In a situation where a Jewish husband refuses to give a gett, there are certain proscribed conditions which may allow the beit din to void the marriage.
A marriage may be voided if there were no witnesses (eidim) under the wedding canopy who could testify that the act of kiddushin transpired, or the witnesses present were determined to be halakhically invalid, or the officiating rabbi (mesadeir kiddushin) was not Torah observant.
Alternatively, the marriage may be voided if the husband fails, intentionally or unintentionally, to disclose to his prospective wife a major flaw (mum gadol) in himself. Under these conditions, the marriage was entered into under false pretenses (kiddushei taut). Major flaws can include a preexisting personality or medical disorder such as bipolarity or impotence; other major flaws include the refusal to have children, homosexuality, and criminal or mental dysfunction.
Finally, in contradistinction to kiddushei ta’ut which focuses upon the past, a marriage may also be voided retroactively when one invokes an umdana demukhah, an assessment of the wife’s expectations regarding her husband’s behavior after the creation of the marriage. For example, if the husband developed psychological problems after the wedding, it may be assessed that had she known that her husband would become mentally dysfunctional during the years of their marriage, she never would have married him. Under certain conditions, in light of this umdana demukhah, a beit din may void the marriage.
Listed below are various decisions rendered by our bet din in which we investigated the grounds for voiding the marriage. As you will read below, in certain instances there were grounds to do so. However, there were also other situations where we were unable to offer such relief to the wife.
Prior to issuing a decision regarding the merits of voiding the marriage, we had obligated or recommended that the husband give a gett to his wife. In the event that he refused under certain conditions, we directed the community to isolate him religiously, socially and economically. These isolation measures are traditionally known as the harhakot of Rabbeinu Tam.
To preserve the confidentiality of the parties involved in this case, names and dates have been changed
Our case deals with a husband who fails to support his wife, engages in spousal rape and physical abuse and remarries another woman without giving a Gett to his first wife.
Our case deals with a wedding in which witnesses were not designated for kiddushin and in which only one possibly Torah observant adult Jewish witness, not halakhically related to the bride or the groom, was present under the huppah.
In 1983 Miriam Stein married Silvan Stone. In 2010 Mrs. Stein sued for a gett in Civil and Rabbinical Court (beit din) and they were civilly divorced in in August of 2014 however Mr. Stone refuses to give a gett which bars Mrs. Stein for remarrying in accordance with Jewish religious law (halacha).
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One of the indispensable requirements of the marriage ceremony is the witness. Whereas the Rabbi’s function is to guarantee the techinical aspects of the ceremony the wedding and can be dispensed with a ceremony without witnesses is invalid
The close family of the bride and groom are disqualified as witnesses.
The Hatam Sofer insists that if attending the ceremony there are at least two legitamate witnesses they can testify to the kiddushin even if they did not specifically see the actually act. There presence and the general knowledge that the couple are intending to marry is sufficient as they can safely assume that the wedding was performed properly.
This claim would undermine the leniency proposed here but two comments leave our original claim intact.
1] The Hatam Sofer is not widely accepted and there are sufficient authorities who doubt his conclusion.
2] The Hatam Sofer is only applicable where a competent Rabbi is officiating. In that case anyone in the room can safely assume that the kiddushin took place. However in our case the Rabbi was clearly not terribly knowledgeable of the rules of kiddushin and therefore an assumption that the kiddushin was performed properly would be unfounded.
In addition to the fact that there was no attempt in bringing witnesses under the hupa in addtion the ceremony was a double ring ceremony where Mrs. Stien gave Mr. Stone a ring and proclaimed that she was betrothed to her love and he to her. The eminent Rav Moshe Feinstien ob”m suggests that a double ring ceremony is enough to void the kiddushin as it shows a lack of understanding of the import of the ring. Even if one were to reject Rav Feinstein’s novel leniency it definitely undermines the competency of the officiating Rabbi and with it the assumption of the Hatam Sofer.
Another line of reasoning might be raised in terms of allowing their subsequent sexual relations as being a legitimate act of betrothal. The intent and the witnessing is allowed through affecting the rule “a person does not make his sexual relations and act of licentious but means to marry by these relations”. This is raised by some authorities but this can be rejected for two reasons.
1] The consensus opinion is that a person relies on the original act of kiddushin that he thought was valid and has no intent in subsequent relations.
