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Finally, if a prospective husband failed to disclose to his prospective wife before the marriage that he was epileptic, according to Rosh and Rabbi Avraham Borenstein, we are dealing with a case of a mistaken marriage and therefore the marriage may be voided. 57 In effect, even though the scenario posed to Rosh focuses upon an epileptic wife, nevertheless many authorities conclude that a marriage may be voided in accordance with Rosh even regarding an epileptic husband. In other words, epilepsy is deemed a major blemish for both a man and a woman. See Rema , supra n. 21; Mohr ve-Oholot supra n. 24; PDR 4:164. See also Avnei Nezer 176:6. Cf. Beit Shmuel, SA EH 154:9. Subsequent authorities such as Rabbi Kobo and Rabbi Binyamin Weiss have voided marriages of an epileptic husband who failed to disclose his flaw to his wife prior to their marriage. 58 Teshuvot Sha'ar Osher 23; Teshuvot Even Yekarah 3:53. Other arbiters have voided marriages of husbands who failed to disclose, prior to the marriage, that they were sometimes healthy and sometimes mentally incompetent. 59 Beit Yosef, Tur EH 121 in the name of Rashba; Maharhash , supra n. 52; Divrei Hayyim, supra n. 53; Divrei Yosef, supra n. 53. Cf. PDR 15:1, 15 which claims that an epileptic is mentally dysfunctional and therefore, should a husband fail to disclose his illness prior to the marriage, there are grounds to void the marriage. | {
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Thus, let us analyze whether the defendant had the status of a mentally incompetent person. In the Talmud, four criteria are established in order to label a person as mentally incompetent (a shoteh ). We are taught: 60 Hagigah 3b, 4a. | {
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Who is mentally dysfunctional? One who goes out alone in the evening; one who spends the night in the cemetery; and one who tears his garments . . . One who destroys all that is given to him. | {
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The defendant's destruction of his wife's and children's property would fall into the category of "one who destroys all that is given to him." In contradistinction to numerous authorities who consider the aforementioned list to be a closed list, 61 Beit Yosef, Tur EH 119 in the name of Rabbeinu Simhah; Teshuvot Divrei Hayyim 53, 74; Teshuvot Hatam Sofer EH 2:4; Teshuvot Maharik, shoresh 19 in the name of Rabbi Avigdor. there are others who will extend mental incompetence to aberrant behavior which was not crystallized in the Talmud. 62 Teshuvot Hakhmei Provencia 57; MT Edut 9:9; Teshuvot Mahari Weil 52; SA YD 1:5, HM 35:8; Darkhei Moshe , Tur EH 119:5 That being said, given that he was epileptic, and, due to his illness, he was at high risk of developing dementia, it is no surprise that he contracted it. Though dementia is not listed among the types of irrational behavior which deem one mentally dysfunctional , nevertheless such conduct exhibits mental dysfunction. Finally, the defendant clearly exhibited signs of being sometimes healthy and sometimes mentally incompetent. In sum, the defendant is mentally dysfunctional due to his destruction of property, contracting dementia and his experiencing intervals of being healthy and being mentally incompetent (a shoteh ). | {
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Lest one argue that the defendant's epilepsy ought be considered a defect rather than a major flaw due to the fact that no seizure occurred for a period of several years, and in the wake of the seizure which occurred in 1998 he started to take medication, nonetheless authorities consider it a major defect, either because it is viewed as only a partial recovery 63 MT Mekhirah 29:5; Sema SA HM 235:52. Cf. Teshuvot Hatam Sofer EH 2:42; Teshuvot Divrei Malkiel 3:138. or because there is a fear that another seizure will occur in the future. 64 Beit Shmuel SA EH 117:12, Helkat Mehokeik , ad locum ; Teshuvot Tiferet Tzvi EH 38. Cf. Teshuvot Ohr Gadol 5. In fact, subsequent to the seizure in 1998 he had a few additional seizures, and shortly before their separation he suffered from a diabetes seizure on a daily basis. 65 Given that his epileptic episodes occurred more than once, the defendant is deemed mentally dysfunctional (a shoteh ). See Beit Yosef, Tur HM 35:9; Teshuvot Divrei Hayyim EH 2:74 in the name of most authorities. Cf. Tevuot Shor 1:46 who contends that one event is sufficient to label an epileptic as being mentally dysfunctional. | {
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2. A wife's trustworthiness regarding her unawareness of her husband's defect prior to marriage | {
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The wife must have been unaware of the major defect prior to the inception of the marriage and have only discovered it after the marriage. On the other hand, if for example, the seizures had only commenced after the marriage, though it may be characterized as a major flaw impairing the matrimonial relationship, nevertheless, since the disease occurred after the onset of the marriage, there would be no grounds for the wife's claim that the marriage was consummated in error. | {
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At first glance, whether one may trust her words hinges on the following debate. Relying upon Maharam of Rothenberg's view, Mordekhai rules: 66 Teshuvot Maharam of Rothenberg , Prague ed. 947; Mordekhai , Kiddushin 4:542. | {
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In these generations there exist promiscuous women and therefore it is improper to trust them. | {
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A few centuries later, Rema writes: 67 Rema SA EH 154:7. | {
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Today wives act with impudence (vis-à-vis their husbands – AYW) and therefore cannot be trusted. | {
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Subsequently, there are decisors who endorse this ruling. 68 Teshuvot Mahari Weil 22; Teshuvot Maharam Alshakar 89; Darkhei Moshe, Tur, EH 154:8; R e ma, SA EH 17:2, 154:7. | {
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However, Pithei Teshuvah states: 69 Pithei Teshuvah SA EH 154:19. | {
