והיה אם לא תמצא חן בעיניו כי מצא בה ערות דבר וכתב לה ספר כריתת ונתן בידה ושלחה מביתו
Parshat Ki Teitzei has passed us up and it didn't dawn on me until now that I missed an opportunity to discuss the Agunah issue. I suppose being one Parsha behind is not too bad so I'll give it a go.
My plan is to include a chapter in my upcoming Volume 2 of One Above and Seven Below that discusses the Jewish/Chareidi/Halachic Beit Din system - (a) how it is supposed to work, (b) how it is not supposed to work, and (c) how it actually does work (more like b than a). Within the confines of this chapter, I intend to deal with the divorce courts and the Agunah issue. As I do more research, I suspect Agunah itself may need its own chapter. Further research suggests it may need its own book.
There is no argument that any true Agunah situation is an awful, heartbreaking tragedy and that we must move Heaven and Earth to resolve each case within the constraints of Halacha. Nevertheless, trying to "override" Halacha can wind up doing more harm than good.
Since this is a Blog and not a book, I will limit myself to briefly addressing one aspect - the proposal to implement unilateral annulments in lieu of a get. This proposal is well advanced and promoted by the left-wing modern Orthodox who seem to think that there is some basis for it in the Talmud. One of the most outspoken proponents of annulments is the renowned Rabbi Shlomo Riskin founder and Rabbi Emeritus of the Lincoln Square Synagogue in Manhattan and currently Rabbi of the American community in the town of Efrat. Rabbi Riskin never tires of quoting the references in the Talmud that seem to indicate that annulments without a get can work. Of course, it is easy to quote passages and broadcast them to the masses as long as one does not analyze what they are really saying.
To understand why annulments are unfounded we first have to distinguish between two situations:
(A) An established marriage - the union was Halchically valid and was entered into and consummated with full intent and good faith by the parties and they have considered themselves and have been considered by society to be husband and wife for any amount of time.
(B) A contested marriage - The marriage was performed under questionable Halachic validity, was challenged from the outset by at least one of the parties, and/or at least one the parties has never acknowledged being married.
In Situation A it is universally acknowledged that the marriage took effect. The question at hand is the validity of the divorce. In Situation B, the question at hand is whether there was a valid marriage to begin with. This question is adjudicated before the union progresses any further.
The term - Afkinhu rabbanan - the Rabbis annulled - is brought down in six places in the Talmud which is 5 cases (2 of the 6 are repeats). 3 of the 5 deal with Situation A (Gitin 33, Gitin 73, and Ketubot 3) and 2 deal with Situation B (Bava Batra 48, Yevamot 110). In all 3 cases of Situation A (established marriage) a get was delivered. The logic of Afkinhu is merely employed to validate the get. Thus we have no precedent to annul an established marriage without a get.
Even in the two cases that deal with a contentious marriage (it actually was not a marriage but a betrothal - kiddushin), in one of them (Yevamot 110), the logic of Afkinhu is mentioned as the reasoning for the opinion that is not accepted as Halacha. The ruling is that the woman requires a get from the interloping husband!
Thus, from all five cases, the only situation where a woman is released without a get is in Bava Batra 48 which is the case of betrothal under duress. There, a woman was coerced (physically) into accepting a betrothal, but she immediately contested it and never entered into marriage. Thus the ruling is that the betrothal never took effect and, therefore, there was no need for a get.
Rabbi Riskin has stated his position numerous times. I first noted it in his Shabbat Shalom column in the Jerusalem Post from August 30, 2001 (I do not have a copy or link to this article - it is seven years old).
To set the record straight, I fired off a Letter to the Editor which essentially says exactly what I wrote above. I still have a copy of that letter which I will paste (note the letter was a bit long and I suggested that they omit the "lumdos" in the brackets for printing):
I find it difficult to comprehend Rabbi Riskin's call (SHABBAT SHALOM: An unhappy couple can be divorced - Aug. 30) for "the establishment of a special Jerusalem Court empowered by a decree of the Chief Rabbinate to abrogate marriage unilaterally" - i.e. without a Get. Proponents of annullment stress the fact that the argument "the rabbis have cancelled the marriage" appear five times in the Talmud (B.T Gitin 33, Ketubot 3, Bava Batra 48, Yevamot 110, Gitin 73). Nevertheless, none of these sources advocate dissolving an established marriage without a get.
[Of the five Talmudic sources cited by Rabbi Riskin, only three deal with dissolving an established marriage (B.T. Gitin 33, Gitin 73, and Ketubot 3). In one of these (Gitin 33) the argument represents the opinion that is rejected by the Authorities. In all three, the argument is used as reasoning to validate the get. The text of Maimonides, for example, (Hilchos Gerushin9:18) states that "the divorce (i.e., the get) is valid", not that the marriage is cancelled "retrospectively" sans get. The other two sources (B.T. Bava Batra 48, Yevamot 110) deal with betrothals that are contentious and are challenged at the time of their occurrence. The halachic ruling in Yevamot 110 is against the proponent of the "cancel" argument - rather, that a get is required. Bava Batra 48 (Betrothal under Duress) indeed invalidates a betrothal - NOT consummated by marriage - without a get. Seemingly, this is only when contested at the first opportunity after the occurrence.]
I am appalled that a Talmudic scholar such as Rabbi Riskin supports a position that has no Talmudic backing and is rejected by most contemporary Orthodox authorities.
Har Nof, Jerusalem
I sent this letter both to the Jerusalem post and a cc to Rabbi Riskin at email@example.com.
The Jerusalem Post did not print the letter and I received no response from Rabbi Riskin.