2] The assumption that a person does not engage in licentious behaviour is only valid in a religious couple, in this case the couple was not observant at the beginning of the marriage and therefore this assumption is faulty.
Conclusion: Since the kiddushin was performed without two legitimate witnesses there was never a kiddushin and the woman is allowed to remarry without a gett.
This case deals with a mentally dysfunctional husband and whether his dysfunctionality constitutes grounds for voiding his marriage.
In 2008 the couple was married according to Jewish Law. After about 4 years Abraham notified Esther that he wishes to be divorced and left their communal house. In the last 3 ½ years Esther is asking to receive a gett from Abraham to no avail unless a sum of $100,000 is given to him.
It became clear to Esther that Abraham will continie to refuse to give her a gett and so she turned to the IBD. Esther was notified that Abraham infected here with a sexually transmitted disease commonly called Human papillomavirus or in the shortened version HPV. Abraham was apparently infected with the virus at the time of their marriage and therefore Esther is asking if that is grounds to nullify the marriage.
Before we determine the question whether infection with HPV is a major fault( מום גדול) the question is whether any sexually transmitted disease would constitute a major fault (מומם גדול) that would be grounds to force a gett
The grounds for divorce because of a major fault are enumerated in several places in the Talmud. The question arises are there additional grounds or the list is defined and limited to those mentioned in the gmara. Here the Rosh seems to contradict himself in one ruling he claims it is a closed list and in another he allows for an expansion. It would seem that the list can be expanded to a case that is similar to those mentioned. Other grounds that we might assume would be substantial fault and cause most partners to object should not be added if there is no similar precedent on the list.
Included in the list are serious life threatening illnesses and therefore it is safe to assume that any life threatening illness is considered grounds for divorce. Some authorities add additional stipulations in order for an illness to be added as grounds for divorce
1] Contagiousness- that the illness poses a threat to the wife as well.
2] That the woman cannot stand to be in the presence of an individual with the disease.
It is not surprising then that many authorities conclude that having AIDS and infecting his wife with HIV is sufficient grounds fro divorce.
However if the disease is not contagious there should be no grounds for divorce.
In conclusion if an STD is present in one of the partners if it
1] Is dangerous
3] Creates a feeling of disgust
that is grounds for divorce. If one of the conditions is unmet then it remains a dispute between the authorities.
In general any transaction that requires consent such as buying or selling that is done based on a mistaken premise is not valid. The gmara seems not to apply this rule to kiddushin. Some authorities believe that the reason for the omission is because the beit din could always force a gett and therefore the woman prefers the marriage to be valid as she always can leave the mariage by petitioning the beit din for a gett. Since that possibility is not viable now they conclude that in cases of major faults of the husband the wife can claim the transaction was in error and therefore null and void. Others claim that kiddushin is an exception to the rule of mistaken transaction since there is an assumption of “tav lmeitav tan du” that a woman will always or at least usually prefer to be married than single. Some view this claim as a definitive claim some hold it true on a doubtful level ( since it might be true the woman needs a gett to remove the doubt) and some hold it is true only on rabbinic level. The IBD thinks that the first position is held by many authorities and shuld be followed. Hence in any case of a major fault that was not known to the women at the time of kiddushin the wedding is null and void.
As far as AIDS it would seem that it should be included in a “major fault” and should be enough to invalidate a marriage.
The gmara posits that while doing a mitzvah one will not be harmed. Some authorities conclude that since having marital relations is a mitzva one needn’t be concerned about contagious diseases. Some authorities believe that marital relations are not considered a mitzva to apply this rule. Other authorities limit this conclusion by limiting the original rule to supernatural dangers but not to naturally occurring dangers. Likewise when the danger is likely the rule does not apply either. It would seem that through all the stipulations and limitations that AIDS would certainly be a major fault to define the marriage as a mistaken transaction and therefore invalid.
Now to the matter on hand that is the HPV illness. Certainly since the HPV is not harmful or dangerous one cannot define it as a major fault. However it is possible that Abraham was infected with other forms of HPV which increase the danger of cervical cancer which is certainly dangerous. Those HPV strains would certainly be considered a major fault. Rav Shmuel Vitali ruled on a case where there is only a possibility of contagion as a major fault. So to strains of HPV should be considered a major fault.