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Look into Gevurat Anashim (67) that wrote: this is from Mordekhai in the name of Maharam and is not mentioned by any other authority. Moreover, all the authorities and later authorities have written without explanation that she is trustworthy and some have instructed that this ought to be the Halakhah in their generations, and he cited the words of Maharam ben Haviv . . . Rashakh . . . Maharik. . . . and Binyamin Ze'ev. | {
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And there were others who subscribe to this posture. 70 Teshuvot Mahari ibn Lev 3:102; Teshuvot Maharlbah 33; Teshuvot Mishpat Tzedek 59; Teshuvot Ein Yitzhak 2, EH 34 (9); Teshuvot Yabia Omer 4 EH 11. However, Teshuvot Maharik, shoresh 72 argues that should the wife claim the value of her ketubah , we do not trust her. | {
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Even if we accept the position that a woman's words are trustworthy, nonetheless here we are dealing with a matter of ervah (loosely translated as nakedness or incest) and we generally require two witnesses, while in our case we only have the testimony of one witness. Nonetheless, this context may differ, as the specter that the wife may not be a married woman due to a doubtful marriage has been raised, which may emerge due to the claim that we are dealing with a mistaken marriage. Said conclusion could enable us to trust her words in a matter of nakedness or incest, as one witness can be accepted regarding a matter where the prohibition has not been established. 71 Maharik, supra n. 70; Teshuvot Noda be-Yehudah, Mahadura Kama 54, 59, 61. Cf. Hiddushei ha-Ramban, Gittin 2b; Hiddushei ha-Rashba Gittin 2b. As we know, there are numerous definitions of what constitutes a matter of lewdness or incest. For example, some contend that any matter which relates to the establishment of kiddushin , any matter which relates to a change in the person's status as it relates to ritual issues, any testimony about an individual, or any halakhot dealing with lewdness ( arayot ) such as testifying that a person is a halakhic bastard because he is the son of a bastard constitutes a matter of lewdness. See Mordekhai, Yevamot 12:58; Teshuvot of Rabbi Akiva Eiger 124–125; Teshuvot Noda be-Yehudah 1, YD 55; Teshuvot Avnei Nezer HM 20; Rabbi Shimon Shkop, Sha'arei Yosher, Sha'ar 6, Perek 10; Teshuvot Iggerot Moshe YD 227 (5). We leave as an open question why some of the aforesaid authorities such as Maharik and Noda be-Yehudah would not consider a wife's testimony regarding a mistaken marriage as being an example of an issue of incest. | {
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3. Upon discovery of the husband's major latent defect, must the wife immediately bolt the marriage? | {
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While according to certain decisors, upon the discovery of a husband's major blemish, a wife must leave the marriage immediately or refrain from remaining in the marriage for an extended period of time, 72 Ran on Rif, Ketuvot 73b; Beit Shmuel SA EH 38:57, 39:15, 117:19; Helkat Mehokeik, SA EH 39:9; Birkat Retzeh , supra n. 50 (epileptic husband); Emek Yehoshua , supra n. 22. For additional such rulings, see this writer's Rabbinic Authority , vol. 3, 136–137. other authorities argue that she may continue to live with him, provided she offers a reasonable explanation(s). 73 Teshuvot Sha'arei Tzion 2, EH 11 in the name of Rashba and Ritva, 3, EH 4 in the name of Teshuvot Maharsham 3:16; Teshuvot Ohr Gadol 1:5 (12); Teshuvot Iggerot Moshe EH 3:45, 48; Rabbi O. Weiss, Teshuvot Minhat Osher 1:72 (4). | {
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In our present case, though the plaintiff remained in the marriage for many years, one should not infer from this fact that that she accepted her husband's epilepsy (" savrah ve-kiblah "). Firstly, she took his threat to kill her seriously. Moreover, the defendant was stricken with both physiological disease as well as psychological disorders, and she felt that she could not leave him in such a condition in part because she had married him, because he served as her savior at the time that she was raped by a third party. In psychological terms, a social worker who counseled her for an extended period of time explained to us that it is a common occurrence that people who have been marginalized by childhood abuse continue to "live out" their experiences of victimization. Furthermore, the defendant promised her that he would improve, and in submissive contriteness he pleaded with her to remain with him. | {
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Finally, addressing the case of an epileptic wife, as Rabbi Meir Arik notes: 74 Teshuvot Imrei Yosher 2:119. See the addendum. | {
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It seems that these types of blemishes according to the words of the doctors entail diseased nerves in the brain, and it is known that this disease continues to become more severe, therefore the rule of accepting his (medical – AYW) condition is inapplicable. | {
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As such, the husband in Rabbi Arik's case should have left the marriage much earlier. And since he remained, we can only conclude that he accepted the ongoing severity of the disease and therefore he cannot subsequently claim that he never wanted to marry an epileptic wife. | {
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However, our colleague Rabbi Ariel Holland of Tekoa, Israel, serving on this beit din panel contends that the facts of our case are different and consequently we must apply Rabbi Arik's ruling as per the facts submitted to us. In our situation, the disease was not so severe and only infrequently occurred. As such, we cannot extrapolate from the circumstances that she accepted the disease (" savrah ve-kiblah ") since it was not so severe. As Teshuvot Harei Besamin contends: 75 Teshuvot Harei Besamim , Mahadura Tinyana 72. Though in the past there have been questions raised regarding the authenticity of this work (see Shi'yurei Berakhah, OH 53, 473; Teshuvot Shoeil u-Meishiv , Mahadura Tinyana, 2:55), nonetheless, contemporary authorities continue to cite his rulings as a basis for arriving at a decision, a psak din . For citations of this work in matters of domestic relations, see Teshuvot Evan Shoham EH 58; Teshuvot Har Tzvi EH 2:181; Teshuvot Sha'arei Tzion 2, EH 20 (2); File no. 031923642-21-1, Ashdod Regional Beit Din, August 5, 2003, ha-Din veha-Dayan 8:1; File no. 895985/1, Netanya Regional Beit Din, September 23, 2014; File no. 870175/4, Haifa Regional Beit Din, December 29, 2014; Y. Goldberg, Elu she-Kofin Le-hotzi , Jerusalem: 5773, 95, 201. | {
