Unaccepted Proposals to Solve the Aguna Problem - Part I by Rabbi Chaim Jachter


            This week we will begin our survey of proposed solutions to the Aguna problem which have not been accepted by the Orthodox rabbinate.  This weeks we will discuss the issue of "Hafkaat Kiddushin" annulling marriage.



            The notion that Chazal can annul a marriage appears at least five times in the Gemara (Yevamot 110a, Ketubot 3a, Gittin 33a, Gittin 73a, Baba Batra 48b).  Accordingly, many people commonly ask why rabbis simply don't annul a marriage in which a man refuses to give a Get to his wife?  Indeed, the Conservative movement does annul marriages if a husband refuses to give a Get.  They cite the Gemara in Yevamot 110a which states that "since the man acted unethically, we (the rabbis) act unethically to him and annul his marriage."  Traditionally, however, this was not done and the Orthodox rabbinate continues and will always continue not to annul marriages.  The following celebrated comments of the Rashba (Shita Mekubetzet, Ketubot 3a) are a major source for the policy of the Orthodox rabbinate:

"One may ask why a woman should remain an Aguna if her husband was lost in a body of water which has no finite boundaries ("Mayim She'ein Lahem Sof") - let the rabbis annul the marriage!  The answer is that the rabbis do not annul a marriage unless the man has handed his wife a [rabbinically acceptable] Get (which is invalid biblically)."

The Rashba in a celebrated responsum (1:118b) also states a classic point:

"We do not say that whenever a husband entered a marriage in an unethical manner the rabbis annulled the marriage, rather, we believe that only in those specific instances in which Chazal state that the marriage is annulled do we actually annul the marriage."

The Rashba cites the case in Kiddushin 58b in which a man contracted a marriage in what is indisputably an unethical manner, and, nevertheless, the marriage was considered valid and not annulled by the rabbis.  The case is one in which a man appointed another man to be his agent to marry a certain woman.  The agent, in turn, instead of acting as an agent to contract the marriage on behalf of his friend, married the woman himself.  The Gemara states that the "marriage is valid despite his unethical behavior."  The Rashba concludes from this case that only in those cases specifically mentioned by Chazal is the marriage annulled.


The Rambam and Rama

            This ruling of the Rashba is accepted as normative halacha. Indeed, the Rambam makes no mention of this concept of "Hafkaat Kiddushin" in the entire Mishna Torah.  The following ruling of the Rama (Even Ha'ezer 28:21) is an important application of the Rashba's approach.  The Rama rules:

"A community that institutes a policy, accepted by the entire community, that anyone who marries in the absence of a Minyan will have his marriage considered invalid - must, nevertheless, be strict and require a Get [in this circumstance]."

The Vilna Gaon (Biur HaGra, E.H. 28:57) explains that even though this situation is analogous to the case described in Yevamot 110a, that one who acts unethically in contracting the marriage has his marriage declared null and void, we do not declare the marriage invalid.  Thus, we see normative halacha restricting the application of "Hafkaat Kiddushin" to the specific situations specified in the Gemara.


The Basis for Hafkaat Kiddushin

            Now that we have established the limited scope of "Hafkaat Kiddushin," we will explore the basis for the concept of Hafkaat Kiddushin.  First, we must clarify one fundamental point.  Namely, there are two categories of "Hafkaat Kiddushin."  One is where the rabbis declare that the marriage is null and void - in other words, the marriage was never valid.  The second category is when a marriage originally was halachically valid, but only later did the rabbis annul the validity of the marriage.

            The cases described in Yevamot 110a and Bava Batra 48b involved coercion of a woman to marry a particular man.  In these two cases Chazal declared that the marriage was null and void because of the unethical behavior involved (also see Tosafot to Yevamot 110a s.v. L'fikach).

