Potential Solutions to the Agunah Problem

Orthodox and Conservative rabbis have worked to create solutions within the Jewish framework, including prenuptial agreements and retroactive annulment.

By Soriya Daniels

When a husband refuses to grant a Jewish divorce to his wife, she is an agunah–“chained” to the marriage. Were she to marry again without a get (a Jewish bill of divorce), any children she bears would be considered considered mamzerim, meaning they are allowed to marry only other mamzerim or converts. This article reviews the situation of agunot in Israel and the United States as well as solutions that rabbis have proposed. Excerpted with permission of the author from “A Chained Woman” in the Jewish News of Greater Phoenix.

Jurisdiction of Rabbinic Courts

In Israel, where all aspects of marriage and divorce are handled by the beit din [Jewish court], there is a special division of the beit din dedicated to resolving [divorce] cases that have been shuffled around the rabbinical court system for three years, according to [Dr. Isaac] Skolnik [director of Kayama, an organization whose aim is to inform the Jewish public about the importance of obtaining a get].

In America, by contrast, most divorcing parties are not subject to the beit din (in absence of a prenuptial agreement granting the beit din jurisdiction), and even if they were, the beit din lacks ability to enforce its own decisions. Skolnik also points to American legal problems concerning the division of church and state, a separation protected by the First Amendment to the United States Constitution.

The situation in Israel is a bit more favorable for women, according to Skolnik, since divorcing parties must go before a beit din.

In Israel, if a woman wants to divorce her husband and he does not agree, she must petition the rabbinical courts to decide whether she has grounds for divorce. When the pair do not agree on whether to divorce, the beit din insists on attempts at reconciliation, even after adultery or domestic violence. Once the court decides that the time for reconciliation has run out, they investigate whether the woman has grounds for divorce, and how strong these grounds are. One possibility is that they reject the suit, in which case the beit din does not even consider the woman an agunah. If they do find grounds for divorce, they order the husband to divorce his wife.

There are many cases in which the rabbinical courts have not forced the husband to give a get. In one case, the beit din held that despite the husband having had sexual relations with prostitutes, it is not enough grounds to obligate or compel divorce, since he expressed remorse. The court merely recommended divorce. Similarly, in Israel, domestic violence is often ignored by the beit din if the husband says he wants shalom bayit, a peaceful relationship.

Using Sanctions Against a Recalcitrant Husband

It is important to note that while sanctions are available, the process to implement a sanction is protracted and comprises three stages: first, a decree by the beit din, followed by two secular stages. According to the rabbinical courts’ own statistics, in January 1998 sanctions have been imposed 106 times in three years, and have only achieved the desired goal of divorce in 43 of these cases.

Imprisonment, moreover, is only used in about one or two cases a year. Imprisonment is so rare because in practice, the couple has to have been separated for at least seven years, in addition to which the woman has to prove that the man is impotent, gay, or violent. According to International Jewish Women’s Human Rights Watch, eight recalcitrant husbands are now in prison in Israel for refusing their wives a get.

Extortion Sometimes Yields Get

It is also not uncommon in both Israel and America for husbands to extort money from their wives. Susan Weiss, an attorney and director of Yad L’Isha, another Jewish organization helping free wives from agunah, points out that some husbands will not issue the wife a get unless she contractually agrees to indemnify him (reimburse him) for any future support awarded by the court. This, in essence, deprives her of alimony and child support. Other times, Weiss points out, husbands demand money or concessions in return for issuing a get.

Secular Law Helps Agunot

Under Israeli law and in a few North American jurisdictions, such as New York and Montreal, withholding a get is considered a compensable injury under tort law, which addresses private or civil wrongs or injury. Initiating action in civil court under tort law often causes a recalcitrant husband to have “a change of heart.”

The Israeli civil court has ruled that “unlawful infringement of personal feelings as a result of not honoring a person’s basic right to shape his life as he wishes constitutes an infringement of the welfare of that person, and it is encompassed by the definition of ‘injury.'”

Similarly, in April 2001, a New York Supreme Court judge held that a husband who withholds a get is liable for the tort of intentional infliction of emotional distress.

What is colloquially known as the “first New York State Get Law” withholds a civil divorce until all barriers to the spouse’s remarriage are removed. Halakhic [Jewish legal] authorities, including the widely respected Rabbi Moshe Feinstein, approved of it.

The law, however, was heavily criticized mostly from an American constitutional perspective. The law will work to help agunot only if it is the husband who applies for a civil divorce while denying a get. If it is the wife who applies for a civil divorce, or if the civil divorce was granted before the religious, the first New York Get Law is of little use.

As its name implies, there is a second New York State Get Law, which is an amendment to the1992 Equitable Distribution Law, governing property settlements in divorce proceedings. In essence, it allows the presiding judge to factor in to the property settlement whether the husband issued his wife a get.

Rabbis Suggest Creative Solutions

The agunah problem is far more difficult to solve in the United States, where divorcing parties are not automatically subjected to a beit din’s jurisdiction. According to “Jewish Law Watch,” the biannual publication of the Center of Women in Jewish Law (part of The Schechter Institute of Jewish Studies, located in Jerusalem), actual agunot cases have languished for years in both Israel and America without resolution.

