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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, 16-17th century Poland, in his responsa Masat Binyamin.

 

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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.

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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.

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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

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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.

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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.

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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 initioKIDDUSHEI 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 12th 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 13th 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 initioKIDDUSHEI 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.

     Many other factors may cause women to delay leaving the marital residence.[8]  Some  may need time to accumulate  money to feed, clothe and shelter themselves and their children.  There are not always grandparents, friends or shelters to take these women in.  Others may wait because abandoning the home precipitously would endanger the custody and well-being of   their children and jeopardize a legal claim to the marital residence.  Some women, shattered by the abuse, may need time to recover enough physical and emotional strength to leave. Much of the published research on the  traumatic and disabling impact of abuse on women was not in existence during Rabbi Feinstein’s lifetime.  But today’s batei din may rely on this information in analyzing and evaluating the agunah’s conduct in the marriage.

         Thus a wife’s remaining in the home following the discovery of  a defect in the husband does not signify that she accepts the defect and does not vitiate the halachic validity of the wife’s claim of kiddushei ta’ut.  

 Agunot who testify that they would never have married had they known of their husbands’ cruel and abusive personality should be given credence.   The BDA challenges the validation of an agunah’s testimony that she never would have married had she known of her husband’s defective personality.  The  BDA  asserts that the agunah’s testimony must be doubted because “many persons marry even though they are well aware of their spouses emotional and psychological problems.” Therefore, the BDA, argues, there is no categorical assumption that the agunah is telling the truth when she testifies that she would not have married a man who turns out to have psychological disorders that cause him to beat and abandon her, molest their children, abuse her psychologically, or commit adultery and thus expose her to life-threatening diseases.  We challenge the BDA  to produce evidence that “many” women would knowingly marry such brutes.  Absent such evidence, we maintain that when agunot testify that they would not have knowingly married men who develop into dangerously cruel and abusive husbands, there is a categorical presumption that this testimony is true – kiddushei ta’ut I. 

       Furthermore we call the BDA’s attention to the fact that according to Rabbi Moshe Feinstein the fact that women may knowingly marry men with a record of psychological problems does not preclude women from  petitioning for release from a marriage on the grounds of mekach ta’ut when a husband’s aberrant behavior becomes intolerable.  In his responsum dealing with insanity as a grounds for mekach ta’ut,[9]  Rabbi Feinstein validates a claim of  mekach ta’ut  because of a mental defect in the case of a wife who knowingly married a man with a history of psychological problems.  Rabbi Feinstein wrote that a woman may mistakenly think her groom has recovered his mental health but later find that he is impossible to live with because of his mental defects.  Moreover in his responsum, Rabbi Feinstein does not indicate that the husband physically, emotionally or sexually abused his wife or children.   In contrast, the cases that  AGUNAH Inc. encounters involve husbands who appear to be normal at the time of marriage but whose  personality defects result in malevolence and injurious behavior toward the agunot and children.[10]

Finding Halachic Solutions to Contemporary Problems

The BDA insists on a narrow reading of  texts that is sterile and produces no solution for today’s agunot.  We take the position that Rabbi Rackman and the Beit Din L’Ba’ayot Agunot are shouldering the age-old right and responsibility of rabbis and judges in each generation[11] to use reason in interpreting halachic principles and in applying them to solve contemporary problems.

Rabbis in each generation are empowered to apply halachic principles and reasoning to contemporary problems. The BDA pointed out that Rabbi Feinstein ruled kiddushei ta’ut in cases of  pre-existing homosexuality, impotence (a physical defect), and insanity (a mental defect).  While these limitations may have been reasonable in Rabbi Feinstein’s time,[12]  today the grounds for kiddushei ta’ut are more numerous.  In 1998 batei din have available to them data which were unavailable to Rabbi Feinstein and which demonstrate the early developmental origins of the abuser personality.   On the strength of this data, batei din today can recognize many forms of wife abuse as indicative of deep-seated, pre-existing mental defects that warrant a declaration of kiddushei ta’ut I.  

         No rational halachist would attribute to Rabbi  Feinstein an intention to eternally limit the types of defects that warrant mekach ta’ut.   He never deemed himself a legislator who closed the canon.

Our Reading of Rabbi Yitzchok Elchanan Spektor Is Correct

A correct reading of RabbiYitzchok Elchanan Spektor[13]  supports the suspension of the Talmudic presumption of tav l’metav tandu (women prefer any marriage to none) to validate an agunah’s testimony that she would never knowingly have married her defective husband. The BDA takes issue with our reading of RabbiYitzchok Elchanan Spektor.  In response, we refer the BDA to Rabbi Moshe Feinstein’s teshuvah in Igrot Moshe EH I:79 where Rabbi Feinstein cites Rabbi Yitzchok Elchanan Spektor precisely in connection with the suspension of tav l’metav tandu to clear the way for a ruling of mekach ta’ut based on a wife’s testimony that had she known of salient defects she would never have married her husband.

KIDDUSHEI TA’UT II: LACK OF INFORMED CONSENT WHEN KEFIYAH (PHYSICAL COERCION) IS IMPOSSIBLE

          In our publication we argued that halachah has long recognized that women have relied on rabbis to protect them from intolerable marriages and that the unavailability of  kefiyah provides a firm halachic basis for liberating agunot on the grounds of kiddushei ta’ut II.  The Talmud, the Rambam, the Or Zarua, the Rashba, Rabbi Yitzchok Elchanan Spektor and many more called for kefiyah  to release agunot.  The Rashba offers the following rationale for the coercion of the Get:

“The main reason we coerce debtors is so that the doors will not be locked in the face of borrowers … And gittin too, similar to indebtedness  and loans, for if not (we did not coerce a Get) women would not marry, and the daughters of Israel would be  agunot.” [14]  

The availability of kefiyah 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.  Thus in earlier times, women consented to a marriage controlled by the husband’s Get because they knew that rabbis could coerce a Get to release them.  But kefiyah is no longer available today.  Because of the absence of kefiyah as a last resort and in light of  the failure of the Orthodox rabbinate to provide any other effective remedy, it is now possible for women to claim,  “Had I understood what a trap this marriage is, I never would have consented to this union.  When I married I did not know that I was surrendering control of my life to my husband no matter how abusive he might be.”  Informed consent by the bride was lacking,  resulting in kiddushei ta’ut II.

Brides Can Rightly Claim They Did Not Have Full Knowledge of the Risk of Aginut

The BDA challenges our assertion that agunot may rightly claim that they did not knowingly agree to a marriage that could imprison them.  The BDA argues that because of the great publicity given to the agunah problem women are fully aware of the risks involved in marriage.  The BDA’s argument is fallacious.   

The agunot we deal with did not understand the risk and likelihood that they might become agunot, nor do women who are currently marrying.  Most of today’s  agunot married at a time when  the agunah problem was swept under the rug by rabbis.  They are stunned when rabbis tell them they are shackled to their vicious husbands or that they should pay a ransom to be free. 

Today’s brides are still deceived because Orthodox rabbis continue to understate the magnitude of the agunah problem.   The BDA’s own letter contributes to women’s false sense of safety by using the phrase: “a woman may on occasion be trapped in a bad marriage.”  Just recently rabbis from the Feinstein/Tendler family used similarly misleading language in a letter to the Jewish Week[15], writing about “ the rare case of a recalcitrant husband refusing to grant a halachically valid Get.  Because of  rabbinic denials and rabbinic failure to fully educate women in Orthodox schools and synagogues, Orthodox women are blinded to the dangers of marriage.  The women believe their rabbis who repeatedly minimize the problem of aginut  and  declare that prenuptial agreements, public pressure and synagogue sanctions can solve the problem.[16]

In addition to failing to acknowledge the likelihood of aginut, the Orthodox rabbinate has also failed to inform women that the beit din system is corrupt and dysfunctional.  Women enter marriage unaware that batei din, the institution to which all agunot must turn for justice, are dangerously untrustworthy.  This too contributes to a lack of informed consent by brides.  

Spates of publicity do not override the rabbinate’s failure to fully inform women of the pitfalls of marriage. Until Orthodox rabbis, the religious authority figures of Orthodox Judaism, admit the gravity of the agunah problem and the scandalous condition of the batei din, all Orthodox marriages will have taken place under false pretenses.  Thus Orthodox women, deceived by their rabbis, may rightly claim that when they married they did not understand the perils of such a union and therefore should not be deemed to have given informed consent to the marriage.

The Illusion of Prenuptial Agreements Undermines Informed Consent by the Bride 

The development of prenuptial agreements is a creative effort to deal with the problem of aginut.  The handful of rabbis who firmly refuse to perform a wedding without a prenuptial are, by virtue of their refusal,  indicating to the brides they counsel that marriage is hazardous for women.   Unfortunately, however, the value of the rabbinic  prenuptials is largely illusory.  Consequently, brides who rely on prenuptials to protect them from aginut are misled and have married under false pretenses.  They may therefore rightly claim mekach ta’ut should their husband withhold the Get.  The deficiencies of prenuptials are many.[17]   If a husband flees, the prenuptial is useless.  If a husband has no income or low income, the pre-nuptial’s financial penalties will be unenforceable.  If the husband has low or average income, he may evade the financial penalties because of legal limitations on garnishing his salary.  If the  prenuptial includes any role for a beit din, our experience shows that there is a distinct possibility that the prenuptial will be interpreted to the detriment of the woman.  If the woman is not affluent, the legal fees necessary to enforce the prenuptial will be prohibitive.   If she can afford the legal fees, it could take years of litigation to enforce the prenuptial. And if all this is not enough, there is a significant likelihood that many civil court judges will refuse to enforce prenuptials because of church/state considerations.  Thus, women who marry with a prenuptial under the illusion that it protects them from Get abuse by their husbands, are misled and are, therefore,  not giving informed consent to the marriage.

Agunot Do Not Want the Same Type of  Marriages Again     

The BDA states that the fact that agunot pursue a Get proves that they want to marry again in accordance with the same Jewish law which trapped them before.  Familiarity with the real facts of life of agunot demonstrates that the BDA is wrong and that the reasons many agunot pursue a Get are quite different.  Many agunot, traumatized by their Get ordeal, impoverished and with children to care for, feel they will never marry again.  They pursue their Get because they want closure and an end to their husbands’ taunting and baiting them in connection with the Get.[18]  Some agunot, usually those less traumatized because of stronger financial and family support, hope to remarry.  After months or years of abuse by husbands and batei din, many of these women have contempt for the Get process, but the price of dating and remarrying without a Get is simply too high – being branded with a scarlet letter or bearing children stigmatized as mamzerim.  These agunot continue the pursuit of their Get in a system that they believe is corrupt and unjust to avoid these dire consequences.  Many agunot give up and don’t wait for a Get.  They quietly begin new intimate relationships without a Get from their husbands.   Even these agunot may continue to seek a Get for closure.  They may seek the Get so that they do not have to keep a part of their life hidden.  Some agunot plan to remarry outside of Orthodoxy and pursue a Get for the sake of future children.  All of these agunot are disillusioned and revolted by their treatment in batei din, including the BDA. Those who persist in seeking a Get are trying to recover some sense of normalcy and to stanch the injury and pain inflicted on them by husbands and batei din.   These agunot’s quest for a  Get can hardly be construed as a gesture of support for the BDA’s system of marriage and divorce.          

KIDDUSHEI TA’UT III:  LACK OF INFORMED CONSENT TO KINYAN

         As set forth in our principles and procedures,  kiddushei ta’ut III derives from the fact that women do not view marriage as a transaction in which their husbands acquire them. In particular we noted that no one can credibly maintain today that brides are consenting to the concept of gufah kanui, that the marriage is a kinyan in which the husband acquires title to the wife’s body.  Consequently,   there is no informed consent by women to kinyan at the time of marriage and batei din can release women with a p’tur if a Get cannot be secured.

BDA Marriage Involves Kinyan and Women Do No Consent to Kinyan 

The BDA concedes that their version of  marriage entails a husband acquiring a wife through a form of  kinyan.  But whereas we assert that women reject the kinyan form of marriage, the BDA insists that women agree to kinyan when they marry.  In defending their position, the BDA artfully presents a few disjointed statements about  kinyan kiddushin  to which women can agree and then leaps to the unsupported conclusion that women therefore consent to all aspects of  kinyan kiddushin marriage. Let us examine the import of the BDA’s statements concerning kinyan kiddushin.

The BDA states that kinyan kiddushin is not the same as the acquisition of a car, cow or slave[19]. Yes, women agree that a man does not acquire a wife in the same manner as he acquires a car or a slave, but that is because women do not in any way view marriage as transaction in which men are the “acquirers” and women the “acquired.”  In order for kinyan  to be binding, both parties to the transaction must understand and accept the terms.   Women’s fundamental rejection of the acquisition nature of kinyan kiddushin means that no valid kinyan can take place at a marriage.

