In dealing with agunah situations, it is very important to determine the halachic status of marriages where a husband discovers a major defect in his wife, or vice versa, only after they have married.
Talmudic Background
The Gemara discusses the halachic validity of a marriage in which the husband discovers defects in his wife that existed before the marriage. The Mishnah (Ketubot 72b) describes a marriage in which the couple articulated no special conditions. After the wedding, the man discovered preexisting physical defects (mumin) in the woman and now wishes to divorce her. The Mishnah teaches that, in such a case, a get is required to terminate the marriage, but the husband is not required to pay the ketubah (which is usually paid when a couple divorces). The Gemara adds that the man is exempt from paying the ketubah only if the defect is one that most people would find intolerable.
Tosafot (ad. locum s.v. Al) explain that the get in this case is required merely out of doubt.1Tosafot are unsure whether this get is required on a biblical or a rabbinical level. The Halachah does not rule unequivocally that the marriage is invalid because it was entered on a fraudulent basis (kiddushei ta'ut). Rather, since the man might have entered the marriage despite the woman's defects, one cannot conclude with certainty that the marriage constitutes kiddushei ta'ut. Thus, a get is required for the woman to remarry. The husband is not required to pay the ketubah, as one is never forced to pay a doubtful monetary obligation. His exemption from payment results from the halachic principle of hamotzi mei'chaveiro alav haraayah, “The burden of proof rests upon the individual who demands the money from his peer” (Bava Kama 46a).
The Case of an Ailonit
Tosafot (ad. loc. s.v. Al; Yevamot 2b s.v. O, and Gittin 46b s.v. Hamotzi) point out a seeming contradiction between the aforementioned Mishnah in Ketubot and the Mishnah in Yevamot (2b). In Yevamot, the Mishnah indicates that if the husband discovered a major defect after the wedding, no get is required to dissolve the marriage. Presumably, this is because the husband entered the marriage on a fraudulent basis. The Mishnah addresses a case where the woman turns out to be an ailonit, a woman who is sterile and devoid of feminine characteristics.2See Encyclopedia Talmudit (1:523-528) for a review of her halachic status.
In order to distinguish between the two cases, Tosafot suggest that being an ailonit is an unusually severe defect. If a particular woman is undoubtedly found to be an ailonit, the marriage is considered invalid and no get is required. If the defect is less severe, the marriage may nevertheless be valid, so a get is required. The Rosh (Ketubot 7:10) explains that being an ailonit is an unusually serious defect because the primary reason for marriage is to produce children.
The Talmud contains no explicit textual proof for Tosafot's conclusion. Accordingly, many Rishonim even require a get (albeit only rabbinically) for an ailonit, fearing that perhaps her husband would have married her regardless.3Nimukei Yosef (Yevamot 1a in the pages of the Rif, s.v. O Nimtze'u, quoting Rabbeinu Tam), Maggid Mishnah (Hilchot Ishut 4:10), and Rambam (according to the Lechem Mishneh ad. loc.). For an explanation of this opinion, see Chazon Ish (E.H. 79:16). Rabbeinu Tam, who maintains the latter view, infers his position from another Mishnah (Ketubot 100b). It states that an ailonit is not entitled to a ketubah payment, implying that she does nonetheless require a get. Indeed, the Mishnah in Gittin (46b) specifically addresses the case of one who gives his wife a get because she is an ailonit! Tosafot respond that the woman discussed in this particular Mishnah is merely a safek ailonit, one whose status as an ailonit is in doubt. Tosafot, however, cite no Talmudic texts to support this contention.
The Beit Shmuel (39:15) cites Tosafot's opinion that no get is required if the wife was discovered to undoubtedly be an ailonit. However, he also cites Rabbeinu Tam's view (44:7) that a get is nevertheless required rabbinically. The Aruch Hashulchan (E.H. 44:5) rules in accordance with Rabbeinu Tam to require a get.
Belated Objections
The Chelkat Mechokeik (39:9) and the Beit Shmuel (39:7,16) both note that only if a man complains immediately about a problem is his claim of kiddushei ta'ut considered. If, however, he fails to complain about the problem immediately, explains the Beit Shmuel, the absence of a complaint constitutes acceptance of the defect. Even if the husband complains later about the defect, the marriage is undoubtedly valid. The Aruch Hashulchan (E.H. 39:13) also notes that if the couple continues to cohabit as a normal married couple, the marriage is certainly valid despite the defect.4Regarding a nonobservant couple, where that the couple might cohabit even without being halachically married, see Teshuvot Igrot Moshe (E.H. 4:13). He suggests that such a couple's continued cohabitation might not disqualify a claim of kiddushei ta'ut. His case involved mamzeirut, which is more lenient than remarrying without a get, and there were other lenient considerations involved, so it is unclear how Rav Moshe would rule in the situation that we are discussing. Regarding observant women, Rav Moshe (E.H. 4:113) clearly writes that the couple must cease cohabitation upon the defect's discovery, or else "it is difficult to invalidate the marriage." He notes that remaining together indicates that the husband considers the defect insignificant.