However in order to nullify a marriage through a claim of mistaken transaction one needs to fulfill three requirements.
1] That a major fault in the husband exists
2 That this fault was unknown to the wife at the time of the marriage.
3] That the wife left the husband upon the finding of the “fault”.
There is a difference of opinion whether the leaving has to be done immediately upon finding the fault or can be claimed some time after. In this case however the IBD does not need to take a position on that question as Esther continued to have relations with her husband even after she found out about the HPV. So we can assume that she accepted this fault and waived her right to cancel the marriage based on the faulty transaction claim.
As we mentioned in our original remarks we have obligated the husband to give a gett to Esther but we view the marriage as being valid.
The facts of the case are as follows. In 2015 a woman K. A. Turned to us with a request that we free her form the status of igun. K was married to S. in a Jewish marriage ceremony in California in 1989. In the beginning of their marriage there were various issues and problems and they went to various psychologists to resolve their issues. Despite their issues they had two children and in 1999 the husband sued for divorce and shortly afterwards the divorce was granted. Three months after the divorce was granted the husband married another woman.
The IBD sent three requests to to the husband to appear before the beit din but they were all ignored. Afterwards we obligated the husband to give a gett without any conditions but he refused to abide by the beit din’s instructions and refuses to grant his wife a gett recognized by halacha.
We spared no effort to research the facts and the halacha in this case and with heavenly guidance we were able to release this woman from the chains of igun and permit this woman to marry another. The halachic decision in our opinion is clear obvious and without any hesitation.
The marriage ceremony was indeed a Jewish one but it was conducted by the director of a temple belonging to the Reconstruction wing of Judaism. Reconstructionist Judaism is a liberal wing which does not believe in Judaism as a religion but rather relates to it as a culture. Many do not believe in a G-d or certainly not a personal G-d and do not believe the giving of the Torah at Sinai was a historical event or that the halacha is binding. As such their ceremony is quite distinct from one which would be recognized halachically. One of fact which arose was the family of the groom there was a custom to use the ring of his grandmother. This ring was used at all the ceremonies and was immediately returned to the grandmother at the end of the ceremony. The ring never belonged to the husband and was never given to the bride. There is a dispute among authorities about a borrowed ring and the efficacy for kiddushin but in this case there was never any level of ownership at all and certainly no intent to transfer that ownership to the bride. Simply speaking halacha demands a ring that is owned by the husband to transfer that ownership to the bride. Neither of these demands were met in any possible definition.
In addition there is an independent requirement of two acceptable witnesses that witness the kiddushin ceremony. These witnesses, by halachic standards, need to be male adult and observant of the halacha. We checked the pictures and video of the wedding and there were no acceptable witnesses present. All of those present under the huppa were either close relatives of the bride or groom, non- observant Jews or not Jewish at all. Even the director told us that he does not require witnesses and when the couple requests it he is never careful that they be halachically acceptable. The Director himself told us that he is not observant and does not believe in the historical veracity of the Torah.
For all these reasons the decision of the Great arbiter of halacha in our generation Harav Moshe Feinstein took the position in numerous opinions that Reform marriage is null and void halachically and has no power to create a halachic marriage.
Therefore the woman K. was never considered married by the rules of halacha and she is therefore allowed to marry anyone even a cohen (who is prohibited to marry a divorcee) in consonance with the rulings of Rav Moshe Feinstein.
There are certain other issues which need to be ruled out in order to solidify this opinion. The Hatam Sofer ruled that even if the witnesses under the huppa were disqualified the commonly held knowledge (literally we are witnesses). The Hatam Sofer position is novel as the role of witnesses in kiddushin is not only as a proof but in fact they are crucial to validate the kiddushin. A kidduishin without witnesses is not valid so it is hard to understand how common knowledge can replace the formal requirement of witnesses. Therefore many authorities reject the Hatam sofer’s position as is well documented by the eminent Rabbi Walldenberg.
In addition it is clear that if the kiddushin was not valid for other reasons (such as lack of intent by the bride and groom or lack of ownership of the ring) then the “common knowledge” argument clearly fails. Also the “common knowledge only exists if there is a competent orthodox Rabbi conversant with halacha. In a Restructionist temple there is no presumption of a halachically binding ceremnoy and therefore there is no “common knowledge. So too Israeli Rabbinic courts have ruled that in cases of reform or civil marriages the common knowledge argument is not cogent. Also the argument of “common knowledge” if among the assembled are observant Jews, in a Reconstructionist Temple it is likely that there are no two acceptable witnesses so that argument is inapplicable in this case.
