Monthly Archives: August 2013

The Agunah Dilemma, #7

Last post I wrote this:

Faced by a modern agunah situation (and often in cases of mamzerut as well), any beit din will look to see if bediavad (after the fact) it is possible to declare that the relationship never constituted kiddushin, and therefore no get is necessary.  (This technique must be sharply distinguished from afk’inhu, or annulment, which may involve retroactively causing the relationship to never have constituted kiddushin.  That will be discussed some weeks hence).  One can accomplish this inter alia by questioning

A)     whether the parties intended to enact kiddushin

B)      whether the parties entered into the relationship willingly

C)      whether the parties entered into the relationship adequately informed about each other

D)     whether the object of value (ring) belonged to the groom before being transferred to the bride

E)      whether the bride acquired something of value without giving equal value for it other than agreement to marry

F)      whether the bride and groom understood that the transfer of the object of value effected marriage

G)     whether the ceremony took place in the presence of valid witnesses.

We concluded last post that relying on A) to free agunot would be very difficult in most cases where the parties choose a Jewish religious ceremony.

In this post we’ll discuss B).

Halakhic marriage is a contract between two parties, and accordingly the marriage is effective only if both parties intended to marry.  However, how does the law know what the parties intend?  Mindreading cannot be a requirement for legal decision-making, so it follows that the law must use external behavior and commonsense reasoning to create presumptive intent.

The burden of proof must always be on the party who wishes to void an apparently valid contract, or put differently, the demonstration that X has signed or orally entered into a contract makes the contract presumptively binding on X.  The halakhic phrase which enshrines this principle is דברים שבלב אינם דברים = “words in the heart are not words” when opposed to words from the lips or the pen, meaning that your present claim of past intent has no legal force against your past speech or signature.

(In most Orthodox wedding ceremonies, the bride indicates her willingness to marry by implication, rather than by speech.[1]  To my knowledge, however, all halakhic decisors have interpreted her acceptance of the ring as an act of entering into the marriage contract, so that the “words in the heart” principle applies.)

How can someone wishing to void a contract meet the burden of proof?  The simplest way to accomplish this is mesirat moda’a, an advance statement before valid witnesses that one’s word or signature will not be sincere.  This is not a device that can be employed retrospectively or conditionally, however, and therefore is not useful with regard to agunah.

A second way to satisfy the burden of proof is to demonstrate coercion, for example by producing witnesses to a threat.  However, postfacto claims of coercion face two halakhic obstacles:

a)      סברה וקבלה = savrah vekiblah – if the contract was not a one-time affair, but rather involved a long-term relationship, halakhah considers the possibility that the coerced party eventually came to terms with the result and entered willingly into the contract.[2]  An agunah would likely have to prove the existence of an ongoing threat throughout the marriage in order to avoid needing a get.    

b)      תליוה וזבין – if the end result of coercion is agreement to a fair contract, i.e. a contract that falls within the norms of the current marketplace, halakhah validates the contract even as it condemns the coercive behavior.  This principle is applied to marriage on Bava Batra 48b.                              Note: the Talmud there records Mar bar Rav Ashi’s statement that in such                                  circumstances we resort to afk’inhu, which we will discuss many posts hence, but I can                say here that afk’inhu is rarely a reliable tactic for freeing Orthodox agunot.

Asserting that her marriage was coerced is therefore rarely if ever an independently successful rationale for freeing an agunah, at least one whose marriage endured past the first night.

However – coercion can play an important ancillary role.  Next post we will discuss C), the claim that the marriage was entered into as the result of misinformation or missing information = מקח טעות = mekach ta’ut.  A standard basis for such a claim is that a mental health condition was not disclosed prior to the wedding.  However, unless made immediately after the wedding, such claims often run into a variation of סברה וקבלה – if the condition made marriage a nonstarter for the woman, why didn’t she leave immediately after discovering it?  She must have made her peace with it!  One possible response is that she felt coerced to stay, and many abused woman correctly feel that leaving would be actively and physically dangerous.

