סמכות רבנית כרך ה, פתח דברRabbinic Authority V, Preface
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1The present volume is the fifth in a series of volumes intended as an introduction to a subject perhaps unfamiliar to many – the dynamics of rabbinic authority in our halakhic tradition. The subtitle, “The Vision and the Reality,” points to the themes being addressed in this work.1As we know, Halakhah distinguishes between the theoretical law, which emerges from an abstract study of the sources of Halakhah, and the rule that is applied in a particular factual context, i.e. Halakhah lema’aseh. See Bava Batra 130b and Talmud Yerushalmi Beitzah 2:1 (R. Yohanan’s statements). However, whereas “the vision” portion of the presentation deals with the decisions of Halakhic authorities as memorialized in sifrei pesak (restatements of Halakhah) and sifrei teshuvot (responsa), “the reality” portion of our presentation focuses upon the halakhic-judicial rulings of a beit din.
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2This volume, following in the footsteps of volumes three and four of our series entitled Rabbinic Authority, deals with halakhic divorce in general and with the varying solutions offered throughout the centuries by rabbinic authorities dealing with the plight of the modern-day agunah,2Whether a woman is to be labeled an agunah is a consequence of a rabbi or a beit din determining that there is a ground (ilat gerushin) to coerce or obligate a get. Upon a wife claiming and proving that the physical defect of the husband, such as impotence or having a contagious disease such as AIDS, the husband’s conduct such as his failure to perform conjugal relations or spousal abuse, his violation of a basic precept of Halakhah such as engaging in spousal and/or child abuse, or causing his wife to transgress a provision of Halakhah, is the ground(s) for her request for a get, a beit din will issue a divorce judgment.
Alternatively, in the absence of a ground for divorce, should a couple be separated from each other for one year, and according to other authorities for eighteen months, with no prospects for marital reconciliation (shalom bayit), a beit din may decide that the giving of a get is halakhically proper. In such a situation, the identification of the woman as an agunah may serve as grounds under certain conditions to compel or obligate a get. See this writer’s Rabbinic Authority: The Vision and the Reality (hereinafter: Rabbinic Authority) vol. 3, 328–33, vol. 4, 143–161.
Once a divorce ruling is handed down, the husband is obligated to adhere immediately to the judgment and give a get. In the event that the get is not forthcoming, the woman is deemed an agunah.
See also Teshuvot Maharit 66, 103; Teshuvot Radakh, Bayit 3; Teshuvot Shem Aryeh EH 8; Teshuvot Simhat Yom Tov 12; Teshuvot Pnei Yehoshua EH 80; Teshuvot Maharsham 3:151 (1). the married woman who is unable to receive a get, a Jewish writ of divorce, from her husband, in particular.3Dating back to the Middle Ages, decisors were addressing solutions to void a marriage of an agunah. See Teshuvot Rashi, Elfenbein ed., 198; Teshuvot Ba’alei ha-Tosafot 133; Ohr Zarua 1:761 in the name of Rabbi Simha of Speyers; Teshuvot Tashbetz 1:130. In our earlier presentations we have not only examined techniques which have been advanced for centuries for voiding a marriage,4See this writer’s Rabbinic Authority, vol. 3, 134–176, 212–345, vol. 4, 143–296. As we have noted elsewhere, we are examining the notion of voiding (bittul kiddushin) rather than annulling (hafka’at kiddushin) a Jewish betrothal (loosely translated throughout the monograph: a Jewish marriage). See this writer’s Rabbinic Authority, vol. 3, 135, n. 1. See also, File no. 905457/10, Tel Aviv-Yaffo Regional Beit Din, September 11, 2017 who astutely distinguishes between the two concepts. See the addendum. Cf. Rabbi Berlin who utilizes both concepts interchangeably in the same responsum. See Teshuvot Nishmat Hayyim 126.
For some of the rabbinical court rulings given under Israel’s Chief Rabbinate which address the merits of voiding a marriage due to a major defect in the husband, see Piskei Din Rabbanayim (hereinafter: PDR) 3:225, 10:241, 15:1, 20:239, File no. 1-14-1393, Yerushalayim Regional Beit Din, March 5, 2003; File no. 1-22-1510, Beit Din ha-Rabbani ha-Gadol, September 7, 2004; File no. 306044470-21-4, Yerushalayim Regional Beit Din, June 10, 2008; File no. 2433-21-1, Beit Din ha-Rabbani ha-Gadol, February 3, 2010; File no. 589138/2, Haifa Regional Beit Din, June 7, 2011; File no. 861252/1, Beit Din ha-Rabbani ha-Gadol, January 23, 2012; File no. 373701/10, Tel Aviv-Yaffo Regional Beit Din, March 12, 2012; File no. 271091/10, Netanya Regional Beit Din, July 2, 2012; File no. 861974/1, Tzfat Regional Beit Din, January 21, 2013; File no. 917387/1, Yerushalayim Regional Beit Din, November 17, 2013; File no. 914652/2, Petah Tikvah Regional Beit Din, March 24, 2014; File no. 861974/2, Tzfat Regional Beit Din, May 20, 2014; File no. 996047/2, Beit Din ha-Rabbani ha-Gadol, December 25, 2014; File no. 870175/4, Haifa Regional Beit Din, December 29, 2014; File no. 1011498, Be’air Sheva Regional Beit Din, May 10, 2015; File no. 818315/7, Be’air Sheva Regional Beit Din, September 21, 2015; File no. 1061015/2, Haifa Regional Beit Din, February 16, 2016; File no. 1068330/1, Haifa Regional Beit Din, January 12, 2017; File no. 932006/1, Be’air Sheva Regional Beit Din, February 1, 2017; File no. 1097040/10, Haifa Regional Beit Din, June 6, 2017; File no. 905457/10, Tel Aviv-Yaffo, September 11, 2017; File no. 1064682/4, Yerushalayim Regional Beit Din, September 12, 2017; File no. 1097040/10, Haifa Regional Beit Din, November 6, 2017; File no. 989812/1, Haifa Regional Beit Din, February 2, 2018 (mamzerut); Haifa Regional Beit Din, 5 Tammuz 5778 (Rabbis Shloush, Edrei and Hazan- unpublished opinion); File 1227676/1, Ashdod Regional Beit Din, August 1, 2019. For drawing halakhic analogies from a case of a wife’s defects to a situation of a husband’s defects, see File no. 1129170/1, Beit Din ha-Rabbani ha-Gadol, March 18, 2018.
For additional Israeli beit din decisions relating to voiding a marriage, see Shurat ha-Din, volumes 1–17 and ha-Din veha-Dayan, volumes 1–50.