The halachic efficacy of continual civil marriage.
Even if there is no formal halachic kiddushin and Reconstructionist marital ceremony is not binding we still are aware that the couple lived together as man and wife for several years. Another question that we have to address is whether such arrangements create a halachic marriage. The Rivash (14th century authority from Barcelona) quotes a dispute between the Rambam and other Geonim in the following case. Where two people have intercourse does one assume since a person does not want to be sexually wanton he intends the sexual relations to be an act of kiddushin. (In addition to giving of an object of value to the bride there are two other methods of kiddushin via written contract or sexual relations). The Rambam rejects the argument and restricts the assumption mentioned in the gmara to a subset of cases. (particularly when the couple was previously married and divorced and not any two people). The Rivash then continues and argues that the position of the Rambam certainly holds when there is a civil or non- Jewish ceremony. The existence of a non- Jewish ceremony (or non halachic) shows that the couple is not interested in creating a halachic marriage. Particularly in a time and place where a halachic marriage was readily available and the couple , for whatever reason, opted out. In addition the whole presumption that a person does not not want to engage in extramarital relations does not apply to a non observant couple.
In addition the Rivash adds that even according to the Geonim who are stringent it is only if there are witnesses that can attest that they were alone together for the purpose of relations and that does not typically happen.
To sum up the Rivash rejects civil or any non-halachic marriage for three reasons.
1] If the couple choose a non halachic option we should assume that they do not wish a kiddushin by halacha.
2] A non observant couple has no presumption that they would not engage in extra-marital relations.
3] There were no witnesses to testify they were alone.
This is all even if we accept the position of the Geonim which the Rambam vigorously disputes.
Another reason to reject the possible stringency is that the fact that the divorce was filed civilly without any intent to give a gett that shows that they never intended to create a halachic marriage. While it is unreasonable to cancel a marriage that was definitely halachic in this reason for a marriage that we have grounds to believe was not performed halachically the subsequent behavior of the couple should be considered.
In addition as some have noted that in this permissive society most couples live together for a period before marriage with no intent to create a marriage. So the whole assumption that one does not intend to have extra-marital relations is ludicrous.
Also even the Rabbinic courts in Israel that were stringent in the matter of civil marriage only did so as an extra stringency but in a case of igun they did not insist on a gett.
The issue of the halachic validity of civil marriages was a topic of rabbinic debate in the period before World War Two. Rabbi Yosef Razin (commonly referred to as the Rogotchaver or the genius from Rogotchav) held that there were two aspects of marriage, halachically. A halachic status of the woman as an אשת איש a woman married. In addition there is a relational aspect of being someones wife(קנין אישות). The civil marriage does not create the formal halachic status of אשת איש on the woman but a relationship (קנין) is created that bars her from remarrying without a gett. A similar argument developed in the 20th century between two halachic greats Rav Henkin, who held stringently that even those that are civilly wed need and gett and Rav Moshe Feinstein who held that no gett was necessary. This question became very serious and common after the collapse of the Iron Curtain many women married civilly came to the U.S. and Israel without a gett. The broad consensus opinion was not to require a gett although some batei din preferred to deliver a gett if possible.
As a Rabbi in St. Louis Missouri the Head Rabbi of Jerusalem at the time Rav Zholty visited the town and I asked him the law in this matter. And he stated definitively that in Israel the broad and obvious ruling is not to require a gett and this ruling is seen as quite obvious and trivial. (He compared it to making a hamotzi on a piece of bread. )
Parenthetically a decision written by Rav Dichovsky in 2003 recognizing the halachic validity of civil divorce should be seen as an attempt to bring under the juristiction of the Rabbinic courts civil marriage and not to see it as a novel halachic approach or an attempt to upend the precedents on this mattter.
In April 2016 the plaintiff S. requested a nullification of the marriage since her husband refused to grant her a gett. The Beit din obligated him to give a gett in july 2015 but he reamins obstinate and refuses to give a gett.
