Shabbat Parashat B'Haalotcha| 5770

P’ninat Mishpat: Claim of Mekach Ta’ut in a Marriage

Case: A couple married (second marriage for both, the husband being 25 years older), with an assurance that the woman was normal and religious. Within a month and a half, the husband filed for divorce, claiming she was acting strange and was consistently violating Shabbat. The woman was then institutionalized and when she was let out, he took her back home and dropped the proceedings. However, her illness returned. The husband found evidence that she was given mental illness drugs before they were married and wants to annul the marriage either because she was a lunatic, for whom there is no kiddushin, or because he made a condition that she did not have serious blemishes, or at least that he should not have to pay the large ketuba that he obligated himself since he was tricked. Various doctors attested to her suffering from chronic schizophrenia. The regional court rejected the husband’s claims because he did not prove that the condition existed prior to the marriage and because he took his wife back after her return from the psychiatric ward and even impregnated her afterward. He responds that he did so when doctors said she could be healed, and when this proved incorrect he made immediate efforts to end the marriage. The woman’s lawyer responds that the problems can be linked to the presence of his older children in the house. She is willing to be divorced and come to a compromise about the ketuba, but the husband says he cannot afford that. The following is the appeals ruling.

Ruling: Regarding the court’s reasoning that the illness might not have been developed before the marriage, since there were expert witnesses who assumed that it was pre-existing, the point should have been investigated further. Let us look into the claim that their living together after her release prevents him from nullifying the marriage. The Shulchan Aruch (Even Haezer 39:5) says that if one marries a woman who turned out to have serious blemishes without making any stipulations, they are to be treated as married out of doubt. However, if he finds out about the blemishes and stays with her without protesting, the marriage becomes definite (Beit Shmuel ibid.:15). In such a case, he is obligated in the ketuba. However, the Ran implies that if when he found out, he did protest, then the marriage is null. Even if their living together subsequently constitutes a new marriage, the contents of the original ketuba are not applicable.

We shall return to the doubt when the illness began. Normally, if the illness is found afterward we do not go back in time to say that it began before, even if it is possible (Shulchan Aruch, ibid. 117:8). However, the Shev Shemat’ta (2:2) demonstrates that if we can identify signs of the blemish prior to the wedding, then the matter is a doubt, and therefore it would not be possible to extract the value of the ketuba when he claims definitively that he believes the illness was present prior to the marriage.

Therefore, the husband is entitled to divorce the woman with only the minimum ketuba.

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