Some contend that seeking solutions to matters of get recalcitrance is to be relegated only to Torah luminaries who are “giants of their generation” (gedolei ha-dor) such as Rabbi Yitzhak E. Spektor and Rabbi Yosef Baer Soloveitchik. See Rabbi A. Sherman, Al She’veir bat Ami, 5779, 45–51. Clearly a review of the above Israeli rabbinical court decisions will demonstrate that the majority of rabbis who served as arbiters (dayanim) for these cases were halakhically credentialed to address these issues without being viewed as “Torah giants” by our community in general and by other rabbis in particular. See Teshuvot Divrei Emet 9, Teshuvot Noda be-Yehuda, EH 2, Teshuvot Nosafot 9 (Machon Yerushalayim ed.) and see further this writer’s Rabbinic Authority, vol. 3, 21, n.28.
For the qualifications for being a credentialed halakhic arbiter, see Piskei ha-Rosh, Sanhedrin 4:6; Rema, SA HM 25:2; Maharshal, Yam shel Shlomo, Bava Kama, Introduction, Hullin, First Introduction, Second Introduction; Maharal, Netivot Olam, Netiv ha-Torah, Perek 15; Ketzot ha-Hoshen, Introduction, Teshuvot Iggerot Moshe, Introduction to OH, YD 1:101. See the addendum.
Furthermore, the majority of authorities contend that it is a practice (a nohag) rather than a halakhic duty to enlist the support of an outside rabbinic decisor(s) prior to a beit din or three rabbis rendering a decision regarding marriage and divorce in general and voiding a marriage in particular. See Rabbi Refael Shlomo Daichovsky, “May a dayan retract his decision?” (Hebrew) 37 Tehumin 343, 345 (5777) and this writer’s, Rabbinic Authority, vol. 3, 256–262. we equally exposed the reader to the halakhic authorities who opposed these solutions for varying reasons.5See this writer’s Rabbinic Authority, vol. 3, 14–16, 139–140, vol. 4, 159, 185, 191, 200, 213, 246, 265, 283. Whereas in the previous two volumes we have advanced argumentation to validate these solutions, this volume is devoted primarily to demonstrate how a beit din or a rabbinical authority (ies) may void a marriage based upon those decisors who reject the varying options to void the marriage in principle.6It is a matter of dispute whether one requires a beit din of three, a single rabbi or an individual Jew to address matters of divorce such as get coercion, obligating a get and voiding a marriage. See Teshuvot Terumat ha-Deshen, Pesakim u-Ketavim 139; Rema SA EH 17:39; Helkat Mehokeik, ad. locum 78; Beit Shmuel, ad. locum 124; Bi’ur ha-Gra SA EH 17:131; Ketzot ha-Hoshen 3:1–2; Netivot ha-Mishpat 3:1; Teshuvot Oneg Yom Tov 168; Teshuvot Yehuda (Gordin), EH 51:2; Teshuvot Ma’aseh Hiyah 24; Teshuvot Hatam Sofer EH 2:54, 64–65, HM 177; Teshuvot Avnei Nezer EH 167:1, 178:2; PDR 6:265, 269; File 957–61, Beit Din Yerushalayim for Monetary Matters and Yuhasin, vol. 7, 515; File no. 448866/3, Tel Aviv- Yaffo Regional Beit Din, July 11, 2013; File no. 1086123/1, Be’er Sheva Regional Beit Din, December 20, 2018; S. Tzvi Gartner, Kefiyah be-Get, 25–44; Z.N. Goldberg, Lev Mishpat 1, 149–150.
Yet we should note that there is at least one decisor who mandates that the individual Jew must be “important and extraordinary” (hashuv u-muflug). See Yam shel Shlomo, Bava Kama 3:9; Ma’aseh Hiyah, op. cit.; File no. 448866/3, op.cit.
In the absence of a party attending a divorce proceeding regarding the matter of a get rather than a divorce-related matter, the beit din or rabbinic authority(ies) may render a decision provided that the participating party is known to possess integrity and would not lie. See Knesset ha-Gedolah, Tur HM 17:19. See infra 4H and 4J. See further, this writer’s, Rabbinic Authority, vol. 4, 216, n. 2. By factoring into the consideration those who oppose voiding a marriage, we may invoke, under certain conditions, a double halakhic doubt (a sefeik sefeika de’dina) which may serve as the vehicle to free a wife to remarry without the execution of a get.7Rabbis Yosef Ibn Lev and Ovadiah Yosef argue that a sequence of halakhic uncertainties due to the existence at least two halakhic controversies should be construed as a single doubt, namely one uncertainty regarding Halakhah and therefore they rule stringently. See Teshuvot Mahari Ibn Lev 2:9, 3:41, 51; Teshuvot Yabia Omer 6, EH 6(5), 4, EH 5(11). For a listing of numerous arbiters who reject the above posture, see Rabbi Avraham Abukara, Ben Avraham, Beit ha-Safek, 32; Teshuvot Yabia Omer, op. cit.
In other words, the implicit premise of our study is that we may view two halakhic controversies as a double halakhic doubt and may rule leniently and it is not to be viewed as one name (shem a’had). See Teshuvot Yabia Omer 4, EH 5(11), 6, EH 6(5). For additional authorities who recognize a double halakhic doubt, see infra chapter 2, n. 23.
Furthermore, a second implicit premise of our study is that rabbis or a beit din may under certain conditions choose a path of leniency by ab initio (le-hathilah) voiding a marriage by invoking a double halakhic doubt. See R. S. Emarliv, Teshuvot Kerem Shlomo EH 25(77c); R. M. Emarliv, Teshuvot Devar Moshe 1, YD 31(59c); Teshuvot Yabia Omer 7, OH 42(2); R. Y. Goldberg, Elu She-kofin Le-hotzi, Yerushalayim, 5773, 50–51, 131, n. 18.
Though there are authorities who only subscribe to employing a double halakhic doubt to void a marriage in an ex post facto situation (be’di’avad), clearly in an agunah case which has been characterized in numerous circumstances as “an hour of emergency” and therefore is halakhically construed as an ex post facto situation (see Teshuvot ha-Reim 1:36; Teshuvot Ein Yitzhak 1, EH 22(25); Teshuvot Shevut Ya’akov EH 110; Teshuvot Agudat Ezov Midbari EH 9) they would concur and sanction under certain conditions the utilization of a double halakhic doubt to void a marriage. Though the cited responsa address the case of the classic agunah when the whereabouts of the husband are unknown, nonetheless, arbiters employ identical terms such as “an hour of emergency” regarding the modern day agunah. See Teshuvot Maharsham 1:14; Teshuvot Yabia Omer 6, EH 6(end).
