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

[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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