The BDA states that kinyan kiddushin does not even affect the wife’s right to own property. Yes, women agree that marriage does not even affect their right to own property, but that is because women do not feel that marriage compromises their economic rights at all. Contemporary women believe that Jewish marriage entails a full economic partnership in which income earned and wealth accumulated during the marriage belong equally to both spouses.  The fact that women retain economic rights after marriage in no way proves or even implies that women are agreeing to kinyan kiddushin.

The BDA states that kinyan kiddushin  forbids relations with  (and marriage to) anyone other than her husband.  Yes, women agree that marriage means that they will not marry or have relations with another man, but they feel that the obligation for sexual fidelity binds the husband and wife equally.  This is particularly true today when extra-marital sex can expose a spouse to fatal diseases.  The BDA’s failure to enumerate sexual fidelity by the husband as an essential element of kinyan kiddushin flows from their kinyan concept of marriage.  The husband acquires the wife and exclusive sexual rights to her, gufah kanui.   The reverse is not true in a kinyan kiddushin marriage.  It is because  kinyan kiddushin bars wives, but not husbands, from extra-marital sex, that we maintain that women today are not consenting to kinyan kiddushin marriage.

We conclude that the BDA concept of marriage involves kinyan,  that kinyan requires informed consent and that women reject  the kinyan form of marriage.  Since women’s informed consent to kinyan kiddushin is lacking,  their husband’s are not their masters, and women can exit their marriages with a  p’tur from a beit din when a Get cannot be secured.[20]

Conclusion - Let Orthodox Women Speak For Themselves

Let us have a real reckoning once and for all in this debate between us and the BDA. Let Orthodox women speak for themselves.  Let a forum be set up through which Orthodox women can inform the community if their views of marriage are consistent with the BDA kinyan kiddushin marriage or with our concept of Jewish marriage.  Let every bride be given the choice between the two types of marriage.[21]  If women subscribe to our concept,  we will have made our case:  When contemporary women marry they are not consenting to the kinyan form of marriage.  Rather, they view marriage as a sanctified partnership of equals in which neither party can abuse the other and still retain the right to bind  the spouse in a dead marriage.

 
Footnotes for Aranoff - The Response to the Beth Din of America

[1] Igrot Moshe, EH I:79 and 80 which deal with impotence and insanity as grounds for kiddushei ta’ut

[2] Puzzling over the status of a woman whose marriage is eventually annulled has a long history in halachic literature.  In connection with Rabban Gamliel’s takkanah  discussed in footnote 3, Tosafot (BT Gittin, 33a  Tosafot beginning Afki’inhun”) deals with the question of whether any woman can ever be punished for adultery.  Tosafot’s problem is that it might be impossible to give women the halachically required categorical and unequivocal warning against the prohibited act of adultery.  Any such warning might be intrinsically equivocal and uncategorical since every woman’s marriage could potentially end up being annulled. See Menachem Elon, Jewish Law (Philadelphia: Jewish Publication Society 1994), Vol. 2, pp. 641-42 for further discussion of this Tosafot and other references on this topic.  Despite this debate over the status of married women in light of annulment, annulments were used to free agunot.   

[3] Rabbi Rackman’s words are reminiscent of the sentiments expressed in the BT (Gittin 33a) in connection with Rabban Gamliel the Elder’s suspension of a husbands’ right to revoke a Get.  This decision by Rabban Gamliel freed women to remarry despite their previous husbands’ resistance.  The Mishnah states that Rabban Gamliel did this for Tikkun Olam.  The Gemarah  then inquires into the meaning of Tikkun Olam in this case and goes on to explain Rabban Gamliel’s decision as a move to protect women from either becoming agunot or bearing mamzerim. In the words of the gemarah: Maee mipnei tikkun olam?  Rav Yochanan amar mipnei takkanat mamzerim.  Resh Lakish amar mipnei takkanat agunot.

[4] We reiterate that publication’s statement that the Beit Din L’Ba’ayot Agunot usually adds many more reasons in the process of dissolving the marriages that come before it in light of the particular details of each case.  For example, one basis for dissolving marriages which was not discussed in our publication is finding a technical defect in the wedding ceremony such as invalidating the witnesses.  In his Shabbat Shuva drasha of September 26, 1998,  Rabbi Haskel Lookstein cited the fact that Rabbi Moshe Feinstein was known to use this technique to free agunot.  Rabbi Feinstein’s grandson Rabbi Mordechai Tendler confirmed this recently in a November 23, 1998 Jewish Telegraphic Agency interview with Debra Nussbaum Cohen.  Rabbi Tendler stated that he has annulled hundreds of marriages, applying the criteria mapped out by his grandfather who “freed”  women …if the wedding itself was not Orthodox or if there had been some technical flaw in the ceremony.

[5] See for example Donald G. Dutton, Ph.D.,  the batterer, New York: Basic Books, 1995.

[6] Are Jewish wives to be held captive by husbands who viciously break their limbs, blacken their eyes and scar their psyche when according to halachah a slave goes free if the master disables any of the slave’s organs or limbs? 

[7] Rabbi Abraham J. Twerski M.D. writes as follows on page 125 in his The Shame Borne in Silence: Spouse Abuse in the Jewish Community:

Without exception, every case of aguna, every case of a husband’s refusal to give a Get, will reveal a history of a woman’s having been abused during the marriage.  This last and perhaps greatest abuse of power, refusal to give a Get occurs only in individuals who were abusers and who had been either batterers or tyrannic controllers of their wives.” (Italics in original.)

[8] Dr. Elona Lazaroff writes (unpublished manuscript) movingly of  why religious Jewish women may take longer to leave abusive marriages.  “ …the wife who believes in teshuvah (which the husband promises) hopes for the best.” And “In religious families there is an added component of lashon harah.  The injunction not to embarrass anyone just compounds the silence.  Sometimes a misplaced advocacy of Jewish personal ethics can be harmful to one’s life and the life of one’s children.”

[9] EH I:80.

[10] In connection with freeing women on grounds of mekach ta’ut because of the husband’s insanity, Rabbi Feinstein cites the Talmudic truism, “ain adam dar eem nahash b’kefifah ahat – one cannot live in the same basket as a snake.”  This ancient maxim aptly captures the essence of the intolerable marriages that come before AGUNAH Inc. and the Beit Din L’Ba’ayot Agunot.   

[11] Rashi at Deuteronomy 17:9 “the judge that will be in those days - hashophet asher yeeh’yeh b’yamechah” comments as follows concerning the legitimacy of judges differing with judges in earlier generations: “And even if (he is) not like other judges that preceded him, you must listen to him.  You have none other than the judge in your times.” 

[12] We note that a well known rabbi who was close to Rabbi Feinstein has written that Rabbi Feinstein annulled marriages on broader grounds than those listed in the BDA letter.  A member of the Feinstein family has also told AGUNAH Inc. that Rabbi Feinstein annulled far more marriages than is indicated by his teshuvot.

[13] Vol. I, 24:41.

[14] Hiddushei Harashba, Gittin 88b in the 1986 Mosad Harav Kook edition.   Commentators in the  Art Scroll edition of Gittin agree with our reading of the Rashba.  They wrote, “The Gemara (Sanhedrin 3a) explains that the sages waived the ordination required for loan cases so as not to inhibit potential lenders from lending their money.  Similarly, women will not want to marry unless their rights can be protected even by unordained judges.(Rashba).” See explanatory footnote #32 in the  Schottenstein Edition of the Art Scroll Babylonian Talmud, Gittin Vol. 2, p.88b2-3.   

[15] Letter-to-the-editor, Jewish Week, November, 1998.

[16] The weaknesses of community censure  and synagogue sanctions as tools for securing a Get are  many. Often it is impossible to mobilize these tools for pressuring the husband.  And even in cases where some pressure is exerted, recalcitrant husbands find other synagogues and communities where they are welcomed or drop out of community life thus evading community pressure.  Brides should not be deluded into thinking these tools will protect them from aginut. If it were otherwise, we would not have the problem before us.

[17] See a letter by Honey Rackman to the Jewish Week, June 26, 1998, outlining some of the weaknesses of prenuptials.

[18] To quote from a recent conversation with an agunah about why she pursued her Get : “I just wanted it to be over.  Withholding the Get was just a continuation of his abuse.  I wanted that gun taken away from my head…. I don’t think of remarrying.  I would have to think over and over one hundred times before doing that.”

[19] It is with great moral discomfort and emotional difficulty that we include the “slave” in the list of  “things” acquired by kinyan. We included it in the name of accurately quoting the BDA’s letter.  Thankfully the halachic Jewish community has abandoned the institution of slavery.  It would not be surprising, however, if Orthodox rabbis, confronted with a case of a Jew who had slaves, were to declare that slavery may be illegal and immoral, but it’s halachic.  This is what so many Orthodox rabbis said several years ago when faced with the loathsome phenomenon of kiddushei ketanah, the betrothal of minors.

[20] A master obtains title to a slave by kinyan-acquisition, and the slave  requires a Get when freed from slavery.  The parallel is obvious.  If a woman understands and knowingly accepts that there is a kinyan at marriage which means that she is being acquired by her husband, she requires a Get to obtain her freedom.  But if she does not view herself as being acquired at marriage, there is no kinyan.  It then follows that a Get is not required to dissolve the marriage and free the woman.  For additional discussion of this point, we refer the reader to Professor Meir Feldblum’s  article (Dinei Israel, Tel Aviv University Law School, 1998) which we cited in our August 28th  publication.

[21] We refer the reader again to Professor Meir Feldblum’s article.  There Feldblum elucidates the concept derech kiddushin, a halachic explanation and proposed ritual structure that facilitates the type of Jewish marriage that we contend contemporary Jewish women are actually accepting under the chuppah.


4. TWO VIEWS OF MARRIAGE – TWO VIEWS OF WOMEN:

RECONSIDERING TAV LEMETAV TAN DU MILEMETAV ARMELU

Dr. Susan Aranoff

This article was first printed in Nashim, Spring/Summer,
Number 3, 5760/2000, published by the Schechter Institute
of Jewish Studies, Jerusalem and Hadassah International
Research Institute on Jewish Women at Brandeis University

INTRODUCTION

For almost two decades, the struggle to free agunot, “chained women” whose husbands refuse to divorce them,1 has been intensifying in the Orthodox Jewish community. Under Jewish law, only the husband has the power to sever a marriage, and that power cannot be exercised on his behalf by a beit din (rabbinical court, pl. batei din), even in cases where the marital relationship has become attenuated or abusive. As a result, women locked into intolerable marriages may wait for years or even decades to be freed and able to start new lives.

In the last few years, a new beit din, established in 1996 by Rabbi Emanuel Rackman and Rabbi Moshe Morgenstern in association with AGUNAH, Inc., an organization dedicated to this cause, has been at the center of the struggle for freedom for agunot. This new beit din began free­ing agunot by making rulings of kiddushei ta‘ut, a finding that an error took place at the time of the wedding that voids the marriage agreement and thus releases the agunah without her husband’s consent. The Orthodox rabbinate in the United States2 has strongly criticized the new beit din. Its representatives contend that the Talmudic phrase tav lemetav tan du milemetav armelu, “better to dwell two together than to dwell alone,” is a binding halakhic principle that negates the new beit din’s approach to freeing agunot from their intolerable marriages. After a brief summary of the earlier phases of the struggle to free agunot, this paper focuses on a reconsideration of the tav lemetav principle in the Talmud. It makes the case that, contrary to the objections of critics, the Rackman beit din’s approach is consistent with the talmudic text, not at odds with it.

The Struggle to Free Agunot

I have been an agunah activist for more than a decade as part of AGUNAH, Inc. The struggle to free agunot in the Orthodox community is far from over. Nevertheless, agunah advocates can take heart from the fact that, over the years, we have succeeded in putting the plight of agunot high on the Orthodox community’s agenda and in educating Orthodox rabbis and laypersons regarding three major aspects of the agunah problem: [1] the existence of agunot; [2] the procedural corruption and mismanagement of Orthodox batei din; and [3] the extortion and prejudicial position of women in halakhah as interpreted by rabbis in the Orthodox batei din.[4]

At first, early in the struggle, agunah advocates had to overcome the opin­ions of rabbis [5] who insisted that there were hardly any agunot at all.[6] But gradually, after years of media coverage and demonstrations, and as agunot gained the courage to identify themselves publicly, it became clear that there were significant numbers.[7] Regrettably, many rabbis still slip into the word game of insisting on calling these suffering women mesuravot Get, women refused a Jewish bill of divorce, rather than agunot, as if a differ­ent appellation in some way vindicates the rabbis’ earlier denial of the agunah problem or diminishes the injustices perpetrated against these women.