We explained above that a claim that one’s marriage was coerced requires evidence of coercion to succeed, because the action of accepting the ring creates a presumption of willingness.  In this case, however, the action whose meaning we are seeking to interpret is not her acceptance of the ring, but rather her remaining with a man with whom she stood under a chuppah years ago.

A woman’s acceptance of a ring in the context of a man’s statement of marriage can reasonably be constructed as “silent speech”, so that we can presumptively reject a claim that her consent was subject to unstated conditions.  But I don’t think we must or should apply this construction to her failure to leave immediately after finding out that her husband was mentally ill.  We should instead treat that as an action whose meaning is indeterminate, and therefore her present claim that she remained because of coercion or fear would not be defeated by the “words in the heart” principle.

As an analogy –

an employer cannot renege on a signed contract by claiming that he or she signed it under threat, because of “words in the heart”.

What if the employer seeks to void the contract on the ground that the potential employee seriously inflated his or her credentials?

If the employer can establish that the fraud was discovered after the hiring, the contract might well be voided.

What if the employer did not fire the employee immediately after discovering the fraud?

If the employer has a reasonable explanation for the delay – for example, fear that the employee would sabotage an ongoing project – the delay would not prevent the employer from terminating the contract (although the employee would be due appropriate wages for services rendered).

Therefore a plausible claim that coercion or fear of retaliation prevented a woman’s immediate departure from the marital home should be sufficient to keep the focus on whether the original agreement to marry was validly consented to, and allow a claim of mekach ta’ut to proceed even if the woman remained in the marital home after discovering her error. 

Rabbi Aryeh Klapper
Dean, Center for Modern Torah Leadership

www.torahleadership.org


[1] When I am mesader kiddushin, I sometimes ask the bride explicitly whether she consents before the groom places the ring on her finger, and she replies “הרי אני מוכנה לקבל טבעת זו לשם קידושין כדת משה וישראל”.  This seems to me preferable both halakhically and pastorally to silent acceptance, but obviously it should be done only if the couple wishes it.

[2] From an analytic perspective, this is confusing, as it seems that the parties are entering into the contract at different times, and that party A is not aware of the moment that party B actually enters into the contract and therefore makes it binding on B.  I have not seen an adequate treatment of this issue and would welcome references.

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Retrospectively invalidating kiddushin

 

Last week we discussed various proposed methods for allowing a couple to deliberately live together in a formal and religiously recognized relationship without necessitating a get should they separate.  I argued that such methods would generally be ineffective and even counterproductive. 

That discussion was almost entirely lekhatchilah (beforehand), however.  Faced by a modern agunah situation (and often in cases of mamzerut as well), any beit din will look to see if bediavad (after the fact) it is possible to declare that the relationship never constituted kiddushin, and therefore no get is necessary.  (This technique must be sharply distinguished from afk’inhu, or annulment, which may involve retroactively causing the relationship to never have constituted kiddushin.  That will be discussed some weeks hence).  One can accomplish this inter alia by questioning

A)     whether the parties intended to enact kiddushin

B)      whether the parties entered into the relationship willingly

C)      whether the parties entered into the relationship adequately informed about each other

D)     whether the object of value (ring) belonged to the groom before being transferred to the bride

E)      whether the bride acquired something of value without giving equal value for it other than agreement to marry

F)      whether the bride and groom understood that the transfer of the object of value effected marriage

G)     whether the ceremony took place in the presence of valid witnesses.

In this post we’ll discuss A).

Here we need to distinguish two kinds of cases:  those in which no attempt was made to conform to the halakhic norms of kiddushin, and those in which such an attempt was made.

The most common case of the first kind is where the couple had a civil rather than a religious ceremony.

