Agunah - There is an [Easy] Solution

Rabbi Shemuel HaLevi Wosner was one of the most important Halakhic authorities in recent history (1914-2015). His halakhic writings were published as a responsum – שאלות ותשובות שבט הלוי. In one of his rulings in Shevet HaLevi, R. Wosner offers an insight to how the Agunah problem can be solved, but we must begin with the statement in the Talmud:[1]

אֵין עֵד מִפִּי עֵד כָּשֵׁר אֶלָּא בְּעֵדוּת אִשָּׁה בִּלְבַד

Hearsay [one witness who heard from another] is valid only as a testimony for a woman.

Why are the rules relaxed for the testimony of Agunah?

1. Rashi explains:

לְעֵדוּת אִשָּׁה - לוֹמַר לְאִשָּׁה מֵת בַּעֲלִיךְ, דְּאַקִּילוּ בָּהּ רַבָּנָן מִשּׁוּם עִגּוּנָא, וְכֹל דִּמְקַדֵּשׁ אַדַּעְתָּא דְרַבָּנָן מְקַדֵּשׁ, וְאַפְקוֹעֵי רַבָּנָן לְקִדּוּשִׁין מִנֵּיהּ

A testimony for a woman: to tell a woman “your husband has died”, regarding which the rabbis were lenient because of anchoring [agunah]. Anyone who marries a woman does so with the consent of the rabbis in mind, and in this case the rabbis annulled his marriage.

2. In tractate Yevamoth[2] the Tossafot comment on the same matter, quoting Rabbenu Yitzhak:

מִתַּקָּנַת חֲכָמִים הוּא דְּנֶאֱמָן וְאֵין זֶה עֲקִירַת דָּבָר מִן הַתּוֹרָה כֵּיוָן שֶׁדּוֹמֶה הַדָּבָר הָגוּן לְהַאֲמִין... שֶׁבְּדָבָר שֶׁיֵּשׁ קְצָת טַעַם וּסְמַךְ לָא חֲשִׁיב עוֹקֵר דָּבָר מִן הַתּוֹרָה

It is a rabbinical decree to rely on one witness. It is not considered uprooting a biblical concept [which requires two witnesses], because the matter seems to be worthy of believing it… in a case where there is some logical reason to rely on it is not considered uprooting a biblical concept.

The explanation of the Tossafot is very strange because it casts doubt on the requirement of two witnesses and on the reasons for disqualifying some witnesses, especially women.

One could argue that if two women offer a testimony “seems to be worthy of believing it”, it should be accepted. And indeed, many rabbis opposed this explanation.

The Maharsha writes:[3]

וְהוּא דָּחוּק גַּם בִּשְׁמַעְתִּין הֵיאַךְ הֵקֵלּוּ בְּאֵשֶׁת אִישׁ לַעֲקֹר דָּבָר מִן הַתּוֹרָה דְּהָא מִן הַתּוֹרָה בָּעֵי דְּרִישָׁה וַחֲקִירָה

This is hard to accept… how were they lenient regarding a married woman and allowed the uprooting of a biblical prohibition? The Torah demands דרישה וחקירה [cross examination of two witnesses.]

3. Maimonides[4] takes a different approach:

אֲבָל דָּבָר שֶׁאֶפְשָׁר לַעֲמֹד עַל בֻּרְיוֹ שֶׁלֹּא מִפִּי הָעֵד הַזֶּה וְאֵין הָעֵד יָכוֹל לְהִשָּׁמֵט אִם אֵין הַדָּבָר אֱמֶת כְּגוֹן זֶה שֶׁהֵעִיד שֶׁמֵּת פְּלוֹנִי, לֹא הִקְפִּידָה תּוֹרָה עָלָיו, שֶׁדָּבָר רָחוֹק הוּא שֶׁיָּעִיד בּוֹ הָעֵד בְּשֶׁקֶר

A matter which can be verified by means other than this one witness, and where the witness cannot provide excuses for his lie, such as in this case that he testified that the husband has died, the Torah did not insist [on having two witnesses], because it is highly improbable that the witness will lie.