Defects in the Husband
The Gemara, Rishonim, and Shulchan Aruch discuss only the case of a man who finds a defect in his new wife. They do not explicitly address the case of a woman who finds a severe defect in her husband, but the Acharonim discuss this issue at length.5The Otzar Haposkim (Chapter 39) presents a detailed review of the halachic debate on this issue.
One view among the Acharonim is that of the Aruch Hashulchan (E.H.44:10) and the Chazon Ish (E.H.69:23). These two authorities rule that even if a woman discovers an extremely severe flaw in her new husband, such as that his male organs are missing or damaged, the marriage is nevertheless valid. They base this ruling on the Gemara's phrase, "nicha lah b'chol d'hu," that a woman will settle for any companion (Yevamot 118b and Bava Kama 111a). The Gemara cites Reish Lakish's remark, "Tav l'meitav tan du mil'meitav armelo," that a woman feels it is better to be together with another (even with a "very low quality" partner) than to be alone.
This passage in the Gemara does not mean that all women will settle for a marginal husband. Rather, Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H.4:113) explains that some women have this attitude, so we must be concerned that any particular wife belongs to the significant minority of women who would accept any man as a husband. Thus, as long as she did not expressly stipulate at the wedding ceremony that she marries this man on condition that he has no defects, the marriage is valid. There is no implicit condition that she would not marry someone with a severe defect. Accordingly, the marriage is valid even if the woman finds an extremely severe defect in the husband. It appears from the Aruch Hashulchan and Chazon Ish that the woman requires a get on a biblical level.
Distinguishing Between Defects
Some authorities take a more lenient approach regarding a woman who finds defects in her husband. Both Rav Yitzchak Elchanan Spektor (Teshuvot Be'er Yitzchak 4:3) and the Beit Halevi (3:3) rule that if a woman discovers a severe defect in her husband, such as impotence, she requires a get only on a rabbinical level. The distinction between biblical and rabbinical levels becomes significant if other lenient considerations exist, such as when a witness to the wedding ceremony might have been invalid or when the husband disappeared and might be dead. Between the other considerations and the lighter status of rabbinical prohibitions, a rabbi might rule leniently and permit the woman to remarry in such a case. Rav Chaim Ozer Grodzinski (Teshuvot Acheizer 1:27), for example, combined other lenient considerations with the possibility of kiddushei ta'ut, in a case where it seems clear that he would not have permitted the woman to remarry solely based on kiddushei ta'ut.
These authorities believe that one should not interpret the phrase "nicha lah b'chol d'hu" as meaning that a woman will literally marry "any" man. Rather, there are some men who are actually considered less than kol d'hu (minimal). For example, an impotent man is not even a minimally acceptable husband, for it is obvious that nearly all women would never knowingly marry such a man.6The Maharam of Rothenburg (cited in Mordechai, Yevamot 29, and Teshuvot Maimoniyot Hashayachot L'seifer Nashim 29) also suggests that tav l'meitav tan du mil'meitav armelo and nicha lah b'chol d'hu do not apply to extreme cases, such as a man who converted to another religion. Regarding the Maharam's willingness to rely on his suggestion in practice, see Teshuvot Mahari Mintz (12).
Nevertheless, both the Beit Halevi and Rav Yitzchak Elchanan believe that the wife of an impotent man does require a get on a rabbinical level if no other lenient consideration exists. The Beit Halevi writes, "There is absolutely no room to say that she does not need a get, for even if a man finds a severe defect in a woman, a get is rabbinically required." Similarly, Rav Yitzchak Elchanan argues that Chazal were concerned with the highly unlikely possibility that perhaps the woman would have tolerated marrying an impotent man. He cites as a precedent Chazal's refusal to permit a woman to remarry if her husband drowned in a body of water without finite boundaries (mayim she'ein lahem sof), although it is extremely unlikely that her husband is still alive.