Alternatively, in the absence of a ground for divorce, should a couple be separated from each other for one year, and according to other authorities for eighteen months, with no prospects for marital reconciliation (shalom bayit), a beit din may decide that the giving of a get is halakhically proper. In such a situation, the identification of the woman as an agunah may serve as grounds under certain conditions to compel or obligate a get. See this writer’s Rabbinic Authority: The Vision and the Reality (hereinafter: Rabbinic Authority) vol. 3, 328–33, vol. 4, 143–161.
Once a divorce ruling is handed down, the husband is obligated to adhere immediately to the judgment and give a get. In the event that the get is not forthcoming, the woman is deemed an agunah.
See also Teshuvot Maharit 66, 103; Teshuvot Radakh, Bayit 3; Teshuvot Shem Aryeh EH 8; Teshuvot Simhat Yom Tov 12; Teshuvot Pnei Yehoshua EH 80; Teshuvot Maharsham 3:151 (1). the married woman who is unable to receive a get, a Jewish writ of divorce, from her husband, in particular.3Dating back to the Middle Ages, decisors were addressing solutions to void a marriage of an agunah. See Teshuvot Rashi, Elfenbein ed., 198; Teshuvot Ba’alei ha-Tosafot 133; Ohr Zarua 1:761 in the name of Rabbi Simha of Speyers; Teshuvot Tashbetz 1:130. In our earlier presentations we have not only examined techniques which have been advanced for centuries for voiding a marriage,4See this writer’s Rabbinic Authority, vol. 3, 134–176, 212–345, vol. 4, 143–296. As we have noted elsewhere, we are examining the notion of voiding (bittul kiddushin) rather than annulling (hafka’at kiddushin) a Jewish betrothal (loosely translated throughout the monograph: a Jewish marriage). See this writer’s Rabbinic Authority, vol. 3, 135, n. 1. See also, File no. 905457/10, Tel Aviv-Yaffo Regional Beit Din, September 11, 2017 who astutely distinguishes between the two concepts. See the addendum. Cf. Rabbi Berlin who utilizes both concepts interchangeably in the same responsum. See Teshuvot Nishmat Hayyim 126.
For some of the rabbinical court rulings given under Israel’s Chief Rabbinate which address the merits of voiding a marriage due to a major defect in the husband, see Piskei Din Rabbanayim (hereinafter: PDR) 3:225, 10:241, 15:1, 20:239, File no. 1-14-1393, Yerushalayim Regional Beit Din, March 5, 2003; File no. 1-22-1510, Beit Din ha-Rabbani ha-Gadol, September 7, 2004; File no. 306044470-21-4, Yerushalayim Regional Beit Din, June 10, 2008; File no. 2433-21-1, Beit Din ha-Rabbani ha-Gadol, February 3, 2010; File no. 589138/2, Haifa Regional Beit Din, June 7, 2011; File no. 861252/1, Beit Din ha-Rabbani ha-Gadol, January 23, 2012; File no. 373701/10, Tel Aviv-Yaffo Regional Beit Din, March 12, 2012; File no. 271091/10, Netanya Regional Beit Din, July 2, 2012; File no. 861974/1, Tzfat Regional Beit Din, January 21, 2013; File no. 917387/1, Yerushalayim Regional Beit Din, November 17, 2013; File no. 914652/2, Petah Tikvah Regional Beit Din, March 24, 2014; File no. 861974/2, Tzfat Regional Beit Din, May 20, 2014; File no. 996047/2, Beit Din ha-Rabbani ha-Gadol, December 25, 2014; File no. 870175/4, Haifa Regional Beit Din, December 29, 2014; File no. 1011498, Be’air Sheva Regional Beit Din, May 10, 2015; File no. 818315/7, Be’air Sheva Regional Beit Din, September 21, 2015; File no. 1061015/2, Haifa Regional Beit Din, February 16, 2016; File no. 1068330/1, Haifa Regional Beit Din, January 12, 2017; File no. 932006/1, Be’air Sheva Regional Beit Din, February 1, 2017; File no. 1097040/10, Haifa Regional Beit Din, June 6, 2017; File no. 905457/10, Tel Aviv-Yaffo, September 11, 2017; File no. 1064682/4, Yerushalayim Regional Beit Din, September 12, 2017; File no. 1097040/10, Haifa Regional Beit Din, November 6, 2017; File no. 989812/1, Haifa Regional Beit Din, February 2, 2018 (mamzerut); Haifa Regional Beit Din, 5 Tammuz 5778 (Rabbis Shloush, Edrei and Hazan- unpublished opinion); File 1227676/1, Ashdod Regional Beit Din, August 1, 2019. For drawing halakhic analogies from a case of a wife’s defects to a situation of a husband’s defects, see File no. 1129170/1, Beit Din ha-Rabbani ha-Gadol, March 18, 2018.
For additional Israeli beit din decisions relating to voiding a marriage, see Shurat ha-Din, volumes 1–17 and ha-Din veha-Dayan, volumes 1–50.
Some contend that seeking solutions to matters of get recalcitrance is to be relegated only to Torah luminaries who are “giants of their generation” (gedolei ha-dor) such as Rabbi Yitzhak E. Spektor and Rabbi Yosef Baer Soloveitchik. See Rabbi A. Sherman, Al She’veir bat Ami, 5779, 45–51. Clearly a review of the above Israeli rabbinical court decisions will demonstrate that the majority of rabbis who served as arbiters (dayanim) for these cases were halakhically credentialed to address these issues without being viewed as “Torah giants” by our community in general and by other rabbis in particular. See Teshuvot Divrei Emet 9, Teshuvot Noda be-Yehuda, EH 2, Teshuvot Nosafot 9 (Machon Yerushalayim ed.) and see further this writer’s Rabbinic Authority, vol. 3, 21, n.28.
For the qualifications for being a credentialed halakhic arbiter, see Piskei ha-Rosh, Sanhedrin 4:6; Rema, SA HM 25:2; Maharshal, Yam shel Shlomo, Bava Kama, Introduction, Hullin, First Introduction, Second Introduction; Maharal, Netivot Olam, Netiv ha-Torah, Perek 15; Ketzot ha-Hoshen, Introduction, Teshuvot Iggerot Moshe, Introduction to OH, YD 1:101. See the addendum.