Second, agunah advocates had to expose the fact that the beit din system was mismanaged and corrupt, so that justice was almost never done for agunot. Rabbis heaped criticism on AGUNAH, Inc., for publicizing ac­counts of beit din misconduct.[8] But soon the public at large recognized the hefkerut, the blatant impropriety that reigned in batei din, and rabbis were forced to acknowledge that AGUNAH, Inc., was right: the beit din system was dysfunctional and, yes, corrupt.

Third, agunah advocates had to make clear to the Orthodox halakhic community that their dayanim (rabbinic judges) were operating with a view of marriage and women that was inherently prejudicial to women. Thus, even if beit din administrative procedures were reformed and corruption rooted out, women would still be gravely disadvantaged and abused in the beit din system, because of the inferior status assigned to wives by batei din and the resulting imbalance of power in favor of the husband. Once again, the rabbinate attacked AGUNAH, Inc., but eventually they conceded this point as well. The rabbis acknowledged that because of the husband’s power to withhold the Get, batei din often advised women to give in to extortion. When people expressed revulsion over innocent women being forced to purchase their freedom from wicked men, rabbis shook their heads or shrugged their shoulders and answered, “You’re right. It’s not fair. It’s immoral. But it’s halakhic. Halakhah gives men the power to deny their wives freedom, and there is little rabbis can do in most cases.”

 Refuting this defeatist and morally disturbing view of halakhah and women’s status within marriage is the fourth and ultimate challenge in the struggle of AGUNAH, Inc., to free agunot. AGUNAH, Inc., has long in­sisted that there are halakhic ways for batei din to free agunot from unfit, recalcitrant husbands. But our rabbinical critics in the U.S. and elsewhere continue to maintain that the potential for husbands to commit Get abuse is intrinsic to halakhic marriage. As Rabbi Mordechai Willig put it in an April 1999 lecture,[9] “As long as there is Jewish halakhic marriage, there are going to be cases of agunah. It is a byproduct of halakhic Jewish mar­riage.” Women’s freedom is at the mercy of their husbands.

 This one-sided view of marriage was dramatically upset late in 1996, when Rabbi Emanuel Rackman and Rabbi Moshe Morgenstern, in asso­ciation with AGUNAH, Inc., established their new Beit din live‘ayot agunot [10] and began to free women who had been left in chains by other batei din. This new beit din applied the halakhic concept of kiddushei ta‘ut to dissolve intolerable marriages. A finding of kiddushei ta‘ut is a beit din determination that a fundamental mistake or misunderstanding occurred when the couple wed. This makes the marriage void ab initio, from the very beginning, because one side or the other never gave informed consent to the union, as required by halakhah. Such a determination obviates the need for a Get. It allows the beit din to issue a petor (release), which frees the woman without her recalcitrant husband’s consent.

Freedom for agunot was becoming a reality. The organized Orthodox rabbinate reacted swiftly, denying that there was any known halakhic way for freeing these women and calling upon the new beit din to publish the halakhic sources and responsa on which the new beit din based its deci­sions to free agunot.

MAKING THE CASE FOR KIDDUSHEI TA‘UT

In August 1997, in response to this call for the halakhic sources, I wrote
a do­cu­ment entitled “Halachic Principles and Procedures for Freeing Agunot,”
[11] which set forth halakhic arguments in support of the Rackman/
Mor­genstern beit din. Relying on well-known halakhic sources, I outlined three forms of kiddushei ta‘ut that may be used by contemporary batei din to free agunot. The basic halakhic premise of all three forms of kiddushei ta‘ut is this: if critical information about the groom or the terms of the marriage was not disclosed to one party, in our cases the bride, informed consent was lacking, making the marriage void ab initio.

Kiddushei ta‘ut I involves the voiding of the marriage because a salient defect in the groom which existed at the time of the wedding was not dis­closed to the bride. When the salient defect becomes known, the wife has the right to declare to a beit din, “The marriage transaction took place under false pretenses. Had I known of this defect, I never would have con­sented to marry him.”

Kiddushei ta‘ut on the grounds of a salient defect in the groom is an established concept in halakhic literature. More than 700 years ago, Rabbi Isaac ben Moses of Vienna, the Or Zarua (c. 1180–1250) recorded a case in which his contemporary, Rabbenu Simcha of Speyer, ruled that a wife should be released without a Get in the event that an unknown defect in the groom is revealed, on the grounds of kiddushei ta‘ut. [12] Rabbi Yitzchok Elchanan Spektor, a noted nineteenth-century European rabbi, also paved the way for rulings of kiddushei ta‘ut I. He wrote that if a discovered defect in the groom is serious enough to warrant compelling him, by means of physical coercion (kefiyah), to give a Get, there is no presumption that the woman would have consented to marry the man despite his defect. [13] Thus, in cases of grave pre-existing defects, an agunah’s plea of kiddushei ta‘ut can be accepted, and the oppressive marriage can be voided.

The failure to disclose a defect may not necessarily involve fraudulent intent on the part of the groom. It may be that he himself was not aware of his problem. For example, as set out in a responsum of Rabbi Moshe Feinstein, the groom may be unaware at the time of the marriage that he is impotent. When this condition becomes apparent, the marriage is voidable even though the groom did not willfully conceal the information. [14] A fortiori, of course, the marriage is voidable in the case of willful conceal­ment of a serious defect.

In case after case that came before AGUNAH, Inc., and the Rackman beit din, the recalcitrant husbands had manifested deep-seated personal­-
ity disorders and abusive behavior (physical and psychological abuse, adultery, sexual molestation, abandonment, criminal activity, substance abuse, sadism
.[15] These justified freeing the agunah on the grounds that she would never knowingly have consented to marry a man with such a defective nature.
[16]

Kiddushei ta‘ut II involves voiding the marriage ab initio because the bride was not informed of, and therefore did not give the requisite informed consent to, marriage terms that imprison her in a marriage no matter how intolerable it becomes. She would never knowingly have agreed to being locked into an impossible marriage.

Kiddushei ta‘ut II finds support in the writings of Maimonides, who, in the twelfth century, laid down the principle that batei din should release women from intolerable marriages by coercing the husband to give a Get when his wife declares that he is repugnant (ma’us) to her (Hilkhot ishut 14:8). He declared: “Our women are not slaves, that they should be forced to co-habit with someone they despise.” In the thirteenth century, Rabbi Solomon ben Adret wrote that the daughters of Israel would not wed if they thought that they could not rely on rabbis to free them from bad mar­riages, by ordering the coercion of a Get (Hiddushei haRashba, Gittin 88b).

In case after case, agunot reported to AGUNAH, Inc., and the Rackman beit din that they had no idea when they married that rabbis have no power to sever oppressive marriage bonds that chain them to cruel and violent men. Neither their congregational rabbis, nor the rabbis who taught them at school, nor the rabbis who officiated at their weddings had informed them that marriage could be a trap with no exit.

Kiddushei ta‘ut III is based on the proposition that when women marry, they are not aware of and therefore are not knowingly consenting to the halakhic terms of marriage as the acquisition (kinyan) of title to their bod­ies by their husbands (gufah kanui).[17] Consequently, again, their marriages are void ab initio, with the result that they do not need a Get to exit them.[18]

These arguments and halakhic sources concerning kiddushei ta‘ut stirred interest in the Orthodox community. Though our critics at first faulted the publication of our document in a newspaper rather than in a halakhic journal,[19] they eventually responded. Some rabbinic organizations, like Agudath Israel of America, issued terse general condemnations of the “Principles and Procedures.” But on October 27, 1998, Rabbis Michael Broyde, Yona Reiss, Gedalia Dov Schwartz and Mordechai Willig of the Beth Din of America (BDA), a major modern Orthodox beit din in New York City, issued a detailed critique of the document. It was mailed to the membership of the Rabbinical Council of America (RCA), a national asso­ciation of modern Orthodox rabbis in the United States.

Both Rabbi Rackman and I responded to the BDA critique; my response came to be known as “Principles and Procedures II [20] Rabbi J. David Bleich of Yeshiva University followed with a far lengthier critique of the first “Principles and Proceduresin the RCA’s Tradition magazine.[21] BDA rabbis also began to lecture more frequently in the New York area about agunot, and we of AGUNAH, Inc., who were not offered a platform, took every available opportunity to question them from the floor at these lec­tures. What was developing was a dialogue in print and in lecture halls between, on the one side, the Rackman beit din and AGUNAH, Inc., and, on the other, the BDA/RCA. Out of this dialogue emerged two contrasting views of marriage and women, with dramatically different consequences for the status of wives vis-à-vis their husbands and women’s ability to exit intolerable marriages.

TWO VIEWS OF MARRIAGE – TWO VIEWS OF WOMEN

(     a) Marriage as shi‘abud or kinyan

  The organizing concepts that our opponents use to characterize marriage are shi‘abud, or servitude, for Rabbi Bleich, and kinyan, or acquisition, for the BDA. For Rabbi Bleich, “The legalistic essence of marriage is, in effect, an exclusive conjugal servitude conveyed by the bride to the groom.[22] The bride is divested of the capacity to marry any other male. The BDA rabbis’ kinyan formula of marriage is similar, stating that the kinyan of marriage “only forbids relations with (and marriage to) anyone other than her husband.[23] Note that neither formulation contains any parallel restriction for the husband, binding him to practice sexual fidelity to his wife. Only the wife is forbidden to have extramarital sex, and the wife can only re­acquire her sexual freedom if her husband voluntarily surrenders his exclusive rights.[24] According to Bleich and the BDA, the husband’s right as the sole beneficiary of his wife’s sexuality survives even if he beats and abandons her, has relations with other women or torments her emotionally and psychologically.

Women have an overriding desire to marry

Our opponents do not dispute the fact that their kinyan/shi‘abud marriage exposes women to abuse and empowers men to keep their wives prisoner. But in their view, women are presumed to have such an overriding to desire to marry that they willingly marry seriously defective men and accept the risk of being trapped in a marriage controlled by an abusive husband’s ability to give or withhold a Get. In making this presumption, our opponents rely on the talmudic statement attributed to Resh Lakish, tav lemetav tan du milemetav armelu, which, roughly translated, means “Better to dwell two together than to dwell alone.”

Bleich applies the tav lemetav concept as follows: There are women, an­xious to marry, who would knowingly marry men with the grave defects listed above under Kiddushei ta‘ut I. Consequently, there can be no presumption that women marry on the condition that their grooms be free of such defects. A beit din therefore cannot void a particular woman’s marriage when she testifies that she would never knowingly have married a defective man, for the truthfulness of the woman’s testimony is in doubt. Perhaps marriage was so much more desirable than remaining single that she would have consented even with the knowledge of his grave defects. Bleich writes:

Since men afflicted by the various character flaws categorized by the authors as salient defects frequently do find mates even upon due disclosure of such defects, it is quite evident that, even in our era, as least some women find males of flawed character to be acceptable marriage partners.[27]

Bleich provides no evidence of women frequently consenting to marry men who disclose the salient defects of Kiddushei ta‘ut I. Nevertheless, he maintains that his postulated existence of women willing to marry such misfits bars voiding the marriage in cases of seriously defective husbands. In Bleich’s own words, “The defects described [in Kiddushei ta‘ut I], even if present before the marriage, simply do not render the marriage void­able.[28] After his rejection of a salient defect as grounds for Kiddushei ta‘ut I, Bleich states that tav lemetav undermines Kiddushei ta‘ut III for similar reasons: as a result of an overriding desire not to remain single, a woman may knowingly accept her “distasteful,” subordinate status of servitude in halakhic marriage.[29] Thus, a woman’s claim that her marriage is void because she did not consent to sexual servitude to an abusive husband cannot be credited by the beit din.