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The logic that he accepted (the disease – AYW) is inapplicable to a defect that is constant. . . . However, the sickness of mental incompetence changes from one period to another. Therefore, it is a possibility that in the condition that he knew (her – AYW) prior to the marriage he accepted and the craziness that emerged with her afterwards he couldn't tolerate, and therefore one cannot say he accepted it. | {
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The same logic is invoked by the Sanzer rabbi regarding a wife who suffered from epilepsy. 76 Teshuvot Divrei Hayyim 1:51. See also Hiddushei ha-Rashba Ketuvot 77a; Hiddushei ha-Ritva, Ketuvot 77a; Teshuvot ha-Mabit 3:212 (an epileptic husband); Birkat Retzeh, supra n. 50; Rabbi Werner, Teshuvot Mishpetei Shmuel, Mahadura Tinyana 21. Cf. SA EH 154:1, Rema , ad.locum. | {
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As Rabbi Tzion Boaron, former dayan of the Beit Din ha-Rabbani ha-Gadol, insightfully observes: 77 Teshuvot Sha'arei Tzion 3, EH 4. | {
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With respect to the defect of mental incompetence ( shetut ) in a situation such as that before us, it appears that this is certainly a case of mistaken transaction, for there is a strong presumption that no person will be reconciled to living his entire life and to his children living their whole lives, in suffering and in fear, every day and every hour. And one cannot say that because she stayed with him for seven years and bore two children, that she saw the defect and became reconciled to it. It is not so, for in such things a person does not clearly understand the nature of the illness until a substantial period of time has passed, and out of love for him, she attributes his anger and his rage to tension and a passing state of nervousness, and she hopes and prays that the situation will improve. This is particularly so in relation to a person who is taking medication on a permanent basis, for then there are situations in which he is calm and quiet. And particularly, as the woman herself said, when he calmed down after each outburst, he would beg her to forgive him. | {
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The fact pattern of our case is similar to the above situation and thus we conclude that the notion that she accepted the disease (" savrah ve-kiblah ") is inapplicable. | {
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Notwithstanding others who contend that the presumption of being a married woman precludes voiding the marriage in these circumstances, 78 PDR 15:1, 12. based upon the foregoing in general and the technique of kiddushei taut in particular, we are voiding the marriage and thus the plaintiff is free to remarry a Jew, except for a Kohen , without a get . | {
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H. A husband who is a pedophile and a philanderer: Response to a Question | {
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Question | {
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Mindy approached us and asked us as qualified expositors of Halakhah ( mo'reih hora'ah rather than dayanim sitting in judgment) 1 It is a matter of dispute whether one requires a beit din of three, a single rabbi or an individual Jew to address matters of divorce such as get coercion, obligating a get and voiding a marriage. See Ketzot ha-Hoshen, HM 3:1–2; Netivot ha-Mishpat, HM 3:1; Teshuvot Yehudah (Gordin ) EH 51:2; Teshuvot Ma'aseh Hiyah 24; Teshuvot Hatam Sofer, OH 51, EH 2:64; Pithei Teshuvah, SA EH , Seder ha-Get 6, 8; Piskei Din Rabbanayim (hereinafter: PDR ) 6:269; Beit Hora'ah, File 957-61, Beit Din Yerushalayim for Monetary Matters and Yuhasin, vol. 7, 515; File (Tel Aviv- Jaffa Regional Beit Din) 448866/3, 7.11.13; File no. 1086123/1, Be'er Sheva Regional Beit Din, December 20, 2018; Rabbi Z.N. Goldberg, Lev Mishpat 1, 149–150. In the present matter, three rabbis convened to decide an issue in ritual Halakhah . In the absence of a party attending a divorce proceeding regarding the matter of a get rather than a divorce-related monetary matter, the beit din or rabbinic authority(ies) may render a decision provided that the participating party is known to possess integrity and would not lie. See Knesset ha-Gedolah , Tur HM 17:19. See further, this writer's, Rabbinic Authority , vol. 4, 216, n. 2. to void her kiddushin and to permit her to marry any other Jew without receiving a get from her husband. | {
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Answer | {
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1. The facts | {
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Mindy and Meir married in December 2000 in accordance with Halakhah . They had three children. Over the years, Mindy felt that something was not in order with her husband, and therefore, on Friday evening, February 21, 2014, she asked him, "Did something happen before we got married?" He then admitted to her that he had had intimate relations with her sister after the wedding and that he had also abused 14 young children before they were married. The next day, on Shabbat, Meir admitted to her that he had had illicit relations with a second sister of hers after the marriage. | {
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In mid-November 2015, following instances of abuse, one of the rabbis who headed his community fired Meir from his administrative position in the community center. One of the witnesses told us that the said rabbi indeed informed him that he was fired due to the abusive acts. We heard testimony from a Jew who deals with matters of abuse. He examined the list of 14 victims of abuse, and he recognized one of the names. He contacted him, and the person contacted confirmed the fact that he had indeed been a victim of abuse. One rabbi spoke with two relatives of the husband's extended family, who told him that Meir had admitted to engaging in illicit relations with his wife's two sisters and had also admitted to having had a sexual relationship with a child during a summer camp. There was also an exchange of letters between two rabbis who discussed the matter of Meir's conduct and his effect on the community, from which it emerges that they assumed that he indeed had become addicted to acts of abuse. One of them wrote that Meir was a philanderer, and there is a copy of a letter from a doctor which stated that there had been "instances of sexual or other inappropriate relationships." | {
