Freeing From Intolerable Spouses

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by R. Gidon Rothstein

8 Tevet:  Freeing From Intolerable Spouses

It’s rare that I find responsa by Ba”ch, R. Yoel Sirkes, that have dates on them, so I am going to lead off this time with a brief responsum of his, and then move on to one of Chatam Sofer’s on a similar topic, how to help when a spouse becomes intolerable.

Ba”ch’s Example: A Man with an Insane Wife

On the eighth of Tevet, 5387 (1626), Shu”t Ba”ch 93 responded to a man whose wife had gone so insane that she had to be locked away. She occasionally returns to her right mind, for a week or even two, but then again loses it. For the past several years, she had been living with her father and brothers, the husband with their two children, alone and me’ugan, a description we mostly know when used about women who cannot remarry. In this case, he’s the one stuck in a non-marriage who has no way out [since insane women cannot halachically accept a get].

He wants permission to give her a get against her will the next time she was in her right mind [the responsum doesn’t say, but it seems she was unwilling to accept the get; we can imagine (heartbreakingly) that she hoped, each time she was better, that she had finally turned a corner and was now going to be well and could rejoin her family—I once read a memoir by a schizophrenic, who described her cycle of medication helping her get control of herself, starting back to building a life, taking herself off the medication, sure she didn’t need it, only to again descend into psychosis. The husband may have hoped she would turn a corner, too, but years of disappointment made him feel he had to move on].

Barring that, he wanted to be allowed to marry a second wife [for hundreds of years, Ashkenazi men have observed cherem Rabbenu Gershom, a set of decrees that included a prohibition against coercing a woman to accept a get and marrying more than one woman at a time. This does not even the playing field on ending marriages, as this man knows he might be able to secure permission to ignore the cherem, but it’s a reminder that spiteful women can make problems for innocent men in a divorce as well].

A local community had decided it was better for him to force a get than marry another woman; they thought turning her into an agunah [in the sense that she’s married to a man who won’t be living with her] was worse than forcing her to take a get.

Forcing a Get Isn’t Simple

Ba”ch disagrees. He notes a Talmudic debate about why it is that an insane woman cannot be divorced; one opinion had it that we worry that other men will abuse her sexually, and the other has it as a more technical issue, that she does not understand that the get means she’s no longer a member of her ex-husband’s household.

Since the Gemara doesn’t rule on which reason is halachically authoritative, we have a problem in our case: the different reasons produce different conclusions about whether he can divorce her [against her will or even consensually] while she’s temporarily sane. Her current sanity helps with the technical issue of understanding what’s happening, but does nothing for the concern with her sexual safety.

For that reason, and because that’s the tradition he had from his teachers, and because Ba”ch thinks Rabben Gershom included that in the original ordinance, we should allow him to marry a second wife. The mechanism for that is a heter meah rabbanim, where the husband finds a hundred rabbis—a standard Ba”ch thinks was intentionally aimed at being sure this wasn’t too easy to do. This man is a good candidate for the heter, however, as long as he leaves a get and the value of the ketubbah with the court, so the woman can pick it up whenever she’s ready.

Suspending Cherem Rabbenu Gershom

He notes that Rema Even HaEzer 1;10 writes that wherever the woman cannot be divorced, we allow the man to marry a second wife, with her insanity being one of the examples Rema gave [note that Ba”ch has clearly read Shulchan Aruch—in fact, Wikipedia says he was a student of Rema’s leading student. Yet he chose to comment on Tur instead of Shulchan Aruch, perhaps because he objected to people ruling straight out of Shulchan Aruch].

He himself had signed such a heter me’ah rabbanim as a younger man, and points to a report by Mordechai  that R. Eliezer of Metz would regularly suspend the cherem whenever a married man’s brother passed away without children. While the surviving brother wouldn’t perform yibum, levirate marriage, R. Eliezer [commonly known by the name of his work, Yereim] worried that if the brother couldn’t marry her (because he had one wife), the chalitzah wouldn’t work, either (since it transpired between a widow and a brother she was unable to marry). He’d suspend the cherem, so that the brother could in theory perform yibum, and then have him give her a chalitzah, to free her to remarry.

Yere’im said explicitly that the cherem was never intended for where there was a mitzvah to act otherwise. Yere’im had one mitzvah circumstance in mind, but Ba”ch is telling us he sees this—a man stranded with no wife or way to get a wife—as another mitzvah circumstance that justiies suspending cherem Rabbenu Gershom.

