- Question: [Tuesday, 25th Iyar 5783]
I am a middle aged woman engaged to a middle-aged man who is a Baal Teshuvah and comes from a very interesting background. His grandparents were Orthodox Jews in the lower East side of Manhattan and were actually acquainted with Rav Moshe Feinstein when they lived there. They were affiliated with a small Orthodox synagogue in which its rabbi r”l decided to convert to Christianity and take a number of families down with him. The community members moved to the Bible Belt area of the United States in which they lived as Christians and only married within themselves, so technically the descendants are all Jewish. My Chasan is the grandson of one of these families. Both his father and mother are Jewish by birth. My worry however is as follows. He has been completely cut off from his family and neither his siblings or parents who remain Christian will speak to him. Amongst them are two brothers. Now, I was really worried about G-d forbid getting stuck as a Yevama, if G-d forbid anything happens to my soon-to-be husband. You see, I am not able to have children, and he does not have any Jewish children himself, and if he passes away before I do, I will basically never be able to remarry being that his brothers who we aren’t even in contact with, would most likely never agree to go through with a Chalitza which would make me an Aguna for the rest of my life. To be honest, this is so worrying to me that I’m not sure that I can commit to the marriage under these circumstances. Is there any Halachic remedy to this situation? Is there any leniency to exempt me from Chalitza since the brothers have converted to another religion?
Answer:
In such a case, the ancient halachic directive and practice is to stipulate upon getting married [i.e. Chuppah, Kidddushin and Nissuin and Beila] that she only accepts the marriage on condition that she will not become a Yevama to his brother, and that if she does become a Yevama to his brother, then the marriage is retroactively deemed null and void and is considered as if it never occurred, hence revoking her Yevama status, thus allowing her to get remarried without needing Chalitza. These details of course must be reviewed with an expert Rav with regards to how the stipulation is to be made by the Chuppah, and if it needs to be made afterwards.
Explanation: The law is that a woman whose husband passes away without leaving any Jewish children, must have Chalitza performed in order to permit her to remarry, if her husband has a Jewish paternal brother. While there is discussion and dispute amongst the Geonim and Rishonim as to the status of a brother who converted to another religion, and as to whether Chalitza is required in such a case, the practical ruling in the Shulchan Aruch, which is based on the majority and main opinion of the Rishonim, is that she is obligated to have Chalitza performed in order to remarry, and only in select cases are some Poskim lenient like the lenient approach. Hence, your concern is a real concern being that a brother who converted to another religion may not be willing to go through the Chalitza process, and especially in your case where there is no longer any communication between the siblings. Indeed, this worry is not only applicable today but was a real worry already discussed in the Poskim, and due to this the following halachic solution has been offered by them: Whenever there is worry prior to the wedding that one may become a Yevama [i.e. he has no Jewish children and has a paternal Jewish brother, and he may die before she] and the brother will refuse to go through the process of Chalitza, such as due to being an apostate, and hence deeming her an Aguna until he passes away, then she is to only get married [i.e. accept the Kidddushin and Nissuin and Beila] on condition that she will not become a Yevama, and that if she does become a Yevama, then the marriage is retroactively deemed null and void, hence revoking her Yevama status, thus allowing her to get married without needing Chalitza. This stipulation must be said in both the positive and negative form, as we stated above, and as well carries with it other details as to how to validate the stipulation, and would thus need to be overseen by an expert Rabbi to make sure that the stipulation is done properly and is valid. Furthermore, there is a discussion amongst the Poskim as to when the stipulation must be done, and if it suffices to do so by the Chuppah and acceptance of the Kiddushin ring, or also by all future intimacy between the couple. Likewise, there is discussion regarding how the stipulation is to be made, the exact words to be said, if it should be said under the Chuppah or in private prior to the Chuppah, and so on and so forth of details which all require an expert Rav to analyze and direct you in.
To note that the above does not focus on the separate question regarding whether or not your Chasan must/should go through a conversion Lechumra prior to the marriage, due to the fact that he comes from a multigenerational family of willing converts to Christianity.
Sources: See regarding making a Tanay by the Kiddushin if Chasan has an only brother who is a Mumar: Rama E.H. 157:4; Mahriy Bruna 184; Terumas Hadeshen 223; Bach 157;Taz 157:1; Nachals Tzevi 157:3; Beir Heiytiv 157:6; Levush 157:4; Many Poskim brought in Pischeiy Teshuvah 157:8; Stringent: Beis Yosef 157; See Aruch Hashulchan 157:13-15; Batim Lebadim 23:26 See regarding how and when to make Tenaiy: Beis Shmuel 157:6; Shvus Yaakov 1:127; Gur Aryeh 157:4; Noda Beyehuda Kama E.H. 57; Pischeiy Teshuvah 157:8-9; Aruch Hashulchan 157:15-17; See regarding falling to Yibum to an apostate brother and that nonetheless Chalitza is required: Michaber E.H. 157:4 “Ein Lismoch Alav”; Beis Yosef 157 in complete and very fierce negation of lenient opinion, brought in Biur Hagoleh [although perhaps incorrectly, as the Beis Yosef does not refer to this case but rather to case of married a Mumar-See]; Tur 157 in name of Rav Sherira Gaon and so is his opinion; Rambam Yibum 1:6; Rashi and Maharam Merothenberg, brought in Mordechai Yevamos 29; Or Zarua 1:605; Terumas Hadeshen 219 and 223; Maharik Shoresh 175; Mahriy Ben Chaviv, brought in Shut Riem 47; Nachals Tzevi 157; See Aruch Hashulchan 157:7-12; Lenient opinions that Chalitza not required if was Mumar at time of Marriage: Opinion in Michaber ibid; Mordechai Yevamos 28; Tur in name of Rav Yehudaiy Gaon; Maggid Mishneh Yibum 1:6; Beir Eshek 76; See Beis Shmuel 157:3 and Biur Hagra that according to Rabbeinu Chananel in Or Zarua ibid and Mordecha Yevamos 107, the leniency applies even if became a Mumar after the marriage, before the death as Misa Mapeles; See Gilyon Mahrsha; Poskim who are lenient Bedeived if remarried even without Chalitza: 1st and Stam opinion in Rama ibid regarding if already remarried and did not know he had a brother; Beis Shmuel 157:3 that it applies only if was already a Mumar by the marriage as most Poskim rule Nissuin Mapeles; Mahariy Mintz 12 regarding case that already remarried, even though was Mumar only after marriage; Levush 157:4; Toras Chsed E.H. 20 that so is main ruling of Rama and Poskim Poskim who are lenient if remarried only if separated and did Chalitza: Yeish Omrim in Rama ibid; Mahariy Viyal 54; Binyamon Zeev 71 and 73; Biur Hgara that so is opinion of Michaber ibid; Aruch Hashulchan 157:11 in complete negation of Rama and Mahriy Mintz ibid Poskim who are lenient even Lechatchila in certain cases: Toras Chesed E.H. 20 regarding even Lechatchila in a case of young Yevama whose Yavam was Mumar at time of marriage; Maharit 2 E.H. 18 regarding Safek if need Yibum that may be lenient by Mumar Yavam; See for many cases of leniency in Beir Heiytiv 157:3; Pischeiy Teshuvah 157:3-10;
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