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Ultimately, we as rabbis believed that Mindy was indeed telling the truth about the conversations she had with her husband concerning his "liaisons with her sisters" and the acts of abuse. The civil court too, in its judgment (Superior Court of Maryland, Appellate Division) accepted what Mindy said concerning an act of intra-familial violence. | {
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Following the conversations with her husband on February 14, 2014, and February 22, 2014, Mindy left the house for a few days. When she returned home, she decided that they would occupy separate rooms in the house. We were presented with more than 50 emails from the years 2014–2015 that had been sent to Mindy by her husband in attempts to get close to her through declarations of self-blame, thoughts about becoming religiously observant and praise for the character of his beloved, praiseworthy wife. Despite his declarations, Mindy eventually realized that her husband was lying, and in September 2015, he began to abuse her and threatened to harass her at her place of work and at family celebrations. These occurrences were confirmed as true in the judgment of the civil court. 2 Based upon the assumption that a professional will not threaten his own livelihood and absent any verification that he took bribes, we recognize the judge's findings and verdict without any further inquiry. See Tosafot, Hullin 97a; Mordekhai, Gittin 324; Teshuvot ha-Rashba 1:982; Teshuvot ha-Rashba ha-Meyuhasot le-Ramban 74, 78; Teshuvot Maharik , shoresh 121; Tumim, YD 114:5; Teshuvot Beit Yosef, Ketuvot 10; Teshuvot Ein Yitzhak, OH 17; Teshuvot Be'er Yitzhak, EH 5 (5); Teshuvot Torat Hesed me-Lublin 2:1; Hiddushei Rabbi Hayyim ha-Levi, Gerushin 6:9. | {
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As of February 21, 2014, Mindy tried to understand whether Meir had really become religiously observant, and whether there was any chance of rehabilitating the marriage. He went for treatment to several mental health practitioners, some of them expert in sex addiction. Mindy finally understood that all his "love letters" were a manipulative ploy and the couple separated on September 30, 2016. | {
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On August 1, 2016, Meir summoned Mindy to adjudicate the matter of the divorce action (i.e., the get ), custody of the children, maintenance of the children, financial relations between the spouses, and a monetary claim connected to his community center in the local Beit Din . Three additional summonses were sent, but Mindy refused to appear before the Beit Din . Following this, an attempt was made to hold an arbitration hearing. Two arbitrators were appointed by the parties, but to date no arbitration has taken place. | {
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Although Mindy attempted to adjudicate matters in the framework of arbitration, the Beit Din issued a citation for contempt ( ktav seruv ) against her due to her failure to appear before them. | {
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Not long ago, Mindy and the director of another local Beit Din sat with the director of the above Beit Din , and it emerged that the latter had signed the ktav seruv without going into the details of the matter, and he even stated orally that the ktav seruv was sent to her by mistake. | {
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The civil decree of divorce was issued on August 29, 2018. | {
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Although Mindy's attorney and the civil court judge adjudicating the divorce proceedings raised the matter of the get , to date the husband has refused to give a get . In the absence of any chance of reconciliation and in view of the civil decree of divorce, and after a separation of 18 months, there are grounds for ordering that a get be given. 3 See Teshuvot Hayyim ve-Shalom 2:102; Teshuvot Iggerot Moshe, YD 4:15(2). If there are other claims, these matters must be adjudicated in a beit din , although deliberations and judgment in the beit din does not postpone executing the get . See Iggerot Moshe, ibid. | {
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2. Mistaken Kiddushin due to Pedophilia | {
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Before the mechanism of mistaken kiddushin can be implemented in order to invalidate the kiddushin and claim that there was a mistake in the inception of the marriage, three pre-conditions must be fulfilled: | {
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(1) The defect must be serious, e.g., impotence, insanity, homosexuality or exposure of the wife to a dangerous disease such as AIDS. | {
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Rabbi Shlomo Daichovsky, then presiding Dayan of the Beit Din, states as follows regarding the definition of defects on the part of the husband: 4 In a judgment of the Beit Din ha-Rabbani ha-Gadol (the Supreme Rabbinical Court) [App. (Sup. R.C.) 1-22-1510 (7.9.2004).] | {
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The matter of defects for which a woman may sue for her get is not Torah-ordained law, but reason and logic, as Rambam writes (Hil. Ishut 25:2): "These matters are concepts that reason dictates; they are not decrees of the Torah." The whole subject of defects is a matter of human reason, and the emotional unwillingness of one spouse to endure an intolerable situation on the part of the other spouse. For this reason, we have the halakhah of "he assessed and accepted" or "she assessed and accepted." It is possible to say that if the general opinion concerning a particular defect changes, then it may not be said that "she assessed and accepted" on the basis of her past acquiescence. A defect need not necessarily be a physical one: defective behavior, such as consorting with prostitutes, may entail an order to give a get . Indeed, this halakhah concerning consorting with prostitutes appears in Shulhan Arukh 154, which is the section dealing with defects. In all civilized countries, it is very humiliating for a woman to share her bed with another woman, and a husband who takes another wife will be ordered to give a get , not only due to the ban of Rabbenu Gershom, but also due to the humiliation and the flaw in this. The parties came from