While this painful problem lacks a uniform solution, rabbis from both Orthodox and Conservative Judaism have found creative means within a halakhic framework to extricate women in agunah.

For instance, once a civil divorce has been obtained, the Beit Din Zedek LiBaiot Agunot, spearheaded by Rabbi Moshe Morgenstern, takes action to free an agunah. Morgenstern, a Torah scholar and posek (judge) who received ordination from Torah Vada’at and Feinstein, has ruled: “When all other methods have failed, we do not extort a woman, or cause her to live in celibacy or childlessness because her vindictive spouse has decided to withhold divorce. We simply say: At the time of the marriage, she didn’t know what a sadist this man has proven himself to be. Therefore, her agreeing to marry him is a mistake.”

His solution comes from the notion that marriage is a contract and when one side falsifies the terms (by being a secret sadist), then the marriage was invalid to begin with and may be annulled by a rabbi. This way, says Morgenstern, the woman does not have to pay any exorbitant bribes or track him down and beg him.

Morgenstern’s court, together with his colleague Rabbi Emanuel Rackman, have freed 300 agunot in what he calls “a simple, humane, and halakhic way.” He adds, “The worst lock of all is the frumkeit [excessive religiosity] lock… who are programmed to think it is okay to keep an agunah locked up because of their own excessive piety.”

According to Morgenstern, the heter (permission) key unlocks her, simply by doing what other great rabbis of our past have done: using rabbinical power to change even a divine command if it will prevent suffering and cure injustice.

Rabbinical authorities have denounced Morgenstern and Rackman’s rulings and only one of the women freed by Morgenstern’s court is free to remarry in Israel. Rivka Haut, an Orthodox feminist and activist for agunot, even expressed that the Morgenstern/Rackman beit din made the situation worse because not even within Orthodoxy will it be taken for granted that a divorced woman really is divorced and able to remarry. The critics maintain that the Beit Din Zedek LiBaiot Agunot will annul marriages for reasons that are far beyond what the halakhah allows for.

Feinstein, whose opinions on matters of halakhah are of enormous importance today, annulled marriages if he could find a defect in the marriage ceremony, including the presumed non-kosher (translation: non-Sabbath-observing) witnesses involved in weddings performed under Reform or Conservative auspices.

Irwin H. Haut, who was an Orthodox rabbi and practicing attorney in the United States, held that the only viable and complete solution is legislation and called for the Israeli rabbinate to enact such legislation. He envisioned a Jewish decree under which “the refusal of one spouse to participate in get proceedings, after the civil dissolution of their marriage, would result in the retroactive annulment of that marriage.” The solution resembles what the Conservative movement uses today.

Conservative rabbis do require a get and the Conservative movement has worked hard to find solutions to the agunah problem and yet remain faithful to tradition. Under the leadership of Rabbi Saul Lieberman, the idea of an appendage to the ketubah (marriage contract) was introduced. Known as the Lieberman Clause, it states that if the marriage ends in a civil divorce and either spouse refuses to participate in the get procedures, the matter will go before a beit din and the parties would be bound by the rabbinical court’s decision.

If the recalcitrant party would refuse to go before the beit din or follow its ruling, compensation would be imposed and enforceable by a secular court since it would constitute a breach of contract. This clause is rejected by most Orthodox rabbis as invalid because it is indeterminate and vague, apparently cause for halakhic concern. It was also rejected by the Supreme Court of the United States as unconstitutionally entangling church and state.

Rabbi Eliezer Berkovits, an [Orthodox] leader known for creatively combining halakhah with solutions to modern problems, brought forth a suggestion of annulment of the marriage by the rabbinic authorities, if certain conditions, stipulated in a separate prenuptial agreement, were not met. The husband agrees therein that if the wife seeks a divorce and he does not grant her a get, the marriage will be annulled retroactively.

Today, the solution used by the Conservative movement is to annul marriages, based on cases in the Talmud. In short, the concept is that all Jewish betrothals are done with the consent of the rabbis, and the annulment consists of the rabbis removing this consent if the recalcitrant husband refuses to grant a get. This differs from Berkovits’ solution, in that no additional conditions or agreements need to be signed. Again, Orthodox authorities have criticized this.

The Reform rabbinate as a whole does not require a get in order to perform a marriage for a Jew who has been previously married. A civil divorce is enough. However, many individual Reform rabbis do require it. The Reconstructionist movement does use a get, but in the case of a woman whose husband refuses to give her a get, a Reconstructionist beit din simply gives her a document that states that she is free to remarry anyway. Clearly, this get is not obtained within the parameters of halakhah. (It should also be noted that some Reconstructionist rabbis encourage couples to obtain an Orthodox get to fulfill any halakhic (legal) requirements that may arise in the future, and the Reconstuctionists get to satisfy any number of personal needs.)

It is noteworthy that the Chief Rabbinate of Israel has approved the use of prenuptial agreements. The Rabbinical Assembly of the United States [a Conservative organization] has also approved of their use. These agreements, on the other hand, tend to give women a feeling of safety that is not quite true. A guaranteed submission to the beit din is not a guaranteed get. Moreover, surveys have shown that marrying couples have an aversion to this approach since discussing divorce while planning their wedding would be contrary to the feelings they share for one another and could cause a rift.

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