Our Gemara on Amud Beis considers the scenario where a woman’s husband dies childless, and therefore she now is incumbent to a levirate marriage with her brother in law who was smitten with a repulsive skin disease.  Can this be seen as grounds to undermine the valid intent of the original marriage, as surely she never would have agreed to this marriage had she known that it could lead to her being beholden to this person? The Gemara rules that the need for companionship is generally too strong, as the rabbis believed that there was enough ambivalence toward the idea of being alone, that we could not declare with certainty that the original marriage was under false pretenses.  Apparently, to annul a marriage and invoke a claim that a marriage was under false pretenses, there must be absolute certainty that no one would have agreed to such a marriage. So long as there is some doubt, annulment cannot be granted.

Tosafos rules that even in the Gemara’s consideration that the marriage might be annulled, that was only if she was an arusa (betrothed without nisuin, which permits cohabitation.) Tosafos argues that the immediate benefits of marriage to her husband of choice coming from cohabitation outweigh any future possibility of being stuck in a levirate marriage to a repulsive brother.  We see from Tosafos that in relationships, one takes the good with the bad.  Once she is a full wife through nisuin, whatever the future may hold, she is too pleased with the present that we would consider that she absolutely would never have agreed to marry.  The good times and good memories may make it worth it, despite the later problems.

Yet, even this principle has limits. The poskim discuss a case where the brother was not physically repulsive but instead morally repulsive, such as being a mumar (one who totally rejects Torah observance.)  Noda BeYehuda (EH I:88) argues that even Tosafos would agree that in the case of the mumar brother, even if she was a nisuah and had a full marriage, the outcome of being stuck attached to a non-observant person is so unthinkable that we can use this as a basis to annul the marriage. The basic intent and agreement to be married is undermined by the certainty that she would surely and unambivalently feel it was not worth it.

This had me thinking about a not uncommon challenge that comes up with some married couples. Sometimes people get married with an assumption or explicit commitment to a level of religious observance. We see from these halachic discussions that those disappointments and gaps are felt more deeply than physical features and qualities. For a religious person, the dilution of observance is too steep a price to pay, and cannot be contextualized. In the words of Tevye, when faced with how to respond to his daughter’s impending intermarriage: “On the other hand…what IF THERE IS NO OTHER HAND?”  Tevye could not put his daughter before his religion. 

Sometimes there is a way through. When I work with couples who are suffering from conflict over major religious disparities, I encourage them to explore the distinction between values and practice. The Torah consists of practices and observances, but also values.  For example, the mitzvah is to give tzedakah, but the value is kindness.  If one does not observe the mitzvah of tzedakah, he may express the value of kindness in a different manner.  Discussions about core common values as opposed to the particulars, allows such a couple to feel close and supportive of each other, even when the observance varies.  It is toxic to live with someone who disrespects what you venerate, but it might be manageable to live with someone who agrees to many of your values, but does not share your observance level. It is upsetting to see that your husband does not go to minyan, but does he believe in the value of connecting to God through prayer?  Does he express that differently but still sincerely?  Your wife may not find certain standards of modesty bearable but does that mean she is an immodest person, or does she express the value of modesty differently?  As ridiculous as it this sounds, both a religious settler Zionist and a Niturei Karta individual share the same value: They reject any existence in Israel other than a fully realized, authentic, Messianic experience; they only disagree about how that is expressed. One rejects the modern state of Israel because it arose without God’s direct intervention and redemption.  The other believes this is the beginning of God’s process to realize our dreams.” Both of them have an ardent wish to experience the Messiah in Israel in the purest form, both are extremely zealous, and yet they have radically different practices and customs. 

Using this approach, a couple might be able to bridge their religious differences and feel close, connected and respected.  Of course there are limits and it may not work in some marriages and for some people.

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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