The concept of tav lemetav, Bleich says, is an immutable halakhic prin­ciple applicable to women. In support of this approach, he quotes Rabbi J.B. Soloveitchik:

Let us take for instance the hazakahtav le-meitav tan du me-le-meitav armelu. This has absolutely nothing to do with the social and political status of the woman in antiquity. The hazakah is not based upon sociological factors. It is a pasuk in Bereishit, “And thy desire shall be to thy husband” (Genesis 3:16). It is a metaphysical curse rooted in the feminine personality. … And this will never change. It is not a psy­chological fact; it is an existential fact. … An old spinster’s life is much more tragic than the life of an old bachelor. This was true in antiquity; it is still true. … To say that tav le-meitav tan du me-le-meitav armelu was due to the inferior political or social status of women at the time is simply misinterpreting the hazakah. … She was burdened with it by the Almighty after she committed the first sin.[30]

This, then, is what Bleich and the BDA present as the halakhic paradigm of women, presumptively desperate to marry and willing to accept gravely defective grooms who acquire unilateral control over their wives.[31] As a consequence of this paradigm, every agunah’s veracity is under suspicion when she testifies that she would not knowingly have consented to marry an abusive man. Each might be one of those whom Bleich and the BDA say would knowingly consent to marry repugnant men rather than remain single. The upshot of this interpretation of tav lemetav and of women’s attitude toward marriage is almost totally to foreclose a woman’s ability to exit a marriage on the grounds of kiddushei ta‘ut.[32]

     (b) Marriage as a Partnership

By contrast, I argue that marriage is a sanctified partnership, a contract bet­­ween equals.[25] Some partnerships will be more successful than others with regard to mutual love, respect and support. But neither party may abuse the other and retain the right to bind the spouse in a dead mar­riage. I reject the idea that brides beneath the huppah (mar­riage canopy) know­ing­ly agree to a one-sided shi‘abud or kinyan, under whose terms the hus­band obtains a non-reciprocal authority over his wife’s sexual freedom.[26]

My Principles and Procedures publications took the view that tav lemetav is an outmoded view of today’s women, who choose marriage when it is an attractive option, not because of a compulsive desire to marry.  Contem­porary women do not prefer marriage to minimally qualified men to remaining single. They can support themselves economically; they can travel fairly safely alone; and they can have intimate relationships with men outside of marriage without fearing the birth of a child out of wed­lock.[33] While society at large is still uneasy about women who bear children without benefit of marriage, even this phenomenon is far from unheard of.[34] The large number of never-married or divorced women indi­cates that marriage to minimally qualified males, for them, is not preferable to being single. The many agunot, often women with large families, who struggle alone rather than tolerate abusive husbands is dra­matic evidence that tav lemetav is an inaccurate concept of the nature of women in 1999. When a man turns out to be an abusive husband, the wife can credibly claim kiddushei ta‘ut. She never would have consented to a marriage had she known how defective her groom was or that exiting the marriage is impossible.

Post-talmudic sources buttress the argument that tav lemetav is not a barrier to kid­dushei ta‘ut when women find themselves chained to defective husbands. The statements of Maimonides and Solomon ben Adret legi­timize a woman’s claim that her consent to marriage was conditioned by her reliance on the rabbis’ ability to free her from a repugnant husband. The rulings of the Or Zarua, Rabbi Yitzchok Elchanan Spektor and Rabbi Moshe Feinstein set the precedent that tav lemetav may be overruled when a salient defect makes the marriage intolerable.[35]

TAV LEMETAV IN THE TALMUD

This section sets forth a more fundamental challenge to our opponents’ harsh interpretation of tav lemetav. Not only is it outmoded today, but even in the Talmud itself, reconsidered without later, more pat­riarchal accre­tions, tav lemetav was not an unyielding legal presumption, and thus it need not present an insuperable halakhic barrier to rulings of kiddushei ta‘ut. Rather, tav lemetav, in the five talmudic contexts in which it appears, was cited as a familiar maxim that reflected on, but did not deter­mine, the Talmud’s decisions in various cases.

Bava kamma

The most widely cited passage in which tav lemetav is invoked begins on Bava kamma 110b.

A childless widow who is bound to one afflicted with a repulsive skin disease [shehin]: shouldn’t she be released without halitzah?[36] For surely she would not have betrothed herself with this understanding. There [i.e., in this case], we can bear witness [hatam anan sahadei] that she was satisfied [demenah niha lah] with a minimum [kol dehu, a minimally accep­table man]. As Resh Lakish said, tav lemetav tan du milemetav armelu.

The question at hand is whether a childless widow (yevamah) might avoid the need for halitzah, release from marriage to her brother-in-law, in a case where he was a mukeh shehin, a sufferer of a repulsive skin disease. She surely had had no expectation or intention, when she married, of being forced into levirate marriage with one so afflicted, and so her original mar­riage, she claimed, was a mistake and void. The Talmud rejects this claim, declaring: “There, we can bear witness that she was satisfied with a mini­mum.” What, according to the Talmud, is the minimum that would suffice for her to agree to the marriage? And what is the import of the saying tav lemetav, which immediately follows?

Rashi, in his comment on the words menah niha lah, explains:

“She was satisfied” to be betrothed to the first, who was healthy [shalem], with the risk that if he should die [childless from her], she would end up in a levirate relationship with his [afflicted] brother.

Thus, according to Rashi, the court is claiming to bear witness (or to presume) that the woman wholeheartedly accepted marriage to her healthy husband, despite the encumbrance of an indirect flaw: his diseased bro­ther. In this case, a healthy husband was her minimum requirement, and since she got what she bargained for, she was not deceived. The marriage was binding, and halitzah would be necessary to release her from marrying her brother-in-law. If, however, the groom himself, unbeknownst to the bride, had been a mukeh shehin, the marriage would be voidable, since a dis­eased groom would not qualify as minimally acceptable. According to Rashi, he would be less than the kol dehu that the woman would presum­ably have demanded before she agreed to marriage.[37]

Rashi’s approach significantly restricts the type of defect the beit din is presuming to be acceptable to the woman.[38] According to Rashi, the mini­mum a beit din can presume to be acceptable to a bride is that the groom himself must be healthy, shalem. If the groom has a serious hidden defect, a beit din cannot presume that the bride would have agreed to wed had she been aware of his defect. Thus, when such a defect comes to light, the wife can claim “Kiddushei ta‘ut. I would not have agreed to this marriage had I known of my husband’s defect. I thought he was shalem, healthy.”

Of the places where tav lemetav appears in the Babylonian Talmud, this Bava kamma passage is the most widely cited in halakhic literature, pro­bab­­ly because it is the only one of the five passages in which the tal­mudic concept anan sahadei (we bear witness, we presume) appears. The use of anan sahadei here is an example of the talmudic view that when “words in the heart,[39] a person’s unspoken intentions, are relevant to decid­ing a legal matter, the court has the authority to make presumptions about those intentions and decide the case accordingly. In our case, the court is pre­sum­ing that the woman did intend to commit herself to the marriage with her healthy husband, despite the liability of a diseased brother. Thus, her claim that her marriage is void because she did not at the outset accept the risk of requiring halitzah from her brother-in-law is rejected by the court.

It is important to note how narrow is the scope of this anan sahadei, how limited is the claim with regard to the beit din’s power to presume a woman’s thoughts in approaching marriage. Bava kamma states: Hatam anan sahadei there, in this particular case of a healthy husband with a sickly brother, we, the court, bear witness; we may surmise that the woman intended to marry even with the levirate risk.

It is also noteworthy that the judgment is phrased in the singular: menah niha lah, “she is satisfied.” This singular form is consistent with my argu­ment that the Talmud in Bava kamma is not making a broad generalization about women’s attitudes toward all loathsome marriages, but rather a judgment about a woman in this specific set of circumstances.

 It is only after the Talmud makes a determination that the woman willingly married her healthy groom that the Talmud rounds off the text by quoting Resh Lakish’s aphorism, tav lemetav. First the facts of the case are weighed, the healthy groom being a crucial element of the case, and then a decision is reached, relying on the anan sahadei legal principle to make authoritative presumptions about the woman’s attitude at the time of her wedding. Facts and a limited presumption about intent decide this case, not tav lemetav, which is no more than an adage that reflects on but does not determine the court’s decision.

It should further be noted that the risk the court presumes the woman to have accepted is quite limited. In order for her to be faced with halitzah, both her diseased brother-in-law and she herself must outlive her healthy husband, and she must be childless when her husband predeceases her. Note also that the Talmud is only contemplating the need for halitzah, not forcing her to marry this man who, unfortunately, is repulsively ill.[40] Thus, her principal risk is that after halitzah, she will be disqualified from mar­rying a kohen, a descendant of the Jewish priestly families, whose men are forbidden to marry women who have been divorced or released from levirate marriage. We can also speculate that if the widow in question had been more self-sufficient (as many contemporary women are) and for­midable when she first married, even the slim risk regarding the brother-in-law might have led her to reject the prospective healthy groom. It is certainly a long stretch from a woman accepting this narrow risk in mar­riage to the broad operating presumption of Rabbi Bleich and the BDA that all women would willingly accept grooms who are defective rather than remain single.

Yevamot

The second occurrence of tav lemetav is in Yevamot 118b. The passage raises the question of whether a Get zikui, a Get that is transferred to the wife through a receiving agent appointed by the court,[41] can take effect immediately, before actual delivery to the wife, in cases where there is discord, ketatah, between husband and wife.

One who issues a Get zikui when there is discord [ketatah] between them. What is it? Since there is discord, is it a benefit to her, or perhaps physical comforts are preferable to her [niha lah]? Come and learn [ta shema]: Resh Lakish said, tav lemetav tan du milemetav armelu.

Like Bava kamma, Yevamot discusses the woman in the singular. Which is preferable to her: to exit this bad marriage via an “instant” Get or to retain the physical comforts (niha gufa) of marriage.[42] But unlike Bava Kamma, the Talmud in Yevamot makes no anan sahadei presumption about whether the woman would rather exit the troubled marriage or stay. The court is unable reliably to “read” the words or intent in the woman’s heart with regard to enduring or exiting the troubled marriage.

Why is Bava kamma able to make a ruling about the woman’s intentions regarding the marriage, while Yevamot is not? I suggest that it is because enough key facts are available for a ruling in the Bava kamma case, where­as in Yevamot they are not. In Bava kamma, the widow herself enters a plea, and the extent of the undesirable aspect of the marriage is known and can be evaluated. In Yevamot’s Get zikui case, on the other hand, the woman is obviously absent, since the Talmud is considering the activation of a Get without her being available to receive it. Since the court cannot de­termine how insufferable the marriage is in her absence, it cannot make a presumption about whether this woman would prefer staying in her troubled marriage to exiting it,[43] and the case is left unresolved. No anan saha­dei statement, no decisive, legally binding determination, is recorded in Yevamot.[44] Tav lemetav is cited, but, in the absence of information about how badly troubled the marriage is and of the woman’s individual perspec­tive, it cannot produce a decision. This stands in direct contra­diction to a broad, unqualified interpretation of tav lemetav as a binding presumption that women prefer a miserable marriage to being single!

In these two talmudic contexts, then, tav lemetav is not a controlling, deter­ministic legal rule which, without reference to the particulars of a case, prejudges against almost every woman seeking to exit an intolerable marriage. In Bava Kamma, tav lemetav is merely a familiar adage quoted after the case is decided, while in Yevamot it is insufficient to yield a deci­sion about a woman’s preference regarding her marriage.

The next few lines of Yevamot provide further information about the limits of what tav lemetav may imply about women. Immediately after tav lemetav is cited, Abaye is quoted as saying that a woman feels her social status is improved even with a husband who is as small as an ant.[45] Rav Papa says that a woman will be proud even of a groom who has a low profession or is just a simple man. Rav Ashi says that a woman accepts a husband even if his family is not the best or she gets practically no economic sustenance from him. An anonymous tanna (mishnaic sage) adds that “they” are all promiscuous and cast the responsibility on their husbands (for any pregnancy, Rashi explains [46]. These sayings can be read as commentary on the phrase tav lemetav, suggesting what shortcomings a woman will accept rather than remain single: a small man, meaning that he is of low social status or perhaps that he is physically small; a man who has a menial job or is lowborn; or a man who barely provides financially. As to the question of why women consent to marrying such minimal specimens, the anonymous tanna, as explained by Rashi, supplies the answer: to camouflage pregnancies that might result from sexual relations with other men.

In none of the contexts discussed above, nor in those discussed below, does the Talmud associate tav lemetav with a presumption that a woman would knowingly consent to marry or prefer to remain with a man whose defects are as grave as beating, tormenting or abandoning his wife and children.[47] There is therefore no clear precedent in the Talmud [48] that obliges or, we may say, empowers contemporary batei din to presume that today’s agunot would knowingly have consented to marry or be bound to dangerously defective men. Furthermore, we have seen that the Talmud presumes a woman’s intentions only in a very specific set of circumstances and speaks in the singular about the woman. On this basis, we may argue that contemporary batei din should not make sweeping generalizations about women, but should take into account specific factors that influence women’s attitude toward marriage. In today’s world, for example, factors such as a women’s economic and social status in the community and the existence of modern birth control reduce the likelihood that a woman would knowingly marry a minimally acceptable man, let alone a seriously deficient man.