Furthermore, the majority of authorities contend that it is a practice (a nohag) rather than a halakhic duty to enlist the support of an outside rabbinic decisor(s) prior to a beit din or three rabbis rendering a decision regarding marriage and divorce in general and voiding a marriage in particular. See Rabbi Refael Shlomo Daichovsky, “May a dayan retract his decision?” (Hebrew) 37 Tehumin 343, 345 (5777) and this writer’s, Rabbinic Authority, vol. 3, 256–262. we equally exposed the reader to the halakhic authorities who opposed these solutions for varying reasons.5See this writer’s Rabbinic Authority, vol. 3, 14–16, 139–140, vol. 4, 159, 185, 191, 200, 213, 246, 265, 283. Whereas in the previous two volumes we have advanced argumentation to validate these solutions, this volume is devoted primarily to demonstrate how a beit din or a rabbinical authority (ies) may void a marriage based upon those decisors who reject the varying options to void the marriage in principle.6It is a matter of dispute whether one requires a beit din of three, a single rabbi or an individual Jew to address matters of divorce such as get coercion, obligating a get and voiding a marriage. See Teshuvot Terumat ha-Deshen, Pesakim u-Ketavim 139; Rema SA EH 17:39; Helkat Mehokeik, ad. locum 78; Beit Shmuel, ad. locum 124; Bi’ur ha-Gra SA EH 17:131; Ketzot ha-Hoshen 3:1–2; Netivot ha-Mishpat 3:1; Teshuvot Oneg Yom Tov 168; Teshuvot Yehuda (Gordin), EH 51:2; Teshuvot Ma’aseh Hiyah 24; Teshuvot Hatam Sofer EH 2:54, 64–65, HM 177; Teshuvot Avnei Nezer EH 167:1, 178:2; PDR 6:265, 269; File 957–61, Beit Din Yerushalayim for Monetary Matters and Yuhasin, vol. 7, 515; File no. 448866/3, Tel Aviv- Yaffo Regional Beit Din, July 11, 2013; File no. 1086123/1, Be’er Sheva Regional Beit Din, December 20, 2018; S. Tzvi Gartner, Kefiyah be-Get, 25–44; Z.N. Goldberg, Lev Mishpat 1, 149–150.
Yet we should note that there is at least one decisor who mandates that the individual Jew must be “important and extraordinary” (hashuv u-muflug). See Yam shel Shlomo, Bava Kama 3:9; Ma’aseh Hiyah, op. cit.; File no. 448866/3, op.cit.
In the absence of a party attending a divorce proceeding regarding the matter of a get rather than a divorce-related matter, the beit din or rabbinic authority(ies) may render a decision provided that the participating party is known to possess integrity and would not lie. See Knesset ha-Gedolah, Tur HM 17:19. See infra 4H and 4J. See further, this writer’s, Rabbinic Authority, vol. 4, 216, n. 2. By factoring into the consideration those who oppose voiding a marriage, we may invoke, under certain conditions, a double halakhic doubt (a sefeik sefeika de’dina) which may serve as the vehicle to free a wife to remarry without the execution of a get.7Rabbis Yosef Ibn Lev and Ovadiah Yosef argue that a sequence of halakhic uncertainties due to the existence at least two halakhic controversies should be construed as a single doubt, namely one uncertainty regarding Halakhah and therefore they rule stringently. See Teshuvot Mahari Ibn Lev 2:9, 3:41, 51; Teshuvot Yabia Omer 6, EH 6(5), 4, EH 5(11). For a listing of numerous arbiters who reject the above posture, see Rabbi Avraham Abukara, Ben Avraham, Beit ha-Safek, 32; Teshuvot Yabia Omer, op. cit.
In other words, the implicit premise of our study is that we may view two halakhic controversies as a double halakhic doubt and may rule leniently and it is not to be viewed as one name (shem a’had). See Teshuvot Yabia Omer 4, EH 5(11), 6, EH 6(5). For additional authorities who recognize a double halakhic doubt, see infra chapter 2, n. 23.
Furthermore, a second implicit premise of our study is that rabbis or a beit din may under certain conditions choose a path of leniency by ab initio (le-hathilah) voiding a marriage by invoking a double halakhic doubt. See R. S. Emarliv, Teshuvot Kerem Shlomo EH 25(77c); R. M. Emarliv, Teshuvot Devar Moshe 1, YD 31(59c); Teshuvot Yabia Omer 7, OH 42(2); R. Y. Goldberg, Elu She-kofin Le-hotzi, Yerushalayim, 5773, 50–51, 131, n. 18.
Though there are authorities who only subscribe to employing a double halakhic doubt to void a marriage in an ex post facto situation (be’di’avad), clearly in an agunah case which has been characterized in numerous circumstances as “an hour of emergency” and therefore is halakhically construed as an ex post facto situation (see Teshuvot ha-Reim 1:36; Teshuvot Ein Yitzhak 1, EH 22(25); Teshuvot Shevut Ya’akov EH 110; Teshuvot Agudat Ezov Midbari EH 9) they would concur and sanction under certain conditions the utilization of a double halakhic doubt to void a marriage. Though the cited responsa address the case of the classic agunah when the whereabouts of the husband are unknown, nonetheless, arbiters employ identical terms such as “an hour of emergency” regarding the modern day agunah. See Teshuvot Maharsham 1:14; Teshuvot Yabia Omer 6, EH 6(end).
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3For example, there is a halakhic debate whether, if a get-recalcitrant husband fails to disclose prior to marriage that he has a major defect such as being impotent, gay or mentally dysfunctional, under certain conditions one may void the marriage. Consequently, we have a doubt as to what the Halakhah ought to be. Furthermore, the same husband may have acted inappropriately during the marriage, such as being physically and emotionally abusive towards his children. And there is a halakhic dispute as to whether one can void the marriage based upon the clear expectation that had his wife known that that such behavior would transpire, she never would have married him. As such, we have a second doubt as to what the Halakhah ought to be. In short, we are dealing with a double halakhic doubt, known in rabbinic parlance as sefek sefeika de’dina. As such, the question is whether one can void the marriage by invoking a double halakhic doubt.
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4Prior to focusing upon this concept of a double halakhic doubt regarding kiddushin (loosely translated: marriage8For our presentation, we knowingly refer to mistaken betrothal (kiddushin) and mistaken marriage (nissuin) as synonymous, even though the concepts are halakhically distinguishable.), we first need to understand the emergence and ramifications of the notion of a doubtful marriage (a safeik kiddushin). To state it differently, prior to examining the notion of a double halakhic doubt, one needs to briefly introduce the notion of a single halakhic doubt as it relates to the act of kiddushin.9For a detailed analysis of the concept of a doubtful marriage in Halakhah, see P. Shifman, Doubtful Marriage in Israeli Law (Hebrew), Yerushalayim, 1975, 11–99. For contemporary discussions of the principles of the double halakhic doubt, see Noam Siah, vol. 1, chapters 5–10; Sas Anokhi, chapters 1–9, 14; R. O. Yosef, Yehaveh Da’at, vol. 6, 25–29; The Principles of Double Doubt in Yabia Omer, (Hebrew), 1–56; R. Y. Yosef, Ein Yitzhak, vol. 2, 281–354; File no. 1126792/1, Netanya Regional Beit Din, October 1, 2017.
