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PESAK DIN (Halakhic ruling) issued in 2001

By Rabbi Emanuel Rackman’s

Bet Din Le’Inyenei Agunot in the case of Rebecca vs. Saul.

 

 Pesak Din written by Rabbi Haim Toledano

Facts

          Rebecca married Saul.  They have a child.  They were engaged for six-and-a-half months prior to their marriage.  During that time he behaved normally and promised to be a loving husband and a good provider.  They were first married in a civil ceremony so that he could obtain a green card (which allows a non-U.S. citizen or non-resident to stay and work in the U.S.).  Later they had a religious wedding.  Saul’s uncle was the mesadder kidushin; it is not known whether the uncle is in fact a rabbi.  Saul’s friends were witnesses at the religious wedding.  Neither is shomer mitzvot; one witness had been in jail (reason undisclosed).

          The marriage broke up because Saul was unfaithful to Rebecca.   She has affidavits from the other women.   But the marriage was in trouble from the beginning.  The problems include the following:

A.  Wrong Reason for Marriage.

          Immediately after their marriage, Saul told Rebecca that he had married her only to Get his green card.  Indeed, people at U.S. Immigration Services told her and her father that they believed he married her in order to Get the green card.  Upon learning this, Rebecca’s father considered withdrawing his economic guarantee for Saul’s green card.  However, fearing the possibility that this would lead to Saul's deportation, in which case Rebecca could be trapped without a Get, he did not do so.

B.  Lack of Support.

          Saul did not support his family.  He worked “off the books” (cash) but hardly went to work.  He would wake up at noon.  He did not bring in enough money to support his family.  Rebecca’s mother helped to support Rebecca and her child.  Rebecca does not go to work

C.  Unfaithfulness.

          Saul was unfaithful to Rebecca.  He even tried to seduce her relatives as well as other young women in the community.  Her parents learned about his womanizing before Rebecca did and tried to spare her feelings by talking to Saul about it without telling her.  However, he told her about it himself.  Rebecca has affidavits from other women attesting to his sexual affairs with them.  She also learned that Saul engaged in unprotected sex with another woman just before he and Rebecca married.  She had some evidence of this.  When she asked him if he was using protection, he answered “not all the time.”  Rebecca was afraid and said that she never would have married him had she known about this.  She was frightened, and for good reason.

D.  Unethical Upbringing.

          Rebecca also said that she did not know about his family’s unethical practices.  She cites as examples the fact that they do not file tax returns and have businesses registered in other names.  Again Rebecca asserted that she would not have married Saul if she had been aware of his family’s unethical character.

E.  Religious Fanaticism.

          After his marriage to Rebecca, Saul became fanatic about religion.  He began listening to tapes of rabbis and was influenced by them.  He demanded that Rebecca wear a sheitel, claiming that, according to one rabbi, her not wearing a sheitel was the reason that he was not making a living.

F.  Physical and Psychological Abuse.

          Saul was physically and psychologically abusive toward Rebecca.   He hit her.  Rebecca has a police report about his abusiveness.  He pushed Rebecca down on the floor.  She called her parents and said the mariage was over.  She would not stay with him.  A friend came over and got Saul out of the house.

Present Status

          The day after Rebecca threw him out, Saul initiated civil divorce.  However, his case was thrown out of court because he did not follow through.  As a result, Rebecca is now the plaintiff.  Saul has not given any support for almost a year although he has been working recently.  Saul is presently in contempt of court for not giving Rebecca the money that was awarded her by the court.   He filed with the court to have her civil divorce put on hold for months, but the court threw out his motion.

          Rebecca has asked Saul for a Get.  He puts her off and says that he will give her a Get only if and when she gives him what he wants, namely, custody of his boy and the house.  Dr. Susan Aranoff and Mrs. Estelle Freilich of Agunah International Inc. spoke to Saul again in an attempt to persuade him to give Rebecca Get, and again he refused unless he Gets the custodial and financial concessions he demands.

          Rebecca has spoken a few times to her synagogue rabbi, but he did not help.  Instead, he advised her to wait for the civil divorce.  Meanwhile, she is “a chained woman—agunah.”

