Unaccepted Proposals to Solve the Aguna Problem - Part III
by Rabbi Howard Jachter

Last week we discussed why "Hafkaat Kiddushin" is not a viable solution to the Aguna problem. This week we will discuss a proposal of the French rabbinate made during the nineteenth century and why almost all the eminent halachic authorities of the time such as Rav Yitzchak Elchanan Spektor, Rav David Zvi Hoffman, and Rav Chaim Soloveitchik rejected the proposal. In the following generation, Rav Yosef Eliyahu Henkin (Peirushei Ibra) and Rav Yitzchak Herzog (Tchuka L'yisrael Al Pi Ha-Torah 1:76) affirmed that the entire Orthodox rabbinate rejected the proposal.

Introduction - The Proposal of the French Rabbis

The introduction of civil divorce and civil marriage in nineteenth century France constituted a major challenge. Jewish people now had the option of divorcing without procuring a Get. This, of course, lead to situations of Igun and Mamzeirut due to the diminishing of rabbinic authority. The rabbis of France suggested a possible solution: all marriages should include a provision that if the couple divorces civilly, the marriage will be retroactively annulled. Thus, the marriage would be contracted on the condition that the couple will not divorce civilly, but if the couple does divorce civilly, the marriage will never have been valid.

This solution is based on an established procedure cited by the Rama (Even Haezer 157:4). The procedure that is outlined there is intended to resolve a halachic challenge faced by Jews since medieval times. The problem is a situation where couple plan to marry and the man has only one brother, who has abandoned Judaism for another faith. If the husband was to die without having given birth to a child, the woman would require Chalitza from someone who would most likely be unwilling to participate in such a ceremony.

The solution to this problem, as the Rama rules in this case, is that the marriage can be contracted with a condition that if the husband dies childless, the marriage will be retroactively nullified. The Taz (E.H.157:1) cites his father-in-law, the Bach, who rules that such an arrangement can also be made if the husband's only brother whereabouts are unknown. Similarly, most authorities accept the ruling of the Nachalat Shiva (Laws of Chalitza 22:8) that this arrangement can also be made if the groom's only brother is mentally incompetent ("Cheresh" or "Shoteh"). See Aruch Hashulchan (E.H. 157:15), Pitchei Teshuvah (E.H.157:9), and Igrot Moshe (E.H.1:147).

Indeed, Rav Yehuda Amital told this author that he has performed two wedding ceremonies in this manner when the groom's only brother was mentally incompetent. This type of ceremony should only be performed with the approval of an eminent halachic authority. Rav Amital acted upon the approval and guidance of Rav Moshe Feinstein.

Rejection of the Proposal of the French Rabbis - Background

The proposal to retroactively annul marriages which end in civil divorce was rejected by nearly all halachic authorities of the time (see Melamed Lehoil 3:22, and Tzitz Eliezer 1:27). It was rejected both on technical halachic grounds and on public policy grounds.

The halachic problems are indeed formidable even for the Rama's case. First, it should be noted that some Poskim rejected the Rama's ruling (see Pitchei Teshuva, E.H.157:8 and Sh'eilat Yaavetz 2:15) on the grounds that the condition ("Tnai") is invalid because it is "Matneh Al Mah Shekatuv Ba-Torah," making a condition which directly contravenes a Torah law. Second, the Gemara (Yevamot 94b and Ketubot 72b-74a) seems to clearly teach that although the betrothal component of marriage ("Kiddushin") can be entered conditionally the "Nissuin" component of marriage (after which the husband and wife begin living together) cannot be entered conditionally ("Ein Tnai B'nissuin"). This is because of the rule that "Ein Adam Oseh B'ilato B'ilat Znut," one does not want his marital relations to be considered by halacha as promiscuous encounters. Thus, one will waive any conditions made prior to marital relations so that even if the conditions are not met, the marriage will not be retroactively invalidated. Accordingly, once the couple engages in marital relations any conditions made at the kiddushin are cancelled.

