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Marriage Annulment – from Bastards (MAMZERIM) to Chained Wives (AGUNOT): Revolution and Creativity in Israeli Rabbinical Court Rulings

Mon, December 17, 1:15 to 2:45pm, Seaport Hotel & World Trade Center, Federal 2 Complex

Abstract

Rabbinical courts are often accused, rightly or wrongly, of conservatism and rigidity. The paper seeks to identify and analyze the opposite phenomenon: judicial creativity, aimed at addressing one of the most troubling problems in Jewish law: that of MAMZERIM (frequently translated as bastards; a child born out of forbidden unions, who, if is declared a MAMZER, is prohibited from marrying a Jewish spouse). The paper illustrates how Jewish law responds to changing perceptions of family and of gender, which are subject to dramatic dynamics in contemporary society.
The paper examines the relatively new practice of retroactive annulment of marriage (HAFKA’AT KIDDUSHIN) in cases of MAMZERUT (bastardy), by which the woman is considered not to have been married at the time of conception, so that the child born out of the extra-marital relationship is not a mamzer. This tool is often referred to as a Maharasham Divorce, after the halakhic decisor who proposed it, in theory rather than for practice, at the turn of the 19th and 20th centuries.
This innovative Jewish halakhic measure was not used before the 20th century. Given its creativity, it is not surprising that it encountered strong opposition. The paper shows, however, how gradually the practice has moved from the periphery to the center, and how, despite enduring objections, its use by current halakhic decisors and Israeli rabbinical courts is no longer an uncommon phenomenon.
At the same time, the paper examines why proposals for using marriage annulment for releasing AGUNOT, i.e., women whose husbands refuse to divorce, are met with sweeping opposition on the part of rabbinical judges, despite the successful use of this tool in preventing MAMZERUT. The paper offers explanations from different spheres, including the internal halakhic sphere, institutional-political considerations, gender perspectives and theories of control. In conclusion, the paper argues that the halakhic discourse is a complex one, and actors mix together considerations from various orders. The spheres overlap, and together shape halakhic discourse.

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