Yevamot 87b
“We have been happily married for one year and my husband has been missing for over two months. On that fateful morning, on his way out, he said he was going to the World Trade Center to visit a client. I have heard nothing since.”
What is the Jewish Court of Law to do when there are no witnesses who saw the husband die and no witnesses who saw him at the scene of death?
In order to understand the work of the rabbinical court in these tragic cases, it is helpful to define the problem.
A married woman has the status of an Eshet Ish, and as such she may live in matrimony with her husband only and with no other man. If an Eshet Ish has marital relations with another married man, the so-called marriage to the second man is ineffective and any offspring of such marriage have the status of a mamzer who may only marry a person who is also a mamzer or a convert to Judaism.
There are only two ways in which an effective marriage can be terminated. The husband gives the woman a Get, a Jewish bill of divorce, or the husband dies. The marriage of a missing husband who has disappeared without giving a Get to his wife can only be declared terminated if the court has some evidence that the husband is dead.
The usual rule of evidence in Jewish law is Ein Davar Shebervah Pachot Mishnayim, which means that two witnesses are required for testimony in matters of marital status. However, because application of this rule to the wife of the missing husband might cause great hardship, the rabbis permit the woman to remarry on the testimony of one witness testifying to the death of the husband.
In missing husband cases, the rabbis further relax the usual rules of evidence by accepting testimony from witnesses who generally are unqualified to testify in a Jewish court of law, such as relatives. The testimony of a non-Jew to the death of the husband is inadmissible. However, if the non-Jew was Mesiach Lefi Tumo, overheard to be talking off the record in a casual conversation about the death of the husband, such evidence is acceptable. The court cannot solely rely on death certificates issued by non-Jewish institutions without conducting its own investigation into the facts of the case.
The case of the husband, who goes missing, with no direct evidence of his death, is referred to in the Talmud as the case of Mayim She’ein Lahem Sof. The sad case of the missing Dakar submarine lends extra meaning to this terminology. According to the Talmud, in cases of Mayim She’ein Lahem Sof, the woman may not remarry, because there is a concern that the husband may have survived and may show up one day. Were that to happen and were the woman to have remarried meanwhile on the assumption that her husband was dead, the sad Halachic result would be that the woman would have to leave both the first and the second husband.
In order to release the woman from the status of an Agunah in Mayim She’ein Lahem Sof situations, the rabbis will look for and rely upon circumstantial evidence of the death. “When it comes to the plight of the agunah,” said the Rosh, “the judge must conduct an exhaustive research of halachic sources and find a way to release her.”
What follows are some of the halachic methods employed by the Rabbis to solve these tragic cases.
According to the Terumat Hadeshen and the Rosh, the rule that a woman may not remarry in cases of Mayim She’ein Lahem Sof is not a rule of Torah origin but rather a rule of rabbinical origin. Under Torah law, the rule of the majority applies. Since the majority of people lost at sea do not survive, it may be presumed that the missing husband also did not survive. However, because of the dire consequences of a wrong decision, the rabbis were worried about the slightest possibility that the husband might be alive and they therefore forbade the woman to remarry. Now, in matters of rabbinical legislation, the rule is Sfeike de Rabbanan Lekulah, a lenient solution is favored. Accordingly, the rabbis need not be concerned with the slight possibility of survival if they can find other circumstantial evidence that increases the probability of the death. If for example, the husband was seriously injured before falling into the sea, then there is a Ruba de Ruba, a double probability, that he is dead. Furthermore, in the quest to release the woman from the agunah status in Mayim She’ein Lahem Sof situations, one may rely on minority Halachic opinions. Accordingly, one may rely on the opinion of the Chatam Sofer that most missing husbands living in a happy marriage, shalom ayit, would contact their wives if they had survived and if they have not contacted their wives, there is a double probability that they are dead.
According to Rabbi Moshe Feinstein, the Mayim She’ein Lahem Sof rule does not apply to the wives of Shoah victims last seen on transports to concentration camps, but never actually seen executed. The fact that the Nazis were intent on mass extermination and the evidence that the victim was seen on the transport to the camp is sufficient to release the wife. Furthermore, a woman in a Mayim She’ein Lahem Sof situation who went ahead and remarried without consulting a Bet Din, may remain married. According to the Chelkat Mechokek, based on the Shevut Ya’acov, certain cases involving young agunot who are anxious to remarry are so egregious, that the rabbinical court will permit the woman to remarry, as long as there are some factors that add up to a probability that the husband is dead. One may also rely on the minority opinion of Rabbi Eliezer of Vordon, that the Mayim She’ein Lahem Sof prohibition is not a permanent prohibition. Rather, the court has the power to shorten the duration of the prohibition taking into account all the circumstances of the case.
The more difficult situation is when there is no evidence placing the missing husband at the site of the death. One such situation came before Rabbi Yitchak Halevi Herzog, the former chief rabbi of Israel. A husband who traveled over the same bridge at the same time each week went missing when the bridge collapsed into the stormy sea. Nobody on the bridge survived, but the husband was not seen on the bridge at the time of the collapse, although some clothes identified as his were recovered from the water. In releasing the agunah, Rabbi Herzog relied on the Halachic rule of Rov Hatalui Bema’aseh, which means that there is a presumption that a person does not alter his established travel habits. He also relied on the opinion of Rabbi Eliezer of Vordin and on the ruling of the Shevut Ya’acov cited above.
In the absence of a list of names of those inside a collapsed building, the rabbis will conduct an exhaustive investigation to arrive at the highest possible degree of probability of death in the circumstances of the case and then release the agunah. In the search for evidence to locate the missing husband at the site of the death, they will look through phone records, email messages stored at off-site computer servers, activation of card keys, bus and train schedules and of course DNA, if available.
Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, Zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by emailing Raphael at [email protected].