Yemen, where it was acceptable to marry two wives. Here, this is considered a great disgrace, and must be regarded as a major defect. The wife's past acquiescence does not obligate her at present, and therefore this is not only a matter of "he is repulsive to me," but also a matter of a defect in the husband, due to which the wife cannot live with him. In the case of divorce due to a defect, the wife does not lose her ketubah . It is plausible to say that even if the wife married a philandering husband, and later repented of her decision and can no longer tolerate this situation, the husband will be ordered to give her a get , and will not be able to claim that she "assessed and accepted." Equally, in my opinion, the claim, "She assessed and accepted" cannot be made in a situation in which a woman married a man who was an avowed homosexual, even though she was perfectly aware of his proclivity, and later learned about the severity of the prohibition, and wishes to divorce him due to the husband being repulsive to her. Here, too, there is no room to argue that "She assessed and accepted." | {
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Clearly the defendant's engagement in illicit affairs is to be deemed a major defect as well as repulsive. Additionally, these two characterizations of the husband's behavior equally apply to the defendant's sexual conduct with children. For example, in a case of a husband who "touched young girls," Rabbi Weinberg writes: 5 Teshuvot Seridei Esh 1:94 "She can say, ‘He is repulsive to me,' and he is subject to the law as stated in Rema on SA Even ha-Ezer 77:3." On the basis of this definition, the Netanya Regional Beit Din, rules in the matter of a husband who was convicted of aggravated indecent assault of a minor in the family, that he must divorce his wife: 6 File no. 860977/1, Netanya Regional Beit Din, May 20, 2013. | {
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The wife talks about the repulsiveness of intimate relations . . . and therefore in this case, a fortiori she has a strong argument for repulsion, for this is a case in which the husband perpetrated his repulsive, evil acts on his daughter for a period of more than two years, as he himself admitted . . . and the opinion whereby a claim of repulsion does not make a get obligatory even when there are grounds applies to cases in which some women would not be repulsed by such a husband; the conduct of this husband, however, would be found repulsive by every woman. Therefore, all agree that he must be ordered to give her a get , for this is not a case in which she is following her heart, or that she wishes to leave her husband for another man; rather, it is clear that her repulsion in this case makes it impossible for her to live with him. | {
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In another case of the Netanya Regional Beit Din the Beit Din heard a case dealing, inter alia , with a husband whose computer had been found to contain child pornography, and the Beit Din defines the wife's resulting claim as "total revulsion on the wife's part due to her husband's acts": 7 File no. 869531/2, Netanya Regional Beit Din, July 31, 2014. | {
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After the husband left, the wife found child pornography on the computer, and she therefore turned to the police; a file was opened against the husband, and ultimately, they recommended to the District Attorney's department that the husband be prosecuted. This caused the wife to be repulsed by her husband. . . . From what the wife said, it is clear that she is totally repulsed by her husband due to his evil acts. | {
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The Beit Din ha-Rabbani ha-Gadol denied the husband's appeal in this case, and the order to give a get remained in place. The Beit Din writes: 8 App. no. 1004198/1, December 13, 2015. | {
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The Beit Din is of the opinion that the respondent's suspicion about the acts attributed to the appellant are sufficient in order to establish her revulsion with him and the ground that justifies suing him for divorce without losing her ketubah . | {
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The Yerushalayim Regional Beit Din also heard a wife's action for divorce from her husband on grounds of revulsion following a verdict in the civil court convicting the husband of indecent acts perpetrated on minors." In fact, the majority opinion adopts the approach that in principle, the husband is not to be ordered or compelled to give a get on grounds of repulsion, and that in the circumstances of the case it was not proven that the actual repulsion was so great; however, the majority was prepared to accept the argument that in general, such conduct arouses great disgust in the wife, which can be defined as repulsion with a clear pretext, and that this was a matter of "repulsion that intensified as time passed." Indeed, the minority opinion in this decision was that this was a case of absolute repulsion: 9 File no. 917387/1, Yerushalayim Regional Beit Din, November 17, 2013. | {
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The wife came with an argument that "he is repulsive to me" with a clear pretext – because the husband committed sex crimes against minor girls, it is impossible for her to get close to her husband, and he is repulsive to her due to his actions which are liable to repeat themselves, according to the opinion of professionals. Our opinion, too, is that this wife will never agree to return to her husband, and there is no chance of reconciliation with her husband, who is repulsive to her with such a clear pretext. | {
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It appears to us that the minority approach of the above rabbinical court ought to be adopted such as in our case. | {
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(2) In order to invalidate the kiddushin , it must be clear that the defect indeed existed prior to the wedding, and that the wife did not know about it prior to the wedding. | {