It might be thought obvious that in such cases no get is necessary.  However, halakhic marriage can be effected via sexual relations as well as through ceremony, and the Talmud in various places established the principle ein adam oseh beilato beilat znut = “a man does not make his sexual act one of promiscuity”.  Now this obviously is not a claim that all male sexual acts are intended to accomplish marriage.  Rather, it is a claim that in a marital context, a man will stipulate that he has whatever intentions are necessary to make his sexual acts marital.  The halakhic tradition has sometimes taken this as a presumption that in a committed monogamous relationship, the first sexual act was intended to effect kiddushin.  The great 20th century halakhic decisor Rabbi Yosef Eliyahu Henkin famously held this about couples who publicly identified as husband and wife in the presence of a Jewish community.  Rabbi Moshe Feinstein famously disagreed, and there is testimony that Rav Henkin did not hold to his position in cases of mamzerut.  It is also possible to distinguish (either way) between

a)       situations in which there is a readily available option for ceremonial kiddushin (such as the United States) and opting for purely civil marriage likely expresses indifference to religion, and

b)      situations in which there is a readily available option for ceremonial kiddushin (such as Israel) and opting for purely civil marriage requires a trip to Cyprus and may express hostility to religion (although we should distinguish hostility to a particular rabbinic bureaucracy from hostility to Halakhah generally), and

c)       situations in which there is no readily available option for ceremonial kiddushin (such as under Communism in the USSR)

In cases of agunah I believe that most batei din would rely on Rabbi Feinstein in cases of purely civil marriage, or at the least refer the case to another beit din that relies on Rabbi Feinstein.

Another case of the first kind is where there was a religious ceremony that deliberately disassociated itself from halakhic kiddushin.   For example, a Reform colleague and I years ago considered proposing that the Reform ceremony include the words “shelo kedat Mosheh v’Yisroel”­ =” not in accordance with the laws of Moses and Israel” to make explicit its rejection of kiddushin, from his perspective to avoid association with what he understood as a patriarchal institution (but see the discussion of kinyan acharayut last post), and from mine to prevent any risk that remarriage without a get would produce mamzerut.  If it can be established that the couple was making the choice to avoid kiddushin consciously while committing to the relationship, i.e. that they did not consider themselves to be engaged in promiscuity, there should be no presumption that a later sexual act was intended to effect kiddushin, even according to Rav Henkin.

But this is not obvious.  If one holds that intent-for-kiddushin, or da’at kiddushin requires specific religious content, the argument is compelling.  Some argue, however, that intent for any relationship which both parties agree imposes a religious obligation of sexual fidelity on the woman constitutes da’at kiddushin; some might not require agreement that the obligation is religious in nature.  If the parties reject other aspects of kiddushin, such as the husband’s physical obligations toward the wife, they are considered matneh al mah shekatuv baTorah = stipulating against Scripture.  In such cases the rule is maaseh kayam utenai batel = the action takes legal effect but the stipulation is a nullity.  In other words, the couple is married, and each party has all the obligations of marriage. 

I think that this is too broad a definition of intent-for-kiddushin.  My preferred alternative is that we define da’at kiddushin as intent for a relationship that imposes an obligation of sexual fidelity on the woman that can be dissolved only via a get.   If the groom does not intend to impose such an obligation on the bride, as would be the case in all such ceremonies, then in fact no kiddushin can have happened and no get is necessary, even though halakhically this means that all sexual acts during the relationship are considered znut.

I cannot say at this point whether/when batei din would accept my preferred formulation lehalakhah.  However, my sense is that in cases of agunah, most batei din would adopt some formulation of daat-kiddushin that would allow the woman to remarry, or at the least refer the case to another beit din that adopted a formulation sufficiently narrow to allow the woman to remarry.

Many Reform and most Conservative wedding ceremonies, however, do adopt or adapt halakhic language and ritual to an extent that make it very hard to argue that the couple explicitly intends to avoid kiddushin.  Reasonably, most couples emerge from such ceremonies feeling that they have entered into whatever Judaism considers marriage.  Factors other than lack of da’at kiddushin are therefore necessary to free agunot who were married in such ceremonies. 

Aryeh Klapper

 

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The Agunah Dilemma, #5

In previous posts I’ve tried to define the terms “agunah” and “systemic solution”, generally showing that they can mean many different things and are affected by social and legal environment.  In this post I’ll begin a discussion of systemic solutions thus far proposed.  They fall into the following categories, which I will discuss seriatim:

  1. Preventing kiddushin
  2. Retrospectively invalidating kiddushin
  3. Constructing kiddushin that dissolve automatically in reaction to get-refusal
  4. Creating a consent-independent mechanism for get-delivery
  5. Creating a disincentive for get-refusal
  6. Coercing get-delivery
  7. Dissolving kiddushin by means other than a get

Preventing Kiddushin

One advocate at the Agunah Summit argued that the best way to prevent get-refusal is to prevent get-necessity.  She accordingly suggested that woman be encouraged to find ways of formalizing relationships that do not count halakhically as kiddushin.