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5Both the acts of kiddushin (betrothal) and nissuin (marriage) which transpire under the wedding canopy (the hupah) entail a consensual agreement between a Jewish man and a Jewish woman. It is a very special agreement that establishes a personal status between the parties, namely that the betrothed woman (the mekudeshet) is designated for a particular man (the mekadesh) and prohibited to all others.10As Kiddushin 2b notes: “The woman becomes prohibited to all others in the same way as consecrated object” (hekdesh – AYW). The presumptive status of a married woman (hezkat eishet ish) renders both the man and woman subject to various prohibitions - e.g. sexual relations with various relatives become prohibited.
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6What happens if a halakhic doubt emerges regarding the kiddushin? For example, if the man betroths the woman with a stone-embellished ring11Rema, SA EH 31:2. or is coerced to betroth her,12SA EH 42:1 (one opinion). such conduct is deemed a doubtful kiddushin. One might have thought that the presumption of personal status (hazakah) of her being a single woman is determinative since in a case of a doubt on a biblical level we do not deviate from her status of being a single woman.13Ran on Rif Kiddushin 5b; Pri Hadash, YD 110, Kelalei Sefeik Sefeika 1; Teshuvot Maharit EH 18; Mishneh le-Melekh, MT Edut 6:7; Teshuvot Hikrei Lev 1, YD 111; Teshuvot ha-Ridvaz 4:1128 in the name of Rambam and Mahari ibn Lev; Teshuvot Torat Hesed of Lublin OH 15:4; Teshuvot Ein Yitzhak 1, EH 59. Cf. others who claim that the presumption of being a single woman is applicable if there is a factual doubt. See Mishneh le-Melekh, MT Tumat Tzara’at 2:1; Teshuvot Masat Binyamin 50; Pri Megadim YD 384:18; Teshuvot Brit Avraham EH 71:2; Teshuvot Rabbi Akiva Eiger 1:37.
ז׳
7However, in the wake of a halakhic doubt regarding the kiddushin, when the wife wants to be divorced and her husband refuses to give a get, we coerce him to give a get.14Ohr Zarua 126 in the name of Rama; Beit ha-Behirah Kiddushin 65a; MT Ishut 4:5, Kesef Mishneh, ad locum; SA EH 42:5; Teshuvot Maharil Diskin, Pesakim 48; Teshuvot Ohr Gadol 5 (11). Cf. Teshuvot Ridvaz 115 (41); Teshuvot Betzalel Ashkenazi 6 (possibly); Teshuvot Divrei Rivot 378; Hazon Ish, Ketuvot 69:23.
On the other hand, if he is prepared to betroth her a second time, we do not coerce him to give a get. See SA, op. cit.; Beit Shmuel, SA EH 42:18; Tiv Kiddushin 48:2. In other words, in the absence of receiving a get, she is prohibited to others on rabbinic grounds.
On the other hand, if he is prepared to betroth her a second time, we do not coerce him to give a get. See SA, op. cit.; Beit Shmuel, SA EH 42:18; Tiv Kiddushin 48:2. In other words, in the absence of receiving a get, she is prohibited to others on rabbinic grounds.
ח׳
8In other words, should the husband be intransigent regarding the get, a beit din may coerce him to give a get.15The assumption is that civil law such as Israeli law recognizes that the giving of a get may be coerced by a rabbinical court. In the event that the beit din isn’t legally empowered to issue a get compulsion order or the husband is recalcitrant regarding the get and who intentionally or unintentionally fails to disclose to his wife a major defect prior to their marriage a get under certain conditions should not be required,16Ohr Zarua, supra n. 3; Teshuvot Maharam of Rothenberg, Cremona ed. 77 in the name of Rav’yah; Teshuvot Havot Yair 221 (in theory rather than in practice); Teshuvot Maharsham 3:16; Teshuvot Iggerot Moshe EH 1:79, 80. For additional examples of a marriage which can be characterized as “a marriage in error”, see this writer’s Rabbinic Authority, vol. 3, 141, n.10 and infra chapter 4g, h, and j.
There is a Talmudic presumption (hazakah) about women that “it is better to live as two than to remain in widowhood” (tav le-meitav tan do mi-le-meitav armalu). See Yevamot 118b; Ketuvot 75a; Kiddushin 7a, 41a; Bava Kama 110b-111a. There is a debate whether this presumption is based upon the expectations of the majority of women or whether it may be invoked in light of the expectation of a minority of women. Even according to Rabbi Yosef Baer Soloveitchik, who endorses the latter approach (see Teshuvot Beit ha-Levi 3:3), even a minority opinion would concur that in our case, where there is not even a minority (“a meut matzui”) of women who would be satisfied with marrying an impotent husband, consequently the giving of a get would not be required. See Piskei ha-Rosh Ketuvot 7:10 (deals with a barren woman - ailonit); Teshuvot Havot Yair 221; Iggerot Moshe, op. cit., EH 3:48. nonetheless some will argue that on rabbinic grounds we coerce a get for a matter of stringency (get le’humra) due to the fact that we are dealing with a doubtful marriage.17Rabbi Borenstein’s understanding of Shitah Mekubetzet Ketuvot 72b. See Teshuvot Avnei Nezer EH 176:7. See also Dayan Yosef Goldberg, who contends that some other early authorities (Rishonim) concur with this conclusion. See Elu she-Kofin le-Hotzi. Yerushalayim: 5773, 114, 200–201.
Cf. others who claim that the requirement of a get for matters of stringency is rabbinically mandated in order to avoid the public perception that a wife may divorce her husband without receiving a get. See Yevamot 88b-89a; Rashi, ad. locum., s.v. gezerah; Shitah Mekubetzet Ketuvot 73b in the name of Rashi, Mahadura Kama; Beit ha-Behirah, Yevamot 89a; Hiddushei ha-Ritva, Yevamot 88b; Lehem Mishneh, MT, Ishut 4:10; Teshuvot Ein Yitzhak 1, EH 24; Teshuvot Dvar Eliyahu 48.
