Tradition: A Journal of Orthodox Jewish Thought

I n the previous issue of Tradition, Rabbi Shlomo Riskin put forth aproposal to utilize the institution of hafka'at kiddushin, annulment of a marriage, to aid in solving the modern aguna problem. The institution of hafka'at kiddushin (as R. Riskin correctly and carefully notes) should not be confused with the principle of kiddushei ta'ut, a marriage conducted under false pretenses. The latter is only applicable in a case where a condition which existed at the time of the marriage was not known to the other partner, and where such a condition was severe enough that it would likely have stopped the said partner from entering the marriage. In most aguna cases, the marriage was legitimately conducted and only soured at some later point, and hence kiddushei ta'ut (as R. Riskin points out well) is of no value in solving most aguna cases. Hafka'at kiddushin, on the other hand, implies the dissolution of what once was a valid marriage, despite its having been valid. It is here that R. Riskin seeks a solution for the contemporary aguna problem. R. Riskin cites the cases of hafka'at kiddushin found in the Talmud and notes that in two of the cases no get at all was needed to dissolve the marriage and that even in the other three cases (where a get was present in the Gemara's discussion) at least some Rishonim were of the opinion that the get was incidental and not fundamentally required to facilitate the hafka'a. Consequently, R. Riskin concludes that hafka'at kiddushin can and should be utilized in the direst of circumstances to free a woman from the bonds of isgun, when a husband is ordered by a bet din to commission a get for his wife and refuses to do so even on the pain of sanctions.