“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.”
What follows are some of the halachic methods employed by the rabbis to solve these tragic cases.
According to the Terumat Hadeshen and the Rosh, the rule that a woman may not remarry when her husband goes missing with no direct evidence of his death, (a situation referred to in halacha as the mayim she’ein lahem sof situation,”) is not a rule of Torah origin but rather of rabbinic origin.
Under Torah law, the rule of the majority applies. Since the majority of people lost at sea do not survive, it may be presumed that the missing husband also did not survive. However, because of the dire consequences of a wrong decision, the rabbis were worried about the slightest possibility that the husband might be alive and they therefore forbade the woman to remarry.
Now, in matters of rabbinic legislation, the rule is safek rabbanan lekulah – a lenient solution is favored. Accordingly, the rabbis need not be concerned with the slight possibility of survival if they can find other circumstantial evidence that increases the probability of the death.
If for example, the husband was seriously injured before falling into the sea, then there is a “double probability,” “ruba de ruba,” that he is dead. Further, in the quest to release the woman from the agunah status in mayim she’ein lahem sofsituations, one may rely on minority halachic opinions.
Accordingly one may rely on the opinion of the Chatam Sofer that most missing husbands living in a state of shalom bayit would contact their wives if they had survived and if they have not contacted their wives, there is a double probability that they are dead.
According to Rabbi Moshe Feinstein, the mayim she’ein lahem sof rule does not apply to the wives of Shoah victims last seen on transports to concentration camps but never actually seen executed. The fact that the Nazis were intent on mass extermination and the evidence that the victim was seen on the transport to the camp is sufficient to release the wife.
Further, a woman in a mayim she’ein lahem sof situation who went ahead and remarried without consulting a bet din may remain married. According to the Chelkat Mechokek, based on the Shevut Ya’akov, certain cases involving young agunot who are anxious to remarry are so egregious that the rabinical court will permit the woman to remarry as long as there are some factors that add up to a probability that the husband is dead.
One may also rely on the minority opinion of Rabbi Eliezer of Vordon that the mayim she’ein lahem sof prohibition is not permanent. Rather, the court has the power to shorten the duration of the prohibition taking into account all the circumstances of the case.
A more difficult situation arises when there is no evidence placing the missing husband at the site of the death.
One such situation came before Rabbi Yitzchak Halevi Herzog, the chief rabbi of Israel. A husband who traveled over the same bridge at the same time each week went missing when the bridge collapsed into the stormy sea. Nobody on the bridge survived but the husband was not seen on the bridge at the time of the collapse, although some clothes, identified as his, were recovered from the water.
In releasing the agunah, Rabbi Herzog relied on rov hatalui bema’aseh, which means there is a presumption that a person does not alter his established travel habits. He also relied on the opinion of Rabbi Eliezer of Vordin and on the ruling of the Shevut Yaakov cited above.
In the absence of a list of names of those inside a collapsed building, the rabbis must conduct an exhaustive investigation to arrive at the highest possible degree of probability of death in the circumstances of the case before releasing the agunah. In the search for evidence to locate the missing husband at the site of the death, they will look through phone records, e-mail messages stored at offsite computer servers, activation of card keys, bus and train schedules, and of course DNA, if available.