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As for the plaintiff's awareness of the defect: the question arises as to whether she is to be believed that she did not know prior to her marriage that the defendant was a pedophile, i.e., in her claim that the mechanism of "mistaken kiddushin " ( kiddushei ta'ut ) should be activated to invalidate the kiddushin (and her status as a married woman). Should we therefore believe the wife as "a sole witness who is to be deemed credible in capital matters" with respect to a matter of sexual prohibitions in her claim that her husband disclosed to her his proclivity for pedophilia only after they were married? Or should we say that she is not credible, because in matters of sexual prohibitions no fewer than two witnesses are required! | {
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Following her claim that she was not married to the defendant due to the mistaken kiddushin , or that this was a case of doubtful kiddushin , her legal position would lead to the conclusion that she did not have the status of a married woman, and therefore, the evidence of one witness only is sufficient, even though the issue is that of a sexual prohibition. 10 Teshuvot Rabbi Akiva Eiger 107 citing Tosafot Gittin 2, s.v. havei ; Teshuvot Maharik shoresh 72. | {
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There are however, decisors who maintain that a single witness is not sufficient to dissolve marital status, even in cases where that status has not been definitively established. 11 Hiddushei ha-Ramban, Gittin 2, s.v. ha'amrinan davar she-ba-ervah . | {
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However, several of the later authorities ( Aharonim ) object to this approach. 12 See Teshuvot Noda be-Yehudah , Mahadura Kama, 54; Mahadura Tinyana 75; Teshuvot Rabbi Akiva Eiger 97 (needs further deliberation); Teshuvot Ahiezer 6; Teshuvot Minhat Osher 1:73. | {
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(3) Delay and Non-Acceptance of the Defect | {
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The question of whether or not plaintiff should have left the marriage immediately upon finding out about her husband's serious defect has not been ignored in the debate amongst the authorities. Although according to many halakhic authorities, 13 Tur and Beit Yosef, EH 154; Helkat Mehokeik SA EH 39:9; Beit Shmuel, ad loc. 16; Teshuvot Maharik shoresh 24 ; Teshuvot Rabbi Akiva Eiger, Mahadura Tinyana, 57. she should have left immediately upon discovering the defect, according to R. Feinstein and Dayanim Goldschmidt and Bablicki, she could remain in the marriage, on condition that her reasons were justified. 14 Teshuvot Iggerot Moshe, EH 3:45, 48; 4:113; R. O. Weiss, Teshuvot Minhat Asher 1:72 (4); File no. 3899, Tel Aviv/Yaffo Regional Beit Din; PDR 1:5, 11–12. However, if ultimately the problems cannot be solved, such as in the case of an insane husband who is not helped by psychological treatment or medication, then the wife must leave her husband. | {
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Furthermore, despite the fact that the wife failed to protest immediately upon discovering the defect, relying on the rulings of Tiv Kiddushin, 15 Tiv Kiddushin 39:12; Rabbi Weiss, Teshuvot Minhat Osher 1:73 (4). Rabbi Weiss argues that remaining with her husband after discovery of the defect does not prevent her from later claiming that there was a mistaken transaction. He writes as follows: | {
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Given that we are witnesses the reactions of people differ. It is very common that when a person discovers defects in a spouse, he does not react immediately for various reasons, sometimes due to distress and shock, and sometimes in order to preserve his sanity or in order to consider how not to hurt the feelings of the spouse, and this is not proof that he has pardoned or that he does not care. . . . But it appears that even though she surely regretted her marriage, in any case she was prepared to try, to see if matters could be sorted out by adoption etc., but when all these attempts failed, we return to the original finding, namely that this is a case of mistaken kiddushin . . . . | {
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In the present case, Mindy did not become reconciled to the defect. 16 Seemingly, this responsum cannot serve as proof. The responsum deals with a case of halakhic bastardy ( mamzerut ), and as we know, different opinions may be invoked to rule leniently with respect to the children and to allow them to marry Jews (see, e.g., Kovetz ha-Teshuvot 4:164). However, in citing the approach of Tiv Kiddushin together with the logical opinion, there is clearly no mention made that the motivation is connected to bastardy; moreover, in Teshuvot Minhat Yitzhak 1:85 (2), Rabbi Weiss was prepared to invalidate the kiddushin (subject to the fulfillment of certain conditions) if there was a good explanation for the delay, but in the circumstances of that particular case (which did not involve mamzerut ), there was no such justification. In other words, this responsum proves that according to Rabbi Weiss, the above opinion may be implemented in any case of "mistaken kiddushin ," even where there is no question of mamzerut ! | {
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Mindy became aware of the defect on February 21, 2014, and she left Meir in September 2016. According to the first view, the kiddushin should not be invalidated, since she is deemed to be one who "considered and accepted," for she only left him two and a half years after discovering the defect. | {
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According to the second opinion, on the other hand, it may be said that she had good reasons not to leave her husband as soon as she found out about his situation. It is clear to us that when Mindy found out about her husband's situation; she thought that had she known about this in advance, she would never have married him. However, she tried through therapy to rehabilitate the marriage. She also thought that her husband would repent of his deeds and they would be able to continue their lives as a married couple. But it eventually became clear that all his love letters were a mask for a manipulative character. | {
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Another reason for Mindy not leaving immediately was that they had three children, and she was not able to support them alone. Until today, she does not have sufficient financial resources to support them. | {
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Nevertheless, when she finally understood that there was no chance of a change on his part, she could no longer tolerate living with him and she left him. | {
