Jewish Values Online - What options does traditional Judaism provide to solve the Agunah (chained woman) problem? Why are these not more broadly applied? Is there a chance to solve this issue once and for all?

Agunah

In most Western societies, marriage and divorce are acts authorized by the state. One is declared to be married or a divorce by an act of an agent of the government. However, according to traditional Jewish law, marriage is a private act between two parties consisting of an offer by the man (harey aht... you are consecrated to me...), the provision of consideration (usually a ring) and an acceptance by the woman. Divorce is also a private act consisting of a statement of release from the marriage (in the form of a writ of divorce, that states “you are free to marry whomever you want). This document, a gett, is given by the man and accepted by the woman. According to rabbinic tradition, in each transaction, the man proposes and the woman has the right to accept or reject.

Based on Deuteronomy 24.1, Jewish law stipulates that to end a marriage, a man must consciously and willingly grant his wife a get. When either party wishes to end a marriage, if he does not provide a gett, she might become an agunah (a woman “chained” to her partner). A woman might be “chained” because her husband is missing (immigration or war), incompetent (dementia or insanity), or unwilling to provide a get.

In the past, most agunah cases were due to lack of evidence of a husband’s death (which often would occur in war) or because of mental incompetence. At the end of the 19^th century, wide-spread immigration led to occasional abandonment of a wife. By the middle of the 20^th century, with the increase in divorce, many agunah cases arose as a result of conflict connected to the dissolution of the relationship. While women may also refuse to cooperate in the gett procedure, “chaining” the husband and impeding him from remarriage, the preponderance of cases involves women unable to remarry regardless of the circumstances (absence, inability or refusal of the husband) or length of time.

Maimonides ruled (Mishneh Torah, Laws of Divorce 13:28) that “one does not examine the witnesses thoroughly in agunah cases because the Sages said to be lenient in order to release agunot.” In such cases, rabbis seek to release women from a marriage by (1) locating and/or convincing/compelling the husband to provide a get; (2) providing significant circumstantial evidence of the death of the husband; or (3) establishing that the marriage was initiated in an invalid manner, thus voiding or annulling the relationship.

Rabbinic authorities are extremely reluctant to see marriages end by anything short of definitive and normative ways, so they usually seek resolution (1). If efforts to convince the husband to cooperate fail, then rabbinic authorities may seek to compel him to issue a gett. Keeping in mind that, according to Jewish law, a gett must be freely offered by the husband, such pressure rests on the notion that people really want to do the right thing but sometimes require “encouragement”. The Talmud discusses a number of cases when rabbinic authorities may pressure a husband to offer a divorce. “The man is forced until he says, 'I want to do so'" (Arakhin 21a; Rambam, Laws of Divorce, 2:2).

Rabbenu Tam (Franco-Germany, 13thC) indicated that the pressures which may be used include exclusion from the community, the denial of communal honours and benefits (such as burial) and even imprisonment. In contemporary Israel, rabbinical courts are allowed by law to implement various measures – such as suspension of a driver's license, closing of bank accounts, revoking professional licenses, cancellation of passport privileges, and incarceration - to persuade a man to grant his wife a get.

In cases when there is no formal halakhic rule stipulating such action, indirect pressure may be used. Nevertheless, to avoid the possibility that the gett might be be considered a "coerced divorce" (which is halakhically invalid), it is preferable that the man must have some degree of choice. In recent years, many Diaspora-based synagogues and Jewish communal organizations have been willing to publically identify and stigmatize men who do not willingly offer a gett.

Although rabbinic authorities have been willing to use a single witness or even circumstantial evidence of death (option 2), there is great concern that should the original husband reappear, the woman would be compelled to be divorced from her first and second husband and that children born from the second relationship will be declared to be mamzerim (legally illegitimate). In some circumstances, such as persons deported to death camps during the Holocaust (but no witnesses to their death) or the loss of Israeli submarine Dakkar, rabbinic authorities have declared men to be dead and allowed their widows to remarry.

Invalidating the initial marriage (option 3) is rarely used. There is a ruling by Rabbi Moshe Feinstein that impugns the status of the formal witnesses to the wedding, if the ceremony were conducted by a non-Orthodox rabbi, arguing that witnesses probably would not be Sabbath observant. This would invalidate the marriage and permit the woman to marry again. However, most rabbis are careful to properly select witnesses. A rabbinic court organized by Rabbi Emanuel Rackman was known to contend that the circumstances of the marriage were such that had the woman truly understood the nature of her partner and the type of relationship, she would not have entered into the marriage. Thus the marriage was created under false pretences and could be retroactively invalidated. The Conservative movement has contended that “all who marry do so under the authority of the rabbis” (Gittin 33a) and that if the supervising bet din were to remove that authorization because of the refusal of the husband to follow the directives of the rabbinic court, the marriage could be retroactively annulled (hafqa’at kiddushin). These approaches all invoke rabbinic authority in a quasi-governmental way.

Although halachically valid, these three approaches are not generally used, since they retroactively undermine a relationship that had been commonly accepted for many years. Moreover, although annulling a marriage has no impact on the status of the children, it may leave the wife vulnerable to another contradictory ruling that she was still married. In such a case, any new children would be considered mamzerim.

Other efforts to deal with the challenge of agunah have focused on what might be done at the start of a marriage to anticipate possible problems. Based on the Talmudic understanding of warfare in the period of King David, soldiers going to battle sometimes provided their wives conditional divorces. "Everyone who went to war on behalf of David, left a provisional get for his wife'" Shabbat 56a). Provisional gittin were used by the Jewish Welfare Board in World War 2, intended to go into effect only if the husband were missing in action.