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Grounds for P’tur

          After questioning Rebecca about the particulars of her case, and following a detailed discussion of the halakhic implications of the case, the bet din unanimously agreed to grant her a p’tur (retroactive annulment of the marriage) on the grounds of mekah ta’ut (“mistaken transaction,” i.e., marriage on mistaken assumptions) and invalid witnesses to the marriage.

A.  Mekah Ta’ut.

          If it is discovered after the marriage that the husband has a preexisting (physical, mental or psychological) defect or flaw of which the wife was not aware or not informed before the marriage, the wife can claim “I did not betroth myself with this in mind” (ada’ta de-hakhi lo kiddeshah ‘atzmah).  The marriage is therefore a mistaken marriage (kiddushei ta’ut), and there is no need for a Get.

          At the time of her wedding, Rebecca did not know that her husband was physically and psychologically abusive.  She did not know about his promiscuous sexual tendencies, nor did she know that he engaged in unprotected sex prior to and during their marriage.  She asserted most emphatically that had she known about any/or all of this before the marriage, she would never have married him.

          In several cases involving preexisting defects in the husband of which the wife had not been aware, Rabbi Moshe Feinstein rules that when it is impossible to secure Get from the husband, the marriage may be annulled retroactively on the basis of mekah ta’ut. Thus, in his Iggerot Moshe, Eben ha-Ezer, Vol. I, No. 79, he deals with a woman who discovered that her husband was impotent and was unable to consummate the marriage.  In No. 80 he deals with a woman who discovered that her husband was insane.  In both cases, Rabbi Feinstein rules that the marriage may be annulled retroactively on the basis of mekah ta’ut.

          Clearly, Rabbi Feinstein invoked the concept of mekah ta’ut for annulling these marriage retroactively for two fundamental and compelling reasons.   They are (1) these defects were preexisting ones of which the respective wives were totally unaware, and (b) no woman would knowingly agree to spend her life with an impotent or insane husband.

          Rebecca was totally unaware before the marriage of Saul’s abusiveness and promiscuity and, above all, she had no idea of his reckless attitude about the possibility of contracting the fatal HIV virus and infecting her (as well as other women) with it.  Surely no woman in her right mind would knowingly agree to spend her life with such an abusive and dangerous husband.  It should be pointed out that recent research shows that physically or psychologically abusive behavior by men towards their wives and/or children is often a latent condition or character trait that develops during adolescence and can manifest itself anytime after marriage. Clearly, Rebecca’s marriage to Saul is without a doubt a case of mekah ta’ut or kiddushe ta’ut and is therefore null and void ab initio.

          There are those who insist on limiting the scope of defects that constitute grounds for annulling the marriage retroactively on the basis of mekah ta’ut to the specific cases dealt with by Rabbi Feinstein.  They also argue that Rabbi Feinstein invoked mekah ta’ut only when the husband’s defect was discovered immediately after the wedding and where the wife left the husband immediately thereafter, as in the cases dealt with by Rabbi Feinstein in Nos. 79-80 cited above.

Both of these limitations are halakhically and rationally untenable.  Surely, Rabbi Feinstein did not intend to eternally limit the types of defects that warrant considering the marriage a mekah ta’ut to the limited types of cases he published in his teshuvot.  As the Talmud states in a different context, “atu tannah ke-rukhlah lihsib 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 anticipate, let alone list, all possible contingencies.  However, the normative halakhic process has always allowed for the application of principles drawn from specific cases to parallel situations.  As stated above, the two fundamental considerations underlying Rabbi Feinstein’s rulings in the cases of impotence and insanity are that (a) the defects were preexisting defects of which the wives were totally unaware, and (b) no woman would knowingly agree to spend her life with an impotent or insane husband.  Logically, then, any situation where both of these conditions apply, as is the case under discussion, falls under the category of marriage contracted on mistaken assumptions.

