R Rackman: The solution to Aguna is being able to annul any marriage without a Get

 The following are excerpts from Chapter 3 of One Man's Judaism by Rabbi Emanuel Rackman 

He states on page 244 that Rav Moshe's annulment marriages for preexisting conditions which a normal woman can't live with - is a good start but it is not enough. He raises the important question of whether the ability to help agunos is worth the price of

"making virtually all marriages easily annullable and such liberalism might destroy the sanctity of marriage - one of Judaism's most cherished values and desiderata. Rabbis and laymen would raise a hue and a cry that marriage bonds in Judaism are made of straw. The stability of marriages would be adversely affected. Instead of being viewed as indestructible, marriages would be regarded as ephemeral. That is why our Rabbis in the past so hesitated to suspend the requirement of a Get. That is why they so formalized the procedure for a Get. That is also why the forbade conditions and the inclusion of capricious agreements in the original marriage contract." 

Chapter Three

HALACHIC PROGRESS: RABBI MOSHE FEINSTEIN'S IGROT MOSHE ON EVEN HA-EZER

I

In contemporary halachic creativity rabbis are rarely daring. This complaint is often heard whenever Jews meet to discuss the present plight of Jewish law. It is, therefore, an event joyously to be hailed when so renowned a scholar as Rabbi Moshe Feinstein publishes a volume of responsa [Igrot Moshe on Even Ha-ezer NY 1961] which reveals not only erudition of exceptional breadth and depth but also courage worthy of a Gadol in an age of unprecedented challenge to our cherished Halachah. 

There is abundant authority in earlier respona of great scholars for all thus far reported from Rabbi Feinstein's volume. However, he deserves our approbation for reaffirming the rulings in our contemporary situation when Orthodox rabbis have become so panicky about liberalism that they have "frozen" the law beyond the wildest expectations of more saintly forebears. But there is one area in which Rabbi Feinstein forges ahead of predecessors. He permits husband or wife to remarry without a Get when there is reasonable assurance that if either had known some important fact about the other in advance of the marriage they would not have entered upon the marriage. Rabbi Feinstein has revived the Talmudic notion of "marriage by mistake," and he does not limit it, as the Tosafists of the Middle Ages did, to the period intervening between betrothal and consummation of the nuptials. According to Rabbi Feinstein, the spouse may avail himself or herself of the fraud or conThere is abundant authority in earlier respona of great scholars for all thus far reported from Rabbi Feinstein's volume. However, he deserves our approbation for reaffirming the rulings in our contemporary situation when Orthodox rabbis have become so panicky about liberalism that they have "frozen" the law beyond the wildest expectations of more saintly forebears. But there is one area in which Rabbi Feinstein forges ahead of predecessors. He permits husband or wife to remarry without a Get when there is reasonable assurance that if either had known some important fact about the other in advance of the marriage they would not have entered upon the marriage. Rabbi Feinstein has revived the Talmudic notion of "marriage by mistake," and he does not limit it, as the Tosafists of the Middle Ages did, to the period intervening between betrothal and consummation of the nuptials. According to Rabbi Feinstein, the spouse may avail himself or herself of the fraud or concealment at any time after the marriage. Thus a husband may remarry without a Get if he discovered that his wife could not bear him children because of an affliction that existed prior to the marriage. Similarly, the wife may remarry without a Get if she discovers that her husband is incapable of sexual intercourse or that he was committed to a mental hospital for a period prior to his marriage and became ill again during the marriage. The presumption is simple: She would not have married him had she known all the facts. 

What is especially noteworthy about Feinstein's desire to relieve anguish and pain is his readiness to ignore prior authorities when their conclusions are antithetical to his. Thus, with the zeal of a great humanitarian he cites the Ein Yitzhak who permitted a widow to remarry without Halitzah because he held the marriage of the widow to be a nullity, but he fails to cite the Shevut Yaakov whom the Ein Yitzhak cites and who unequivocally arrived at a conclusion opposite to that of Rabbi Feinstein in an almost identical case. Such is the power of Heterah (leniency) in the hands of a Talmudic giant! And we thought our generation was altogether bereft of them! 

It is also noteworthy that the eminent Rabbi Weinberg of Montrieux ended one of his responsa, published in Noam, with a prayer that one day some rabbi will be bold enough to rule as Rabbi Feinstein has. He lived to see his prayer fulfilled.

III

There is no doubt but that the liberalization of Jewish family law can best be done through the broader exercise of the inherent power of a Beth Din to annul marriages for fraud or mistake. Of course, the consequence will be that the issue of marriages subsequently annulled will be regarded as born out of wedlock. But in Jewish law this does not mean illegitimacy-or even serious consequential stigma. Altogether, to solve the Agunah problem without annulling marriages is impossible. Even in Israel, where coercion against the recalcitrant spouse is feasible, the court may be helpless if the recalcitrant spouse is in another jurisdiction or escapes there before the court's relief is sought. Furthermore, in the event of the husband's insanity the wife is absolutely without a remedy even in Israel unless the marriage can be annulled. An insane husband is not competent to delegate his authority or power to the Beth Din. For these reasons, as well as others, the abortive attempt of the Conservative movement in the United States to solve the problem with an eye exclusively on the Get was unfortunate. It seized upon the least progressive alternative (as did some American Jewish journalists) and placed in jeopardy the course Rabbi Feinstein is pursuing. 

