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Talmud-Based Solutions to the Problem of the Agunah

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Talmud-Based Solutions to the Problem of the Agunah Talmud-Based Solutions to the Problem of the Agunah To my parents Agunah Research Unit, Volume 4 Talmud-Based Solutions to the Problem of the Agunah Avishalom Westreich Deborah Charles Publications 2012 Copyright © 2012 Deborah Charles Publications All rights reserved. No portion of this publication may be duplicated in any way without the expressed written consent of the publisher, except in the form of brief excerpts or quotations for the purpose of review. ISBN 978-1-906731-20-5 (hardback) Published and Distributed by: Deborah Charles Publications On behalf of The Agunah Research Unit, University of Manchester E-mail: [email protected] http://www.deborahcharles.co.uk Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne. This is the fourth volume of a five-volume series, by each of the members of the Agunah Research Unit: Vol.1: Bernard S. Jackson, Agunah : The Manchester Analysis (Agunah Research Unit, vol.1, based on the Working papers of Yehudah Abel, Nechama Hadari, Shoshana Knol, Bernard S. Jackson and Avishalom Westreich) Vol.2: Yehudah Abel, Confronting ‘Iggun Vol.3: Shoshana Knol, Agunah and Ideology Vol.4: Avishalom Westreich, Talmud-Based Solutions to the Problem of the Agunah Vol.5: Nechama Hadari , The Kosher Get: A Halakhic Story of Divorce Ordering details, for one or more volumes, may be found at: http://www.legaltheory.demon.co.uk/ARU.htm Acknowledgements The problem of agunot – the chained wives, whose husbands refuse to divorce and thus cannot remarry – has occupied a wide range of scholars from antiquity to modern days: from talmudic sages to modern day scholars; from rabbis to academics; from politicians to lay people: women, men and professional attorneys. All are concerned with, and seek to find a solution to, one of the major challenges to Jewish Law and Jewish society in both the past and the present. This book, devoted to discussing the modern agunah problem and its Talmud based solutions, is one link in this chain. The book is an outcome of several years of research, mainly at the Agunah Research Unit of the University of Manchester, where I spent nearly two years. Some periods of time at the Shalom Hartman Institute and in the Hebrew University Law Faculty were also devoted to this research. My current home institution, The Academic Center of Law and Business in Ramat Gan, enabled the completion of this work. Prof. Bernard Jackson, the founder of the Agunah Research Unit of the University of Manchester, has directed it in the past eight years with faith and vision. Without his guidance, support and constructive involvement, both in content and structure, this book could not have been written and completed. His contribution to the international agunah issue in general, and to this work in particular, cannot be overstated. The company of teachers, colleagues, friends and students has made this work possible. Their thoughtful observations and useful comments assisted me in the long quest for understanding the sugyot discussed in this book. In particular, I would like to express my gratitude to Mordechai Akiva Friedman, David Henshke, Berachyahu Lifshitz, Leib Moskovitz, Amihay Radzyner, Avi Sagi, Pinhas Shifman and the members of the Agunah Research Unit: Yehudah Abel, Nechama Hadari and Shoshana Knol. I would also like to thank my seminar students at the Academic Center of Law and Business in Ramat Gan and at the Hebrew University of Jerusalem, with whom I have studied and discussed the complicated issues arising from the agunah problem, and to Edward Levin for his excellent assistance in translations and linguistic editing. Special thanks to my family: my parents, Sara and Elimelech Westreich, my שלי ושלכ שלה :children, Tamar, Aryeh, Shmuel and Bacol, and to my wife, Miri . הוא Earlier writings of mine were the basis of this book with some necessary updates and modifications: four working papers, published as part of the Agunah Research Unit publications (ARU Working Papers 9, 10, 11 and 15, available at http://www.manchesterjewishstudies.org/publications), and a few related articles, published in several periodicals (cited as Westreich, Divorce on Demand ; Gatekeepers ; Hafka‘at Kiddushin , Moredet , The Right to Divorce and Umdena : for full details see Bibliography, infra ). References to these and other relevant writings are provided throughout this book. Tamuz 5772 July 2012 Contents Introduction 1 Chapter One: The Rebellious Wife ( Moredet ): A Talmudic Source for Unilateral Divorce? 4 1.1 Introduction 4 1.2 Tannaitic and Amoraic Sources Regarding the Moredet 7 1.2.1 Tannaitic Sources: Would the Moredet receive a Get ? 