          As for the argument limiting the application of mekah ta’ut to situations where the husband’s defects were discovered immediately after the wedding and the wife leaving the husband immediately thereafter, this too is rationally and halakhically untenable.  First of all, not all defects are discoverable immediately after the wedding. Abusiveness is a salient defect that can manifest itself any time after the wedding, as are such flaws as those discovered by Rebecca.  Secondly, for numerous practical, legal, economic and social reasons, it is often impossible for a wife to abandon her home immediately after discovering her husband’s defects.  Likewise, families and even rabbis often encourage the wife to try and work things out with the husband, to give the marriage a chance, etc.  Thus, for example, Rebecca’s parents, upon learning of Saul’s extramarital liaisons and his attempt to seduce Rebecca’s relatives, tried to speak to him about it without telling Rebecca so as not to hurt her feelings and also, no doubt, in an attempt to preserve the marriage.  Similarly, after having had a fight with Saul over his excessive and unreasonable religious demands of her, Rebecca tried to defuse the situation by spending Shabbat with her parents in order “to cool things off.”  To insist, then, that unless a wife leaves her home immediately upon discovering her husband’s flaws she cannot claim mekah ta’ut is not only cruel and wrong, but disingenuous as well.

          Finally, in a separate responsum (Eben ha-Ezer, Vol. III, No. 45), Rabbi Feinstein deals with a woman who discovered that her husband was insane and stayed with him seven weeks before separating from him.  Rabbi Feinstein, of course, states that the rabbi or the bet din must investigate why she stayed with him for seven weeks before complaining.  He concludes, however, that were she to offer “a reasonable explanation” (ta’am hagun) or “valid excuses” (tirutzim nekhonim), we would not say that she reconciled herself to his flaws (saberah ve-kibbelah).

          It seems to me that where the wife offers a reasonable explanation and/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, Rabbi 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 reasonable delay.   Certainly, then, all the considerations discussed above fall well within the parameters of ta’am hagun and tirutzim nekhonim.

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B.  Invalid Testimony.

          As stated above, both witnesses to the wedding were not shomrei mitzvot and were therefore unfit/disqualified witnesses—pesule edut.  (See Maimonides, Mishneh Torah, Hilkhot Edut, Ch. 10; R. Karo, Shukhan ’Arukh, Hoshen Mishpat, Hilkhot Edut, Ch. 34.)  R. Karo rules that kiddushin performed without witnesses, with one witness or before unfit witnesses, such kiddushin are not valid (ibid., Eben ha-Ezer, Ch. 42).

Notwithstanding Karo’s ruling, the Hatam Sofer argues that even if the designated witnesses are unfit, there are no doubt among the guests kosher witnesses who make the kiddushin valid . However, Rabbi Shalom Messas, the Chief Sephardi Rabbi of Jerusalem and one of the major contemporary posekim, in a responsum dealing with various aspects and implications of invalid testimony, quotes this opinion of the Hatam Sofer and points out that most of the halakhic authorities including the Bet Yoseph disagree with him.  The latter maintain that where the rabbi or the groom designates specific witnesses (meyyahed edim), if these witnesses turn out to be disqualified on halakhic grounds, the kiddushin are void .

          After discussing at length the opinions of the Hatam Sofer and those who disagree with him, Rabbi Messas adds that the opinion of the Hatam Sofer is rather unusual (hiddush), and that it runs counter to reason and common sense (she-debarav enam musbarim kefi ha-sekhel ha-yashar), for if the husband (or the rabbi) designates specific witnesses, he thereby indicates that he wants these witnesses and no others.

          Rabbi Messas goes on to suggest that when the Hatam Sofer maintains that the probable presence of kosher witnesses among the guests is enough to make the kiddushin valid even when the designated witnesses are unfit, it is most likely that he does so only when it is a question of validating the kiddushin (le-kayyem ha-kiddishin).  However, when it is a question of avoiding mamzerut (children born of a subsequent marriage) or igun, even he would probably agree that only the designated witnesses count, and the kiddushin are not valid when they are unfit .

          Since Saul used his friends as witnesses to the wedding, he thereby designated them as the only witnesses, and therefore if they are unfit, as is the case, or even if only one of them is disqualified, the kiddushin are invalid.  For, as Rabbi Messas points out, when a part of the testimony (i.e., one witness) is invalid, all of it is invalid—edut she-batelah miktzatah batelah kulah, ibid.).