Kiddushin and Ketubbot

The three remaining places in which tav lemetav appears in the Talmud are Kiddushin 7a and 41a and Ketubbot 75a. None of these cases even remotely suggests that women willingly accept marriage to odious men.[49] As in Bava kamma and Yevamot, tav lemetav appears in these passages as an aphorism, and the three cases in point involve grooms with defects that are limited or hardly worthy of being called defects at all. They certainly do not involve cruel and abusive treatment of their wives.

Kiddushin 7a deals with the validity of a marriage that is established by means of the wife giving the husband a gift, where the accepted practice would be the reverse.

Rava asked, What if [a woman said]: Here is a maneh, and I will be betrothed to you. Mar Zutra said in the name of Rav, she is betrothed. ... Here we are dealing with an important man [adam hashuv] … a woman is satisfied [niha lah] with a minimum. As Resh Lakish [said], tav lemetav tan du milemetav armelu.

This case of tav lemetav involves a ruling upholding the validity of a marriage where the “defect” is that the bride was not insistent about receiving the customary symbolic [50] material token, shaveh perutah, in return for agreeing to the marriage – hardly a precedent for holding that women will knowingly consent to marrying gravely defective men. In addition, the Talmud explains why it is acceptable to her to forego the token in this case. The reason is that the groom is a particularly dis­tinguished man, an adam hashuv. Given a groom of unusually high social stature, a woman is satisfied to be wed even without receiving the sym­bolic token.

Note again that there is no anan sahadei statement in this case, which, had it appeared, might have added some further element to what batei din are competent to presume about a woman’s attitude toward marriage. In this case there is no need for the beit din to speculate or presume about whether the bride was consenting to a marriage with the “defect” that she was deprived of the perutah, for there is hard evidence about her attitude at the time of the wedding. It is the bride’s own voluntary, overt action and explicit words, in offering to give the man money and be married to him, that create the “defect” of her not receiving the perutah, incontrovertibly demonstrating her consent.

Thus, it is the bride’s express willingness and the additional explanation about the groom’s stature that justify the Talmud’s decision that it is satisfactory to her to marry despite the perutah “defect.” Only after this information is weighed and a decision upholding the marriage recorded does the Talmud invoke tav lemetav, seemingly as an afterthought. It seems unreasonable to suggest that this instance of tav lemetav represents a generalized, binding halakhic presumption. Furthermore, it seems unrea­sonable to rely on this case, where the bride explicitly waives the perutah, as a precedent for today’s rabbis to be empowered to presume women’s informed consent to self-destructive marriages, when these unfortunate women neither said nor did anything to indicate such consent.

Kiddushin 41a allows that a woman, in contrast to a man, may accept betrothal by agency:

A man may not betroth a woman before he sees her, lest he [sub­sequently] see something repulsive in her and she become loathsome to him. … But there is no prohibition in this case [of a woman accepting betrothal by agency], as Resh Lakish said, tav lemetav tan du milemetav armelu.

What the Talmud is saying is that a woman, unlike a man, is not likely to end up despising her husband because of some cosmetic imperfection that she might have seen upon meeting him in person. Again, this application of tav lemetav poses no difficulties for limiting its scope as a presumption. It suggests only that women are less likely to reject men based on visual impressions than vice versa – a far cry from presuming that women will knowingly marry men who are dangerously abusive. Interestingly, Rashi characterizes tav lemetav in this context and in Ketubbot 75a as a colloquial saying of women, not as a controlling halakhic presumption.[51]

Furthermore, the woman who accepts betrothal by agency, like the woman in Kiddushin who forgoes the perutah, is overtly communicating her acceptance of this “defect” at the time of the creation of the marriage. She is willing to take the risk of being married without first seeing her husband. The Talmud is not speculating or making an anan sahadei presumption about whether this woman or women in general would accept some intolerable concealed risk. Rather, it is saying that if a woman ex­plicit­ly accepts betrothal by agency, it is binding. This case in no way presents tav lemetav as implying that batei din must presume that women prefer a lifetime of pain with an abusive husband to being single. All the woman is accepting here is the possibility that her husband’s appearance will not be aesthetically pleasing.

The final mention of tav lemetav occurs in Ketubbot 75a,[52] which deals with a case where a husband nullifies a vow he had taken of which the bride was unaware at the time of the marriage. This case of tav lemetav also in no way suggests a broad presumption that women will knowingly marry brutal husbands. It concerns the validity of a woman’s consent to a marriage when her husband, who may have a predilection for taking vows, had been bound at the time by some vow that disturbs her and which he has agreed to nullify. As in the other cases, the Talmud speaks in the singular about the woman. She (ihi) is satisfied with a minimum, the minimum being marriage to a man who was once encumbered with a vow and may be a “vowing type.[53]

The Outer Limits

Four kinds of defects that a bride might overlook and still consent to mar­riage are associated with the maxim tav lemetav in the talmudic texts we have reviewed: (1) the slim risk of levirate ties requiring halitzah from a brother-in-law with a repulsive physical condition; (2) unimpressive phy­sical, social or economic status; (3) failure to give the bride the token perutah; and (4) a nullified vow and, perhaps, a propensity to make vows. Grave pre-existing personality disorders, however, go beyond these outer limits of tav lemetav.[54] When a wife discovers them in her husband, tav lemetav should not be regarded as a barrier preventing her from claiming that she would have withheld her consent to the marriage had she known of these defects.

Text must be read in context. Tav lemetav read in its original talmudic contexts is not a comprehensive, immutable halakhic presumption (haza­kah) that defeats almost all claims of kiddushei ta‘ut; it is, rather, no more than a maxim, perhaps a colloquialism used by women. Furthermore, this maxim is associated with women accepting relatively limited or benign defects in their grooms,[55] the most serious being the slim possibility that the woman may have to undergo the halitzah ceremony in order to be free.

This limiting interpretation of the talmudic texts and contexts is re­flected in the later halakhic sources discussed above. It is precisely the position espoused by Rabbi Yitzchok Elchanan Spektor, who ruled that tav lemetav does not bar a claim of kiddushei ta‘ut in cases of pre-existing defects in the groom that are serious enough to warrant kefiyah, physical coercion of the Get. Rabbi Moshe Feinstein’s reliance on kiddushei ta‘ut to free agunot put into practice Rabbi Spektor’s general rule limiting the appli­cability of tav lemetav. Moreover, Solomon ben Adret’s state­ment that women would not consent to marriages that may turn out to be traps with no exit is presaged in the Get zikui case, where the Talmud leaves open the possibility that a woman may prefer exiting a bad marriage to staying in it.

I have argued that when women discover that their husbands are sexual molesters, wife beaters and the like, these women can claim kiddushei ta‘ut: they would never knowingly have consented to be bound in marriage to such defective husbands. Contrary to our critics, tav lemetav does not dis­credit such pleadings by women in the beit din. It was never meant to be a sweeping presumption that forces or empowers batei din to assume that all women are willing to accept intolerable faults in men rather than remain single. If the husband’s flaw, whether pre-existing or post-dating the mar­riage, is intolerable, so grave as to warrant physical coercion, tav lemetav is inapplicable. The beit din can credit a woman’s testimony that the minimum she required for her consent to marrying her groom was that he be normal and mentally healthy and that she have a way out should he torment her. We do not presume, as Rabbi Bleich and the BDA do, that at the time that a disastrous marriage was created, the bride was so desperate to be wed that she would knowingly have consented to a marriage of end­less torment. Kiddushei ta‘ut occurred under the huppah, and the marriage is void ab initio.  

Further Support in the Talmud for Restricting Tav lemetav

The preceding discussion makes the case that tav lemetav was applied nar­rowly even in the Talmud and does not, therefore, constitute a barrier to a woman’s claim that her marriage was based on a mistake and should be voided. A careful reading of Mishnah Ketubbot 7:1–5, which lists numerous grounds for physical coercion of the husband to give a Get, demonstrates the wide range of circumstances in which Rabbi Yitzchok Elchanan Spektor’s suspension of tav lemetav in such cases would apply, making rulings of kiddushei ta‘ut possible.

The Mishnah lists a series of cruel and unreasonable restrictions or humi­liations that a husband might impose on his wife [56] but which then oblige him to free her with a Get if he does not cease mistreating her. These include barring the wife from deriving benefit from him,[57] from tasting certain foods, from using certain beauty adornments, from visiting her father, or from visiting others to pay condolence calls or to socialize; or demanding that she behave in a humiliating fashion either publicly or privately. In cases such as these, the Mishnah declares: yotzi veyiten ketub­bah, the husband should release his wife with a Get and pay her the value of her ketubbah.

 Rashi [58] interprets this declaration of yotzi veyiten ketubbah as an author­ization of kefiyah, the use of physical coercion to secure a Get from the husband. The medieval commentators known as the Tosafists, discussing Rashi’s interpretation, raise the question of why these cases involving cruelty are not grouped with the cases of repulsive physical maladies listed in Ketubbot 7:10, which, should they befall the husband, warrant coercing him to give a Get. The Tosafists point out that a husband who suffers from a repulsive disease is an innocent victim of circumstance, while one who imposes intolerable restrictions on his wife is personally responsible for his wife’s suffering. It follows, a fortiori, that if a husband who unfortunately falls victim to a repulsive disease is coerced to give a Get, a husband who deliberately torments his wife with cruel restrictions must do the same.

These mishnahs and the comments on them by Rashi and the Tosafists are remarkable, because they describe behaviors that secular courts and mental health professionals have only recently recognized as classic forms of psychological wife abuse. Abusive husbands typically attempt to domi­nate and debilitate their wives by isolating them from friends and family, humiliating them in public and in private, and controlling household funds.[59] All such behaviors warrant coercing a Get from the husband, declare Rashi and the Tosafists.

The view taken by Rashi and the Tosafists provides major support for the liberation of agunot. As we have seen, Rabbi Yitzchok Elchanan Spektor declares that the presumption tav lemetav is inapplicable in cases where coercion of the Get is in order. This allows a claim of kiddushei ta‘ut when defects of the kind described in the preceding paragraph come to light. The finding would unfold as follows. It is demonstrated to the beit din that the husband has psychologically or physically abused or abandoned his wife, indicating that he has a serious personality disorder that was undetected at the time of the marriage. The agunah pleads kiddushei ta‘ut, I never would have consented to marry him had I known of his grave psychological defects. Applying the standard that there is no presumption of tav lemetav in cases where a defect in the husband warrants coercion of the Get, the beit din accepts her plea: there was no informed consent at the time of the wedding. The marriage is void, and the agunah is released. 

CONCLUSION

In this article, I have set forth three forms of kiddushei ta‘ut, a woman’s claim that she would have preferred to remain single had she known of her groom’s defects or the impossibility of exiting an intolerable marriage. I have also described various halakhic sources which, over the centuries, narrowed the scope of the talmudic presumption tav lemetav tan du mi lemetav armelu, invoked by rabbinic judges as a barrier to the claim of kiddushei ta‘ut. This paper argues further that even in the Talmud itself, tav lemetav was not a rigid legal rule used to defeat almost any claim of kid­dushei ta‘ut. Rather, from the beginning it was a much narrower maxim and did not have the status of an immutable presumption that women would knowingly consent to marry cruel and violent men rather than remain single.

I have outlined the rather benign outer limits of what types of defects the Talmud suggests that a woman might overlook and still marry. That a conclusive statement prefaced by anan sahadei appears only in the halitzah case, where a healthy husband is essential to a binding marriage, sets a precedent for batei din to presume that the minimum women accept in marriage is a healthy (shalem) husband. The importance of specific information about the woman in question – for example, her economic and social status – is reflected in the Yevamot case, where the absence of the woman forestalled a judgement. Tav lemetav is not halakhically strong enough in the Talmud to predetermine the woman’s preference with regard to exiting or remaining in a marriage.

Contemporary batei din should consider that neither the Talmud nor contemporary reality justifies a presumption that women accept marriage to misfits rather than remain single. This will allow them to stop operating with presumptions that view women as compulsively driven to marry even severely defective men and willing to accept marriages in which men acquire unilateral, indissoluble control over their wives. Once this hap­pens, the way will have been cleared for equitable and compassionate beit din rulings that free agunot and restore dignity to Orthodox Jewish family law.

Notes:

[1] An agunah (pl. agunot), in Jewish law, is a woman unable to remarry because she is locked into a dead marriage from which her husband cannot release her or refuses to do so. In earlier periods, most agunot were women whose husbands had disappeared in circumstances under which they could not officially be declared dead – for example, at sea or in a war. Today, most of them are women whose hus­bands are holding them prisoner by stubbornly refusing to issue a Get, a bill of divorce, which, in Jewish law, is the sole prerogative of the husband.

