By Devorah Zlochower
A Jewish marriage is terminated by the granting of a get, a document of divorce. If the husband is unwilling or unable to give a get to the wife, the wife is an agunah and may not remarry. Historically, two methods have been suggested to break this impasse. One is kefiah, or force, wherein a Jewish court compels the husband to divorce the wife. The other is a determination of kiddushei ta’ut, whereby an apparent marriage is deemed fundamentally flawed. The marriage is de facto declared invalid and no get is necessary. This article will be limited to a discussion of kiddushei ta’ut.
One of the grounds for finding a marriage invalid is the discovery of a grave defect or mum (pronounced moom) in the man that pre-existed the marriage and that was undisclosed to the woman at the time of marriage. Since the woman’s consent is essential to the creation of the marriage, if we postulate that the woman would not have consented to marry a man with this grave defect, then the marriage may be invalidated.
Complications arise in determining what qualifies as a mum in the man. There is no talmudic discussion of defects in men as they relate to a woman’s original consent to marriage. There is a discussion in Ketubbot 77a regarding mumin that are severe enough such that a woman may be released from a marriage. In cases of severe mumin, a beit din may compel the husband to grant a get to his wife. The Mishna lists three categories of mumin. The first two categories are unspecified minor mumin and major mumin such as being blind in one eye or lame in an extremity. The third category is mumin that are serious enough that the court may compel the husband to divorce the wife. Examples of such mumin are having an affliction of boils, emitting bad odors, and engaging in malodorous occupations. Even in the most serious class of mumin, the marriage is not invalidated and a get is necessary to terminate the relationship.
The case for invalidating marriages becomes more difficult when we consider a discussion in Ketubbot 73b. The Talmud relates the following case: A man betrothed1 and married a woman and subsequently discovered that she has a mum2 or had made vows of abstinence, a behavior deemed undesirable in a marriage partner. Although the man never explicitly stated that he was marrying the woman on the condition that she had not made vows or did not possess mumin, such a condition may be assumed.3 He is free to divorce her without paying her ketubbah, the amount of money the husband undertook to pay the wife should the marriage fail. Although he is free to divorce her without financial penalty, the husband is nevertheless required to grant the wife a get.4 This ruling is remarkable because lack of informed consent is a fundamental flaw in the marriage and should invalidate it; yet a get is still required to terminate this relationship.
Another factor limiting the invalidation of marriages is the presumption that a woman would agree to marry a gravely afflicted man. The Talmud in Bava Kamma 110a-b declares that the widow of a childless man whose brother-in-law was afflicted with boils5 must undergo halizah in order to be able to remarry. The ceremony of halizah is a formal release of the widow from a requirement to marry her brother-in-law. In this case, the requirement of halizah presumes that otherwise the widow would accept such a minimally qualified man as a husband. This statement raises formidable challenges for invalidating a marriage based on a woman’s claim of uninformed consent. In spite of these severe limitations, the presence of a grave mum in the man at the time of marriage which was not disclosed to the wife has been accepted as grounds for a declaration of kiddushei ta’ut in some cases of iggun. Some of the medieval commentators’ statements regarding these talmudic passages are instructive.
In his commentary to Bava Kamma 110a-b, Rashi interprets the Talmud’s statement to mean that a woman would not accept a minimally qualified man as a marriage partner, but might accept him as a brother-in-law.6 Rashi proposes that at the time of her marriage the woman is willing to assume the risk that her husband may die without producing children and that she would then be faced with the possibility of marriage to the afflicted brother-in-law. The only reason why the afflicted man is considered acceptable to the woman is because the possibility that she will ever have a marital relationship with this man is remote.
Rabbi Meir of Rothenburg points to a case in which a widowed woman is free to remarry without halizah. He relates7 that he found a geonic responsum releasing a woman without halizah in a case where the woman’s brother-inlaw was an apostate. Rashi, along with other medievalists, disagrees with the responsum and rules that in such a case the woman would require halizah. Rabbi Meir of Rothenburg provides textual support8 for the geonic ruling, noting that an apostate cannot even be considered a minimally acceptable husband as his lifestyle would prevent his wife from carrying out her religious practices. Rabbi Meir of Rothenburg’s statement is significant for it expands the definition of mum to include defects that are not physical afflictions.
Finally, Tosafot maintain that although a get is required when a man marries a woman and discovers she has mumin, if the mum discovered is her incapacity to bear children, then no get is necessary.9 Rosh provides a justification for this ruling, noting that this incapacity strikes at the very heart of the marriage for “a man’s main intent in marrying is to produce children.”10 In this ruling, as well, the definition of mum is extended well beyond its original boundaries.
In contemporary times, Rabbi Moshe Feinstein has employed all of these arguments to release agunot. In a case of impotence that antedated the marriage, where the husband did not wish to grant his wife a get and fled, Rabbi Feinstein declared the marriage invalid. In his responsum, Rabbi Feinstein invokes Tosafot’s argument regarding the sterile woman, Rashi’s reading of the case of the brother-inlaw afflicted with boils, and Rabbi Meir of Rothenburg’s explication of the geonic position regarding the brotherin-law who is an apostate. Basing himself upon these medieval rulings, Rabbi Feinstein further expands the category of grave defects to cases that are relevant today.11
Currently, the efficacy and legitimacy of utilizing rulings of kiddushei ta’ut to release agunot is being fiercely debated. Some suggest that as marriages have occasionally been declared invalid in cases of impotence, insanity, and apostasy, declarations of kiddushei ta’ut should be used more widely to free agunot from abusive and recalcitrant husbands. Others point to the limited number of cases in which declarations of kiddushei ta’ut have been made and caution against making this rarely used instrument commonplace. A further aspect of the debate concerns the time of appearance of the defect. The instrument of kiddushei ta’ut can only be employed if the defect was present at the time of marriage. There is much deliberation as to whether personality disorders that are highly correlative with abusive behavior can be deemed kiddushei ta’ut or whether evidence of abusive acts before the marriage is needed to declare the marriage invalid. A critical element of aiding the cause of agunot is becoming more educated in the halakhic debate. It is in this spirit that I offer this essay.
1. Jewish marriage is composed of two parts: kiddushin, in which the man gives and the woman accepts an object that has monetary value, and nissuin, in which the man brings the woman into his home.
2. The list of mumin is based upon the physical deformities that bar a male member of the priestly family from participating in the Temple service.
3. This is the position of Rashi s.v. d’amar i efshi.
4. The Talmud cites an Amoraic dispute as to the halakhic standing of the get in this case. Rabbah and Rav Hisda maintain that the get is merely rabbinic, while Rava states that the get is biblical but given only because of the doubtful nature of the case. Thus, this is not considered a standard marriage by any of the disputants.
5. This is one of the grave defects for which beit din may compel a husband to divorce his wife (Ketubbot 77a).
6. Rashi s.v. di’menah niha la.
7. R. Meir of Rothenberg, responsa #564.
8. Rishonim who cite Maharam note that he did not actually rule like the geonim in this case.
9. Ketubbot 72b Tosafot s.v. al-menat.
10. Rosh ad loc.
11. Iggerot Moshe Even ha-Ezer 1:79
Devorah Zlochower is director of full-time programs at Drisha, where she teaches halakhah in the Scholars Circle.