            The second type of "Hafkaat Kiddushin" is described in Ketubot 3a, Gittin 34a, and Gittin 73a.  In these three cases the husbands gave their wives Gets but in each of these cases the Get had a defect which should invalidate it.  Yet, Chazal declared that the women were nonetheless divorced because of "Hafkaat Kiddushin."

            The three cases are as follows.  In Ketubot 3a the husband made a condition which if fulfilled would invalidate the Get.  Due to circumstances entirely beyond his control ("Oness"), he was not able to fulfill the condition.  Since it is a case of "Oness," the husband has a valid excuse for not fulfilling his condition and can render the Get biblically invalid.  Nevertheless, Chazal declared the Get valid through the mechanism of "Hafkaat Kiddushin."

            In Gittin 34a the opinion of Rebbi is presented regarding the following case.  If a husband appoints an agent ("Shaliach") to deliver a Get to his wife and the husband subsequently cancels the appointment of the "Shaliach" not in the presence of the "Shaliach," and the "Shaliach" unwittingly delivered the Get, Rebbi rules that Chazal validate the Get through the mechanism of "Hafkaat Kiddushin."  This, Rebbi believes, is done despite the fact that the Get is invalid on a biblical level.

            In Gittin 73a the Gemara speaks of a dangerously ill individual ("Shechiv Meirah") who divorces his wife and subsequently regains his health.  Technically, the Get is invalid because an implicit condition in giving the Get in this circumstance was that the husband would die shortly.  If he would recover, the Get would be invalid on a biblical level.  Nevertheless, Chazal declared (according to Rabba and Rava) the Get to be valid through the means of "Hafkaat Kiddushin."

            Rashi in these three cases explains that "Hafkaat Kiddushin" works because of the presence of the Get (despite its defects).  Thus, Rashi agrees with the Rashba that "Hafkaat Kiddushin" can only be effective with the presence of a Get and in a case where the marriage was originally valid.

            The Gemara explains that "Hafkaat Kiddushin" works because "when one marries he does so on condition that if Chazal wish to cancel the marriage they have the right to do so." Tosafot (Ketubot 3a s.v. Adata and Gittin 33a s.v. Hol) explain that when the Chatan states that the marriage is contracted "according to the law of Moses and Israel" ("K'dat Moshe V'Yisrael"), he automatically empowers Chazal to invalidate the marriage.  This, however, is done only in conjunction with a Get, even if the Get has certain defects.



            Rav David Zvi Hoffman (Melamed L'hoil III: 51) has stated what has emerged as the consensus Orthodox view on this topic.  "No God-fearing rabbi will state that rabbi's today are empowered to perform Hafkaat Kiddushin in the absence of Sanhedrin (a central rabbinate accepted as authoritative by all Jews)."  Why do Chazal limit the application of "Hafkaat Kiddushin?"  After all, a broad application could have solved all Aguna problems?!  An answer can be the one formulated by the students of the class this author taught on this topic at the Drisha Institute in 1991- 1992.  The students suggested that fundamentally the Torah put marriage and divorce in the hands of the couple and not the rabbis.  Chazal sought to preserve the fundamental nature of the couple marrying and divorcing each other without rabbinic interference.  Despite the problems that arise because of the policy, it is nonetheless important, nay critical, to have the couple in control of their status.

            For further discussion of why the Orthodox rabbinate rejects the policy of "Hafkaat Kiddushin" to resolve Aguna problems, see Teshuvot Melamed L'hoil E.H.3:22, Teshuvot Tzitz Eliezer 1:2b, and Rav Soloveitchik cited in the Journal of Halacha and Contemporary Society, Spring 1985 pp.140-141.

            Next week, God willing and Bli Neder, we will complete our discussion of "Hafkaat Kiddushin" and explore the suggestion of the 19th French rabbinate to contract all marriage conditionally, and why the Orthodox rabbinate rejected that solution.

Unaccepted Proposals to Solve the Aguna Problem - Part II by Rabbi Chaim Jachter

Viable Solutions to the Aguna Problem - Part III by Rabbi Chaim Jachter