“We have been happily married for one year and my husband has been missing for over two months. On that fateful morning, on his way out, he said he was going to the World Trade Center to visit a client. I have heard nothing since.”
What is the Jewish court of law to do when there are no witnesses who saw the husband die and no witnesses who saw him at the scene of death?
In order to understand the work of the rabbinical court in these tragic cases, it is helpful to define the problem.
A married woman has the status of an eshet ish, and as such she may live in matrimony with her husband only and with no other man. If an eshet ish has marital relations with another married man, the so-called marriage to the second man is inoperative and any offspring of such marriage has the status of a mamzer, who may only marry a person who is also a mamzer or a convert to Judaism.
There are only two ways in which an effective marriage can be terminated: The husband gives the woman a get, a Jewish bill of divorce, or the husband dies. The marriage of a missing husband who has disappeared without giving a get to his wife can only be declared terminated if the court has some evidence the husband is dead.
The usual rule of evidence in Jewish law is Ein davar shebervah pachot mishnayim, which means two witnesses are required for testimony in matters of marital status. However, because application of this rule to the wife of the missing husband might cause great hardship, the rabbis permit the woman to remarry on the testimony of one witness testifying to the death of the husband.
In missing husband cases, the rabbis further relax the usual rules of evidence by accepting testimony from witnesses who generally are unqualified to testify in a Jewish court of law, such as relatives. The testimony of a non-Jew to the death of the husband is inadmissible. However, if the non-Jew was mesiach lefi tumo, overheard talking off the record in a casual conversation about the death of the husband, such evidence is acceptable. The court cannot solely rely on death certificates issued by non-Jewish institutions without conducting its own investigation into the facts of the case.
The case of the husband who goes missing with no direct evidence of his death is referred to in the Talmud as the case of mayim she’ein lahem sof. According to the Talmud, in cases of mayim she’ein lahem sof the woman may not remarry because there is a concern the husband may have survived and show up one day. Were that to happen and had the woman in the meantime remarried on the assumption her husband was dead, the woman would have to leave both the first and the second husband.
In order to release the woman from the status of an agunah in mayim she’ein lahem sof situations, the rabbis will have to find and rely upon circumstantial evidence of the death. “When it comes to the plight of the agunah,” says the Rosh, “the judge must conduct an exhaustive research of halachic sources and find a way to release her.”