by Rabbi David Novak
Disclaimer: The opinions expressed here are that of the writer and do not necessarily represent the views of the Union for Traditional Judaism, unless otherwise indicated.
A man and a woman in their fifties were granted a civil divorce five years ago. After years of pleading, the husband still refuses to grant his ex-wife a get. The woman would like to remarry but there is little likelihood that she will receive a get. Can the marriage be annulled?
The following responsum is reprinted from Tomeikh KaHalakhah volume 2. Tomeikh KaHalakhah is UTJ’s series of volumes of responsa (teshuvot) promulgated by the Union For Traditional Judaism’s Panel of Halakhic Inquiry.
The text below is the result of OCR. Although it has already been reviewed, if you identify any errors, kindly email office@utj.org. A scan of the original teshuvah is available here.
In contrast to the Christian tradition, Jewish marriage is a contractual rela- tionship between two freely consenting parties, not a status conferred on the parties by an ecclesiastical body. Consequently, the termination of Jewish marriage- other than by the demise of either spouse-is effected by the parties themselves, not by ecclesiastical or civil authority.
Yet, in the absence of the husband, who alone is scripturally charged with issuing a get or divorce (Deuteronomy 24:1-2), or in the case of the willful refusal of the husband to grant a get, the woman can never legally remarry. She is called an agunah (Ruth 1:13), a woman “chained” to the institution of marriage yet without a present partner.
Throughout Jewish history, sad to say, there have been many cases of ag unot; mostly cases where the husband has disappeared. The vast amount of halakhic literature on the subject heretofore dealt with a husband who went abroad and is claimed to have been killed or to have died, a husband who drowned or suffered shipwreck, a soldier who was killed in battle or is missing in action, or a husband who was a Holocaust victim.
To alleviate the anguish of agunot, halakhic authorities have permitted many relaxations in the rules of evidence (Shulhan Arukh, Even ha’ Ezer 17: If; Rabbi Isaac Klein, A Guide to Jewish Religious Practice, pp. 451–456) which would be especially useful in these kinds of cases. To avoid the situation of a woman becoming an agunah, especially important in other kinds of cases as well as these, halakhic authorities have proposed various strategies.
Perhaps the earliest attempt at preventing the eventuality of a wife becoming an agunah is the practice the Talmud (Ketubot 9b) ascribes to the time of King David. Soldiers “going out to the wars of the House of David” would customarily “write a bill of divorce” for their wives. This conditional get became effective only if the husband failed to return by a specified date (See RaShI & Tosafot loco cit.; Shulhan Arukh, Even ha’ Ezer 143). This practice, which had fallen into disuse by Israel’s Defence Forces because it was subject to some halakhic difficulties (S.J. Zevin, Sinai, vol. 10 (1942), pp. 21-35), is now enjoying somewhat of a revival in support (See Rabbi Shiloh Rafael, “Gitei Milhama”, Torah She-b’ al Peh, vol. II, 1969,pp.123-30;RabbiJ. David Bleich, Contemporary Halakhic Problems, Ktav, 1977, vol. 1, pp. 150-154).
Another strategy proposed was the stipulation of a condition at the time of marriage, that states that the marriage would become retroactively void should that condition obtain. Examples of such conditions would be if the husband should fail to return to his wife after a specified period of absence, or if the marriage were subsequently terminated by a civil court, or if the husband should die childless, leaving a brother who refuses to perform levirate marriage (See Responsa Hatam Sofer.Even ha’ Ezer 1: l l l on this last case; see also Rabbi Eliezer Berkovits, Tenai betvissu’in uveGet).
