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I just read a comment online asking, in a particular 'Agunah situation, why there was not an agreement before the wedding to allow a rabbinical court to a annul the marriage.

Is this a legitimate practice? I've heard of the Rabbinical Council of America's prenuptial agreement, but I thought it imposed sanctions on the husband if he refused to give a Get. I have not heard of there being an agreement to annul the marriage. Wouldn't that be a form of Kiddushin 'Al Tenai (conditional betrothal)? Is that acceptable to today's Batei Din? What effect does Nissuin have on the Tenai of the Kiddushin?

(Cf. here for a Shi'ur on the subject of Nissuin, Tenai, and changing status.)

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The Lieberman clause appears to be a sepcification of what happens in the event of a divorce, rather than a conditional marriage, but I only know what I read on Wikipedia. (But they did try to work with the RCA on this, so it seems like the idea is possible even if the implementation failed.) – Monica Cellio Sep 20 '12 at 16:09
related judaism.stackexchange.com/q/16750/759 – Double AA Sep 20 '12 at 16:22
Also judaism.stackexchange.com/q/18355/732 – Shmuel Brin Apr 14 '13 at 3:46

In "Gray Matter - Discourses in Contemporary Halachah", Rabbi Chaim Jachter explores various proposed solutions to the Agunah problem, including the idea of instituting a condition that would retroactively annul the marriage in the event of civil divorce. He writes that such a suggestion was made in the late nineteenth and early twentieth centuries by some French Rabbis, based on a Rama (EH 157:4) who provides a similar procedure to avert potential chalitzah problems.

However, this proposal was rejected by nearly all the halachic authorities at the time. In fact, an entire book, Ein Tenai Benisu'in, was published collecting the letters that hundreds of halachic authorities wrote against the idea, including Rav Yitzchok Elchanan Spektor, Rav Chaim Ozer Grodzinski, Rav Chaim Soloveitchik, Rav Yisroel Meir Kagan, Rav Yechiel Michel Epstein, Rav Meir Simcha of Dvinsk, Rav Malkiel Tannenbaum, Rav Tzvi Pesach Frank and Israeli Chief Rabbis Avraham Yitzchak Kook and Ben Tzion Uzziel.

The opposition was based on several Halachic issues: Firstly such a condition may be considered "masneh al mah shekasuv batorah" (see Kesubos 56a) - if one makes a condition which contravenes a Torah obligation, the condition is void and the transaction is effective. Another problem is that the Gemora (Yevamos 94b, Kiddushin 72b - 74a) seems to imply that a condition can only apply to the first stage of marriage (Kiddushin) but not the second stage (Nissuin).

There were also technical grounds to the rejection. The laws of formulating conditions are complex and many Rabbis do not know them. Furthermore, such a proposal would weaken the entire institution of marriage - if a couple knew that the that its marriage could be retroactively undone at any time by just filling for civil divorce, they may be tempted to cheat on their spouse knowing that they could avert the sin of adultery by retroactively cancelling the marriage. The Rabbis were not prepared to weaken the entire institution of of marriage in order to solve the difficulties a small percentage of people incur.

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This concept that the rabbis can annul the wedding is found in many places in the gemara such as Kidushin and Kesubos 3a. They have the right to do so because when u get married u say kidas moshe viysrael which gives rabbis to say u were retroactively never married in certain cases. The rabbis cant just annul the marriage. There are only a few special cases where the rabbis did it. Nowadays you can't add cases where the marriage retroactively doesn't work. That's why you cant just solve every aguna problem like that.

-It does not pose a problem to integrity since the husband and wife agreed upon it, when he said kdas moshe viysrael. Also the cases where we use this concept is where there are problems that people might violate arayos or it will come to lead people to think arayos are permissible. Also the case in Kesubos the husband gave a get al tnai. We see he already had a get. In Kiddushin the rabbis stopped the marraige in the first place. So we see that the rabbis dont just pop into marriages just cause they feel like it. They come in safely.

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Shlomo, thanks for your response, and welcome. The question is about building a condition into the marriage that, if the marriage fails, the rabbis can annul it. I'm asking whether that poses a problem for the integrity of the Kiddushin itself. – Seth J Apr 12 '13 at 23:25

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