The argument of Maimonides is problematic because there is no proof for the claim that the Torah considers probability of false testimony as the reason for rejection of one witness. Furthermore, though it is highly improbable, it is still possible that the witness is lying and that the husband is alive. If that is so, there could be a case, even if it is one in 100,000 where the rabbis have allowed a married woman to remarry, caused her and her second husband to sin, and rendered the children mamzerim.

R. Avraham Moshe di Botton struggles with the words of Maimonides and offers an interpretation which incorporates the commentary of Tosafot:[5]

לֹא הִקְפִּידָה תּוֹרָה שֶׁלֹּא נַעֲקֹר מִמֶּנָּה אֶלָּא בְּדָבָר שֶׁאֵינוֹ עָשׂוּי לְהִגָּלוֹת, אֲבָל בְּדָבָר הֶעָשׂוּי לְהִגָּלוֹת אַף עַל פִּי שֶׁמִּן הַתּוֹרָה צָרִיךְ שְׁנֵי עֵדִים, מִכָּל מָקוֹם כְּשֶׁנַּעֲקֹר הַדָּבָר לֹא הִקְפִּידָה הַתּוֹרָה עַל עֲקִירָתוֹ, כֵּיוָן שֶׁהוּא הָגוּן לְהַאֲמִין וּכְמוֹ שֶׁכָּתְבוּ הַתּוֹסָפוֹת. זֶה נִרְאֶה לִי לְיַשֵּׁב דַּעַת רַבֵּינוּ וְהָאֵל יִתְבָּרַךְ יַצִּילֵנוּ מִשְּׁגִיאוֹת

The Torah does not want us to uproot a biblical law [by accepting unreliable testimony], only when the truth is not likely to be revealed. When the truth might be revealed [such as in our case, where the living husband might show up], even though the Torah requires two witness, it does not mind when we uproot [that requirement] because it is worthy to be believed, as the Tossafot wrote. This seems to me the meaning of the words of Maimonides, and may HaShem save us from errors.

Note that the Lehem Mishneh combines the explanations of the Tossafot and Maimonides. It is also noteworthy that he concludes with a prayer to be saved of errors, indicating that he was concerned that his arguments, and those of Maimonides, are invalid.

Throughout the generations many great scholars struggled with the explanations of the Tossafot and Maimonides for the acceptance of otherwise invalid testimony in the case of Agunah. They are listed in chronological order in the footnote.[6]

There was also those who tried to argue that the Rabbis were granted power by the Torah to determine that one witness is valid regarding Agunah, but the majority of poskim disagree and rule that the decision to accept one witness is merely rabbinical. This is the opinion of the majority of poskim, from the Rivash in the 14^th century to R. Moshe Feinstein in the 20^th century. Twelve of the most important sources who are of this opinion are mentioned in the footnote.[7]

Summary:

The Talmud says that we are lenient when considering testimony for an Agunah. There are three main approaches to this statement:

1. Rashi: Though we collect evidence, effectively we rely on the retroactive annulment of marriage.
2. Tossafot: There is a high probability that the witness is telling the truth.
3. Maimonides: A witness is not likely to lie about the husband’s death, for if the husband is alive and he comes later to court the witness will be punished as a false witness.

Some commentators tried to merge the opinions of Tossafot and Maimonides, but the result is far from convincing and does not fit the language of either. Difficulties in the approach of Maimonides were pointed out by many scholars, and most commentaries on the opinion of Tossafot argue that the testimony should have been rejected by the standards of דאורייתא – biblical law.

The pressing question is how can the rabbis allow a woman to remarry when by biblical standards of testimony, her husband might still be alive. One posek, R. Amram Blum of Hungary (1834-1907) went to the extreme of claiming that even though the rabbis cannot override a biblical law actively by ordering one to perform a forbidden act, they can override a biblical law passively, by avoiding to take a necessary action.