The Talmud assumes in many of its tractates that marriages by mistake are void or voidable. Indeed, such marriages can be annulled not only because of facts known to one of the spouses before the marriage and concealed from the other, but also because of facts that no one could possibly have known in advance. Thus the Talmud queries why a widow who is childless cannot annul her marriage to her deceased husband on the assumption that she would not have consented to wed him had she known in advance that she would one day require Halitzah.2 [2. The Tosafists would limit the query to deaths after betrothal but before the consummation of marriage. Rabbi Feinstein does not make the distinction. ]  The answer is that we legally presume acquiescence on the theory that a woman prefers to be married even to a bad risk than remain a spinster. Yet this is a presumption as to a state of mind. And this state of mind is subject to change. Indeed, it has changed in our day. Most Jewish women today would never acquiesce to marriages which would ultimately involve them in an Agunah situation because of the husband's insanity, lack of masculinity, or recalcitrance to give a religious divorce. These are conditions which often exist potentially in advance of the marriage, albeit unknown to either spouse in advance. Certainly they are as much potential facts as is the subsequent death of the husband without children when Halitzah is required, and but for the presumption with regard to an older generation of females who preferred any kind of marriage to none, our Sages would have waived the requirements of Halitzah. Now, however, women feel quite differently. The lot of the spinster is not as pathetic as it once was and is preferred to that of the Agunah. The Agunah is far more miserable, and her lot is far less enviable. Ours is the duty to reckon with the change. 

Rabbi Feinstein hesitates to go so far. He did annul the marriage of a woman whose husband became insane after the marriage because he had been similarly ill prior to the marriage, and he so ruled even though the husband appeared sane at the time of the marriage and thereafter served for two years in the military establishment of the United States. Nonetheless, the subsequent development of the malady was enough to warrant annulment of the marriage. Insanity­ - actual or potential-is sufficient cause for either spouse not to want the marriage. Incompatibility, however, is not adequate. Sadism-even sadism in refusing to give a Get--is also not adequate. Why? We know now that almost all marital problems are due to one neurosis or another. The neurotic behavior and the circumstances that evoke it cannot be foretold. Insanity is only an extreme form. Yet if a marriage may be annulled because a woman does not want to cope with an insane husband, and" therefore, the presumption that she would prefer a bad marriage to no marriage no longer holds because the marriage is so bad, then in every case where it subsequently appears that latent neuroses make it impossible for the spouses to relate to each other as they should there ought also be a basis for decreeing that the marriage is annulled because of mistake. 

The obvious reply is that if one adopts this position one is making virtually all marriages easily annullable and such liberalism might destroy the sanctity of marriage-­one of Judaism's most cherished values and desiderata. Rabbis and laymen would raise a hue and a cry that marriage bonds in Judaism are made of straw. The stability of marriages would be adversely affected. Instead of being regarded as indestructible, marriages would be regarded as ephemeral. That is why our Rabbis in the past so hesitated to suspend the requirement of a Get. That is why they so formalized th« procedure for a Get. This is also why they forbade conditions and the inclusion of capricious agreements in the original marriage contract. 

However, there is another consideration to be reckoned with. The overwhelming majority of marriages will not be affected. Where the spouses continue to be decent, normal and humane, the Get is always available. The problem arises principally when one spouse becomes sadistic, vicious, or vengeful. And when we insist on the Get in such a case-­despite the discovery of indecent, abnormal or inhumane behavior in the intransigent one - are we promoting respect for the sanctity of marriage or undermining respect for Jewish law altogether? This is the issue. Which end are we to safeguard? This brings one to a consideration of means and ends in Halachah generally. Respectfully it is submitted that more Halachic experts of our day ought ponder this problem.

IV

From a philosophical point of view, can it ever be said that correct ends do not justify wrong means? It would appear that there can be no such thing as an ethical objection to the use of so-called wrong means for correct ends, because nothing can be regarded as evil except by reference to the ends involved. If we refuse to adopt a course which we regard as evil--even to achieve a worthy objective--it is because the means are evil with reference to still another end which ranks higher than the end for which we are considering the controversial means. […]

Rabbi Weinberg of Montrieux and Rabbi Feinstein of New York have opened the door. A courageous Beth Din must now restudy the situation and make choices. The worldwide Jewish community feels less bound by Halachah than ever before in Jewish history. Bastardy is, therefore, rifer than ever, and Jewish communal organization with internal discipline is virtually non-existent. Which is the more important Halachic end to be pursued in the present situation-the preservation of an ideological commitment to family holiness which concerns only a few who will not be affected by liberalism in the annulment of marriages, or to prevent the greater incidence of bastardy against which there can be no real protection in so mobile and fluid a society as ours now is? 

Needless to say, a minority among us will scream. But they need not suffer. Nothing will have been imposed upon them against their will. Jews always had small groups that were especially careful in matters of Taharah. as well as family background. There need be no insistence on uniformity or regimentation. Let there be standards of excellence here as everywhere. However, one must help relieve a situation which begs for correction. Most Jews will hail the effort. That Gedolim in the past hesitated to act means only that they mistook the gravity of the situation. They simply erred. With their rigidity they did not save. This was even true in Europe. In America conditions have become indescribably worse. 

What other alternatives are there? We can isolate all who are loyal to Halachah from the rest of the worldwide Jewry, outlaw their intermarriage with the rest of their coreligionists, and let those who suffer as Agunot because of their commitment to Jewish law resign themselves to their fate as the will of God. For those to whom these alternatives are not acceptable, the only available road is that initiated by two Gedolim. of our day