[2] Much of the debate about the Rackman/Morgenstern beit din has taken place in the United States, where the beit din has been operating. However, two conferences on the subject have been held in Israel, both of them focusing on the halakhic validity of the new beit din. The first was convened in July 1998 by Sharon Shenhav under the auspices of the International Council of Jewish Women and the Jewish Women’s Human Rights Watch in Jerusalem. The second, entitled “Can Marriage, Freedom and Equality Co-Exist?” was held on June 21–22, 1999, at Bar Ilan University. The debate has also spread to England, in the wake of a case of a woman who, after being freed by the Rackman/Morgenstern beit din in New York, remarried in England. In reaction to this case, Chief Rabbi Jonathan Sacks and other Orthodox rabbis in England declared that Rabbi Morgenstern’s annulments would not be recognized by other batei din.

[3] AGUNAH, Inc., was founded approximately twelve years ago. The organ­ization’s  mission was twofold: first, to counsel and advocate for individual agunot caught in the beit din system, and second, to urge systemic change through the reform of batei din and the adoption of all available halakhic remedies for the relief of agunot. Over the years, AGUNAH, Inc., has advised hundreds of agunot in the United States and around the world. Through writing, speaking and public demonstrations, AGUNAH, Inc., roused the conscience of the Orthodox Jewish community. The three founding directors of AGUNAH, Inc., were Rivka Haut, Susan Alter and me. Today, my co-directors and comrades-in-arms at AGUNAH, Inc., are Honey Rackman, Henni Goldstein, Estelle Freilich and Elona Lazaroff..

[4] Throughout the 1990s, Jewish and secular media in the United States carried articles too numerous to mention documenting these aspects of the agunah situation. Jewish media like the Jewish Press, the New York Jewish Week and the Forward covered the issue frequently. Secular media like the New York Times, New York Magazine, and ABC News also picked up the issue from time to time.

[5] Throughout this paper, the rabbis to whom I refer are exclusively Orthodox, as are the batei din. This is because rabbis in the other denominations have solved the agunah problem within their communities. Most of AGUNAH, Inc.’s work involves American rabbis and batei din, but Israeli rabbis have been equally resistant to acknowledging the dimensions and gravity of the agunah problem. European women have also turned to AGUNAH, Inc., because of the failure of Orthodox rabbis in their countries to face up to the injustices being done to agunot.

[6] Outside of Israel, there are agunot only in the Orthodox community, because, as indicated in the previous note, the Conservative movement has developed halakhic solutions to the agunah problem, while the Reform movement regards civil divorce as the termination of the marriage. In Israel, however, because of the exclusive jurisdiction of the Orthodox rabbinate and its batei din over Jewish marriage and divorce, all Jewish women, including Conservative, Reform and unaffiliated, are at risk of becoming agunot.

[7] At the Second International Conference on Feminism and Orthodoxy held in New York in February 1998, Rabbi Saul Berman asked the members of an audience of about 2,000 people to raise their hands if they knew an agunah. Somewhere between a third and a half of the people in the audience raised their hands. At the July 1998 seminar in Jerusalem (see note 2), Rabbi Eli Ben-Dahan of the Jerusalem beit din stated that about 5% of the 8,500 new divorce cases per year in Israel become long-term Get problems. This figure, which represents 425 new agunot per year in Israel, ignored the large number of women who give in to their husbands’ extortionate demands for payment in order to receive a Get in a reasonable amount of time. Thus, 425 new problem cases per year understates the dimensions of the agunah problem in Israel.

[8] Some of the irregularities we reported were: dayanim protecting husbands who were child molesters, even giving them unsupervised overnight visitation with their children; dayanim sitting on cases involving their relatives and financial supporters; batei din failing to issue summonses and contempt citations in situations that called for them; wealthy people influencing beit din deliberations; and the loss of documents and records by batei din.

[9] Public lecture on April 25, 1999, at the Young Israel synagogue of Flatbush in Brooklyn, N.Y. Rabbi Willig is a senior member of the Beth Din of America.

[10] Rabbi Rackman is a well-known and widely respected Orthodox rabbi and scholar.  He has had a distinguished career as chancellor and president of Bar Ilan University, president of the Rabbinical Council of America, founder of the Beth Din of America and rabbi of the Fifth Avenue Synagogue in New York City.  Rabbi Morgenstern is an accountant by profession. Ordained by Rabbi Moshe Feinstein, Morgenstern has far-ranging knowledge of the rabbinical sources dealing with aginut. In April 1999, Rabbi Rackman set up a new Beit din le‘inyenei agunot. Rabbi Morgenstern continued to operate the Beit din live‘ayot aginut.

[11] “Halachic Principles and Procedures for Freeing Agunot” (henceforth: “Prin­ciples and Procedures”) was published by AGUNAH, Inc., in cooperation with Rab­bi Emanuel Rackman in the Jewish Week, August 28, 1998, pp. 26–27.

[12] Rabbi Isaac ben Moses of Vienna, Or Zarua (Jitomir 5662/1862; lithograph copy New York: M.P. Press, n.d.), I, § 761.

[13] Rabbi Yitchok Elchanan Spektor, Ein Yitchok (Vilna 1889–1895; photo offset edition New York: Haim u’Vrachah, 1964–1965), I, 24:41.

[14] See Rabbi Moshe Feinstein, Sefer Igrot Mosheh (New York: Noble Press Corp., 1961), Even Ha‘Ezer, I:79.

[15] Without exception, the agunot we deal with have described these types of dis­orders in their recalcitrant husbands.

[16] Critics of Kiddushei ta‘ut I have argued that the personality disorder may have set in only after the marriage, in which case the bride was not deceived and the marriage is not void. But virtually all the agunot we deal with say their husband’s abusive and aberrant behavior began within days of the wedding. Furthermore, documentation by mental health professionals indicates that these kinds of personality disorders and behavior patterns are traceable to earlier formative years, but they are undetectable by brides and others at the time of the wedding.

[17] See BT Bava batra 48b, Tosafot beginning “Kaddish bevi’ah …” for a discussion of the concept gufah kanui. The essence of this kinyan type of marriage is that the husband acquires exclusive rights to his wife’s sexuality, although he is not pledged to be sexually faithful to her. See below for further discussion of kinyan marriage.

In Dinei Israel (Tel Aviv University Law School, 1998), Professor Meir Feldblum writes that “in light of women’s efforts in our days to achieve equality in all spheres of life, there is a presumption, even a categorical presumption (umdena demukhah), that many women if informed would in no way agree to the kinyan/acquisition nature of kiddushin/marriage.” Feldblum also outlines derekh kiddushin, an alter­native to kinyan marriage.

[18] The parallels between kinyan (acquisition) of a slave and of a wife are instruc­tive. A master obtains title to a slave by kinyan, and the slave requires a Get when freed from slavery. If a woman understands and knowingly accepts that her mar­riage is a transaction in which she is being acquired by her husband, there is a kinyan at marriage, and she requires a Get to obtain her freedom. But if she rejects the idea that she is being acquired at marriage, there is no kinyan, and no Get should be required to free the woman.

[19] The rabbis’ initial preoccupation with the technicality of where “Principles and Procedures” was published, rather than with the substance of the article, was remi­niscent of their preoccupation with the technicality of whether suffering women are agunot or mesuravot Get, rather than with the injustices being per­petrated against them.

[20] Rabbi Rackman’s response was mailed to the RCA membership. My response, initially entitled “AGUNAH, Inc., Replies to the Beth Din of America,” was sent to Rabbi Michael Broyde and circulated throughout the New York Jewish com­munity. Retitled as “Halachic Principles and Procedures for Freeing Agunot, II: A Response to the Beth Din of America” (henceforth: “Principles and Proce­dures II”), it was also distributed at the conference held in June 1999 at Bar Ilan University (see above, note 2).

[21] J.D. Bleich, “Kiddushei ta‘ut: Annulment as a Solution to the Aguna Problem,” Tradition, 33/1 (Fall 1998) (henceforth: Bleich).

  [22] Ibid., p. 114.

  [23] Page 1 of the BDA letter of October 27, 1998 (henceforth: BDA letter).

  [24] Bleich, p. 114.

  [25] “Principles and Procedures II,” p. 10. Note that the Babylonian Talmud, Tractate Kiddushin, makes the transition from referring to marriage as kinyan, in the early mishnahs, to using the term kiddushin, sanctification. The shift in lan­guage is welcome, though the distribution of power remains unbalanced in favor of the husband. For further discussion of this transition see Judith Hauptman, Rereading the Rabbis: A Woman’s Voice (Colorado: Westview Press, 1998), p. 69.

  [26] To be sure, many brides know that the halakhah views extramarital sex by a wife, but not by a husband, as adultery, and that biblical law allows a man to have more than one wife. What I have argued is that, notwithstanding this traditional double standard, brides today would not knowingly consent to such one-sided sexual fidelity in marriage, and therefore they are not giving informed consent to the Bleich/BDA shi‘abud/kinyan form of marriage. Women today, especially in light of potentially fatal sexually transmitted diseases, demand sexual fidelity from their husbands as an essential element of the marriage. The BDA’s letter does not require sexual fidelity by the husband as part of kinyan marriage. I questioned Rabbi Michael Broyde about this at the February 1999 EDAH conference in New York City, and he confirmed that the BDA was “very careful” not to include the husband’s sexual fidelity as essential to their concept of kinyan marriage.

 [27] The BDA letter (page 3) formulates this idea as follows: “Many persons marry even though they are well aware of their spouse’s emotional and psychological problems; and many women remain in marriages even after aberrant behavior of their husbands becomes manifest. Therefore, even if a woman really did not know about her husband’s psychological problem (assuming that one can be demon­strated) before the marriage, there is no categorical assumption that she would not have married him had she been aware of the problem.”

  [28] Bleich, pp. 98, 101 and 108. Bleich repeatedly cites Rabbi Y.E. Henkin in sup­port of this rejection of salient defects as grounds for voiding a marriage. While embracing Henkin’s position, Bleich disregards the view of Rashi, which lends support to the position that salient pre-existing defects in the groom are grounds for a declaration of kiddushei ta‘ut. See note 38 for further comment on Bleich’s preference for interpretations that imprison rather than liberate agunot.

  [29] Ibid., p. 115.

  [30] See ibid., note 28, for a fuller quote.

  [31] Ibid., p. 115. The BDA’s formulation of women’s willingness to accept the risk of entrapment is found on page 2 of its letter: “Women continue to marry, fully aware that a woman may on occasion be trapped in a bad marriage. ... Were Jewish women not interested in strong Jewish marriages – which despite the plight of agunah continue to happen with considerable frequency – they would categorically refuse to be married in a Jewish ceremony.

  [32] Page 2 of the BDA letter notes that Rabbi Moshe Feinstein applied the concept of kiddushei ta‘ut in cases of homosexuality, insanity and impotence and con­sidered doing so in cases of hidden apostasy. AGUNAH, Inc., referred to the BDA an agunah whose husband was a self-avowed homosexual and who had been convicted and jailed for 32 years for sexually abusing the couple’s children. The BDA first suggested that in return for the Get, either the agunah or the BDA write a letter to help the husband Get early parole. After the agunah rejected this proposal and AGUNAH, Inc., registered its shock, the BDA refocused on the possibility of kiddushei ta‘ut and demanded that the agunah produce evidence that the husband was a homosexual before they married. The BDA suggested that she try to Get signed affidavits from her husband’s former male lovers. Finally, the BDA asked for an affidavit that the woman had left her husband immediately upon dis­covering that he was homosexual. Had she stayed in the marital home to prepare and plan where to go with her traumatized children, that, according to the BDA’s interpretation of halakhah, would represent her acceptance of her husband’s homo­sexuality and vitiate her claim of kiddushei ta‘ut. Fortunately, this agunah had a brother who had taken her in, allowing her to leave the marital residence immediately. This case resulted in what Rabbi Yona Reiss, current administrator of the BDA, has said is perhaps the only ruling of kiddushei ta‘ut in the history of the BDA, which was founded almost 50 years ago. The agunah returned to Israel, where Israeli government officials refused to recognize the BDA’s ruling of kiddushei ta‘ut and her status as a single woman. Through persistence on the part of AGUNAH, Inc., and expert representation by Sharon Shenhav, Israel’s Chief Rabbinate finally upheld the BDA’s voiding of the marriage. This is one success story for kiddushei ta‘ut, but it is a very narrowly drawn case, and it remains to be seen if this is the beginning of some hope for broader rulings of kiddushei ta‘ut for agunot.

