Conditional marriages? It depends

This past Wednesday, the Bar Ilan Law School’s Rackman Center hosted a conference called “Conditional Marriage: A Past With A Future?”

The center has been a leader in promoting solutions for problem of recalcitrant husbands unwilling to give their wives a Jewish divorce. In the State of Israel, without such divorce papers (a get), a Jewish man or woman cannot remarry. Women, wherever they live, face the concern that if they remarry in a civil ceremony, or live as common-law wives and subsequently have children, the children of those unions will be considered mamzerim (illicit) under Jewish law, and in the future will not able be permitted to marry a Jew.

Several solutions have been offered on a theoretical level. For instance: make an enactment empowering rabbis to annul the marriage retroactively, or have the marriage declared void based on an error in the creation of the marriage (had she known he was this violent or manipulative she never would have married him). In halakhic jargon these are known respectively as hafkaat kiddushin and ta’ut, and both are considered to be pushing the envelope in terms of mainstream Orthodoxy, though both have Orthodox sponsors. A form of the first is backed by Rabbi Shlomo Riskin of Efrat, and the second was employed by the late Rabbi Professor Emanual Rackman in a private rabbinical court.

A third solution, widely employed in the United States among centrist and Modern Orthodox Jews, is a monetary prenuptial that, in effect, imposes a fine on whichever side withholds a get from the other, thereby providing financial incentive NOT to refuse the get. The prenuptial solution is gaining popularity inIsrael, though, like many American imports, it is known and used primarily by liberal, well-educated, “Anglo” couples.

(Full disclosure: I personally promote the prenup option through a pro-bono legal service I helped establish called “Mifnim,” and through the ICAR coalition, knowing that while the prenup is not as comprehensive a solution as the first two, since it doesn’t cover “hard-line” refusers or absentee husbands, it is the most practical and effective solution available today.)

The Bar Ilan conference took a closer look at a different comprehensive solution — that of “conditional marriages,” or “tnai b’nisuin.” An excellent Talmudic examination of the topic was done by Dr. Tehilla Beeri-Elon of the Shaarei Mishpat Law School. Dr. Ayelet Segal of Bar Ilan presented a very impressive compilation of medieval and early-modern responsa allowing for a tnai, used primarily as a creative solution for women who are unable to obtain a halitza (release from a levirate marriage by the late husband’s brother) due to the brother’s having turned apostate. Promoted in the 16^th century by Rabbi Moshe Isserlis, based on Ashkenazi precedent, it was proposed as a general model in France at the beginning of the 20^th century and blasted by a hundred leading European rabbis in a fiery treatise, “Ein Tnai b’Nisuin” (“No Condition in Marriage”), published in 1930.

Rabbi Eliezer Berkivits (photo credit: CC BY-SA Brum Berkovits, Wikipedia)

Two more lectures, by Dr. Ariel Picard and myself, traced the (unsuccessful) attempts by major Jewish figures in the middle and second half of the 20^th century, Sephardic Chief Rabbi Ben Zion Meir Hai Uziel and Rabbi-philosopher Eliezer Berkovits, to suggest improved tnai solutions, better grounded in Jewish law principles and norms.

Beyond the legal controversies that they engendered, these emphasized the competing philosophical outlooks of Orthodox halakha in the 20^th and 21^st centuries — the liberal non-formalistic vs. the traditional formalistic — formulated as a question: Does the tnai solution solve the unethical abuse of legal power to hold one’s spouse captive at the expense of preserving stability and “family values?” The closing speaker was Rabbi Michael Broyde, professor of Law at Emory who proposes using the tnai as one leg of a tri-partite prenuptial agreement that would go further than the current prenup. Broyde packages his idea as “a solution without any innovation” — we are left guessing as to whether it was modesty or tactical savvy. In any event, his solution also awaits broad rabbinic approval before its use would be effective.

One piece of news generated by the conference is innovative, and unconditionally newsworthy: Three out of the five speakers at this conference on halakha and family law were religious, Talmudic scholars,  and women! This fact, coupled with news of the honorary doctorate conferred by Bar Ilan on noted Talmudic scholar Malka Puterkovsky, was noted with a considerable amount of pleasure by conference initiator Professor Amihai Radzyner.