The Talmudic concept of hafka'at kiddushin, annulling a marriage, often arises in discussions about how to help agunot, although its practical applications virtually do not exist.
The Basis for Hafka'at Kiddushin
The notion that Chazal can annul a marriage appears six times in the Gemara.1Yevamot 90b, Yevamot 110a, Ketubot 3a, Gittin 33a, Gittin 73a, and Bava Batra 48b. There are two categories of hafka'at kiddushin. One is where the rabbis declare a marriage void due to the unethical behavior involved (see Tosafot, Yevamot 110a s.v. Lefichach). For example, the Gemara in Yevamot (110a) and Bava Batra (48b) describes a husband who physically coerced a woman into consenting to marry him. While such a marriage should technically take effect, the rabbis annul it in response to the man's improper conduct.
The second category consists of cases where the original marriage contained no problems, but a problem arose when the husband attempted to send his wife a get. For example, the Gemara (Ketubot 3a) addresses a husband who embarked on a long journey. Before leaving, he gave his wife a get and stipulated that it would only take effect if he did not return within thirty days. The husband made every effort to return home on time, but he was unable to fulfill the condition due to circumstances entirely beyond his control (oneis). Since the husband had a legitimate excuse for not returning, the get was biblically invalid. Nevertheless, Chazal effected the get through the mechanism of hafka'at kiddushin. In such a situation, it is unclear if the marriage is nullified retroactively2This is the opinion of the Ri (Tosafot, Gittin 33a s.v.Ve'afk'inhu), as he indicates that such a get retroactively exonerates a woman who receives it after committing adultery. or if the rabbis merely render the get effective despite the husband's initial wishes.3The Rashba (Teshuvot 1:1162 and commentary to Ketubot 3a), for example, explains that hafka'at kiddushin only serves as a threat in these cases. The Rabbis' assertion that the marriage will be annulled forces the husband to accept the get's validity, lest his married life be rendered cohabitation outside of marriage. Also see P'nei Yehoshua (Ketubot 3a).
In Gittin 73a, the Gemara speaks of a dangerously ill individual (shechiv meira) who divorced his wife and subsequently regained his health. Technically, his recovery invalidates the get, as the husband clearly gave the get under the assumption that he would die shortly. If he would recover, it was understood that the get would be invalid. Nevertheless, Chazal validate the get by employing hafka'at kiddushin.
The Gemara explains that hafka'at kiddushin works because "everyone gets married according to the will of the Rabbis." In other words, every marriage contains an implicit condition that Chazal must accept it. Accordingly, Chazal may veto a marriage if one contracts it in an unethical manner. Similarly, Chazal may effect a divorce even when the get is invalid on a biblical level. Tosafot (Ketubot 3a s.v. Adaata and Gittin 33a s.v. Kol) note that we explicitly authorize Chazal in this manner, as the groom states that he is marrying his wife "according to the laws of Moses and Israel" ("kedat Moshe veyisrael").
Practical Implementation
At first glance, the power to annul marriages seems like the ideal solution to the agunah problem. However, there are major obstacles to its implementation today. First, the basis for it is that husbands declare at their weddings that the Rabbis must consent to the marriage. Accordingly, only a central, recognized rabbinical court, such as the Sanhedrin, may implement hafka'at kiddushin, but no such beit din exists today. As Rav Yitzchak Herzog writes (Techukah Leyisrael Al Pi Hatorah 1:76), hafka'at kiddushin may someday become an option if one beit din is accepted by everyone, "but in the present situation there is nothing to discuss."
Another major problem exists with implementing hafka'at kiddushin today. The Gemara records many objectionable marriages that are binding, indicating that the Rabbis do not annul them. For example, Chazal do not annul the marriage of a kohein and a divorcee, although such a marriage is explicitly prohibited by the Torah (Vayikra 21:7).4See Teshuvot Binyamin Ze'ev (106) for a list of objectionable marriages where Chazal do not invoke hafka'at kiddushin. While criteria presumably exist to determine when marriages may be annulled, the Gemara never articulates them. The Rashba (Ketubot 3a) provides some insight:
One may ask why a woman should remain an agunah if her husband was lost in a body of water without finite boundaries (mayim she'ein lahem sof). Let the Rabbis annul the marriage! The answer is that the Rabbis do not annul a marriage unless the man has handed his wife a [rabbinically acceptable] get.
