By Rabbi Yair Hoffman
Divorces can bring out the worst in people, to say the least. There are angry wives seeking a divorce who cause their husbands to be incarcerated, simply because they have the ability to do so. And there are husbands who punish their wives by not allowing them to ever remarry. This, of course, is known as the agunah problem, where wives separated from their husbands are still chained to them, unable to remarry, because their husbands have refused to grant them a get, a Jewish divorce document.
The agunah problem has given rise, of late, to a new trend in how some people handle halachah. More and more, when facing obstinate husbands refusing to grant their wives a get, some rabbis are opting for a rather controversial method of relieving the problem. They are granting “Jewish annulments” of the original marriage.
The issue, however, is mired in controversy, where leading rabbis are aghast at both the ease and the extent of the annulments being granted. There are, believe it or not, hundreds, if not thousands, of women walking around with “Jewish annulments.” Some of the rabbis who grant these annulments do so quietly and warn the woman not to reveal the actual basis for her ability to remarry.
The rationale for the granting of such annulments is predicated upon the idea that the original marriage was conducted in error. The argument is that the woman was misled and was entirely unaware of crucial details about her husband-to-be. Had she known about her husband’s issues, the argument goes, she would never have gone forward with the marriage.
This concept is known as “mekach ta’us,” an erroneous contract, and is discussed in a mishnah in Kesubos (7:8) and further elaborated upon in the Gemara (Kesubos 73b). The criterion for annulment of a marriage is far more stringent than for a business transaction. Even in earlier times, two elements were required to annul a marriage: a mum gadol, a very serious blemish; and something else called an umdana d’muchach, a thoroughly compelling indication that no woman would wish to live with such an individual. (See Beis HaLevi Vol. III #3 for a discussion of this point.)
Clearly, this knocks out of the water most claims to have “contracted the marriage erroneously.” The Gemara further explains that even though, in theory, the specific erroneous contractual issues brought up in the Gemara would annul the obligation to pay the kesubah, a get would still be required because of either a rabbinic stringency or on account of doubt regarding a biblical requirement.
Two Limiting Factors
The argument of mekach ta’us, even to advocates of the liberal use of annulments, is further limited by two factors:
1. If the wife knew about the husband’s issue and willingly accepted it, then she cannot avail herself of the argument.
2. There is a rationale presented by Rabbi Shimon ben Lakish that the Talmud itself accepts (See Bava Kamma 110b) which severely limits the argument of “I would never have gone forward with the marriage.”
As far as the first factor, if the wife had continued living with the husband after she discovered the husband’s issue, it would be considered as tantamount to acceptance. (See Rambam, Laws of Sale 15:3).
Three Positions Among
We will elaborate upon this second limitation later in this essay, but at this point it must be stated that the opinions of the major contemporary poskim can be divided into three general categories.
Category A: Those poskim who entirely forbid any form of annulment in modern times, even when there is makom igun, where the woman would otherwise be unable to remarry.
Category B: Those poskim who permit the annulment of a Jewish marriage under certain circumstances, and only in combination with other mitigating halachic factors. The latter point is crucial; Category B poskim only allow an annulment if they can combine the “erroneous contract” argument with another mitigating factor, or even several other factors.
Category C: Those poskim who permit and would grant an annulment solely on the basis of the notion of mekach ta’us, an erroneous contract.
Category A poskim who entirely forbid any form of annulment in modern times are Dayan Yitzchak Weiss, zt’l (Minchas Yitzchak); Dayan Yechezkel Roth; Rav Yitzchak Isaac Liebes (Beis Avi III #135); Rav Chaim Berlin, zt’l; and Rav Yoseph Eliyahu Henkin, zt’l. Indeed, Dayan Roth is so strongly supportive of this position that he states that there is a possibility of mamzeirus when an annulment was given and the woman subsequently remarried and had children. The poskim this author consulted from both factions of Satmar in the United States are also of the opinion that any form of annulment is completely forbidden and would produce mamzeirim.
There are also poskim who seem, by the way they handle related questions, to fit into Category A. Rav Yaakov Breisch (Chelkas Yaakov III #114) fits into this category as well.
Category B poskim who permit an annulment only under certain circumstances and only in combination with other halachic factors are Rav Elyashiv (see Yeshurun Vol. XIX pp. 518—520); Rav Tzvi Pesach Frank (Har Tzvi EH #204); Rav Ovadiah Yoseph (Yabia Omer Vol. VII #7); and Rav Chaim Ozer Grodzinsky, zt’l.
Category C poskim who permit an annulment solely on the basis of a valid claim of mekach ta’us are Rav Moshe Feinstein, zt’l (see, for example, Igros Moshe E.H. IV #13); Rav Avraham Aharon Yudelevitz; and possibly Rav Yaakov Yechiel Weinberg, zt’l.
The New Reality
An analysis of post-Talmudic responsa will show that clearly, in the past, mekach ta’us was enough of a rationale by itself to annul a marriage, according to many poskim. Nonetheless, on account of various social and economic factors, the view of most contemporary poskim is that this heter or leniency must be discontinued. The question is, what are the factors nowadays that have caused the change in mekach ta’us? The Netziv presents the idea that if there is significant financial benefit for the women in being married, as was the case in the Netziv’s time, then by no means may the marriage be annulled through the mechanism of mekach ta’us.
What are other additional factors that can possibly be added to the issue of mekach ta’us? They range from a negation in the validity of one of the original witnesses, a possibility that the husband was born with a congenital abnormality that affects his ability to have children, or a number of other factors.
There have been a number of cases in recent years where one posek issued a ruling of annulment only to find that a greater gadol overturned the ruling and demanded that the first posek retract his leniency. Many of these cases, apparently, involve a Category B posek who disagrees with the methodology of a Category C posek. In one particular case, after the original posek retracted the lenient ruling, the get was ultimately issued, but only after the husband successfully extorted vast sums of money from the wife’s family.
The existence of such extortion within our midst, the ever-growing divorce rate within our community, the dangerous development of the proliferation of wholesale annulments, and the events of the past few months within the Torah community require some serious rethinking as to how we should proceed. Inaction has caused some very serious repercussions.
The repercussions lie in three main areas: First, the pain and suffering on the part of a growing number of agunos. Second, it leads to an acceptance of blatant extortion and thus fosters an unfortunate moral decline within our communities. Third, and perhaps the repercussion with the most lasting significance, is the proliferation of mamzeirim within Klal Yisrael, Hashem yerachem. v
(To be continued.)
The author can be reached at Yairhoffman2@gmail.com.