In other words, we are dealing with halakhic logic (sevara), namely to avoid a public perception that a married woman may be free without the execution of a get. Therefore we mandate the giving of a get. Seemingly, invoking halakhic logic entails a biblical mandate. As the Talmud exhorts us in a few places, “What need is there for a biblical verse? It is a sevara-the view may be based upon reasoning”. See Berakhot 4b; Ketuvot 22a; Bava Kama 46b. Upon further reflection, since the get is being given on rabbinic grounds we are dealing with imposing a stringency in order to protect the undermining of the status of a married woman lest a husband leave his spouse without giving a get. As such we are dealing here with invoking halakhic reasoning which is rabbinically mandated. See Teshuvot Shevut Ya’akov 3:135; Tzlah, Berakhot 35a. To state it differently, some halakhic logic is biblically grounded and others are rabbinically mandated. In other words, as Rabbi Ya’akov Reicher contends some halakhic logic is strong and others are weak. See Shevut Ya’akov, op. cit. Whether post-Talmudic halakhic logic is construed as biblically or rabbinically grounded is subject to controversy. See Tzlah, op.cit.; Kol Kitvei ha-Maharatz Hayoth, 1; Pnei Yehoshua, Berakhot 35a; Teshuvot Orah Mishpat 112.
Nevertheless, as we demonstrated in this writer’s Rabbinic Authority, vol. 3, 134–176, 231–333; vol. 4, 143–298 and in this monograph, chapters 2–4, there is adequate proof that one may under certain conditions void a particular marriage. Consequently, in accordance with arbiters such as Rashba and Rabbi O. Yosef who contend that with the submission of proof we may set aside the halakhic reasoning of earlier authorities, the above halakhic logic may be rejected. See Teshuvot ha-Rashba 2:322 and Teshuvot Yabia Omer, 7, OH 33 (2), vol. 9, Introduction, 10, OH 55(13). Nevertheless, there are arbiters such as Rabbi Yitzhak Elhanan Spektor who argue that even if the marriage is voided based upon a marriage in error (kiddushei ta’ut) regarding a husband’s defects, one requires the execution of a get on a rabbinic level. See Teshuvot Ein Yitzhak 1, EH 24(43); Cf. Teshuvot Ohr Zarua 1:761; Teshuvot Dvar Eliyahu 48, Teshuvot Ahiezer EH 27 in the name of Noda be-Yehudah and Iggerot Moshe EH 1:79 who contend that under such circumstances, the wife may be freed without a get. For additional authorities who espouse this view, see this writer’s Rabbinic Authority, vol. 3, 141, n.10. See the addendum. In other words, in the wake of a doubtful marriage (safek kiddushin), under certain conditions such as a husband’s failure to disclose a major defect prior to the marriage such as impotency, we can coerce a get but we cannot void the marriage.18Ohr Zarua, supra n. 3; MT Ishut 4:5, Kesef Mishneh, ad locum; Beit ha-Behirah Kiddushin 65a; SA EH 42:5; Beit Shmuel SA EH 154:2; Teshuvot Maharil Diskin, Pesakim 48; Teshuvot Betzalel Ashkenazi 6; Teshuvot Rav Pealim 1 EH 13. The rationale for permitting get coercion is that we do not mandate that the wife to remain married under such circumstances, and should she want to be divorced we empower her by compelling her spouse to give a get.19Dayan S. Tenna, Teshuvot Birkat Shlomo 12:30–32. Under such circumstances, given that the get is being given on rabbinic grounds, one may argue that we do not run afoul of the strictures of a coerced get (“a get me’useh”). See Teshuvot Even Yekarah Tlitah 53.
There is a Talmudic presumption (hazakah) about women that “it is better to live as two than to remain in widowhood” (tav le-meitav tan do mi-le-meitav armalu). See Yevamot 118b; Ketuvot 75a; Kiddushin 7a, 41a; Bava Kama 110b-111a. There is a debate whether this presumption is based upon the expectations of the majority of women or whether it may be invoked in light of the expectation of a minority of women. Even according to Rabbi Yosef Baer Soloveitchik, who endorses the latter approach (see Teshuvot Beit ha-Levi 3:3), even a minority opinion would concur that in our case, where there is not even a minority (“a meut matzui”) of women who would be satisfied with marrying an impotent husband, consequently the giving of a get would not be required. See Piskei ha-Rosh Ketuvot 7:10 (deals with a barren woman - ailonit); Teshuvot Havot Yair 221; Iggerot Moshe, op. cit., EH 3:48. nonetheless some will argue that on rabbinic grounds we coerce a get for a matter of stringency (get le’humra) due to the fact that we are dealing with a doubtful marriage.17Rabbi Borenstein’s understanding of Shitah Mekubetzet Ketuvot 72b. See Teshuvot Avnei Nezer EH 176:7. See also Dayan Yosef Goldberg, who contends that some other early authorities (Rishonim) concur with this conclusion. See Elu she-Kofin le-Hotzi. Yerushalayim: 5773, 114, 200–201.
Cf. others who claim that the requirement of a get for matters of stringency is rabbinically mandated in order to avoid the public perception that a wife may divorce her husband without receiving a get. See Yevamot 88b-89a; Rashi, ad. locum., s.v. gezerah; Shitah Mekubetzet Ketuvot 73b in the name of Rashi, Mahadura Kama; Beit ha-Behirah, Yevamot 89a; Hiddushei ha-Ritva, Yevamot 88b; Lehem Mishneh, MT, Ishut 4:10; Teshuvot Ein Yitzhak 1, EH 24; Teshuvot Dvar Eliyahu 48.
In other words, we are dealing with halakhic logic (sevara), namely to avoid a public perception that a married woman may be free without the execution of a get. Therefore we mandate the giving of a get. Seemingly, invoking halakhic logic entails a biblical mandate. As the Talmud exhorts us in a few places, “What need is there for a biblical verse? It is a sevara-the view may be based upon reasoning”. See Berakhot 4b; Ketuvot 22a; Bava Kama 46b. Upon further reflection, since the get is being given on rabbinic grounds we are dealing with imposing a stringency in order to protect the undermining of the status of a married woman lest a husband leave his spouse without giving a get. As such we are dealing here with invoking halakhic reasoning which is rabbinically mandated. See Teshuvot Shevut Ya’akov 3:135; Tzlah, Berakhot 35a. To state it differently, some halakhic logic is biblically grounded and others are rabbinically mandated. In other words, as Rabbi Ya’akov Reicher contends some halakhic logic is strong and others are weak. See Shevut Ya’akov, op. cit. Whether post-Talmudic halakhic logic is construed as biblically or rabbinically grounded is subject to controversy. See Tzlah, op.cit.; Kol Kitvei ha-Maharatz Hayoth, 1; Pnei Yehoshua, Berakhot 35a; Teshuvot Orah Mishpat 112.
