Annulment of Marriages

Rarely do we see as clearly the tension between traditional Jewish practices and secular values as in the issue of annulment.

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American society and values are founded upon the rights of the individual. When individual rights come into conflict with communal values, we protect the rights of the individual. That is the purpose of the Bill of Rights, as well as the American Civil Liberties Union and many other organizations and lawmaking bodies of our country.

 

Traditional Judaism, on the other hand, is a community-oriented religion. When the rights of the individual come into conflict with the needs of the community, the community almost always takes precedence. In exploring the issue of annulment we will see how the different Jewish movements respond to the conflicts of community vs. the individual.

Torah Realistic About Divorce But Decidedly Non-Egalitarian

Judaism does not accept that marriage is a permanent sacrament. Our tradition has always recognized that not all marriages work and has sought uncomplicated ways to dissolve failed marriages. In fact, we find divorce mentioned as early as the Torah. However, because the Torah reflects the culture of its time, the laws of marriage and divorce were based upon the then-prevailing notion that women were considered property. Women were rarely allowed to have control of their own destinies. Thus, according to Torah law, only the husband can grant a divorce, and the woman has no say in the process. Under rabbinic law the woman can initiate divorce proceedings in some situations and obtain help from the beit din (rabbinic court) in doing so. But in the end, the husband must still give her the get (bill of divorce) for the divorce to be valid.

divorce papers with cake topperThis practice continues to this day. Currently, the Orthodox and Conservative movements follow halakhic (Jewish legal) norms and will only process a religious divorce (get) if the husband initiates the procedure. Rabbis from these movements are not allowed to perform second marriages where there is no get. The Reform and Reconstructionist movements do not require a get, and will process a get initiated by the wife, but these alternative gittin (plural of get) are not accepted by the Orthodox or Conservative movements.

Divorce Without a Get Divides the Jewish People

So what? We live in a secular society. What if there is remarriage without a get? What does it matter? For those who accept the authority of Jewish law, and for our children who may be attracted to more traditional forms of Judaism, it is very important. According to Jewish law, if a woman remarries without a get and has children from the second marriage, these children fall into a category of Jews called mamzerim. They are considered Jews (they can be counted in a minyan, or prayer quorum of 10) but are allowed to marry only other mamzerim or converts. While this poses no problem for the Reform, Reconstructionist, and perhaps a large portion of the Conservative movement (who do not accept the concept of mamzerut), it does for Orthodox Jews (who will not consider a marriage with a mamzer).

With a growing rate of secular divorce, and many remarriages resulting in the birth of mamzerim, our community finds itself rapidly dividing into two groups of Jews who will not be able to marry each other. An interesting counterpoint to this contemporary scene are the diametrically opposed schools of talmudic rabbis Shammai and Hillel. The philosophical divisions between them were sharp and at times irreconcilable. However, the Talmud reports that no matter how deep the rift that separated the two schools of thought, their adherents were always allowed to marry each other. Perhaps a definition of “Who is a Jew?” boils down to “Whom can you marry?”

How Does Annulment Fit In?

While the Torah does not mention the concept of annulment, the rabbis in the Talmud interpreted the laws of marriage as allowing a beit din to intervene and annul a marriage if the husband has acted in a way that causes harm (physical or mental) to his wife. This could be done without the husband's participation or approval and over his protestations. In the Talmud the cases cited are specific: where a woman is coerced into the marriage upon threat of violence to her person or where a woman is kidnapped and forced to marry a man against her will.

In the early Middle Ages we find rabbinic rulings that an annulment can be decreed by a beit din if “defects” in the husband were found after the marriage took place. If the husband suffered from a condition (mental illness, abusive behavior, impotence, or a physical defect) at the time of the marriage and the wife was unaware of the condition when they were married, she can seek an annulment from the beit din.

The way annulment is handled today by the Conservative and Orthodox movements--both of whom claim to accept Jewish law as binding--reflects the doctrinal differences between them. While there is no one prevailing Orthodox view on this issue, the rabbinic courts that grant annulments focus on the “letter of the law.” Annulments can be granted if the laws of marriage were not followed correctly. Therefore, if there were not two kosher witnesses at the ceremony, the ceremony is invalid. (A “kosher” witness is a male, Sabbath-observant Jew of matrilineal descent who is not related to either bride or groom or the other witness.) If there was no valid exchange of property--the groom giving the bride, without reciprocation, a ring, other gift, or even money--or if the ketubah [marriage contract] was not valid, the marriage can be annulled. If it can be proven that the groom was mentally disturbed or had a preexisting condition at the time of the wedding, of which the bride was unaware, the marriage can be annulled.

The Conservative movement’s focus is on the concept that the rabbis, as arbiters of Jewish law, have the authority to grant an annulment. Thus, they are not as concerned with the points of law under which annulments are granted. The rabbis are more concerned with the precedent that annulments can be granted. The Conservative movement grants annulments if the husband refuses to give a get out of spite, disappears and cannot be located, is abusive, or attempts to blackmail the wife into giving him a more favorable property settlement.

Approaches to Annulment Reflect Movement Values

The Reform and Reconstructionist movements are more closely allied with secular values in that they do not require a get, but accept a civil divorce as fully dissolving a marriage. Annulments do not exist in their interpretations of Jewish law. The Conservative movement sidesteps the letter of the law, focusing instead on the ability of the rabbis to grant annulments for reasons never anticipated in the tradition. The Orthodox movement works within the framework of precedent to allow annulments only for reasons specified in sacred texts.

The Reconstructionist and Reform movements have become more closely aligned with the American value of protecting the rights of the individual when in conflict with communal values. As a religious divorce or annulment has become hard to obtain, the solution has been to discard the need for a religious divorce --thereby solving the problem.

The Conservative movement seeks a middle ground, protecting the rights of the individual by making it easier to obtain an annulment when a religious divorce is not possible, keeping the community concept of religious divorce somewhat intact.

Orthodoxy clearly accepts the community's priority over the individual--even when the absence of an annulment or religious divorce will leave the woman an agunah, a "chained woman" who is unable to remarry.

While it is easy for members of one movement to criticize another movement's philosophy, it is important to remember that none of the above solutions is without issue. They each have their strengths and weaknesses, and by and large, the members of each community demonstrate their loyalty to their movement's policy by staying in that community.

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Rabbi Steven Bayar

Steven Bayar received his bachelor's degree and a masters in religious studies from the University of Virginia and was ordained at the Reconstructionist Rabbinical College. He serves as rabbi of Congregation Bnai Israel in Millburn, N.J., and is the author of Teens & Trust (Torah Aura), Ziv/Giraffe Curriculum (Righteous Persons), and Tikkun Olam (KTAV), & is co-founder of Ikkar Publishing.