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Apparently, the kiddushin cannot be invalidated due to a defect that was discovered, because the discovery was made a long time after the wedding. | {
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Rabbi Grodzinski was asked about the case of a person who had a disease from which he died a short time after the marriage. The wife required halakhic release ( halitzah ) from her brother-in-law, who was deaf, but there was uncertainty as to the disease which caused the husband's death. Rabbi Grodzinski opines that even if the husband had died from a disease that the wife could not identify, this would be considered a defect: 17 Teshuvot Ahiezer 3:19. | {
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Moreover, because the wife did not know that the groom had an internal disease from which he was in constant danger – there is no greater defect than this. | {
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That is to say, a disease that the wife did not know about is considered to be a defect for which kiddushin may be invalidated, even if it was discovered after the death of the husband. | {
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In other words, both according to the question and according to Rabbi Grodzinski's answer, the main point is that the wife did not know about the disease at the time of the marriage. The fact that knowledge of the defect greatly post-dated the wedding has no bearing on the question of invalidating the kiddushin . | {
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3. Fraud and Misrepresentation (" Kiddushin in an Improper Manner") | {
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In the present case, there is additional justification for compelling the husband to give a get , due to the fact that he married his wife on fraudulent grounds (" kiddushin in an improper manner"), for he did not reveal to her prior to the wedding that he had abused children. | {
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Rabbi Asher Yehiel (known by the acronym: Rosh) rules as follows: 18 Teshuvot ha-Rosh 35:2. | {
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A widow . . . was betrothed before two witnesses . . . should he be compelled to give her a get , for she says that she is repulsed by him . . . Answer. . . . If it seems to you, the rabbis who are close to the matter, that if the man is not a fair and decent man who should become attached to a girl of good family, and he lured her with deceit and underhandedness he. . . . . A fortiori because he acted in an improper way. . . . Granted that we do not annul the kiddushin , but all events in this matter reliance should be placed on the minority of rabbis who ruled that he is to be compelled to divorce her. | {
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Although Rosh usually adopts the position that a get should not be compelled on the claim "he is repulsive to me" due to the disagreement amongst the authorities, and "why should he insert himself between two great mountains, to release a married woman and to increase the number of mamzerim in Israel", 19 Teshuvot ha-Rosh 43:6. in the case of a husband who committed a despicable act and fraud, the get should be compelled. 20 In other words, the get should be compelled ab initio . This was the ruling of Rema ( SA EH 77:3), based on the view of Rosh, as follows: "If he acted in an improper manner in that he married deceitfully and with ploys, he is compelled to divorce her." In the course of the responsum, Rosh relies on the discussion in Yevamot 110a concerning a person from Neresh who betrothed an orphan when she was still a minor ( kiddushin effective by rabbinic decree), and before he had intercourse with her [after she had reached majority], another man came and effected Torah-valid kiddushin . Since the bride-snatcher acted improperly, he was treated "improperly" and the kiddushin were annulled. Following this discussion, Rosh decides that there is a basis for compelling the get in the case of misrepresentation on the part of the husband, who concealed his identity prior to the marriage. | {
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Adopting Rosh's view, Rabbi Meshulam b. Shemaya, a scholar who was a contemporary of Rema, rules that the get should be compelled in a case of a husband who wasted the money of the dowry, and was involved in fraud and therefore had to flee, and his wife claims that it is impossible to live under such conditions. 21 Teshuvot Rema 36. | {
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Apparently the two cases cannot be compared, for the cases discussed by the Talmud and Rosh involved a matter of "acting improperly" in the creation of the act of kiddushin by way of fraud. In contrast to this scenario, the case discussed by Rabbi Meshulam dealt with concealment of a defect on the part of the husband. | {
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And indeed, Hazon Ish concurs with this line of argumentation: 22 Hazon Ish EH 69:23 | {
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The words of Rosh are clearly applicable only to a case in which an absolutely unworthy man seduced a fine woman into marrying him in the full knowledge that she would never be able to live with him. The sole purpose of his deceit was either to extort money in exchange for a divorce, or in order to have sexual relations with her. In any case, after having overcome the woman's will with all manner of seductive ploys, the marriage was performed in a clandestine manner which is entirely unacceptable in Jewish law. It is only in such a case that Rosh agrees that the appropriate remedy is annulment, as specified in Yevamot 110a (see SA EH Helkat Mehokeik 20:28 and Beit Shmuel, ad loc ., 30, whose words in relation to the issue of inheriting the wife support the contention that Rosh is in favor of marriage annulment in such a case). Rosh also supplements his approach with the Gaonic ruling that the husband of a woman who claims that he is repulsive to her – a rebellious wife ( moreidet ) – is to be forced to divorce her, as well as the opinion of Rif that this law is an enactment of the Babylonian yeshivot . However, in a case in which a man marries a woman in the hope that she will reconcile herself to his defects, there is no question that the marriage is a valid one, and the Rabbis would never see fit to annul it or to compel him to divorce her. The reason for this is that in many cases of male defects, the couple is nevertheless able to live together amicably, since as the Sages said: "Women will accept defective men rather than remain unmarried." We may not therefore extend Rosh's view to compel husbands to divorce in such cases. Similarly, the opinion of Beit Shmuel that a blemished husband may be compelled to divorce his wife who was ignorant of his defects at the time of marriage is not based upon the deceit but upon the law of the moredet , i.e., the wife claims that her husband is repulsive to her. | {
