|Fundamental Terms of Marriage|
|By Rabbi Shabtai A. Rappoport|
M. is a thirty years old woman, a physician by profession for the last four years, and married for three years. She met her husband - a thirty five year old stock broker - in a birthday party of a friend, and six month later they were married. Last year M. found out that her husband was having a romantic affair with another man. Disgusted, she confronted her husband who, according to her story, apologized tearfully and swore that it was a "once in a lifetime madness". A few months later M. discovered that her husband was still involved in this relationship, and that he has been an active homosexual all his adult life. When she confronted him again she refused to listen to any apologies and demanded an immediate divorce. He agreed, but said that since she is the one asking for it, she will have to be "very forthcoming in the financial settlement". Namely, M. will have to relinquish her share in the common property, chiefly, their expensive apartment. In Jewish law a divorce depends on the husband's consent. In the exceedingly uncommon cases where a husband could be forced to divorce his wife, such coercion is rarely practical in countries where everyone is subject to the local legal system. Hence, it seems that M. has no choice but to acquiesce to the blackmail, in order to be able to open a new page in her life. M.'s husband added cynically that she should consider herself fortunate that he did not make more onerous demands that would have required M.'s family to pay for her redemption from their own resources.
The Mishna (Ktuvot 77, a) lists the men who are compelled to divorce their wives. They are men who either suffer an untreatable, and extremely repugnant or contagious diseases, or have a vocation that causes them to be malodorous (i.e. lather tanning). However, the Shulchan Aruch (Even Ha'ezer 154, a) rules that if the was aware of the disease of the vocation before she was married, the husband is not compelled to divorce her. The reason being that the wife accepted the husband's condition as a given, and thus cannot claim that life with that husband is impossible. It follows that the husband is compelled to divorce his wife because his condition consists an antithesis to the basic terms of marriage, namely, living together in a framework of normal family life. However, when the wife was aware of the man's situation before the marriage, the terms of this specific marriage must have been different from the norm, with her concordance; thus, she cannot claim that the terms of her marriage are violated, and the marriage should be terminated.
It follows that when one of these conditions, that violate the basic terms of marriage, existed before the wedding, and the wife was unaware of their existence, her agreement to the wedding that is necessary for its validity, was based on false presumptions. Thus, the wedding was performed without proper consent of the wife, and is null and void. The ruling of the Mishna that a divorce is needed seems to apply only to cases where these conditions came into being after the wedding.
Hence, a wedding that is performed while the husband is in a situation that is in a clear contrast to the basic term of normal marriage, and the wife is unaware of that is considered to be "a mistaken bargain" on the part of the wife, and is legally not binding.
The noted nineteenth century Halachic authority, Rabbi Yitzhak Elhanan Spector of Kovno rules accordingly (Ein Yitzhak volume I, Even Ha'ezer 24, 6) that marriage to a man who at the time of the wedding was unable to have marital relationship, is void without a need of a divorce. Several later authorities concurred with this opinion, including the noted twentieth century authority Rabbi Moshe Feinstein (Igrot Moshe, Even Ha'ezer part I, 79).
Rabbi Moshe Feinstein rules (Igrot Moshe, Even Ha'ezer part IV, 113) that homosexuality is definitely a disgusting condition, which also brings great disgrace to all family members, thus preventing any possibility of normal family life, and being in total violation of basic terms of marriage. It should be noted that in Jewish law the timeless Halachic view of moral behavior determines the ruling, not the fashionable politically correct opinion of the time.
However, the laws of "mistaken bargain" dictate that when the defect was discovered by the wronged party, and the bargain was not cancelled immediately by this party, it assumed that this party accepted the bargain knowingly, and cannot later demand annulling the bargain (Maimonides Laws of Acquisition 15, 3). Similarly, Rabbi Moshe Feinstein argues that in a case that the wife stayed with her husband after she had found out that he was homosexual, it is difficult to annul the marriage.
However it seems that Halacha works with an assumption that may be named "the sanity assumption". When one's action could be attributed to a standard thinking process, or to a deviate one, it will be assumed that until proven otherwise the standard thinking was behind the action. There are many examples to this ruling, and we shall consider one of them. There was a woman who, before her second marriage, gave all her property to her daughter. She later divorced her second husband and demanded that her daughter return the property. Rav Nahman ruled (Ketuvot 79, a) that the gift is void. The explanation is that the standard reason behind such a gift of a woman's entire property is only to prevent her second husband from inheriting it in case the woman dies first. We further assume that her intention was that if she divorces, and the reason behind the gift is no longer relevant, she intended the gift to be annulled. We prefer to insert this hidden term to the gift, to assuming that the woman was unreasonable and relinquished her property entirely.
Similarly, when a woman goes on staying with a homosexual husband, her action (or inaction) could be either explained as a non-standard acceptance of her husband as he is, or as a sincere hope that his affair was a one time debacle. We prefer this rather naïve supposition, which still come under what Halacha considers normal and reasonable thinking, to the unacceptable alternative that the wife acquiesced to live with a homosexual husband, in spite of such life constitutes a dramatic violation of the most fundamental terms of marriage.
It follows that if M.'s husband refuses to divorce her, or blackmails her, her marriage could be declared null and void by a competent Rabbinical Court.