He writes:[8]

כֵּיוָן שֶׁהַדָּבָר הָגוּן לְהַאֲמִין, אִם כֵּן בֶּאֱמֶת אֵינָהּ אֵשֶׁת אִישׁ וְאֵין כָּאן אִסּוּר בִּבְעִילָתָהּ, רַק דְּיֵשׁ גְּזֵרַת הַכָּתוּב דְּבָעֵינַן מִשְׁפְּטֵי עֵדוּת, וַחֲכָמִים הֵקֵלּוּ מִשּׁוּם עִגּוּנָא דְּלָא בָּעֵי דִּינֵי עֵדוּת, וְזֶה הָוֵי עֲקִירָה רַק בְּשֵׁב וְאַל תַּעֲשֶׂה

Since there is high probability that the witness is not lying, she is not really a married woman, and the sexual act is not forbidden. The only problem is that the Torah requires two witnesses, and the rabbis rule leniently that two witnesses are not necessary, thus overriding the biblical law passively.

This argument is shocking and circular. It is shocking because it chooses to focus on the obligation of the rabbis to hear testimony from two witnesses instead of focusing on the status of the woman. It is circular because it first declares the woman not married based on one witness, and then goes on to say that we can accept that one witness because it is only a passive act of not requiring two witnesses, but without accepting the one witness you cannot determine that the woman’s husband has died, and if that is so, sexual relations with her would be forbidden.

Rashi: Annulment of Marriage

It seems, therefore, that of the three commentaries mentioned above, that of Rashi is the most logical, because it is the only one which can explain how the rabbis can operate against biblical standards. The concept of annulment of marriage is based on the idea that when the groom offers marriage, he does so in accordance with the rules established by the rabbis, and if they find fault with him, they can annul his act. Also, if he offered the bride a ring or an object of value, the rabbis have the right to declare that object their possession, even retroactively, resulting in the conclusion that he gave her nothing of his at the time of the marriage.

According to this explanation, the rabbis are not lowering the bar for accepting witnesses. Rather, behind the scenes they employ annulment of marriage, but officially they try to collect as much evidence as possible, perhaps so people will not take the process lightly.

Who agrees with Rashi?

It turns out that in some cases even the Tossafot will have to agree with Rashi. Writes Rabbi Avraham Burnstein of Sokhatchev in his Avnay Nezer:[9]

וְיֵשׁ לוֹמַר שֶׁתּוֹסָפוֹת סְבִירָא לְהוּ בְּאִשָּׁה עַצְמָהּ, לוּלֵי דְּאַפְקְעִינְהוּ לֹא הָיוּ מַאֲמִינִין לָהּ בְּאִסּוּר תּוֹרָה, וְדַוְקָא עֵד אֶחָד שֶׁאֵינוֹ נוֹגֵעַ בַּדָּבָר דּוֹמֶה יוֹתֵר לְהַאֲמִין, וּבָזֶה יִתְבָּאֲרוּ דִּבְרֵיהֶם

We must say that the Tossafot hold that the woman herself [if she testifies that her husband died] would not be reliable without the annulment of marriage. Only regarding one witness, who is impartial to the case, we can say that he is probably telling the truth.

In other words, the author of Avnay Nezer says that the argument of Tossafot, and to that matter that of Maimonides as well, could only be applied to a case of one witness, who is qualified but lacks a second witness. In that case we can say that he is probably not lying, and we waive the need for a second witness. But we cannot do so when a woman testifies, and the acceptance of her testimony means that the rabbis who allowed her to remarry have also annulled her first marriage. This is not to say that the rabbis write an official annulment of marriage but rather that it is built into the process of releasing the agunah from the bonds of marriage.

Rabbi Wosner

This finally brings us to the responsum by Rabbi Wosner. In volume 3 of his Shevet HaLevi, chapter 204, R. Wosner quotes Rashi’s approach to explain why we can rely on the testimony of a robber to ascertain that the husband has died, and that the woman can remarry. Just as the Avnay Nezer argued regarding a woman, whose testimony is invalid by biblical standards, so does Shevet HaLevi regarding a robber.

But that is not all. The question remains: if annulment of marriage is a viable tool, why is it not used more often. And here we must stress that the reliance on annulment of marriage is not a post-facto concept. We cannot say that we rely of flawed evidence, and only if it turns out that the first husband is alive, we will annul his marriage. We cannot say that because once the Beth din declares the woman a widow, she can remarry, and if at that moment her first husband is still alive, her marital relationships with the second husband are forbidden and incestuous.

