Jewish Soldiers and the War Divorce

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by R. Gil Student

Soldiers go out to war and do not know if they will return. If the worst happens and they do not return, their wives cannot remarry without proof of death. To avoid the possibility of widespread agunah problems, for centuries if not longer, Jewish soldiers have divorced their wives before leaving. The exact nature of this divorce is a matter of debate but we know this was done through World War II. This is particularly helpful when a soldier is known to have been killed in battle but there is insufficient proof of his death to allow his wife to remarry. It frees women who are ready to move on with their lives but are stuck in a dead marriage. Today, these divorces are not done. We will briefly discuss here the different options available and when and why they ceased being used.

I. Soldiers Divorcing Their Wives

The Gemara (Shabbos 26a, Kesubos 9b) says that the soldiers in King David’s army would divorce their wives before going out to war. Rashi (Kesubos 9a s.v. get) says that the divorce is conditional on the husband dying in war. If he dies, his wife is retroactively divorced and therefore, if they have no children, she is not subject to yibum or chalitzah, having to marry her deceased’s husband’s brother or formally separate from him. Otherwise, if the deceased’s brother is uncooperative or living in another part of the world, the widow is stuck in permanent singlehood. Because this simple reading of Rashi’s approach solves very few problems for soldiers, Tosafos (ad loc., s.v. kol) suggest that Rashi meant that every soldier divorces his wife on condition that he does not return from war. Therefore, if a soldier does not return, his wife does not need proof of death in order to remarry. Tosafos also quote Rabbeinu Tam who says that the soldiers divorce their wives with no condition at all and remarry them when and if they return from war.

Rav Shlomo Yosef Zevin (20th cen., Israel; Le-Or Ha-Halakhah, part 1 ch. 8) quotes a number of responsa from the late 19th century and early 20th century that discuss these types of divorces as done by actual soldiers. For example, Rav Naftali Tzvi Yehudah Berlin (Netziv, 19th cen., Russia; Responsa Meishiv Davar 4:51) discusses the case of a kohen who was sent out to fight in a Russian war. With the guidance of his city rabbi, he gave his wife a divorce in 1879 on condition that he returns to the city within two years. The war ended but he was sent by the army straight to Moscow for administrative duties and was not allowed to return home. Because he was a kohen, if the divorce took effect, he would not be able to remarry his wife. Netziv reluctantly concludes that the wife can forgive the condition of his return and then the divorce is nullified because it is as if the husband returned.

During the Russo-Japanese War (1904-1905), Rav Malkiel Tannenbaum (Poland; Divrei Malkiel 4:156) offered a solution to soldiers who were called to duty quickly. A soldier could declare in front of two witnesses that he appoints a scribe and any two kosher witnesses in the city to write, sign and give a divorce to his wife. Then the witnesses and scribe can wait until the war is over and if the soldier does not return, they can perform the divorce on his behalf. If he died in the war, his wife does not need the divorce. If he is missing or captured, the divorce is effective and the wife is free from living in perpetual singlehood. However, Rav Tannenbaum cautions, if the couple has no children the husband should give the divorce immediately to avoid the challenges of chalitzah. During the same war, Rav Yehudah Leib Tzirelson (Responsa Gevul Yehudah, no. 41) addresses a soldier who failed to do anything to effectuate any kind of divorce and then, at the front lines, became worried he would be killed and his wife would be subject to chalitzah with his stubbornly uncooperative brother. Significantly, the soldier was nowhere near a rabbi or Jewish community. Rav Tzirelson composed a form that the soldier can sign and send to his home city ordering a scribe and witnesses to write, sign and give a divorce to his wife. If possible, he should have two religious Jews sign the form as witnesses. If not, witnesses in his home city who recognize his signature can validate the form.

II. World War II Changes

Rav Zevin (ibid.) describes how Rav Yitzchak Herzog, Ashkenazic Chief Rabbi of Israel, was concerned during World War II that soldiers from Israel in the British army might appoint a specific scribe or specific witnesses to give a divorce in the future who might not be alive at the time the war finished. Instead, he arranged for the printing of appointment (harsha’ah) cards which a soldier signed, appointing anyone in Jerusalem to write, sign and give a divorce to his wife. The cards added a condition that a divorce should only be given if one of the Chief Rabbis of Israel is informed that the soldier is missing and only at least one year after the enemy releases the prisoners of war.

Rav Herzog noted the issue of soldiers returning home briefly to visit his family and then going back to the frontlines. This was not possible during European wars, where men did not return home for brief visits. If a man lives with his wife after appointing a messenger to divorce her, he undermines the entire procedure (Shulchan Arukh, Even Ha-Ezer 149:7). Therefore, Rav Herzog also printed forms for soldiers in Israel to sign and send to the Rabbanut after every home visit. In the published text of the harsha’ah (Heikhal Yitzchak, Even Ha-Ezer 2:41), Rav Herzog includes language indicating that he no longer considered a soldier returning home to be a problem. In the harsha’ah, the soldier declares that even if he returns home, he does not invalidate his instructions contained in the harsha’ah.

