With Jewish marriage and divorce both derived from ancient property law, the balance of power for each lays with the man: The man gives the wife a ring, repeats an ancient formula in front of two witnesses, and they’re married. The man hands his wife a get (a Jewish bill of divorce), states that his wife is “free to become the wife of any man,” and the union is dissolved.
Power Dynamics
Because husbands have so much power over the wife in a divorce situation, they sometimes use this power to extort money, property, or other concessions from the wife in exchange for granting her a get. If the husband refuses to give her a get or for some reason cannot do so, the wife becomes an agunah, a chained wife who, according to Jewish law, cannot remarry. The obstacle to remarriage is that any children she conceives will be mamzerim–who can marry only other mamzerim or converts. The husband, however, is free to remarry, because biblical law allows polygamy, and only a rabbinic ban prohibits it.
Before the modern era, the agunah issue was somewhat less of a problem. When Jewish communities were strong and rabbis had more power, the husband could often be persuaded to give his wife a get–through negative public opinion, social ostracism, and even excommunication. Today in Israel, the rabbinic courts still have the power to use sanctions against a recalcitrant husband or imprison him, but some have accused them of not using these tools extensively.
Solving the Agunah Issue
Potential resolutions for the agunah issue have been sought in both secular and religious realms. One example, known colloquially as the “first New York State Get Law,” withholds a civil divorce until all barriers to the spouse’s remarriage are removed. Such a law, however, has the potential to be ruled invalid because of church-state issues. And according to Jewish law, any coercion by a civil court must be at the behest of a Jewish court or a resulting get will be invalid.
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Religious solutions to the agunah problem vary across the Jewish movements. For traditional Jews who accept that the children of a woman who remarries without a get are mamzerim, any proposed solution must be accepted as halakhically valid across the Orthodox movement. If a particular solution is accepted in some quarters and not in others, then the children of remarriages will still have the status of “mamzer.” A partial solution that has gained currency and halakhic approval in recent years is for a couple to sign a prenuptial marriage protection agreement. These agreements can help secure a woman’s freedom to remarry in case of divorce. Another course of action is for a rabbinic court to annul a marriage if it finds that the husband had some “defect” that the wife did not know about when they married (such as mental illness) or that some aspect of the marriage ceremony was not “kosher” (such as the witnesses were not valid).
The Conservative movement has developed its own form of a prenuptial agreement (not accepted by many Orthodox rabbis) and has a broader understanding of annulment than the Orthodox movement, allowing rabbis, as arbiters of Jewish law, to grant annulments more freely.
The response of the Reform movement to the situation of the agunah was to dispense with the get altogether and accept civil divorce as fully dissolving a marriage. The Reconstructionist movement also accepts civil divorce if the husband will not grant a get. Its concern with egalitarianism is reflected in the three types of get it does offer: traditional, woman-initiated, and mutual.
In both the Reform and Reconstructionist movements, many divorcing couples are requesting some form of religious divorce to provide spiritual and psychological closure to a marriage. A religious divorce ceremony allows these couples to acknowledge the pain and loss of divorce in a meaningful way, and the movements are increasingly advising divorcing couples to pursue a get or other religious marker of the end of their marriage.
Beyond the mechanisms and rituals of the divorce itself, those who are divorced and the community-at-large are faced with questions regarding the relationship between newly single adults and their synagogues or other Jewish institutions. The Jewish emphasis on family can serve to alienate the divorced, and recently divorced people often look to their rabbis and synagogues for support that is sometimes lacking. As the divorce rate rises in the Jewish community, the problem becomes more acute.