There is another serious flaw with the arguments which do not rely on annulment but rather on the probability of veracity, especially the argument of Maimonides. His argument is that the witness must be telling the truth, for if he were lying, he would dread the possibility of the husband returning and proving the witness to be false. But what if the witness and the husband made a deal? Additionally, the fact that husbands who were declared dead never returned to their wives does not prove that they really died. It is very possible that they abandoned their family never to return.

In other words, we should not have determined that a missing husband is dead unless there is solid evidence of his demise, and we therefore must rely on the annulment of marriage as a safety net. That safety net is activated with the verdict that the husband is dead, and not only in case he returns home.

Why only for missing husbands?

The question we must ask now is why this solution is not used in cases of husbands who refuse to give their wives a Jewish religious divorce, causing them tremendous emotional and mental pain.

The answer is provided by another ruling of Rabbi Wosner:[10]

נִדּוֹן שֶׁכָּתַב כְּבוֹדוֹ, דְּהָאִשָּׁה נִשֵּׂאת לוֹ בְּחֻפָּה וְקִדּוּשִׁין בְּמַחֲנֶה זַלְצְבּוּרְג, וְנָסְעוּ לִטְשִׁילֶע [צִ'ילֶה] וְיָלְדָה לוֹ בֵּן וְלֹא רָצָה לְמוּלוֹ וְאִשְׁתּוֹ רָצְתָה. וּלְאַחַר שָׁלוֹשׁ שָׁנִים נוֹלָד בֵּן הַשֵּׁנִי, וְאָז אָמַר לָהּ בְּפֵרוּשׁ שֶׁהוּא נִשְׁתַּמֵּד עוֹד לִפְנֵי שָׁנִים כַּאֲשֶׁר הָיָה בְּמַחֲנֵה הַמֶּמְשָׁלָה, וְלֹא אָמַר לָהּ כְּלוּם מִזֶּה הֱיוֹת שֶׁיּוֹדֵעַ שֶׁאִם יֹאמַר לָהּ לֹא תִּנָּשֵׂא לוֹ. וְכָעֵת אָמַר לָהּ שֶׁבְּשׁוּם אֹפֶן לֹא יִמּוֹל אֶת בָּנָיו שֶׁאֵין לוֹ שַׁיָּכוּת עִם עִם יִשְׂרָאֵל, וְהָאִשָּׁה בְּשָׁמְעָה זֹאת עָזְבָה אוֹתוֹ. וּבַעְלָהּ אֵין רְצוֹנוֹ לִתֵּן לָהּ גֵּט, וְנִתְפָּרְדוּ רַק עַל יְדֵי הַמֶּמְשָׁלָה. וְכָעֵת בִּקְשָׁה הָאִשָּׁה לִתֵּן לָהּ הֶתֵּר לְהִנָּשֵׂא, וּלְנַתֵּק אוֹתָהּ מִבַּעְלָהּ אֲשֶׁר בָּא בְּמִרְמָה עָלֶיהָ בְּכָל עֵת

Regarding your question [about a man] who married a woman in the Salzburg [DP] camp [after WWII], and they then migrated to Chile. She had a son and he did not want to circumcise him, but she wanted. Three years later she had a second son, and he then told her explicitly that he converted to Christianity years ago when he was still in the DP camp. [He said] he never told her a thing about it because he knew that she will not marry him. He then told her that he will never circumcise his sons and that he has no connection with the Jewish people. When the woman heard this, she left him. Her husband does not want to give her a Get and they only have a civil divorce. She now asks for a permission to remarry and be detached from her husband who has deceived and violated her.