Freeing a Woman From a Prosepective Levir

My main operating principle in these essays is finding responsa by date, but as I looked for responsa to round out this column, I found one by Chatam Sofer that’s also from the eighth of Tevet (this time from 5594/1833), and on a related topic. Alla ma’alos, as we sometimes say.

Chatam Sofer 4; Even Ha-Ezer 2;89 discusses a woman whose husband passed away without children, and the only surviving brother had left observance [meaning, generally, that he was unwilling to perform a chalitzah]. Her niece, the daughter of the lapsed yabam, has informed her that he had passed away.

Believing the Yabam’s Daughter

Mishnah Yevamot 15;4 lists women who are not believed about the death of a yabam, for various reasons. Chatam Sofer notes a debate about whether that list does or should include the daughter of the yabam. Rosh, who says we don’t believe her, also held that we don’t accept the testimony of one witness in such cases, because we fear that a widow will not be careful enough about certifying the death of a yabam before she remarries.

[When a regular woman hears of her husband’s death, halachah assumes she’ll only remarry if she has ironclad evidence of his passing, since it’s a disaster if he shows up alive—she can’t stay with either the first or second husband. The stakes are much lower for a widow dealing with whether her yabam is still alive, so Rosh held that we cannot be confident she will take the necessary care about marrying].

Mahari Mintz suggested that once most people performed chalitzah rather than yibum, so that there was no meaningful chance of her marrying the yabam, there shouldn’t be any reason to doubt the testimony of the yabam’s daughter (the original worry was that the daughter wouldn’t want the new stepmother and would lie to avoid it; since it’s not a practical worry, there’s no reason to suspect her of lying).

Where the Yabam Has Left the Religion

I’m skipping a bit of a side point about the rule that we believe one witness in certain cases, because that whole conversation is primarily relevant to an ordinary yabam. Where that yabam has left Judaism, and the secular authorities will not allow the Jewish community to coerce him into fulfilling his obligations towards his sister in law [note Chatam Sofer’s implicit certainty that if we had the power, we’d coerce him to give her a chalitzah], there’s a real risk that she’ll be left an agunah her whole life [and that’s intolerable, he again implicitly asserts].

Given that worry, he feels confident we can avail ourselves of the daughter’s report of her father’s demise along with any other avenue of leniency. Such as the father’s apostasy. Already R. Yehudai Gaon (d. 761) ruled that such a brother does not count in terms of requiring the widow to wait for chalitzah or yibum. R. Yehudai held that even if the brother left observance after the marriage; R. Sherira only agreed if he had declared himself out of the religion before her marriage [because then we assume that she had made an implicit condition on the marriage that she would not need yibum, since there was no viable candidate for such a yibum].

Since we don’t suspect that the brother repented (it wasn’t common enough to be an issue), this woman already had achazakah that she didn’t need yibum or chalitzah. The daughter’s claim, then, is supporting what we already thought was true, that she can remarry without waiting.

Chatam Sofer’s now built three reasons to allow her to assume she does not need to wait for a chalitzah: 1) Some authorities (Rif and Rambam) believe the yabam’s daughter that he’s no longer alive; 2) Those who do not allow believing her aren’t certain about that, so the widow can recognize a possibility he’s no longer alive, which can combine with 3) his apostasy, which means, for many authorities, that there’s no need for yibum.

Given all that, and the worry she’ll be left stranded, Chatam Sofer sees room to rule leniently.

Seeing a Value in Action

The eighth of Tevet (5717/1956) was also the date on a responsum where Seridei Esh (1;90), works to find a way to permit women whose husbands have left observance to see their marriages as null and void. Sadly, I don’t have the space here to do it any sort of justice [as rabbinic writers say in such situations, ve-od chazon lamo’ed, we can hope there will be another time for this discussion]. Since we’ve seen Seridei Esh before [including on Ba”ch’s exact topic, as I noticed after I wrote this], I thought Ba”ch was more of a treat, and then Chatam Sofer fit right in.

What comes out of all three, though, is a reminder of the value halachah places on paving the way for people to be married. For those whom life puts in a situation where that doesn’t seem possible, respondents work to remove the obstacles in their way. That’s obviously not a free-for-all (I believe, for example, that Seridei Esh’s ideas about freeing married women are not widely accepted), but it’s an important statement of halachic values, which condition how hard poskim work and how far they are willing to go to allow something they find very important.

Freeing the chained spouse is one of those values these respondents find very important.

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