7 1.2.2 The Babylonian Sugya of Moredet 13 1.3 Conclusions 23 Chapter Two: Ketubbah Stipulations and the Rebellious Wife in the Palestinian Tradition 25 2.1 The Rebellious Wife in the Palestinian Talmud 25 2.2 Ketubbah Stipulations in the Post-Talmudic Palestinian Tradition 29 Chapter Three: Palestinian Ketubbah Stipulations and the Geonic Moredet 32 Chapter Four: Marriage Annulment: From Mishnah to Talmud 39 4.1 Hafka‘at Kiddushin 39 4.2 Talmudic Cases of Hafka‘at Kiddushin 41 4.3 The Foundation of Hafka‘at Kiddushin 45 4.4 The Character of Hafka‘at Kiddushin 53 Chapter Five: Marriage Annulment in Post-Talmudic Times 60 5.1 Introduction 60 5.2 Mere Annulment or Coercion? 61 Chapter Six: Hafka‘at Kiddushin in Practice 70 6.1 The Various Talmudic Approaches as Bases for the Later Disputes: Does Hafka‘at Kiddushin Require a Get ? 70 6.2 Marriage Annulment in Practice: Can hafka‘ah be applied today? 76 Chapter Seven: Mistaken Marriage, Conditional Marriage: The Talmudic Basis of an Innovative Approach 78 7.1 Introduction 78 7.2 Mistaken Marriage; Conditional Marriage 80 7.3 “And the Sages Did Not Have the Power to Release Her without a Get ” (BT Ketubbot 74a) 82 7.4 Ada‘ata dehakhi lo kidshah nafshah (‘Umdena ) – Mistake or Condition? 85 7.5 The Integrated Approach 92 7.6 Iggrot Moshe : an Application of the Integrated Approach 98 7.7 Conclusion 104 Chapter Eight: From Theory to Practice: Will and Ability 106 8.1 The Pluralistic Nature of the (Normal) Halakhic Discourse 106 8.2 Legitimizing Solutions to the Problem of ‘ Iggun 108 Chapter Nine: Who is an Agunah ? 111 9.1 Introduction 111 9.2 No-Fault Divorce? 112 9.3 The Right to Impose Conditions on Divorce 117 9.4 The Motivating Force: Restricting the Right to Divorce 119 Epilogue 124 Bibliography 125 Abbreviations B.K.: Bava Kamma BT: Babylonian Talmud EH: Even Ha‘Ezer Ket.: Ketubbot M: Mishnah PT: Palestinian Talmud (Talmud Yerushalmi) T: Tosefta Introduction Is there a solution to the Agunah problem? Divorce in Jewish law is executed by a writ of divorce (henceforth: a get ) delivered by the husband to his wife. Typically, divorce requires both spouses’ consent: the husband’s agreement is fundamentally mandated by talmudic law (a desideratum that has been unanimously accepted from the talmudic era onwards), while that of the wife is required according to medieval rabbinical authorities (“the ban of Rabbenu Gershom”, which was originally adopted by Ashkenazi communities, but today is accepted by most, if not all, Jewish communities). 1 The Mishnah 2 lists several cases in which the husband is coerced to divorce his wife. Several others are added by the Talmud and post-talmudic authorities. 3 Usually, these are cases of faults, blemishes, and so on, which support the wife’s entitlement to the divorce. 4 But even when a formal fault does exist, it is not always possible to obtain divorce, due to the husband’s recalcitrance or incapability. Does Jewish Law provide us with routes for solving this kind of cases? More than that. Not rarely, one spouse demands divorce, but cannot prove one or more of the classic faults. So, is this spouse – usually the wife – entitled to divorce when no formal fault exists? And if she (or he) is entitled to divorce, how can it be executed, if her or his spouse refuses to participate? This book discusses several halakhic routes for executing unilateral divorce, or, when divorce cannot be obtained, routes for establishing a formal halakhic separation between the couple by-passing divorce, as follows: get compulsion in no-fault-divorce cases, mainly on the basis of the law of the rebellious wife (moredet ); constitutive marriage annulment on the basis of the talmudic maxim: 1 On the ban of Rabbenu Gershom and its spreading among Jewish communities see E. Westreich, Temurot . 2 M Ketubbot 7:10. 3 See , e.g., Rema (Rabbi Moses Isserles), gloss to Shul xan Arukh , EH 154:1. 4 In those cases the wife receives her financial rights (the ketubbah payment, i.e., the husband’s obligation of payment written in the marriage document, including the dowry, the wife’s prenuptial property, etc.). Similarly, there are cases in which the husband is entitled to divorce. According to talmudic law, prior to the ban of Rabbenu Gershom, the husband usually had a right unilaterally to divorce his wife, with or without a basis in fault, and with or without her consent. The effect of a fault or blemish in such cases was therefore mainly financial (i.e., the wife would not receive her ketubbah payment). After Rabbenu Gershom’s ban, consent for divorce, or fault or blemish on the part of the wife, became needed to establish the husband’s right to divorce and not only to support his financial claims. 2 Westreich: Talmud-Based Solutions to the Problem of the Agunah “everyone who betroths does so subject to the consent of the Rabbis, and the כל דמקדש אדעתא דרבנ מקדש ואפקעינהו רבנ לקידושי ) ”Rabbis annul his betrothal declarative marriage annulment on the basis of a mistaken transaction; and ;( מיניה conditional marriage, whether explicitly stipulated by the couple, or implied retroactively by the halakhic decisor ( posek ).
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