Rav Moshe Feinstein's Extraordinary Ruling
Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H. 1:79) disagrees will all of the aforementioned authorities and argues that if a woman discovers a severe defect in her husband, she does not require a get. Rav Moshe writes that one should make all efforts to obtain a get, but a lenient ruling may be given if these efforts fail. He reasons that some defects are so severe that, clearly, no woman would have married this man.7See Teshuvot Chavot Yair (221) and Teshuvot Maharsham (3:16) for approaches that resemble Rav Moshe's, although they hesitate to implement them in practice. For example, Rav Moshe takes issue with Rav Yitzchak Elchanan and argues that no woman would marry an impotent man. Thus, just as a man who mistakenly marries an ailonit does not require a get, so too a woman who marries an impotent man does not require a get. Rav Moshe takes this exceedingly bold argument8It is bold because, as Rav Yosef Henkin notes (Peirushei Ibra, p. 43), it lacks any textual basis in the classical sources. one step further, asserting that even Rabbeinu Tam would not require a get for a woman to remarry upon discovering a severe preexisting defect in her husband. As we have mentioned above, Rabbeinu Tam rules demands a get to dissolve the marriage if a man discovers that his wife is an ailonit. Rav Moshe argues that only a man might agree to marry a woman with a severe defect, because his ability to give a get assures him a relatively easy halachic exit from the marriage. However, it is obvious to all, Rav Moshe claims, that no woman would marry a man with a severe defect. She would never risk being unable to tolerate the man's problem, because she knows that she has no simple halachic mechanism to escape from the marriage.
Limitations on Rav Moshe's Ruling
Rav Moshe suggested applying this ruling in five actual cases. They involved an impotent man (Teshuvot Igrot Moshe, E.H. 1:79), a man who concealed that he had been institutionalized prior to the marriage (E.H. 1:80), a man who concealed that he vehemently opposed having children and later forced his wife to abort a fetus (E.H. 4:13),9It should be noted that in this responsum, Rav Moshe does not address the woman's ability to remarry; rather, he addresses the status of her children from a second marriage as mamzeirim. The prohibition of mamzeirut is lighter, so it is more common for authorities to rule leniently regarding it than regarding the woman's ability to remarry. Furthermore, the marriage under discussion was performed by a Conservative rabbi, so this created additional grounds for leniency (see Techumin 18:84-91). a man who concealed that he was a practicing homosexual prior to the marriage (E.H. 4:113), and a man who concealed that he converted to another religion (E.H. 4:83). In the last case, however, Rav Moshe hesitated to permit the woman to remarry without a get, as she did not observe Torah law. It must be clear beyond the shadow of a doubt that the woman never would have married such a man. However, since this woman did not practice Judaism seriously, Rav Moshe questioned whether we can assume that she would never marry an apostate.
Similarly, Rav Yitzchak Herzog (Teshuvot Heichal Yizchak, E.H. 2:25) appears to fundamentally accept Rav Moshe's premise. Nonetheless, Rav Herzog did not permit a Sephardic sixteen-year-old girl to remarry without a get after she married a man in his forties whom she thought was significantly younger. Although the girl had been deceived, Rav Herzog explained that one could not state unequivocally that a sixteen-year-old girl in such a community would never marry a man in his forties.10The Rama (E.H. 42:4) notes that we do not rule in matters of marriage based on assumptions (umdenot). The Aruch Hashulchan (E.H. 42:8) claims that this principle even applies to undocumented information that appears obvious (umdena demuchach), while the Chazon Ish (E.H. 52:3) permits basing a ruling on obvious information. The rulings of Rav Moshe and Rav Herzog appear to make similar assumptions to the Chazon Ish.
Rav Moshe issued his ruling about an impotent husband in 1951 and his ruling about an institutionalized husband in 1955. The present availability of psychiatric drugs allows for treating many psychiatric illnesses and casts doubt upon whether he would have ruled this way today. Similarly, impotence can be treated and cured in most cases today. It is thus unclear if a woman today would undoubtedly refuse to marry a man with either of these ailments. Even some homosexuals, with the help of psychotherapy, can lead a healthy married life.
Moreover, Rav Moshe did not rely on the woman's testimony alone to verify the husband's impotence and mental illness. Rather, the rabbis involved in the case examined the medical records of the husbands, and the doctors even testified that they unsuccessfully tried to cure one husband's impotence. In today's society, it is highly unlikely that such information would be forthcoming from medical officials.
Conclusion
It is extremely difficult to permit either partner in a marriage to remarry solely based upon kiddushei ta'ut. Every effort should be made to obtain a get even when major defects are discovered in either spouse. For a defect to be considered as grounds for kiddushei ta'ut, it must be clear beyond the shadow of a doubt that virtually no one would marry a person with the defect. Moreover, the defect must already be in existence before the marriage.11This requirement is not unique to marriage. In every business transaction, the consumer can renege on a deal by claiming that he bought defective merchandise only if the defect existed before the sale. Otherwise, every consumer who had bad luck with his product could undo the deal. For example, anyone who bought a stock could undo the purchase if the stock plummeted, and every rancher could undo the purchase of a cow if the cow died in his possession. For a discussion of this principle, see Tosafot (Bava Kama 110b s.v. De'adaata and Ketubot 47b s.v. Shelo).