Conclusion

          First, Rebecca was unaware of her husband’s many preexisting major flaws and defects, and she declared that had she known of them before the wedding she would never have married him.  Therefore, her kiddushin are kiddushe ta’ut and she requires no Get.  Second, the witnesses to the wedding designated by Saul were unfit witnesses in that they were not shomrei mitzvot.  According to Rabbi Karo and many other halakhic authorities quoted by Rabbi Messas, where the designated witnesses are unfit, the kiddushin are not valid even when there are many kosher witnesses among the guests.

          Thus, Rebecca’s marriage to Saul may be annulled retroactively either on the grounds of mekah ta’ut or because of invalid witnesses.  Certainly when both grounds are combined, as in Rebecca’s case, even some halakhic authorities who accept the concept of mekah ta’ut in theory but hesitate to actually annul a marriage (halakhah le-ma-aseh) on its basis, even they agree to annul the marriage retroactively when mekah ta’ut is combined with some other factors (be-tziruf ta’amim aherim) such as the unfitness of one of the witnesses .

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Addendum

          It seems to me that the whole question of whether or not certain defects such as abusive behavior towards the wife and/or children, abandonment, and even the very fact of igun may be construed as grounds for mekah ta’ut comes down to whether in such situations we apply the Talmudic principles of niha lah be-khol dehu and tav le-metav tan du mile-metav armelu or the principle ada’ta de-hakhi lo kiddeshah atzmah.

          Those who oppose expanding the scope of Rabbi Feinstein’s use of mekah ta’ut to include other salient defects and personality disorders that make it impossible for the wife to stay with her husband apply the principles of niha lah and tav le-metav in an absolute way.  They apply these principles indiscriminately to all women and in all situations regardless of the particular circumstances of any given case.  Nor do they take into consideration the new social reality in which women are educated and economically independent and therefore do not have to settle for defective husbands when other healthy and honorable choices are available.

          Yet such indiscriminate and mechanical use of the above-mentioned principles is not warranted by most halakhic sources.  Thus, the Talmud in Baba Kama (110b-111a) concludes that a childless widow who finds herself in a levirate relationship (yebamah) with a brother-in-law who is afflicted with a physically repulsive disease (mukkeh shehin) may not claim “I did not betroth myself with this in mind” (ada’ta de-hakhi lo kiddeshah atzmah).  The reason offered for this ruling is that in that case “we assume (anan sahade) that the woman is satisfied even with a minimum benefit [that she derived from such a marriage (de’niha lah be-khol dehu).”  This is, the Talmudic text continues, in accordance with the dictum attributed to Resh Lakish, “tav le-metav tan du mile-metav armelu” (that is the assumption that a woman prefers any marriage to remaining alone).

       Commenting on niha lah be-khol dehu, Rashi explains that the woman in question is willing to marry her husband who is healthy (shalem) even with the slim and unlikely risk that, should he die childless, she could end up in a levirate relationship with his diseased brother.  The implication of Rashi’s comment is that only in such a case where the husband himself is healthy, may the bet din assume (anan sahade) that the woman is satisfied be-khol dehu.  But when the husband himself is diseased or otherwise flawed, we do not assume niha lah be-khol dehu or tav le-metav.

      Most of the posekim agree with Rashi’s interpretation.   Thus, Rabbi Joseph Baer Soloveitchik, commenting on Rashi’s explanation, writes that what Rashi means is that “logically, why should any woman agree to marry a diseased or flawed husband; are good and healthy husbands so rare that she settles for a flawed one?”  Rabbi Soloveitchik adds, “In any case, Rashi’s comment leads to an important lenient ruling (kullah gedolah); for if a woman marries a diseased husband, being unaware of his defects, even if the marriage affords her some minimum benefit (kol dehu), nonetheless, we do not apply to such marriage the tav le-metav principle, and it is a mekah ta’ut.  For only when the husband is free of defects (shalem), the woman does not care about the remote chance that her husband could die childless . . ., but to marry a flawed husband mistakenly, we do not say tav le-metav.”