This, of course, gives only partial criteria. When a couple marries in a proper manner, the marriage can end only in a get. However, there are objectionable marriage ceremonies that Chazal invalidate through hafka'at kiddushin without requiring a get, whereas other equally objectionable ceremonies remain untouched by Chazal. Chazal annul a marriage ceremony in which the wife was forced to consent, yet refrain from annulling the marriage of a kohein and a divorcee. Elsewhere (Teshuvot 1:1185), the Rashba addresses this issue:
We do not say that whenever a husband entered a marriage in an unethical manner the rabbis annulled the marriage. Rather, we believe that only in those specific instances in which Chazal state that the marriage is annulled do we actually annul the marriage.
The Rashba cites the case of someone who appointed another man as his agent to marry a certain woman (Kiddushin 58b). The agent, instead of contracting the marriage on behalf of his friend, married the woman himself. The Gemara states that the "marriage is valid despite his unethical behavior." The Rashba concludes that only in those cases specifically mentioned by Chazal is the marriage annulled. While some attempts have been made to define criteria for implementing hafka'at kiddushin,5See Maharam of Rothenberg (cited by Mordechai, Kiddushin 522) and Radbaz (Teshuvot 1:42). the overwhelming majority of Rishonim agree that it may only be applied where the Gemara invokes it.6Teshuvot Binyamin Ze'ev (106), Rivash (Teshuvot 399), Radach (Teshuvot 19), Maharik (Teshuvot 84), Re'em (Teshuvot 14), Tashbetz (2:5), Yachin Uvoaz (2:20) and Beit Yosef (Teshuvot, Dinei Kiddushin 6 and 10). The Raavan (cited in Teshuvot Seridei Eish 3:25 and Teshuvot Tzitz Eliezer 1:26:4) even prohibits applying hafka'at kiddushin today to cases mentioned in the Gemara, but most Rishonim do not appear to go so far. Indeed, the Rambam makes no mention of hafka'at kiddushin in the entire Mishneh Torah. The Radach (Teshuvot 19) explains that Chazal considered hafka'at kiddushin a last resort, to be employed only out of great desperation (machmat dochak gadol). In certain specific cases, Chazal used it, but we may not extrapolate to other cases.
The Beit Yosef (Even Ha'ezer 28) and Rama (E.H. 28:21) clearly affirm that we do not invoke hafka'at kiddushin when it is not specifically employed by the Gemara. The Rama writes:
A community that institutes a policy, accepted by the entire community, that anyone who marries in the absence of ten men will have his marriage invalidated must nevertheless be strict and require a get [in this circumstance].
The Vilna Gaon (Biur HaGra, E.H. 28:57) explains that this situation appears analogous to the case described in Yevamot (110a). In both cases, a marriage ceremony was conducted in an improper manner. One might have thus thought that one who violates his community's policy has his marriage declared null and void. Nonetheless, we do not declare the marriage invalid, as we restrict the application of hafka'at kiddushin to the situations that the Gemara specified. Indeed, the Acharonim universally reject applying hafka'at kiddushin to new situations.7Mabit (Teshuvot 1:206), Maharit (Teshuvot, Even Ha'ezer 2:39), Chacham Tzvi (Teshuvot 124), Avnei Miluim (28:58), Biur HaGra (Even Ha'ezer 28:56-57), and Melamed Leho'il (3:22,51). An even lengthier list of Acharonim who reject any application of hafkaat kiddushin to a communal enactment appears in Otzar Haposkim (vol. 10, 28:112:1). Also see Seifer Ein Tenai Benisu’in, which includes the signatures of more than 400 Acharonim against a proposed "solution" to the agunah problem that included hafka'at kiddushin. While the proposal contained other flaws, the application of hafka'at kiddushin was a primary reason given for their vehement opposition to the plan. Among the signatories are Rav Yisrael Meir HaKohen, Rav Chaim Soloveitchik, Rav Chaim Ozer Grodzinski, Rav Yechiel Michel Epstein, Rav Tzvi Pesach Frank, Rav Malkiel Tannenbaum, Rav Shimon Shkopp, and Rav Elya (Pruzhner) Feinstein.
Conclusion
Rav David Tzvi Hoffman (Melameid Leho'il 3:51) states what has emerged as the consensus Orthodox view on this topic. He writes, "No God-fearing rabbi will state that rabbis today are empowered to perform hafkaat kiddushin in the absence of a Sanhedrin [a central rabbinate accepted as authoritative by all Jews -H.J.]." For a lengthier discussion of hafka'at kiddushin, see Ezra Frazer's article in Yeshivat Har Etzion's Alei Etzion (8:97-130).