Nevertheless, as we demonstrated in this writer’s Rabbinic Authority, vol. 3, 134–176, 231–333; vol. 4, 143–298 and in this monograph, chapters 2–4, there is adequate proof that one may under certain conditions void a particular marriage. Consequently, in accordance with arbiters such as Rashba and Rabbi O. Yosef who contend that with the submission of proof we may set aside the halakhic reasoning of earlier authorities, the above halakhic logic may be rejected. See Teshuvot ha-Rashba 2:322 and Teshuvot Yabia Omer, 7, OH 33 (2), vol. 9, Introduction, 10, OH 55(13). Nevertheless, there are arbiters such as Rabbi Yitzhak Elhanan Spektor who argue that even if the marriage is voided based upon a marriage in error (kiddushei ta’ut) regarding a husband’s defects, one requires the execution of a get on a rabbinic level. See Teshuvot Ein Yitzhak 1, EH 24(43); Cf. Teshuvot Ohr Zarua 1:761; Teshuvot Dvar Eliyahu 48, Teshuvot Ahiezer EH 27 in the name of Noda be-Yehudah and Iggerot Moshe EH 1:79 who contend that under such circumstances, the wife may be freed without a get. For additional authorities who espouse this view, see this writer’s Rabbinic Authority, vol. 3, 141, n.10. See the addendum. In other words, in the wake of a doubtful marriage (safek kiddushin), under certain conditions such as a husband’s failure to disclose a major defect prior to the marriage such as impotency, we can coerce a get but we cannot void the marriage.18Ohr Zarua, supra n. 3; MT Ishut 4:5, Kesef Mishneh, ad locum; Beit ha-Behirah Kiddushin 65a; SA EH 42:5; Beit Shmuel SA EH 154:2; Teshuvot Maharil Diskin, Pesakim 48; Teshuvot Betzalel Ashkenazi 6; Teshuvot Rav Pealim 1 EH 13. The rationale for permitting get coercion is that we do not mandate that the wife to remain married under such circumstances, and should she want to be divorced we empower her by compelling her spouse to give a get.19Dayan S. Tenna, Teshuvot Birkat Shlomo 12:30–32. Under such circumstances, given that the get is being given on rabbinic grounds, one may argue that we do not run afoul of the strictures of a coerced get (“a get me’useh”). See Teshuvot Even Yekarah Tlitah 53.
ט׳
9In short, a doubtful halakhic marriage may serve under certain conditions as a basis to issue a get compulsion order.20Some will contend that get coercion concerning a doubtful kiddushin can be advanced only as a supporting argument (senif) accompanied by other reasons for mandating get compulsion. See PDR 1:33, 37–38, 4:33, 59; A. Sheinfeld,” Obligating a get in a doubtful kiddushin (Hebrew),” 9 Shurat ha-Din 158, 163 (5765). However, in the wake of a doubtful halakhic marriage, some say one cannot void a marriage.21On the other hand, in the event that there are at least two factual doubts regarding the kiddushin, there may be grounds to void the marriage and reinstate her status as a single woman. See Teshuvot Maharit 2:135; Teshuvot Yabia Omer 6, EH 10 (9).
י׳
10However, others argue once we move out of the world of a doubtful marriage and traverse into the universe of a double halakhic doubt, under certain conditions a marriage may be voided. In addressing the “halakhic vision” of rabbinic authority, we examine various issues which emerge from the concept of the double halakhic doubt as it relates to marriage and divorce matters. Firstly, we will explore the two opposing conceptions of halakhic doubt crystallized in the Mishnah, Talmud and post-Talmudic authorities and thinkers in order to understand conceptually what constitutes a halakhic doubt, and then briefly explore the implications of dealing with halakhic doubt as it relates to the prohibitions (issurim) involving marriage and divorce. In chapter two, we offer a detailed analysis of the foundations which establish the basis for a double halakhic doubt to serve as the avenue to free a wife to remarry without receiving a get from her spouse, i.e. voiding a marriage (bittul kiddushin).22The implicit premise of invoking a double halakhic doubt in marriage as a means to leniency assumes that a double doubt will be be effective with two bodies, namely a man and a woman. See Rashi Ketuvot 14a in the name of Rabbi Y.T. Elem; ha-Kereti u-Peleti, 110, Kuntres Beit ha-Safek, Teshuvot Binyan Tzion 1:60. Cf. Tosafot Yevamot 2b; Sha’ar ha-Melekh, Mikva’ot, Kelal 3. We then deal with how a double halakhic doubt may serve as a vehicle to void a marriage in the context of get coercion.23For the employment of a wife’s plea of repulsion (ma’is ali) concerning get compulsion as an avenue to invoke a double halakhic doubt resulting in the voiding of a marriage, see infra chapter 3 and in particular n. 45(end) and chapters 4E, n. 82 and 4F, text accompanying nn. 40–41. Alternatively, we may advance an additional double halakhic doubt which would result in voiding the marriage. The first doubt is that there is a debate whether one may coerce a get based upon a plea of repulsion. Moreover, there is a second doubt whether one may coerce a get concerning a particular ground for divorce such as a husband who is physically abusive to his spouse. Based upon this double halakhic doubt one may coerce a get (see Teshuvot Heikhal Yitzhak EH 1:3 (15); PDR 15:145, 153) and therefore we may void the marriage. See R. Y.Goldberg, Elu She-kofin Le-hotzi, Yerushalayim, 5773, 50–51, 131, n. 8.
י״א
11In addressing “the reality” of rabbinic authority, we have included ten presentations inspired by the reasoned opinions handed down as a dayan serving on a beit din or as serving as a rabbi on a panel of three rabbis engaging in resolving ritual Halakhah (mo’reih horo’ah) such as a matter of divorce.24In other words, this is a question of the halakhic laws of prohibitions and permissibility (dinei issur ve-heter) whether a husband is obligated to give a get to his wife and one may resolve this question in front of three rabbis in the absence of the husband, a husband who was not summoned to the hearing. See supra n. 6. Many of these decisions were handed down while serving at the International Beit Din located in New York City.
י״ב
12Emerging from these presentations, the reader will encounter four techniques which may be implemented under certain conditions which may serve to void a marriage (mevateil kiddushin): the discovery of a halakhic impropriety(ies) in the marriage ceremony, a husband who intentionally or unintentionally engages in misrepresentation and/or fails to disclose prior to the marriage a major defect (“kiddushei ta’ut”), a major expectation that the wife desired at the time of the marriage (“umdana de’mukha”) which failed to materialize during the course of the marriage and the application of a double halakhic doubt (“sefek sefeika de’dina”).