The impression of the Beit Din form the claims and counter claims in the original case is that there is reason to believe that the woman will begin to transgress various prohibitions of the Torah if the marriage is not nullified. Rav Ovadiah Yosef has written about this danger particularly after the couple separates if a gett is not delivered soon many serious transgressions occur.
As we have said after we have obligated the husband to give a gett and he is still stubbornly refusing we must analyze carefully the issue of voiding the marriage since they are separated over two years and the husband is still refusing to give a gett.
The crux of the matter is that according to the wife the husband did not function in their marriage. According to her for most of their marriage there were no sexual relations. In the infrequent instances that they had relations she requested that they go to therapy but he refused. The husband was only willing to engage in anal sex, to ignore her needs and wants totally.
In order to consider the marriage a mistaken transaction we need to fulfill three conditions.
1] The fault has to be a major fault which any reasonable person would not be willing to overlook.
2] The woman must not have known about this fault before the marriage.
3] The woman has to object as soon as the fault becomes known to her.
The Beit din has no knowledge of a precedent using the fact that the husband does agree to marital relations as grounds to void the marriage. There is sufficient precedent for cases if the husband is impotent and unable to have sexual relations. As Rav Yitzchack Elchanan Spektor has written that inability ot have sex is a serious fault and grounds to obligate divorce and if it was unknown to the wife it would be grounds to declare the marriage a “mistaken transaction”. Rav Feinstien comes to a similar conclusion albeit with a slightly different train of thought.
The Shullchan Arukh and various of its commentators compare the case of impotence with that of a husband who does not wish to maintain sexual relations with his wife.
More so until now we have assumed that under these conditions the husband is obligated to give a gett. However if the condition can be solved medically there is not even an obligation to give a gett. If there is no obligation to give a gett it is obvious that we cannot declare the marriage a mistaken transaction.
However Rav Frank (the Chief Rabbi of Jerusalem for decades till his passing in 1960) held that the possibility of a medical solution is only significant in terms of obligating a gett in a valid marriage. However to consider the marriage a “mistaken transaction” even if there is a possible cure it is still considered a major fault.
As opposed to Rav Frank other authorities hold the possibility of a cure is significant in the definition of a “mistaken transaction as well.
In the case in question the woman would not have agreed to the marriage if it was possible that there would not be a cure. In addition the husband refused any medical or psychological treatment. The husband has no right to abstain form his obligation toward his wife. Rav stern holds in a case where the husband refuses medical treatment there is no assumption that a woman prefers to be married and therefore the marriage can be nullified.
2] The second condition is tha the wife did not have knowledge of the fault at the time of the marriage. The conclusion of the Beit Din based on the testimony and the proofs brought before it that the woman had no knowledge of the faults at the time of the marriage.
In the case where it is not clear that the husband was impotent at the time of the marriage Rav Walkin opines that we cannot declare a “mistaken transaction” and assume the problem predated the marriage. However there are a substantial number of responsa that declare a “mistaken transaction” because of impotence when the only proof given is a medical check after the marriage or the fact that the wife is still a virgin. The unsaid assumption is that the impotence existing after the marriage creates an assumption that it always existed. So even though there was no proof that the impotence existed before the marriage we can assume it was a fault at the time of the marriage as well.
3] The woman must leave the marriage when the fault becomes known to her.
If the declaration of fault and leaving the marriage has to be immediate is a dispute among the authorities. Many authorities require that she leave immediately after finding the fault however many eminent authorities (Rabbi Feinstein , Goldshmidt and others) allow the woman to stay for a time if she has a rationale for staying in the marriage.
In our case the marriage was in January of 2010 the fault was discovered about September 2011 and she only left in July of 2014.
In a related case the eminent Dayan Harav Boyaron that in a case of mental illness even waiting seven years is not evidence of accepting the fault but part of a natural realization that the illness is serious and not curable. In our case as well the woman was married at a young age of 21 and did not realize the depth of the issue. She rationalized that perhaps the husband will respond to medical treatments and that is not so serious. In areas like this even a protracted period when the wife remains it is not a proof or acquiescence to the fault.