Rabbi Meir Simchah Feldblum z”l suggested – I have never been quite sure how seriously – that this had already happened in practice, on the ground that no contemporary woman actually intends to accept the terms of kiddushin, specifically the vulnerability to get-refusal.

This proposed solution, especially when proposed systemically and for both Israel and the United States, raises many, many halakhic and moral difficulties, and in any case would be ineffective.  Here’s why:

1) It likely actively suborns sin.  Halakhah forbids both men and women to engage in non-exclusive sexual relationships, (although the ground of the prohibition is different for men and women).  Rabbi Feldblum and others noted that some or many medieval authorities permitted pilagshut = concubinage, which they understood to be a  relationship that limited the woman to one partner but did not require her to receive a get for it to be dissolved.  However, most commentators believe that Maimonides believed that pilagshut is Biblically forbidden to everyone but the monarch, and other authorities believe that it is rabbinically forbidden.  It is therefore profoundly unlikely that this suggestion would be adopted by a significant percentage of the halakhically committed population.

2) It leaves women without the protection of marriage.  Kiddushin provides women with the ketubah, which provided for her in the case of divorce or widowhood.  While the ketubah is of little practical value today, this is because secular has adopted the ketubah model – but again, only for married couples.  Israeli law would not, so far as I know, recognize concubines as married.  Women would therefore run the risk of being left without any claim if the relationship ended.  Pilagshim could still obtain marriage licenses in the United States and marry secularly, so this objection does not apply in the United States.

3) Some authorities require a get to sever a pilagshut relationship.  I suspect that many batei din, especially in Israel, would not permit a woman who had been formally designated a pilegesh to remarry without a get.

4) Those authorities who do not require a get to sever a pilagshut relationship might nonetheless require the male to actively and willingly sever the relationship.  (I have been unable to find a satisfying discussion of this question and welcome references).

The purported lack of need for a get therefore does not enhance the woman’s legal position in any way, but rather harms it, because—

  1. she has none of the protections of marriage;
  2. the male has none of the obligations of marriage;
  3. there are no precedents for compelling or even pressuring the male to end the relationship, even if the female wishes to.
  4. Even if the male consents, the woman may be left with no proof that the relationship has ended.

In other words – it seems to me likely that women who enter into such relationships will become agunot at the same or greater rate than present, and gain no other practical advantages.  The proposal could only be effective if batei din accepted that such relationships could be contracted and sustained without requiring a get, or the husband’s consent, to dissolve them, and batei din are not intellectually compelled or religiously desirous of accepting such proposals.

An alternative version of the proposal is for woman to eschew any and all relationships that have halakhic significance, on the grounds that either

  1. It is worth committing the sin of sex-outside-exclusive-relationship to avoid the risk of agunah, or
  2. Kiddushin is hopelessly sexist and should therefore be abandoned.  The risk of agunah is symptomatic and emblematic of the fundamental problem that kiddushin involves a kinyan of the woman by the man.

This is sometimes described as “reverting to kiddushei bnei Noach” and/or solemnized with creative rituals and texts such as brit ahuvim.

With regard to b), my custom in premarital counseling is to mention Rabbi Shlomo Riskin’s very plausible claim that substance of the kinyan of kiddushin is not that the man acquires the woman, but rather that the man acquires his obligations toward the woman.  The prima facie evidence for this claim is that kiddushin effected by document happen when the man transfers the shtar to the woman, and in commerce it is the seller who transfers the shtar to the buyer.  A secondary supporting framework is that wives have no Biblical obligations toward husbands in marriage, whereas husbands are obligated to provide for their wives’ food, clothing, and sexuality.  Wives do have a one-way Biblical prohibition against sexual nonexclusivity, but that is an obligation to G-d rather than to the husband.