Although the Chief Rabbinate of the State of Israel generally has rejected this approach on formal halakhic grounds and because it might lower the morale of troops, the Conservative rabbinate has suggested conditional marriage and divorce (tnai b’qiddushin) as one possible solution to the problem of a recalcitrant husband. Such an agreement would stipulate that if a civil divorce were ever granted, a gett must be delivered within six months of that date. This approach was also suggested by the renowned Orthodox thinker, Rabbi Eliezer Berkovits.

In the early 1950s, Rabbi Saul Lieberman of the Jewish Theological Seminary, developed an arbitration clause to be included in a ketubah as a codicil to the basic marriage contract. The clause stipulated that if the marriage dissolved, either the husband or wife could summon the other party to a rabbinic court authorized by the Jewish Theological Seminary. Moreover, each party pledged to follow the directives of the bet din (which could include ordering a man to give his wife a gett) and agreed that should one refuse to follow the determination of the bet din, the rabbinic court could bring the offending party to a civil court to compel compliance. Structured in this way, Rabbi Lieberman avoided the potential problem of a gett being compelled by a non-Jewish court (since it would only be enforcing the decision of a Jewish court).

Although the “Lieberman clause” was subject to Orthodox criticism as well as concern about possible violations of church-state distinctions, variations on his proposal have emerged as a generally accepted proactive approaches to the agunah issue. In the wake of a decision by the New York State Court of Appeals (Avitzur v Avitzur) that the ketubah was an economic contract and not a religious agreement, various governmental bodies worked with Orthodox rabbinic leaders to develop a law that would require divorcing couples to indicate that there were no legal impediments to subsequent remarriage.

Orthodox authorities also developed a pre-nuptial agreement that provided for the husband to pay significant daily costs to the wife if the two parties no longer lived together. This could be enforced in civil courts and remedied by the provision of a gett. While not identical to the “Lieberman clause”, each of these approaches adopted the same critical idea: a pre-marriage agreement invoking civil authority to support incentives for the provision of a religious divorce. Such pre-nuptial agreements are now more commonly accepted in the modern Orthodox communities of North America and Israel.

For couples without such advance agreements, rabbis return to the three models discussed above: (1) convincing the husband to offer a get; (2) providing significant circumstantial evidence of the death of the husband; or (3) establishing that the marriage was initiated under false pretences or in an invalid manner and nullifying the legal relationship. Many communities have established committees to monitor and censure individuals who refuse to cooperate to provide a Jewish divorce. Given the ongoing internal Jewish debate about halakhic development, I do not anticipate significant change in the situation.

Rav Baruch Frydman-Kohl

Anne and Max Tanenbaum Rabbinic Chair, Beth Tzedec Congregation

Toronto, CANADA

Answered by: Rabbi Baruch Frydman-Kohl

THE AGUNAH

There are many ways whereby the “Agunah problem” would be relieved, if not solved. The problem itself derives from the fact that the Torah ordains ”v’chatav lah sefer k’ritut,” (Deuteronomy 24:1) that the husband “shall write her a bill of divorce.” Taking that literally, the husband must accomplish the writing, and, especially in historic polygamy, greater authority is given to him than to her; when she does not agree, the divorce is not yet valid.

But the impasse of the “chained woman” can be unchained in several ways:

1) Social pressure could be exerted upon the husband to write the Get, when he desires it but she does not. That social pressure would begin from the husband’s moral duty to do what is right, and even goes from there so far to include his husband’s imprisonment -- in Israel, where the civil law allows it. Or, to announce or to publish in newspapers the “seiruv”, or refusal, to accommodate the husband. That refusal involves the exclusion by the Synagogue of aliyot to the Torah, or of other rights and privileges in the Synagogue or the community. Such social pressure may hasten to bring about relief.

2) Legal pressure, where that is possible. That begins with the Talmudic judgment (Yevamot 88a) that mishum igguna akilu bei Rabbanan, “for the relief of iggun, the Rabbis took the lenient side.” It has been pointed out that TaZ, the Turei Zahav of the 17^th century’s legal commentary, has written that unchaining the agunah is so important that even minority opinions may be relied upon to help that happen. The Sh’vut Ya’akov of Rabbi Yaakov Abulafia, a generation later, ruled that a beit din could even meet on Shabbat if that meant freeing an agunah. Maimonides himself (Mishneh Torah 13:29) allowed that one witness, not two, to suffice, again in order to help bring this about. In our days, Rabbi Emanuel Rackman (d. 2008) was bold in seeking leniencies for this end.

3) Practical pressure. Partly with this goal in mind, Rabbis have been instituting

documents known as the Prenuptial Agreements, or more simply Prenups, alongside their plans for marriage , recommended in greater frequency. These embody the agreed-upon rules upon potential mates, which include penalties for a change in plans. A recently created unit, known as the Organization for the Resolution of Agunot, uses these Prenups effectively. Their beit din can then litigate to establish financial fines to be paid, on an ongoing basis, by a recalcitrant husband, so that the suffering of the “chained wife” is reduced or withdrawn entirely. A notable rate of success has already been registered by the ORA in the small span of their six years of existence.

May the accelerating pace of compassionate efforts to find this relief grow further in the record of success.

Rabbi David M. Feldman

Answered by: Rabbi David Feldman, Z''L