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This was also the ruling amongst other decisors. 23 Teshuvot Mahari b. Lev 1:18; Pithei Teshuvah , SA EH 39:5 citing Galia Massekhta, Kuntres Aharon 5. For an identical conclusion from another perspective, see Hafla'ah, Ketuvot, Kuntres Aharon 18. | {
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As opposed to this posture, on the basis of the above words of Rosh, as Hazon Ish mentions, Beit Shmuel claims in relation to a defect that is not major that one does not compel a get , but there may be circumstances in which the get is compelled when there are such defects. He teaches us as follows: 24 Beit Shmuel , SA EH 117:24. | {
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And it would appear that we do not force her to accept a get , neither in a case in which her blemishes occurred after the marriage nor if her husband knew of the defects prior to the marriage. If, however, he was unaware of the defects at the time of the wedding, then she may be compelled to receive a get since she acted in an underhanded fashion. It is in such a context that Rosh ruled in his Responsa 35 that if the husband acted in an underhanded fashion and married deceitfully, he is compelled to divorce his wife. Similarly, in our case, the wife may be compelled to accept a get . | {
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Beit Shmuel rules similarly in another case: 25 Beit Shmuel , SA EH 154:2. Whereas other arbiters argue that in the absence of being able to coerce a get , under certain conditions we may void the marriage (see supra, chapter 3 [end]), Beit Shmuel argues conversely that if one encounters a situation of "a marriage in error" ( kiddushei ta'ut ), we may coerce a get . | {
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But if she does not know, this is a mistaken transaction, and he is compelled to divorce her, as is written in SA EH 39 and 117, [regarding] "If a defect be found in her." | {
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In other words, in reliance on Rosh's ruling in the case of fraud, there are grounds for compelling the husband to give his wife a get . 26 File no. 860977/1, Netanya Regional Beit Din, May 20, 2013. | {
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In the present Israeli rabbinical case law, many of the dayanim have applied Rosh's ruling in cases in which there was concealment on the part of the husband prior to the marriage, and they have concluded that an order must be issued to give a get , but it is not to be compelled. 27 File no. 3899/5713, Tel Aviv Regional Beit Din, Piskei Din Rabbanayim (hereinafter: PDR ) 1:5, 10–11; Beit Din ha-Rabbani ha-Gadol, App. no. 222/5723, PDR 5:193, 203; File no. 7121/5735, Tel Aviv Regional Beit Din; PDR 10:241, 247; App. no. 891291/1, Beit Din ha-Rabbani ha-Gadol; 4 Hadin ve-haDayan 36 (20 Shevat 5773).Cf. File no. 78/5716, Tel Aviv Regional Beit Din, PDR 2:188, 193), | {
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It therefore transpires that a get is not to be compelled in the case of improper kiddushin involving a despicable act and fraud, and particularly after rejection of the view of Beit Shmuel. | {
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However, according to other authorities, a get may be compelled when the kiddushin involved deception. 28 Teshuvot Divrei Malkiel 3:100; Teshuvot Sha'ar Asher 45; Teshuvot Ein Yitzhak , EH 2:35 (34); Bi'ur ha-Gra, SA EH 77:35; Teshuvot Agudat Ezov 22 (20) citing Mar'ot ha-Tzovot ; Teshuvot Or Gadol 5; Teshuvot Yabia Omer 3, EH 20 | {
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4. Mistaken Kiddushin Due to Deceit and Misrepresentation | {
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Owing to the fact that throughout the Diaspora, the secular state authorities are not prepared to enforce the order of a rabbinical court compelling the giving of a get , Rabbis E. Klatzkin, T. Frank and O. Yosef are of the opinion that the mechanism of "mistaken kiddushin " may be used in order to invalidate kiddushin , insofar as the circumstances of the case justify such a solution. 29 Teshuvot Dvar Eliyahu 48; Teshuvot Har Tzvi , EH 2:181; Teshuvot Yabia Omer 9, EH 38. See also, Rabbi Dovid of Karlin, Yad Dovid 1, Ishut, page 372; Rabbi A. Shapiro, Sefer Minhat Avraham 2:10; Iggerot Moshe, EH 1:79. As is known, when a get is compelled, there is no basis for applying the Talmudic presumption to the effect that, "It is better to live as two together than to be alone," or, "A woman is satisfied with any man." 30 Yevamot 118b; Ketuvot 75a; Kiddushin 7a; Bava Kama 110b-111a. See Teshuvot Birkat Retzei 107; Teshuvot Be'er Yitzhak 4:3; Teshuvot Ahiezer 27; Teshuvot Iggerot Moshe, EH 1:26. | {
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As pointed out above, in the absence of the possibility of compelling the get , there is justification for invalidating the kiddushin on grounds of mistake. Several authorities rule accordingly, i.e., that in a case in which a husband acted deceitfully prior to the marriage, the kiddushin may be invalidated. 31 Rabbi Yehiel Weinberg, "Mistaken Marriage in the Case of an Apostate," (Hebrew) Ha-Maor (Tishri 5757–1997), 24; Teshuvot Mahari ha-Kohen, Mahadura Tinyana, 13; Teshuvot She'erit Yosef 19; Rabbi Moshe Zweig, Teshuvot Ohel Moshe 123 (in theory but not in practice); Teshuvot Beit Av 7:28; Teshuvot Hashavit 4:30. | {
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5. Clear Expectation : "She Did Not Give Herself in Marriage with This in Mind" | {
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In addition to what has been said on the question of mistaken kiddushin in the present case, in these circumstances there is a proven clear expectation ( umdana de'mukha ) that a woman would not have married a man who was having intimate relations with her sisters. | {
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