With regard to a), I think this approach runs the risk of blaming the victim.  As I noted last week, agunot in America are always in a sense volitional – no one forces them to keep halakhah.  Proposing “solutions” that require women to violate either the letter of the spirit of Halakhah as understood by their home communities will not diminish the incidence of agunah in America; it will only diminish sympathy for them.

Nor is it clear that this solution works in Israel for those not halakhically committed.  Just as secular law in the United States recognizes “common-law marriage”, meaning that a couple who acts married for some period of time is treated legally as having married, so too batei din, via mechanisms we will discuss in the future in the context of conditional marriage.

However – and this is a big however – I think that it is intrinsically problematic for a halakhic system to have compulsory jurisdiction over people who fundamentally reject its assumptions, especially when that combination accidentally but inevitably generates severe human suffering.  In Israel the absence of civil marriage creates this situation; in America having a valid kiddushin necessitates a valid get.

I have wondered for years whether Orthodox rabbis should officiate at weddings for the non-Orthodox in a culture where divorce is common and gittin rare.  I have heard several stories about American rabbis deliberately making errors when officiating at weddings to forestall issues of mamzerut; perhaps the same kind of thing occurs in Israel to forestall agunah.  Nowadays I tend to think that insisting on the prenup (which will of course be the subject of a later post) should allow a rabbi to educate such couples so that the risk that they will choose not to obtain a get should they divorce is minimal.

 

Rabbi Aryeh Klapper
Dean, The Center for Modern Torah Leadership

www.torahleadership.org

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The Agunah Dilemma, #4

Last week we discussed the desire for “a systemic solution” for the agunah issue.  One challenge to implementing any such single solution is that the issue manifests differently in Israel and the United States, among other places.

Israel

Israel has no civil divorce.  All marriages between two Jews must be ended by a get before either partner can remarry.

As a result, many Israelis without deep halakhic loyalty are subject to a system that binds them against their will.

Israeli agunot therefore may be women who would happily remarry without a get if they had a choice.  They may happily accept any solution which frees them, regardless of their own evaluation of the halakhic or intellectual integrity of that solution.

For example, they would be effectively freed by a governmental decision to permit civil divorce even for parties who were married via valid kiddushin.  They would also almost certainly be effectively freed by a governmental decision to recognize the marriage-ending declarations and rituals of nonOrthodox Judaism, or to recognize divorces issued by a highly idiosyncratic Orthodox beit din.

On the other hand – most Israeli agunot would not be freed by any method that the government refused to recognize, no matter how solidly grounded that method is in Halakhah, or how broad a consensus of universally respected Orthodox poskim approved it.  As of now, the Israeli government allows the Chief Rabbinate to set its Jewish divorce standards.

 

United States

The US has secular divorce, and does not grant religious divorce any legal force.  American Jewish women have the legal option to remarry without an Orthodox-recognized get if they so choose, either under secular or under nonOrthodox auspices.

A woman who self-identifies as an agunah in America is consciously rejecting these options. 

She may reject them because they conflict with her personal commitments or ideology; or,

she may reject them because they conflict with the commitments or ideology of the community or communities she identifies with and would seek a remarriage partner in.

American agunot therefore will not accept a solution that fails to satisfy their own and or their communities’ standards of intellectual integrity and/or halakhic integrity and/or halakhic authority.   

If they were willing to accept such solutions, they would already be free.

On the other hand – American agunot and/or their communities have the autonomy to choose their own halakhic authorities and to evaluate halakhic arguments on their own.  Therefore a solution for American agunot does not in principle require either rabbinic consensus or the approval of a particular rabbi or set of rabbis.

Note: Some Israeli women, and therefore likely some Israeli agunot, are like Americans in that they autonomously accept the  authority of halakhah, or live in communities that do, and so can only accept solutions that meet their own religious standards.

Note: Some Israeli women would be willing to remarry illegally so long as they have a valid halakhic divorce.

Note:  Canada is fundamentally the same as the US with regard to this section, but with secular legal differences we will discuss elsewhere.  I do not have enough knowledge of other countries to discuss them individually

Rabbi Aryeh Klapper 

Dean, The Center for Modern Torah Leadership

www.torahleadership.org

 

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