In the spring of 1939, Rav Yitzchak Herzog felt that war was going to break out in Eastern Europe. He reached out to Rav Chaim Ozer Grodzenski of Vilna, recommending he use the harsha’ah method to assist Jewish soldiers in the various national armies in preparing divorces for their wives. In the winter of that year, Rav Grodzenski replied to Rav Herzog, noting how his friend had foreseen by a few months the outbreak of World War II but saying that they decided to use the standard conditional divorce rather than Rav Herzog’s new approach (the correspondence is found in Ha-Rabbanut Ha-Roshit Le-Yisrael: Shivim Shanah Le-Yisudah, vol. 2, pp. 995-996).

In late 1939, a few months after World War II began, the London Beth Din published a booklet written by Rav Yechezkel Abramsky — at the time, the head of the beis din — examining the issues and offering an improved text for Jewish soldiers in the British army fighting in World War II. Men refused to give their wives divorces, even conditional divorces, because of the emotional pain. Rav Abramsky recommends that soldiers appoint two scribes and no witnesses to write, sign and give his wife a divorce if he does not return within five years (or four years, if he prefers). He should appoint two scribes in case one dies or leaves the country. He should appoint no witnesses in case those he selects die. A divorce with no witnesses appointed for the writing is acceptable but if it has witnesses appointed and they die, the divorce will be invalid on a biblical level. For a man with no children, Rav Abramsky encourages the giving of a conditional divorce. But if the soldier refuses, he can appoint two scribes like other men. If he dies and that information is transmitted, the wife will have to do chalitzah, if possible. But if information about his fate is unknown, the beis din can rely on the presumption that he is alive and give a divorce to his wife based on his appointment of a scribe. Regarding soldiers who return to visit home briefly and then go back to war, Rav Abramsky argues that this only invalidates the appointment in a normal case when a couple has split and then reunite. Clearly, at least for a brief time, they want to remain together and not get divorced. In the case of a soldier, the time together never negates the appointment for divorce so it remains valid.

III. Israel

During Israel’s Independence War, the two Chief Rabbis of Israel — Rav Yitzchak Herzog and Rav Ben Tzion Meir Chai Uziel — strongly encouraged soldiers to appoint scribes and witnesses to divorce their wives if they do not return from war. As mentioned above, they printed cards to make it easy for soldiers. On 15 Tammuz 5709 (summer of 1949), Rav Uziel requested of Prime Minister David Ben Gurion the enactment a law requiring soldiers to sign the divorce-appointment cards (Ha-Rabbanut Ha-Roshit Le-Yisrael: Shivim Shanah Le-Yisudah, vol. 3, pp. 1327). Rav Shlomo Goren, in an article about the freeing of agunos from Israel’s Independence War (in the memorial volume for Rav Herzog, p. 164), describes the difficulties implementing this. Even though the IDF made it easy to appoint a scribe to divorce a wife if the husband does not return from the war, thereby resolving potential agunah problems, soldiers refused to sign. At some point, for a short time, the IDF required married soldiers to sign the appointment cards, but they did so begrudgingly. That raises the problem of a coerced divorce, get me’useh, which is invalid. In addition to these problems, some IDF commanders refused to ask soldiers going out to battle to sign the appointment card because of concerns for troop morale.

Rav Herzog writes likewise, in his response to Rav Shlomo Goren’s initial analysis of the widows of Kfar Etzion, which became part of his article in the memorial volume (Heichal Yitzchak, Even Ha-Ezer, vol. 2 no. 1). Rav Herzog says that the rabbis did all they could to help the soldiers solve the problem in advance but the soldiers refused. After all this effort, the Chief Rabbinate gave up on the pre-war divorce-appointments and instead had to undergo the difficult process of case-by-case analysis of the circumstances of each soldier’s death. In his 1953 book, Hilkhos Medinah (vol. 2, section 7 ch. 2), the Jerusalem-based scholar, Rav Eliezer Waldenberg, includes the exact language of the Chief Rabbinate’s appointment card as well as similar language based on Rav Abramsky’s views published by Agudas Ha-Rabbonim of America. He also notes Rav Avraham Yeshayahu Karelitz’s (the Chazon Ish) opposition to appointment cards. Instead, the Chazon Ish insisted that whenever possible, a married soldier verbally appoint a scribe in front of a religious court to divorce his wife if he does not return from war.

Over the past decades of Israel’s wars, we have seen that soldiers can be captured and held for years, even decades. In other times, when a war ended, the enemy would return all the war prisoners. A divorce or appointment could be conditional on a husband returning with or not long after the general release of captives. Israel’s enemies do not work like that. Any conditional divorce or appointment would have to be worded carefully in order take into account this complication. Captive soldiers, known to be alive, should return to their intact family even after many years. As Rav Abramsky pointed out, if these divorces and appointments become standard, there is less concern for deterioration of morale–they would be like wearing dogtags. However, we have to defer to the judgment of those more intimately familiar with the lives of religious soldiers. To my knowledge, these various solutions are not done today, even by religious soldiers. Instead, as R. Aharon Rakeffet describes in detail (Rakafot Aharon, vol. 4, pp. 114-124), leading rabbis spend significant time examining the circumstances of soldiers’ deaths in an attempt to free their wives from being a lifelong agunah.

About Gil Student

Rabbi Gil Student is the Editor of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student currently is serving his third term on the Executive Committee of the Rabbinical Council of America and also serves as the Director of the Halacha Commission of the Rabbinical Alliance of America. He serves on the Editorial Board of Jewish Action magazineand the Board of OU Press. He has published four English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

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