A variation of this strategy is the celebrated Lieberman clause inserted in the ketubah issued by the Conservative movement in the 1950’s. The reasoning behind the inclusion of this clause is cogent and compelling, and its sheer elegance is worthy of approval (see David Novak, Law & Theology in Judaism, First Series, pp. 49-52). By signing this document, the bride and groom obligate themselves contractually to submit any marital disputes to a Bet Din and be bound by any decision issued by that legal body. This implies that should the Bet Din demand a get be issued or should the Bet Din impose a financial penalty for failure to grant a get or to receive one, the parties are constrained to comply. The efficacy of this clause as an enforceable contract in civil court has been amply demonstrated in the well-publicized New York case of Avitzur vs Avitzur [58 N.Y.2d108, 446 N.E.2d136, 459 N.Y.S.2d572 (1983)]. However, some authorities are uncom- fortable with the innovativeness of the clause as well as being concerned that it may imply a form of unlawful coercion which may invalidate the gel (See Bleich, op. cit., yet compare with what follows, pp. 154-9).
The most daring of all strategies was the rabbinic enactment that allowed for the retroactive annulment of a marriage. This strategy is based on an important Talmudic discussion. According to scriptural law , as long as a divorce document was not placed in the wife’s possession, the husband has the right to change his mind and to declare it invalid. Consequently, she is not divorced. Nonetheless, the elder Rabban Shimon ben Gamliel ruled that a man who divorces his wife through an agent may not annul the get while the agent is on his way, that is to say, without the knowledge of either the agent or the wife (Gitlin 32a). Should the husband cancel the divorce sent by the agent anyway, the rabbis declare the husband’s cancellation null and void, the get is valid and the wife is divorced. This ruling means that the rabbis were willing to uphold the validity of a get against scriptural law. The Talmud itself (Gitlin 33a) questions the boldness of this ruling and its far-reaching consequences by asking: “Is it possible that where a get is issued and canceled in accordance with scriptural law we should, in order to preserve the authority of the Bet Din, declare it valid and allow a married woman to marry another?” The question proves to be rhetorical for the Talmud emphatically answers: “Yes!-when a man marries a woman, he does so under the conditions set down by the Rabbis and in this case the Rabbis annul his (i.e., the first husband ‘s) marriage tafka’lnhu rabbanan la-kiddushin mineih).” This strategy for obviating the problem of the agunah, however, has rarely been employed since the fourteenth century. (See A. Freimann, Seder Kiddushin veblissuin and B. Schreshevsky, Dinei Mishpahah and Elon, Mishpat Ivri, vol. 3 on Hafka’ at Kiddushin for a full discussion.)
Today, it seems, there are an increased number of agunot where a recalcitrant husband flatly refuses to grant a get in retaliation for perceived mistreatment at the hands of his civilly divorced wife, or as leverage for gaining a more favorable civil settlement, or simply as a means of extorting financial concessions. Especially in cases such as these, some contemporary rabbis are inclined to be halakhic activists when it comes to remedying the agunuh problem and are in favor of annulling marriages (See, for instance, Rabbi David Novak, Halakhah in a Theological Dimension, Brown University Judaic Studies Series, no. 68, Chapter 3). This conforms with the ruling of Rabbenu Asher ben Yehiel who wrote that finding a way for permitting an agunah to remarry is deemed a great mitzvah (Teshuvot haRosh 51:2). Nevertheless, our tradition also teaches that in such serious matters where permission to remarry may result in mamzerut, i.e., children born of an illicit union, a broad consensus of other rabbi’s is required before any annulment can take place (Rabbi Moses Isserles, Shulhan Arukh, Even ha’Ezer 17:34). Until such consensus develops, this panel would not presume to annul any halakhically initiated marriage.
Rabbi David Novak for the Panel of Halakhic Inquiry.
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One of the founding members of the UTJ, Rabbi David Novak is recognized scholar in Talmud and theology. He has served on the Panel of Halakhic Inquiry and contributed to the UTJ’s 3-volume Tomeikh K’Hakalakha, a series of questions & answers on topical religious issues.
A disciple of Rabbi Saul Lieberman, Rabbi Novak is the author of many books and scholarly works, including:
Rabbi Novak holds the J. Richard and Dorothy Shiff Chair of Jewish Studies as Professor of Religion and Philosophy at the University of Toronto, where he is a member of University College and the Centre for Jewish Studies. He is also a consulting scholar and a member of the Board of Advisors of the James Madison Program in American Ideals and Institutions at Princeton University.