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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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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/ uproot a marriage is found in several places in the gemara such as Gittin 33a and Kesuvos 3a. The Rabbis have the right to do this because when we get married we say k'das moshe v'yisrael (see Tosfos Kesuvos 3a) which means in a select few cases the Rabbis have the power to retroactively uproot the kiddushin. Nowadays we can't add cases where the marriage retroactively doesn't work, which is why we unfortunately can't use this device to solve every aguna problem.

It does not pose a problem to integrity since the husband and wife agreed upon it, when he said k'das moshe v'yisrael. 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 in the case in Kesuvos the husband gave a get al tanai, thus we see he had already given a get. In Kiddushin the Rabbis stopped the marriage in the first place. So we see that the Rabbis don't just pop into marriages just cause they feel like it.

  • 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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