  [33] Bleich, on p. 106, discounts economic, sociological and demographic data that contradict this image of women. The BDA’s abstention from citing Rabbi J.B. Soloveitchik’s statement categorizing tav lemetav as a timeless hazaka leaves open the possibility that the BDA might eventually agree that social, economic and political changes rebut tav lemetav. This would open the way for rebutting the presumption that modern women knowingly marry gravely defective men. But for now the BDA stands with Bleich: In a speech delivered on November 16, 1999, at Manhattan’s Fifth Avenue Synagogue, BDA administrator Rabbi Yona Reiss endorsed Bleich’s article. And to date no one affiliated with the BDA has pub­lished any comments that take exception to any aspect of Bleich’s article.

  [34] The Jewish Week, on June 25, 1999 (p. 23), reviewed a film entitled “And Baby Makes Two,” by Judy Katz and Oren Rudavsky. The film chronicles the experien­ces of members of a support group called “Single Mothers by Choice,” who have chosen to have children without marrying. The majority of the women in the film are Jewish.

  [35] Fuller presentation of my discussion of post-Talmudic sources can be found in the two “Principles and Procedures” pieces. A valuable, detailed discussion of these sources can be found in Ruth Halperin Kaddari, “Tav lemetav tan du milemetav armelu: Women’s Perpetual Marital Preference and Their Construction as Other in Jewish Law,” forthcoming in the series Jewish Legal Writings by Women.

  [36] Biblical law requires a childless widow to marry her deceased husband’s bro­ther, in what is known as levirate marriage. Halitzah is the ceremony required to release the two from this obligation.

  [37] Rashi’s contention that a mukeh shehin is not an acceptable groom is supported by Mishnah Ketubbot 7:10, which states that if a man is mukeh shehin, the court may compel him by means of physical coercion to release his wife with a Get. That is to say, a mukeh shehin is not presumed to be an acceptable husband.

  [38] There are interpretations of this passage which conclude that the kol dehu, the minimum the woman was willing to accept, was the brother-in-law. Thus, the woman and all women are presumed to be willing to marry even such a pitiably defective man as a mukeh shehin, and women today cannot claim that they would never have married a man who turns out to be gravely defective. Bleich presents this line of reasoning at length (pp. 102–108). But the direction one takes in halakhic development is often a matter of choice. Rabbis Feinstein and Spektor, as cited above, are outstanding examples of halakhists who accepted Rashi’s liberat­ing interpretation of kol dehu. Why not, therefore, choose Rashi’s interpretation, as Rabbis Feinstein and Spektor did? It accomplishes the goal of freeing innocent women from pain and suffering, restores justice and compassion to Jewish family law and fulfills the Jewish values embodied in the biblical phrases “justice, justice you shall pursue”; “and you shall do what is right and good”; “all the paths of the Torah are peace”; and “you shall live by them.”

  [39] Devarim shebalev, literally “words in the heart.” See the Entziklopediah talmudit, pp. 70–71, for a discussion of anan sahadei.

  [40] We may assume that the rabbis would have compelled the diceased brother-in-law to cooperate with the halitzah ceremony, since, as we saw in note 37, mukeh shehin is one of the conditions regarding which the Mishnah declares unequivocally that a Get may be coerced.

  [41] The question is whether the Get takes effect immediately upon delivery to the court-appointed receiving agent, even though a Get ordinarily must be handed to the wife or an agent designated by her. In this case, where there is discord between the marriage partners, the Talmud is asking whether a presumption can be made that the wife wants out of the marriage and that, therefore, receipt by the court-appointed agent constitutes effective delivery of the Get.

  [42] Later commentaries discuss whether this denotes sexual satisfaction or physical sustenance.

  [43] For extensive citations concerning the difficulty of determining a woman’s pre­ferences about exiting a marriage, see the notes in Hiddushei haRitba al haShas (Jerusalem: Mosad Harav Kook, 1992), Yevamot 118b.

  [44] It is interesting that tav lemetav is introduced in Yevamot with the phrase ta shema, which denotes the introduction of some information that may either help resolve or raise further questions about the issue being discussed. When this information does resolve the question at hand, the section often ends with the phrase shema mina, which means that a conclusion can indeed be drawn on the basis of the material that was introduced. In our Get zikui case, the section does not close with shema mina, and it would thus appear that although tav lemetav was cited, it did not resolve the issue. For a discussion of the Talmud’s use of the phrases ta shema and shema mina, see Adin Steinsaltz, The Talmud: A Reference Guide (New York: Random House, 1989); and Yitzhak Frank, The Practical Talmud Dictionary (Jerusalem: Ariel United Israel Institutes, 1994).

  [45] Rashi here and on Ketubbot 75a provides various explanations of the unusual words in these quotations from the sages. The Steinsaltz edition provides some other variations, all in a similar vein.

  [46] This explanation by Rashi appears in Ketubbot 75a, where the same text ap­pears.

  [47] I use these defects as examples because Orthodox batei din have refused to release agunot from such men. The BDA’s Rabbi Mordechai Willig, in the speech cited in note 9, and the BDA letter have made the point that women go back to or remain with husbands who beat them. The rabbis contend that batei din must, therefore, presume that women will knowingly consent to marry wife beaters.

  [48] There is no parallel to tav lemetav in the Jerusalem Talmud.

  [49] Rabbi Spektor (above, note 13) points out that the two cases of tav lemetav in Kiddushin are not concerned with a defect in the husband at all. As for the passage in Ketubbot, he notes that the defect is not serious enough to warrant physical coer­cion of the Get.

  [50] Note that the perutah is purely a means of signifying the completion of the marriage transaction. It is of no economic significance in the financial terms of the marriage. Thus, waiving the perutah can hardly be seen as a defect in the groom.

  [51] For an interesting discussion of women’s voices regarding tav lemetav, see the paper by Ruth Halperin Kaddari cited in note 35 above.

  [52] The presentation of this text in Ketubbot is too fragmented for it to be quoted in full.

  [53] Certain vows, such as one abjuring conjugal relations for a prolonged period, are grounds for divorce: see the Mishnah Ketubbot 5:6. See also the section below on mental cruelty, which discusses other vows as grounds for coercing a Get, thus permitting a woman to exit a marriage that may have become intolerable because of vows that create hardship for her.

  [54] Interestingly, commentators in the Artscroll edition of the Talmud paraphrase tav lemetav as “better to be married to a ‘husband of mediocre stature’ or an ‘unexceptional suitor.’” This paraphrasing matches my suggested interpretation of the limits of tav lemetav in the Talmud. It was better, perhaps, in those days, for a woman to be married to an unimpressive man, but not to a cruel abuser. See the Artscroll edition of Kiddushin, pp. 7a3, note 18, and 41a3, note 10.

  [55] Given these limits, tav lemetav does not support a presumption that a woman would knowingly consent to the risk of being locked into Bleich’s shi‘abud or the BDA’s kinyan to an abusive, dangerous man. But Bleich and the BDA take the position that a bride’s consent to shi‘abud or kinyan, even to gravely defective men, is the essence of Jewish marriage, and that without such shackling of women, Jewish marriage is, in effect, eradicated. If Bleich and the BDA truly believe that women would freely and knowingly consent to such dangerous terms of marriage and that such consent is the essence of Jewish marriage, I believe they have an obligation to do the following: (1) fully inform all prospective brides of an abusive husband’s power to hold his wife prisoner; and then (2) Get explicit consent from them to these terms of marriage. Their consent should be witnessed at the wedding, just as the ketubbah is. Silent and presumed consent by the bride, based on tav lemetav, is insufficient in light of the arguments set forth in this paper and indefensible in light of the injury it causes to women. Some may protest that bringing up such shocking details at the wedding is disturbing, but a bride cannot be kept ignorant of the risks to which she is exposed and then be assumed to have consented to them. Those who characterize the essence of Jewish marriage as a shi‘abud or kinyan that empowers cruel men to torment innocent women should own up to this in public, and should not shy way from educating brides about their concept of Jewish family law. Until Bleich and the BDA do this, brides can claim that they never consented to imprisonment in impossible marriages.

  [56] It is a matter of dispute whether the husband himself made these problematic vows or whether he became responsible for them by failing to nullify them when they were uttered by his wife. In any case, a husband who plays a role in the crea­tion of such vows may be coerced to give a Get.

  [57] There is extensive discussion in the Babylonian Talmud, Ketubbot 70a–b, on the question of what benefit the husband might be restricting, since he has an obli­gation to provide his wife with conjugal relations and financial support.

   [58] BT Ketubbot 70a, ad loc. Further on in Ketubbot (77a), the first-generation amora Shmuel interprets yotzi veyiten ketubbah to mean kefiyah, coercion of the Get.

   [59] On this point of wife abuse through financial control, it is interesting to note the discussion in the Talmud (BT Ketubbot 77a) of Rav’s view that a Get should be given if a man refuses to support his wife. Shmuel questions Rav’s position and suggests that the husband be coerced to support his wife rather than to issue a Get. The Talmud explains Rav’s call for a Get by quoting the saying ein adam gar im nahash bikhefifah ahat – one cannot live in the same basket with a snake. That is to say, a woman cannot be expected to live with a husband who must be coerced to support her.


5. AN INTRODUCTION TO THE APPROACH OF THE RABBI  EMANUEL RACKMAN BEIT DIN L’INYENEI AGUNOT FOR SOLVING THE AGUNAH PROBLEM

Estelle Freilich, August 1, 2004

I.  Statement of the Problem

     Everyone recognizes when a husband absolutely refuses to grant a Get it causes suffering not only for the wife but also for her children and her immediate family as well.  It is particularly urgent to free a woman from a dead marriage as she approaches the end of her reproductive years and is unable to remarry, thus forever losing the opportunity to have children.  It is even more crucial when a Jewish woman whose marriage has been dissolved civilly finds herself in an intimate relationship with a man who is not her halachic husband and becomes pregnant.  The Orthodox rabbinical establishment accepts this situation and refuses to apply existing halachic principles to free a woman whose husband withholds the Get.  This miscarriage of justice which appears to sanction the actions of unscrupulous husbands in the eyes of the community, hurls shame upon the Orthodox community and disdain for the Orthodox rabbinical leadership.

II.  Solving the Problem    

     The approach of the Rackman Beit Din is to recognize not only the existence of this egregious problem but also to recognize the need for its solution by the application of existing halachic principles.  Throughout the generations Jewish Law has been applied so that we can live (and not die, cf. Rashi) according to the Torah.  Hence, when a problem arose and a solution was sought the rabbis found the means to solve it by searching the halacha, issuing responsa and applying halachic principles until a solution was reached.  Halachic solutions to contemporary problems have been developed throughout the ages by our rabbis who built upon halachic responsa of previous generations and applied them to new situations.  Thus when economic exigencies demanded a solution the rabbis developed the halachic precept of selling chametz.  When our people refused to grant loans to the needy as the year of sh'mita approached for fear of not being repaid, Hillel devised the halachic concept of the prozbol.  Among the many problems solved in our day are allowing for the performance of autopsies and organ transplants.

III. Freeing Agunot Whose Husbands Absolutely Refuse to Grant the Get: An Introduction to the Halachic Reasoning of the Rackman Beit Din

     According to the halacha, only the husband is empowered to end a marriage by the granting of the Get.  However, according to Rabbi Rackman, when a husband absolutely refuses to grant the Get and the woman finds herself trapped in an intolerable marriage, a beit din has the authority to end the marriage for her by annulling the marriage.  Rabbi Rackman bases this authority of the rabbis in his Beit Din upon the precept of Jewish marriage which is sanctified "according to the laws of Moses and Israel", can also be dissolved "according to the laws of Moses and Israel", i.e., by the rabbis in a Jewish court of law, a beit din (cf. BT,Git.33a). 

     At one time, the beit din of a community could order the use of force, k'fiya, against a recalcitrant husband until he granted the Get.  Today not only do batei din no longer have jurisdiction over the Jewish community at large, but physical coercion is prohibited by civil law.  Rabbi Rackman asserts that in the absence of the ability of the rabbis to "force the Get," (k'fiya), the rabbis have the authority to annul the marriage ab initio, by means of hafka'at kiddushin.  Annulment of the marriage ab initio means that the original ceremony was halachicaly flawed (n.b., the status of any children that resulted from that union is not affected).  Also the stigma of mamzerut does not affect any future children borne by a woman freed through halachic annulment.