י״ג
13Implicitly in adopting one of these techniques is that we ought to refrain from being stringent regarding halakhic engagement (kiddushin) lest “the stringency would lead to a leniency” resulting in the promiscuity of the wife due to her being a victim of her husband’s get recalcitrance.25Beit Yosef, Tur EH 42; Hagahot Maimoniyot, Ishut 1; Teshuvot ha-Mabit 3:130.
י״ד
14In each presentation, we offer a rendition of the facts followed by a discussion of the halakhic issues emerging from the claims,26In the majority of these cases, we summoned the husband to attend the beit din hearing in order to address the matter of the get and he refused to appear. In his absence, we conducted a hearing with his wife. Indeed, some other rabbinical courts in the United States have also adopted this posture. For the halakhic grounds for conducting a hearing in his absence and ensuring that certain procedural safeguards were in place in order to arrive at a halakhically informed ruling, see this writer’s Rabbinic Authority, vol. 4, 216, n. 2.
In a few situations, the husband was not summoned to attend the hearing and the case was resolved by a panel of three rabbis serving as “mor’eh hora’ah” (credentialed arbiters of Halakhah) rather than rabbis serving as dayanim (rabbinic arbitrators). See infra Chapter 4H and 4J.
In the absence of the husband, a beit din or a rabbi(s) may hear the submission of evidence by witnesses in so far as it relates to matters of personal status (ishut). See Teshuvot Oholei Ya’akov 27 in the name of Meiri and Ridvaz; Teshuvot ha-Rivash ha-Hadashot 14 in the name of Ramah; Teshuvot ha-Rashba 4:200; Teshuvot Tashbetz 2:19; Teshuvot ha-Rashbash 46, 287; Teshuvot Maharshal 33; Teshuvot ha-Ridvaz 70; Teshuvot Avnei Nezer EH 30, 123, 124; Teshuvot Helkat Ya’akov EH 1:4; Teshuvot Hatam Sofer EH 1:84; Teshuvot ha-Maharnah 1:68. In the event that one deals with an agunah, the situation characterized as “an hour of emergency” and as such is halakhically viewed ex post facto (see supra 14, n. 7) and therefore, evidence in matters related to personal status may be submitted in the absence of the husband. See Maharnah, op. cit.; Teshuvot ha-Rema 12. Cf. others who mandate that both parties must be present when dealing with a matter of personal status. See Teshuvot Divrei Malkiel 5:168; Teshuvot Maharshakh 4:53; SA EH 11:4. Others argue that the requirement of having both parties present at the beit din proceeding depends upon the circumstances of the case. See Beit Shmuel, SA EH 11:16; Helkat Mehokeik, SA EH 11:4.
Cf. Rema, SA EH 11:4, HM 28:15; Teshuvot ha-Rema 17; Teshuvot Maharshal 11; Teshuvot Ma’sat Binyamin 106; Beit Shmuel SA EH 11:16; Helkat Mehokeik, SA EH 11:11; Teshuvot Panim Meirot 1, EH 104; Teshuvot Maharashdam EH 21, 27.
For further discussion, see S. Shilo, “Testimony in the Absence of a Party in Matrimonial Matters,” (Hebrew) 5 Shenaton Ha-Mishpat Ha-Ivri 321 (1978). followed by a decision rendered by the beit din panel. To preserve the confidentiality of the parties involved in these cases, all names have been changed, and some facts have been changed and/or deleted. Any changes or deletions of the facts do not impact upon the integrity of the beit din’s analysis and the actual decision. Appended to some of the decisions is a section entitled “final afterthoughts” in which we offer an alternative approach to voiding the marriage and/or present additional information regarding the decision.
In a few situations, the husband was not summoned to attend the hearing and the case was resolved by a panel of three rabbis serving as “mor’eh hora’ah” (credentialed arbiters of Halakhah) rather than rabbis serving as dayanim (rabbinic arbitrators). See infra Chapter 4H and 4J.
In the absence of the husband, a beit din or a rabbi(s) may hear the submission of evidence by witnesses in so far as it relates to matters of personal status (ishut). See Teshuvot Oholei Ya’akov 27 in the name of Meiri and Ridvaz; Teshuvot ha-Rivash ha-Hadashot 14 in the name of Ramah; Teshuvot ha-Rashba 4:200; Teshuvot Tashbetz 2:19; Teshuvot ha-Rashbash 46, 287; Teshuvot Maharshal 33; Teshuvot ha-Ridvaz 70; Teshuvot Avnei Nezer EH 30, 123, 124; Teshuvot Helkat Ya’akov EH 1:4; Teshuvot Hatam Sofer EH 1:84; Teshuvot ha-Maharnah 1:68. In the event that one deals with an agunah, the situation characterized as “an hour of emergency” and as such is halakhically viewed ex post facto (see supra 14, n. 7) and therefore, evidence in matters related to personal status may be submitted in the absence of the husband. See Maharnah, op. cit.; Teshuvot ha-Rema 12. Cf. others who mandate that both parties must be present when dealing with a matter of personal status. See Teshuvot Divrei Malkiel 5:168; Teshuvot Maharshakh 4:53; SA EH 11:4. Others argue that the requirement of having both parties present at the beit din proceeding depends upon the circumstances of the case. See Beit Shmuel, SA EH 11:16; Helkat Mehokeik, SA EH 11:4.
Cf. Rema, SA EH 11:4, HM 28:15; Teshuvot ha-Rema 17; Teshuvot Maharshal 11; Teshuvot Ma’sat Binyamin 106; Beit Shmuel SA EH 11:16; Helkat Mehokeik, SA EH 11:11; Teshuvot Panim Meirot 1, EH 104; Teshuvot Maharashdam EH 21, 27.
For further discussion, see S. Shilo, “Testimony in the Absence of a Party in Matrimonial Matters,” (Hebrew) 5 Shenaton Ha-Mishpat Ha-Ivri 321 (1978). followed by a decision rendered by the beit din panel. To preserve the confidentiality of the parties involved in these cases, all names have been changed, and some facts have been changed and/or deleted. Any changes or deletions of the facts do not impact upon the integrity of the beit din’s analysis and the actual decision. Appended to some of the decisions is a section entitled “final afterthoughts” in which we offer an alternative approach to voiding the marriage and/or present additional information regarding the decision.
ט״ו
15Hopefully our discussion will educate our community on the parameters and scope of rabbinic authority in general and “shatter the silence” surrounding the solutions which may be implemented under certain conditions in order to deal with the plight of the modern-day agunah in particular. For those who avail themselves of the services of a beit din, it may be a life-defining moment. Consequently, it behooves our community to understand the institution, to become attuned to the dynamics of its decision-making process, and to perform due diligence in deciding in which beit din to pursue one’s matters.