We would have thought that this would be the perfect case to use the tool of retroactive annulment of marriage, but after R. Wosner discusses that option, alongside several others, such as finding a fault in the wedding act, or defining the marriage as conditional, he rejects all options and rules that the only way for the woman to be divorced is with a kosher Get. He explains his verdict:

וַהֲרֵי עַל זֶה מְצַפִּים הַחִלּוֹנִים פּוֹרְקֵי עוֹל שֶׁבְּעַמֵּנוּ שֶׁיִּמָּצֵא דֶּרֶךְ לְבַטֵּל אִישׁוּת בְּלִי גֵּט חַס וְשָׁלוֹם, וְזִקָּה שֶׁל יִבּוּם בְּלִי חֲלִיצָה, וְכָל קֻלָּא בְּנִדּוֹנִים כָּאֵלֶּה מְחַזֵּק הַמְּהָרְסֵי הַדָּת וְנוֹתֵן חֶרֶב בְּיָדָם, וּמִכָּל שֶׁכֵּן בְּכָזֶה שֶׁאֵין מָקוֹם לְהָקֵל כְּלָל

This is exactly what the secular heretics are waiting for, to find a way to annul matrimonial obligations without a divorce, God forbid! And to allow a widow to marry without performing the levirate law. Any lenient ruling on those issues supports those who want to destroy religion and puts a sword in their hands. Therefore, one should not be lenient at all in such a case.

Rabbi Wosner says that the problem is not halakha but perception. The non-orthodox factions of the nation might claim that there is a way to bypass the requirement for a Get and he will not allow it.

But why was it accepted before?

The problem with R. Wosner’s argument is that as we have previously seen, the tool of marriage annulment was activated in any ruling which released an agunah from her marital bonds, and there were thousands of such rulings in our documented history. Why was there no fear of heretical attacks?

The answer is given by R. Avraham Binyamin Sofer:[11]

אֶלָּא כָּל שֶׁנִּרְאֶה לַהֲמוֹן כַּעֲקִירַת דָּבָר מִן הַתּוֹרָה אֵין בְּכֹחַ חֲכָמִים שֶׁנִּרְאֶה כְּעוֹקֵר מִן הַתּוֹרָה, אֲבָל כָּל שֶׁיֵּשׁ סְמַךְ וְטַעַם קְצָת הֲגַם שֶׁאֵין טַעַם וּסְבָרָא זוֹ מִן הַתּוֹרָה, מִכָּל מָקוֹם לֹא נִרְאֶה כְּעוֹקֵר דָּבָר מִן הַתּוֹרָה, שֶׁיִּתְלוּ הַשּׁוֹמְעִים וְהָרוֹאִים כִּי מִטַּעַם זֶה מֻתָּר הַדָּבָר מִן הַתּוֹרָה

Rabbi Sofer refers to the argument of the Tossafot mentioned previously. He explains that the concern when deviating from the guidelines of the Torah is the perception of the act by the masses. If the masses consider it to be against the Torah, the rabbis should not do it and vice versa.

In other words, the reason the rabbis felt comfortable to rely on marriage annulment was that they used it only behind the scenes, while the official verdict was based on meticulously collected evidence and a process that could have taken years. While the observers believed that the agunah is released from her marriage based on legitimate testimony and due process, the rabbis bypassed it by annulling the marriage, a process which was included automatically in the acceptance of the evidence and confirmation of the husband’s death.

Conclusion and solution:

1. The rabbis of the Mishna ruled that one should be lenient when collecting testimony on a death of a married man, so we can let the wife remarry.
2. Of the three explanations to that ruling, the most encompassing and least problematic is that of Rashi, which says that the rabbis rely in all cases on annulment of marriage.
3. Even those who disagree with Rashi admit that the annulment is necessary when the witness is a woman or another disqualified witness.
4. The reason this solution is not used for Agunah whose husband refuses to give her a get is the fear that it will be perceived as an easy way to bypass the get.
5. The perception is not measured by the full halakhic process but by the way the masses perceive its visible parts.
6. Therefore, it is suggested that an international Beth Din will be established which will declare annulment of marriage, in accordance with the dozens of poskim quoted here.
7. The Beth din will annul a marriage only after the couple has signed a civil divorce.
8. This way, even though halakha does not recognize a non-Jewish divorce, the public will not make the mistake of thinking that any type of marriage could be annulled by the Beth Din.

We now need to sign up as many rabbis as possible on the document of foundation of the Beth Din and run webinars which will explain this document and the discussion presented here.