Nevertheless, great Poskim such as the Nodah B'Yehuda (E.H.56), the Chatam Sofer (I:E.H.110-111), and the Aruch Hashulchan (E.H.157:15-17) defend the Rama's ruling. They rule that it is not considered "Matneh Al Mah Shekatuv Ba-Torah" unless one contracts the marriage on condition that the laws of Yibbum will not take effect. However, when the condition is made that in case the man dies childless the marriage will be retroactively nullified, the condition sidesteps the institution of Yibbum/Chalitza but does not directly contravene it. Thus, the Rama's condition does not run afoul of the "Matneh Al Mah Shekatuv Ba-Torah" rule.

Avoiding the problem of "Chazaka Ein Adam Oseh B'ilato B'ilat Znut" is more challenging. First, Tosafot (Yevamot 94b s.v. Elah) teaches that it is not impossible to have "Nissuin" entered into conditionally, it is merely highly unusual. Thus, for example, if the couple says before they engage in marital relations (with witnesses standing behind the wall) that the marital relations do not constitute a voidance of prior conditions, the conditions remain (see Beit Shmuel E.H.157:6 and Aruch Hashulchan 157:17).

Moreover, prior conditions are cancelled by marital relations only when it is reasonably possible that the conditions may not be fulfilled, thus the couple would be risking having their relationships being considered promiscuous. Only when considerable risk is involved do relations cancel the conditions. However, in the Rama's case, emphasize the Nodah B'yehudah and Aruch Hashulchan, the chances that the marriage will be retroactively nullified are relatively small because most couples have children and every effort will be made in case the husband doesn't have children and is on the verge of dying he will give his wife a Get prior to his death, to insure that the marital relations will not be retroactively considered promiscuous. Accordingly, in the Rama's case, marital relations do not cancel the "Tnai" since the risk of "B'ilat Znut" is quite small.

Rejections of the Proposal of the French Rabbis - Technical Halachic Concerns

Thus, it should be clear why the Rama's case cannot serve as a precedent for instituting that all marriages be contracted on condition that no civil divorce will be issued. First, since the risk of civil divorce is considerable, marital relations serve to cancel the conditions. Moreover, it is terribly impractical to conduct every wedding in such a cumbersome and, indeed, immodest fashion. The relatively moderate degree of immodesty can be tolerated in the rare instance of the unique concerns which we discussed. This, however, cannot be tolerated on a communal level. Finally, we can be more lenient to avoid the requirement of Chalitza than of a Gittin. The prohibition of "Eishet Ish" is much more strict. Thus, one cannot extrapolate a lenient ruling regarding Chalitza to the area of Gittin.

Public Policy Concerns

Rav David Zvi Hoffman outlines public policy concerns which have emerged among the major reasons to reject this proposal. First, the Rama's case sidestepped the requirement of Chalitza in a number of rare instances. The French proposal would, in effect, eliminate the entire institution of Gittin.

Second, the halachot concerning condiditons are complex and beyond the competence of most rabbis. The conditions must be formulated in a precise manner ("Tnai Kaful," "Hein Kodem L'lav," "Tnai Kodem L'maaseh" etc.) and one could easily make a mistake which would invalidate the Kiddushin.

Most important, Rav Hoffman's major concern is that making every marriage conditional would weaken the institution of marriage. This is a matter of great urgency because marriage is the backbone of the Jewish community and Kedushat Yisrael. One cannot weaken the entire institution of marriage in order to solve the difficulties which be encountered by a tiny percentage of Am Yisrael. In short, one may say that the Rama's ruling pushes halacha to its outer limit in cases of emergency, and the later rabbis felt that extending the Rama's ruling even further was entirely beyond the pale of Jewish law.

Rav Hoffman does offer an alternative solution which is less drastic and less effective but nevertheless serves to solve most of the problems. That is that the couple perform a prenuptial agreement as we have previously mentioned; prenuptial agreements and severe communal sanctions have the potential to solve almost all Aguna situations.

Conclusion

Although the proposed sweeping solutions of "Hafkaat Kiddushin" and "Kiddushin Al Tnai" have been rejected, there are viable halachic solutions to almost all problem cases, if the requisite effort and concern is exerted. Universal use of Rav Willig's prenuptial agreement, severe social sanctions, and rabbinic activism have the potential to solve almost all situations of Igun.

Next week, God willing, we will begin our examination of the "Kiddushei Ta'ut" proposal of Rabbi Rackman which, since 1964, has been rejected by virtually the entire Orthodox rabbinate.