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 Shabbat Parashat Terumah| 5766P’ninat MishpatA Classical Agunah Question- part II - Excerpts from Piskei Din Rabbaniim - vol. IX, pp. 184-200
Case: A couple was married civilly in Russia in a ceremony in which the groom presented the bride with a ring in front of several Jews. Years later, the husband went to fight in WW II and did not return. The Russian army informed the wife that he had disappeared during a battle and was never heard from again, an account corroborated by a Jewish witness. Decades later the woman wants to remarry.
Ruling: [We will be able to present only a sampling of the logic and sources of a sixteen-page ruling, which allowed the woman to remarry. Last week we saw that the husband’s disappearance under perilous conditions makes it a safek (doubt) whether he is still alive.]
The couple was married with a civil ceremony, as was the norm in Communist Russia and subsequently lived together. According to most opinions, such a couple is not considered married, and our practice to have the husband give a get is primarily a precaution that we take only when the husband is available and agrees to give it. However, the situation here is somewhat more difficult than usual. That is because, as the wife told us, the husband did give her a ring in the presence of several Jews. Thus, it is conceivable that this specific, civil ceremony might have constituted a valid kiddushin (Jewish, religious marriage). In the classic responsa of the Rivash (#6), which is the source not to require a get for a couple who were married in a non-Jewishly officiated ceremony, he clearly mentions the factor that the groom did not give the bride a ring.
Although the groom did not make the traditional pronouncement as he gave the ring, when the context is clearly one of marriage, the silent presentation of the ring is also seen as being for kiddushin (Shulchan Aruch, Even Haezer 26:1). However, in the context of a civil ceremony, without a proclamation that he intends for the ceremony to work as kiddushin, the matter cannot be considered definite kiddushin, and is at best a doubtful one.
When we now look at the case as a whole, we see that there are two main reasons to doubt whether the woman is halachically married to her missing husband. Firstly, he is probably dead. Secondly, there is no more than a doubt that they were ever halachically married. In the case of a s’fek sfeika (double doubt) whether a woman is married, many poskim allow the woman to remarry. Even those who are stringent would probably agree that, in this case, we could follow the double doubt to be lenient. For one, the two s’feikot are independent, which strengthens the s’fek sfeika’s validity. Secondly, a major reason for stringency regarding s’fek s’feika applies when there is a status quo of being married that needs to be overcome. In this case, since the marriage was not clearly substantiated, there is no status quo. Thus, the woman is permitted to remarry.
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