2] Implied condition. ( אדעתא דהכי לא קדשה נפשה)
In order to apply the rule of “mistaken transaction” the fault has to exist at the time of the marriage. The gmara asks that if the husband dies and leaves his wife to an undesirable brother (by torah law if a husband dies without children in certain circumstances the widow is liable to yibum- marriage to his brother or halitaza a ceremony akin to divorce). That she would not have agreed to the marriage had she known that she would be involved withthis undesirable brother. The gmara does not reject the question out of hand but rather answers that the woman prefers being married in any case. It would seem that we in extreme cases where the preference is non-existent (the woman would not have agreed to the marriage had she known her eventual circumstances) then we can nullify the marriage by claiming this implied condition.
Having a sexual relationship is a fundamental part of marriage. The Torah views the mitzva of onah- having relations as a central part of the marriage. Therefore the Beit Din holds that this woman would not have a greed to the marriage knowing that the husband would not have a sexual realtionship and refuse treatment for this condition.
Consequently we declare the marriage a mistaken transaction because of the husbands impotence and use the implied condition to cancel the marriage because of the implied condition.
Our case deals with a husband who fails to disclose to his prospective wife before the marriage that he is bipolar.
According to M.L. On the wedding night it was obvious that he was depressed, and upon her asking how he felt he replied that indeed he was anxious and depressed. Even in the first weeks of their marriage she noticed extremely unusual behavior including mental and physical abuse towards her. His unusual activities included attempted suicide (in June 2011 before the marriage) staying in the house without gainful employment, sleeping the entire day and drug abuse. In fact he was admitted into a mental health institution in the summer of 2011. It became clear that this behavior was a result of his psychological illness. After consulting several psychiatrist psychologists and other mental health professionals it was clear that his illness was not a passing phase but a permanent condition that was.
The plaintiff claims that his behavior is a result of mental illness which preceded the marriage as well. The mental illness was known to the defendant as he went to therapy both to psychiatrists and psychologists before the marriage. The consistent drug abuse had also preceded the marriage and these facts were concelaed before the marriage.
2. The Beit Din has been provided with a medical record diagnosing the husband with a severe mental illness that existed at least two years prior to the marriage. Other unusual behavior included disappearing for a few weeks after their engagement without notifying his fiance as to his whereabouts, breaking into the house of Henry Kissinger and even running in the streets unclothed. (the latter is one of the hallmarks of a mentally incompetent in the Talmud)
3. The plaintiff turned to the Bet Din of America who summoned the husband to a din torah. That Bet Din obligated the husband to give a gett but he refused and The Bet Din of America gave its approval to the International Beit Din to pick up the matter where it was left off. This grants the International Beit Din authority to deal with this matter and there is no need to send an additional summons to the husband. So too the state of igun creates a pressing matter and allows the Beit Din to judge this case without the husband being present.
Nullification of the Marriage by finding of a Major Fault in the Husband
The mishna and gmara( starting on ketubot 72b) relates a case of a man that betroths a woman on the condition that she has no faults (literally blemishes) and then it is found that she has some makjor faults. The gmara does not have a parallel discussion about faults in the husband. Because of this disparity some authorities conclude that a woman always prefers a married state and therefore would not cancell the marriage because of faults in the husband. These authorities seem to eliminate the possibility of declaring the kiddushin null because of a fault. In short the claim of “mistaken transaction” is not effective for the wife. In fact Rav Henkin a major authority in the US in the first half of 20th century holds stridnetly that there can be no claim of mistaken transaction by the wife.
However other authorities have held otherwise. In the gmara (ketubot 77a-b) the gmara deliniates different faults which grant a woman a right to demand a divorce. The Bet Shmuel writes that the mishna is only speaking when the faults happened after the marriage or the woman knew of them at the time of the marriage. But if they pre-existed the marriage and were unknown to her at the time the kiddushin is a mistaken transaction. More recent authorities have questioned the Ber Shmuel- if indeed there is a mistaken transaction why do we need to force a gett? Rav Tzvi Pesach Frank explains that in cases of minor faults there is a doubt whether there is a mistkaen transaction so a gett is required
“l’humra” (to remove all doubt) but in cases of moajor faults no gett is required.
In conclusion there is sufficient support to rely on the Bet shmuel’s opinion and many rabbinic courts in Israel have ruled. This included courts with the Sefardi Cheif Rabbi Yitzchack Yosef and the Ashkenazi Chief Rabbi Lau and other senior appeals court in Israel.