Proposed Soultions to the Agunah Crisis Rabbi Dov Linzer
Proposed Solutions to the Agunah Crisis Rabbi Dov Linzer A. Forcing a Get due to Marital Incompatibility The Gemara says that a wife cannot be compelled to live with her husband if she cannot stand him. Rambam and Tosafot disagree as to what can be done in such a case (sources 1 and 2). The Geonim made an enactment that lasted for over 500 years that in such a case a husband can be compelled to give a get, and note the stated reason for this enactment (source 3). There is a debate whether this enactment continued to be in force. Rosh states that this enactment is not in force, unless the husband is attempting to make her an agunah (source 4). Shulkhan Arukh similarly does not call for a forced get (source 5). B. Conditional Marriage Although kiddushin can be conditional, the Gemara raises problems when such a kiddushin is followed by nissuin, cohabitation, since there might be an implicit negation of the condition, and this is the ruling of the Shulkhan Arukh (source 6). There might be ways to avoid this implicit negation. See the ruling of Rema regarding a conditional marriage to avoid a yibbum situation (source 7), although the halakhic consequences here are less severe than an agunah situation. R. Dovid Tzvi Hoffman objects for technical concerns – the ability to attend to all the necessary details - and for policy reasons – what this will do to the halakhic institution of marriage (source 8). Source 9 is a summary of attempts to use conditional marriage to solve the aggunah crisis. Both policy concerns and techincial concerns of the waiving of the condition are addressed. The option of combining solutions (conditional with hafka’at Kiddushin) is suggested, as is the possibility of an assumed condition, even without one being stated explicitely. Rav Kook agreed to these solutions in principle, and opposed them for reasons of imprecise implementation. C. Hafka’at Kiddushin – Annulment Look at the Gemarot that speak about annulment (sources 16-17). There are two categories – those that are annulled from the get-go and those that are annulled retroactively. The former has the benefit of never being recognized to beign with. According to Rashba, a retroactive annulment needs some form of a get (source 18). We find a number of post-Talmudic cases of annulment, but they are all of the non-retroactive type (sources 19-20). Rema rules that one cannot rely on these annulments (source 21), but in one case he allowed even a retroactive annulment (source 22). Rav David Tzvi Hoffman was adamantly opposed to the wholesale use of annulment (source 23), while Rav Yaakov Yechial Weinberg considered the possibility of a case-by-case retroactive annulment (source 24). D. Get Zikkuy / Assigning a Get Some have suggested giving a get for the “religious” benefit of the husband (get zikuy), even when he is proclaiming his opposition to it. There are many obviousl problems with this – see Rambam (source 25) who acknowledges the concept of religious benefit, but asserts (following the Gemara) the need for the husband’s verbal agreement. Rabbi Bleich (source 26) summarizes the problems with this approach. An alternative is assigning a get to be written under certain conditions. However, this is a requirement that the witnesses and scribe receive direct oral instruction from the husband (source 27) and that this be given after the couple is already married (source 28). Finally, an assigned get or agency, runs the risk of it being annulledany time before it takes effect (sources 29-30). There are a number of proposals how to avoid such annulment from the husband, which met with various policy and halakhic objections (source 31). E. Forgoing Kiddushin - What would be the policy and halakhic considerations here? (source 32).
F. Recent Proposals Recent proposals include Hafkaat Kiddushin based on the power of the Knesset (source 33), a hybrid of tenai, hafkaah, ta’ut and assigning a get (source 34), or the actual assigning or giving of a get, with a backup of tnai (source 36).