BDA also challenges the credibility of testimony by agunot.  We offer the following arguments in response.

Expanding the Category of Salient Defects 

 The BDA objects to expanding the scope of defects beyond those mentioned in Rabbi Moshe Feinstein’s teshuvot as well as to recognizing that personality defects can be present in the husband but latent until after the marriage.  We take the position that expert opinion regarding pre-existing defects justifies our expansion of the scope of defects that a beit din may recognize as salient, pre-existing defects which justify a finding of kiddushei ta’ut. 

          There is abundant data[5] which support our contention that men who abuse and torment their wives have pre-existing, latent character defects and behavior patterns that developed in earlier formative years, prior to marriage.  Literature in  the fields of psychology, psychoanalysis and sociology contains extensive case study material which delineates and documents various types of abusive spouses.  Men who physically and psychologically[6] abuse their wives fit certain profiles and patterns of dysfunctional personalities.  Men who abandon their wives or endanger and betray their wives by committing adultery yet cruelly refuse to release their wives with a Get fit the mold of  abusively controlling husbands with a pathological need to dominate their wives.[7]   Mental health professionals can trace these pathologies to character traits developed and behavior patterns acquired prior to the marriage. 

          Case studies also reveal that the abusive conduct these men inflict on their wives is often completely hidden from family and friends and from the wife prior to marriage.  Only after marriage does Dr. Jekyll exhibit his Mr. Hyde personality to his wife.  The hundreds of cases AGUNAH Inc. has dealt with confirm this phenomenon.  In case after case agunot  report that prior to marriage the husbands were extremely solicitous of  their feelings and needs.  Only after the marriage did a second, menacing personality reveal itself.  Impotence, which may not be revealed until after the marriage when the husband is unable to sexually consummate the union, is accepted by the BDA as valid grounds for mekach ta’ut.    Likewise, spouse abuse which is not revealed until after the marriage is a valid ground for mekach ta’ut.

          In his responsum on impotence (EH I:79), Rabbi Moshe Feinstein  mentions his reliance on physicians for the determination of this pre-existing physical defect.  Similarly, batei din may rely on mental health expertise for understanding pre-existing personality defects.  It is only recently that the Orthodox community has opened its eyes to domestic violence and begun to cope with this complex phenomenon.  Most  of the research concerning the nature, the magnitude and the diagnosis of spouse abuse was undertaken and published after Rabbi Feinstein’s death so that today’s halachists must integrate these insights into Jewish law.

 Accepting the Testimony of Agunot

             The BDA raises two questions about the validation of a woman’s claim of kiddushei ta’ut because of a salient defect.  First, the BDA insists that a woman leave the marital residence immediately upon discovering  the defect or lose the right to claim  kiddushei ta’ut.  We take the position that a claim of kiddushei ta’ut is valid even when the wife remained in the home after becoming aware of the husband’s defect.  Second, the BDA asserts that because there are women who knowingly marry men with psychological problems,  batei din cannot validate the testimony of an agunah who says she would never have married had she known of her husband’s cruel nature and abusive personality.   We  take the position that  batei din should give credence to such testimony by an agunah. 

Batei Din should not rigidly demand that women  leave immediately.  The requirement that a wife leave her home immediately upon discovering  the salient defect in her husband is cruel, unrealistic and halachically incorrect.  For numerous practical and legal reasons, it is often impossible for a wife to abandon her home immediately upon discovering the salient defect in her husband. 

           Women may delay abandoning the marriage and seek counseling in the hope  that their husbands can overcome their problem and the marriage can be resurrected.  Insisting that wives leave an unhealthy marriage immediately or accept being trapped forever would have the cruel and destructive effect of discouraging women from trying to revive their marriages.  Must  a woman walk out immediately and flatly refuse to try sex therapy upon discovering that her husband has problems or else be trapped forever with an impotent, recalcitrant husband?  Must a wife likewise leave and rigidly refuse marriage counseling after a husband’s first display of aberrant behavior or violence or else risk being chained forever to such a recalcitrant spouse?   If such immediate exit were an inflexible requirement for kiddushei ta’ut, rabbis who counsel women to try to pursue shalom bayit would be morally bound to inform women that staying in the marriage even one more day  in attempt to salvage it creates a halachic trap that may doom them to aginut.  We reject this approach and maintain that when a woman, after enduring great pain and sacrifice, reaches the point where it is clear that the marriage is beyond repair, she should not be punished and imprisoned because of her efforts to make the marriage work.  This is particularly true when there are children involved.

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