Q&A: The Rabbis Annulled the Betrothal and the Release of Agunot
The Rabbis Annulled the Betrothal and the Release of Agunot
Question
Why don’t the sages use their power to annul marriages in order to free agunot?
A man who betrothed his wife and disappeared is almost certainly dead—for example, he was in the Twin Towers when they collapsed but his body was never found, or his tank exploded and no remains were left, etc. Would it not be proper for the sages to use their power to free his wife from lifelong aginut?
Also, based on the reasoning that anyone who betroths does so subject to the authority of the rabbis, it stands to reason that any reasonable person would be glad for his wife to be permitted to remarry if he disappeared and is almost certainly no longer alive. Therefore, even at the time of the betrothal, he surely had in mind that the rabbis would annul it in such an extreme case.
Thank you very much.
Answer
This is a question already raised by the medieval authorities regarding every case of mamzerut and aginut. Why resort to all these discussions? Let them simply annul the betrothal and that’s it. The answers are based on the idea that the sages do not make use of their power to annul except in very rare cases, in order to stabilize the institution of marriage. In particular, annulment requires a recognized religious court accepted by the entire generation, which does not exist today.
Discussion on Answer
I saw that halakhic decisors discuss permitting mamzerim on the basis of the words of the Maharsham, who wrote such a leniency but not for practical ruling. But I have not seen discussion of using this to free aginut. And since there are many leniencies used to permit agunot, I asked why they should not use this leniency as well.
To annul in order to purify mamzerim is the opposite of the very nature of the sages’ power—as the Rabbi wrote, this rule was stated in order to stabilize the institution of marriage, and if we come to permit mamzerim we would damage that. But permitting an agunah is a tragic case that usually is not under anyone’s control and is not done by choice (the mamzer himself also did not choose this; I mean the choice to marry despite the consequences), and therefore I thought there is more room to use less conventional leniencies.
The halakhic decisors did indeed discuss whether “the rabbis annulled the betrothal” leaves a rabbinic-level marital bond, but if it annuls it completely, then seemingly there would be room to use this in extreme cases of aginut.
Tosafot discuss this regarding saving one’s wife from the death penalty for adultery. And other medieval and later authorities also discussed it with respect to aginut, even though we plainly see that the Talmud did not use this to permit agunot. See a short overview here (mainly at the end): https://asif.co.il/wp-content/uploads/2023/04/15-2.pdf
Thank you very much!
An interesting question is whether this is policy or Jewish law. If it is only policy, then if they decide to annul in order to free agunot—that is, to change policy—it would be valid even if not proper. If it is Jewish law, then the annulment is apparently not valid in such situations.