     Today, annulment of a marriage ab initio is carried out reluctantly and infrequently by very few batei din other than Rabbi Rackman's.  While pursuing the solution of a case involving a jailed recalcitrant husband who had sodomized his own son, Rabbi Reiss of the Beit Din of America told us that halachic annulment occurs, "one in a thousand."  When questioned about annulment at a seminar, "Agunot and Recalcitrant Husbands," held at Cong. Kehilath Jeshurun, February 3, 2002, Rabbi Michael Broyde explained as follows: he would annul a marriage when the husband refuses to grant the Get if the wife's charges of character defects in the husband could be proven to have existed before or at the time of marriage and she was not aware of them (see below, “Four Conditions Set Forth by The Beth Din of America”).  According to the testimony of an agunah who went to Rabbi Mordecai Tendler for annulment of her marriage, she was told that annulment was possible only when there is paper proof or testimony of witnesses attesting to the existence of the defect in the husband prior to the marriage ceremony, and if the wife was unaware of her husband’s defects at the time of marriage. 

      The bases for annulling a marriage ab initio are legal technicalities that were violated during the ceremony itself (e.g., unqualified witnesses), and/or the existence of mekach ta'ut, known as kiddushei ta'ut when applied to Jewish marriage.  The halachic concept of undenah is also applied as a basis for annulment (see explanation below).  Kiddushei ta'ut is applied when the marriage contract can be proven to have been drawn up under fraudulent circumstances, that is, certain defects ("salient defects") existed in the husband before and at the time of marriage and had the wife known about them she never would have married him.

IV. Four Conditions Set Forth by the Beth Din of America

     In its letter addressed to members of the RCA dated October 27,1998, the Beth Din of America cited four conditions which must be present at a minimum in order for kiddushei ta'ut to be applied: (1) when a woman discovers a serious blemish present in her husband that (2) she was unaware of at the time of marriage and (3) which was actually present at the time of marriage, and (4) she immediately leaves him upon the discovery of the blemish.

     The four conditions listed above are seriously flawed when practically applied to the release of an agunah from a dead marriage.  An explanation of the inadequacies of the Beth Din of America’s “conditions for annulment” is included in the following analysis of The Rackman Beit Din’s approach for freeing agunot:

V.  The Rackman Beit Din’s Approach For Freeing Agunot; Rebutting Our Critics

     1.  Serious Blemish/Salient defects in a husband: Even if a situation exists whereby the defects in the husband can be proven to pre-exist the marriage, most rabbis today would not justify the use of annulment to end a marriage (cf. Rabbi Reiss' statement above, that annulment is applicable for only "one in a thousand").  Rabbi Rackman's Beit Din applies the halachic precepts utilized by Rabbi Moshe Feinstein to annul a marriage as cited in his responsa relating to the release of agunot.  Our critics claim that these responsa apply only to the specific cases adjudicated by Rabbi Feinstein.  Moreover, our critics claim that only those defects in the husband that can be proven to pre-exist the marriage can qualify as a condition for kiddushei t'aut.  They also claim, even if we can prove a defect to be pre-existing, it may not be severe enough to warrant annulment (as cited in the Beth Din of America letter dated October 27, 1998).  According to this letter, the Beth Din of America lists the most severe aberrations in a husband and states that a marriage cannot be annulled under such circumstances because "improper behavior by a party in a marriage such as psychological abuse, adultery, sexual molestation, [abandonment, criminal activity, substance abuse and sadism] cannot be assumed to have been present earlier."  There is however, a tremendous body of scientific evidence cited in the research that points to the pre-existence of abusive traits in the formative years of abusers, which our Beit Din takes into consideration during its deliberations.  Our critics also argue that Rabbi Feinstein's t'shuvot only apply when there is a record, an objective history of the defect having existed before the marriage.  Rabbi Rackman's Beit Din, in addition to documented evidence pointing to pre-existing defects in the husband, will accept a woman's testimony pertaining to psychological and/or physical abuse.  Our beloved founder of blessed memory, Honey Rackman z”l, would frequently refer to the fact that we accept a woman’s testimony, based upon a statement of the Rambam in Hilchot Gerushin 13:29, “al yikshe b’einecha sh’hitiru chachamim ha’arayot ha’chamurah b’edut ishah…l’fichach hekilu chachamim b’davar zeh k’dei sh’lo tisharnah b’not yisrael agunot,” loosely translated as, “Do not be surprised that the sages accepted in the very serious matter of married women, the testimony of a woman, or slave, etc., .       The sages were lenient in this matter in order that Jewish women would not remain agunot.”

     Utilizing the conclusions of scientific research that were not available during Rabbi Feinstein's lifetime, Rabbi Rackman and the members of his Beit Din follow the halachic tradition described above whereby rabbis of each generation build upon the rulings of prior decisors to solve contemporary problems.  Therefore, based upon halachic tradition and the results of scientific research, Rabbi Rackman's Beit Din has expanded the scope of defects beyond those mentioned in Rabbi Moshe Feinstein's teshuvot to include personality defects that are manifested as physical and/or psychological abuse which are present in the husband but latent until after the marriage.  Even Rabbi Feinstein annulled a marriage based upon insanity as the salient defect in the husband, which was thought to have been absent at the time of marriage but in fact was latent until after the marriage.  Although the husband had behaved normally for years before the marriage, Rabbi Feinstein ruled that its recurrence after the marriage proved it was present in the husband at the time of marriage, and the marriage was annulled (cf. Iggerot Moshe, Eben Ha'Ezer, vol. I, no. 80).

     2.  Rabbi Rackman's Beit Din utilizes the halachic principle of umdenah, a normative assumption implicit in every agreement, which when violated can be applied to annul a marriage.  The sources for the application of umdenah by Rabbi Rackman's Beit Din are the rulings of Rabbi Moshe Rosen, author of Sh'ailas Moshe, and Rabbi Moshe Feinstein in Iggerot Moshe, Eben Ha'Ezer, vol.I,no.80.  It is a widely accepted normative assumption that when a man and woman enter into a marriage they will treat each other decently.  When a husband abuses a woman, it is a normative assumption that no woman would marry knowing she would be abused, hence, the umdenah is violated and the marriage could be annulled.

     3.  Our critics claim that Rabbi Rackman bases his decisions upon minority opinions.  However, even the rabbis of the mishna recognized the dire situation of the agunah and they ruled, "because of aginut the rabbis were lenient," (cf. Git.3a, mi'shum i'gunah a'kelu ba rabbanan; also, see Rabbi Obadiah Yosef’s ruling described below).   

     4.  Our critics assert that a woman must immediately leave the marriage upon discovery of the blemish in her husband as a condition for kiddushei t'aut (cf. p.2 of the Beth Din of America letter, October 27, 1998, cited above).  How can a woman leave immediately when the rabbis counsel her to remain in the marriage for the sake of shalom bayit?  The rabbis’ counsel is a trap for the woman.  If she adheres to the rabbi's advice to stay for the sake of shalom bayit she is doomed to remain with an abusive husband.  Even if a woman wanted to leave immediately where could she and her children find shelter?  Where would she find financial support?  In support of a woman's inability to leave immediately and still qualify for annulment, Rabbi Feinstein ruled in favor of annulment for a woman who did not leave immediately upon discovery of the blemish in her husband (cf. Eben ha-ezer, Vol. III, no.45, pp. 489-490).

     5.  Our critics have asserted that Rabbi Rackman has not published the bases for his halachic decisions regarding annulment.  In addition to primary sources published in The Jewish Week and in a letter addressed to the Beth Din of America, a scholarly paper has been written and is currently being edited for publication.  In addition, on our website is a responsum written by Rabbi Haim Toledano, a member of Rabbi Rackman's Beit Din, describing the grounds for annulment of a case which appeared before the Rackman Beit Din.

     6.  One of the most serious charges hurled at the Rackman Beit Din is the fear of increasing mamzerut.  According to BT, Git. 33a, the rabbis are given authority to protect women from becoming agunot and from bearing mamzerim.  In his responsum, (Yabi'a Omer, vol.7, Even Ha'Ezer, Sec.17, p.371a), Rabbi Obadiah Yosef is concerned that if a young woman denied a Get was to despair of ever being freed, she might run off, enter into a halachically illicit sexual relationship, remarry, and hiding the fact that she is an agunah, could end up bearing children who are mamzerim.  He further explains that if she feels she is living in sin, she would have no motivation to observe mitzvot.  What she does not know explains Rabbi Yosef, is that b’diavad, i.e., after the fact of her marrying a second husband without a Get, we would annul her first marriage.  This concern on the part of Rabbi Obadiah Yosef about an agunah marrying a second husband before receiving a Get and having children from him, and his asserting “b’diavad” to erase the stigma of mamzerut after the fact of her re-marrying without a Get, is the very reason we seek to exploit every possible leniency to annul the marriage ab initio, in order to avoid mamzerut in the first place.  Thus, according to Rabbi Obadiah Yosef’s reasoning our critics’ reluctance to free agunot out of concern for mamzerut, may actually lead to the increase of mamzerut.  By being overly strict in the matters of igun, the rabbis result in being permissive.  According to Rabbi Shalom Messas, z”l, the former chief Sephardic Rabbi of Jerusalem, “sh’nimtsah chomro kulo,” or, “the stringency results in permissiveness.”

VI.  Conclusion

     In a directive written by the Beth Din of America based upon reports of the activities of the Rackman Beit Din as recorded in Yediot Acharot, December 19, 1997, the following was stated:  "A marriage may be nullified...only if there was a major mistake in the facts at the time of the wedding.  ...Similarly, abandonment (or cruelty, addiction, etc.) which takes place after the wedding cannot possibly be grounds to annul the marriage."  Surely this statement and others similar in nature as recorded in the letter of October 27, 1998 cited above, reflect the inhumane approach of the Beth Din of America which is diametrically opposed to the compassionate approach of the Rackman Beit Din.  In a similar vein, to diminish the authority of the Rackman Beit Din, the Beth Din of America states according to their letter of October 27, 1998, that according to the Rabbi Rackman's Beit Din, "the withholding of a Get may be viewed as indicating a sadistic nature."  Surely, a husband who withholds a Get from a woman for his own vindictive purposes in order to control her life forever does reflect a sadistic nature, and as reported in The New York Times, July 27,2004, p.1, Science Times, “the urge to extract a pound of flesh, researchers find, is primed in the genes,” i.e., vindictiveness is a pre-existing trait!

      Further criticizing the Rackman Beit Din they state, "... women continue to marry, fully aware that a woman may on occasion be trapped in a bad marriage."  The Rackman Beit Din realizes that it is a normal assumption (umdenah) that at the time of marriage no bride expects to "be trapped in a bad marriage."  It is also normally assumed that should a husband abuse, abandon, molest, and/or commit adultery, no woman would wish to remain forever in such a union.  Finally, it is a normative logical assumption that a woman should be able to be released from such a union in order "to live and not die" according to halacha.

     In contrast to the approach of the Beth Din of America and most other Orthodox batei din, Rabbi Rackman and his colleagues empathize with the agunot who come before them.  Their deliberations are governed by compassion so that halachic precepts can be applied to free women trapped in dead marriages.  We are taught that even “The Holy One, Blessed Be He” metes out justice combined with mercy and compassion.

     Rabbi Rackman's decisions are grounded upon solid halachic principles.  Finding a solution to this problem requires the courage to apply existing halachic principles with compassion, including respected albeit minor opinions to free agunot.  The rabbis must be willing to communicate and engage the Rackman Beit Din in dialogue.  Although they may hope for the disappearance of the Rackman Beit Din for lack of support by the Orthodox rabbinical establishment, the agunah problem will not disappear unless they make a concerted effort to solve it.  

     In the absence of rabbinic courage and the willingness to apply existing halachaic precepts to free agunot, a groundswell of community activity must be organized to compel the rabbis to act and obliterate this terrible affliction of aginut from the midst of the Orthodox Jewish community.

THE BEIT DIN L’INYENEI AGUNOT

Rabbi Emanuel Rackman, Presiding

Rabbi Eugene Cohen        Rabbi Sidney Green     

Rabbi Asher Murciano      Rabbi Haim Toledano

Agunot wishing to submit their case for adjudication should call:

AGUNAH INT’L Inc. 212-249-4523

Susan Aranoff                                Estelle Freilich   

Rachell Maidenbaum Gober        Honey Rackman, z"l


Were we to require a comprehensive and  exhaustive examination of the literature authored by all the great halachic authorities as we do with all other Torah laws, rules of the Torah …  to follow the majority opinion in order to absolutely eliminate all questions, in order that we should not be questioned, no agunah will ever be permitted to marry…  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 early masters (rishonim) to follow any logical opinion (sebarah yesharah) even if it is not agreed upon by great halachic sages whose teachings we otherwise follow. 
(lit., whose
Torah waters we drink)

Rabbi Abraham Halevi, the chief Rabbi of Egypt, 18th century, in his work, Ginat Veradim.

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



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