     Rabbi Soloveitchik argues further that “the principle of niha lah be-khol dehu is not an absolute principle applicable to all women; [we cannot] argue that all women don’t mind marrying husbands with any flaw, even a mukkeh shehin . . . because we see in reality that women also don’t like to marry husbands with major defects (mumin gedolim), and especially a mukkeh shehin.”  Continuing in the same spirit, Rabbi Soloveitchik adds, “Even were we to concede that even when the husband is mukkeh shehin, there is still some minimum benefit [from such marriage for the wife]; nonetheless, there is no greater flaw in the transaction than when the woman wanted a husband free of defects and ended up settling for kol dehu (hare ein lekha mum gadol mizeh de-mitkavenah le-ba’al tov ve-nimtza rak kol dehu).  Therefore, she has the right to claim that the marriage was a mekah ta’ut.”

     Although Rabbi Soloveitchik does not agree to actually (halakhah le-ma’aseh) free a woman without a Get on the basis of mekah ta’ut, he argues forcefully and convincingly that the principles of niha lah be-khol dehu and tav le-metav “are not absolute principles applicable to all women, but only to cases similar to the one discussed in Baba Kama where the husband himself is free of defects and the risk of ending up in a levirate relationship with his diseased brother is remote, or, by implication, when the defect in the husband is as minimal.  Therefore, Rabbi Soloveitchik maintains that major defects in the husband constitute grounds warranting the claim of mekah ta’ut *.

     Finally, Professor Susan Aranoff, in a brilliant paper on the problem of agunot, discusses the five instances in which the Talmud invokes Resh Lakish’s tav le-metav principle.  After a detailed and astute contextual analysis of the said five instances, she concludes, “Tav lemetav, read in the original Talmudic context, is not a comprehensive, immutable halakhic presumption (hazakah) that defeats almost all claims of kiddushe ita’ut; rather, it is no more than a maxim, perhaps a colloquialism used by women [as Rashi explains in Ketubot 75a].  Furthermore, this maxim is associated with women accepting relatively limited or benign defects in their groom, the most serious being the slim possibility that the woman may have to undergo the halitzah ceremony in order to be free.”  Dr. Aranoff argues further that “Grave preexisting personality disorders go beyond these outer limits of tav lematav.”

     But all halakhic arguments aside, it seems to me that the indiscriminate use of niha lah be-khol dehu and tav le-metav is totally out of sync with the new social and economic realities when women are highly educated and economically independent and can afford to be rather particular about the sort of man with whom they want to spend the rest of their lives.  Clearly, the only operative principle nowadays in marriages where the husband turns out to suffer from some major flaws is “ad’ata de-hakhi lo kiddeshah atzmah. 

Footnotes for Pesak Din by Rabbi Toledano

[1] See American Psychiatric Association, “Diagnostic and Statistical Manual of Mental Disorders.”  4th ed.  Washington, D.C., 1994, pp. 609-612.  See also Rabbi Abraham J. Twersky, M.D., “The Shame Borne in Silence:   Spouse Abuse in the Jewish Community.”   Pittsburgh, Pa., 1996, p. 125.

2 She’elot u-Teshuvot, Eben ha-Ezer, No. 100.

3 Shemesh u-Magen, Vol. II, Eben ha-Ezer, No. 10b, pp. 232a-234b; Vol. III, Eben ha-Ezer, No. 27, pp. 255a/b.

4 Ibid.

5 See Rabbi Abraham Aharon Yudlovich, She’elot u-Teshuvot Bet Av, Vol. VIII, No. 28; Rabbi Moshe Rozen, She’elot u-Teshuvot She’elat Moshe, Eben ha-Ezer, No. 2.

6 R. Joseph Baer Soloveitchik, She’elot u-Teshuvot Bet Halevi, Vol. III, No. 3.

7 Nashim  A Journal of Jewish Women Studies and Gender Issues, No. 3, pp. 199-227.

  * Some modifications have been made in the text to protect confidentiality.

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