The agunah problem has not gone away. Every so often it rears its ugly head and we witness yet another horrifying display of cruelty on the part of a seemingly religious man who refuses to give his wife a get – a Jewish writ of divorce. The victim of get-refusal, the modern day agunah, may be civilly divorced but she is chained to a man who is controlling her life — as he is her husband according to Jewish law. Through the abuse of Jewish law the get-refuser abuses his former wife, their joint children and the potential of bringing future Jewish children into the world.
In this era of human rights and personal autonomy, Orthodox Jews no longer turn to their rabbis to ask them about a principle of common sense: if a marriage is over, each spouse should be freed in order to rebuild a life. There may be no need to ask the rabbi about that clear value, but there is a need for a rabbi’s intervention when a spouse is disdainful of it.
Unfortunately, for a growing number of victims of get-refusal and Jewish society at large, rabbis’ intervention has many times proven to be ineffectual, more so in the Diaspora than in Israel. There are two manners in which to dissolve a marriage – divorce or annulment of the sanctification bonds (kiddushin). In a Jewish divorce, as opposed to a civil divorce, the marriage is ended when both spouses agree to do so. The ability to change their personal status from married to “remarriageable” lies literally in their own hands. The man must willingly drop the writ of divorce from his hand into the woman’s open hands. The Rabbinical Court does not have the power to decree they are divorced. In fact, in the Diaspora the rabbis have no legal jurisdiction over the couple and cannot even haul a recalcitrant husband into the court. This is as opposed to the Israeli Rabbinical Courts which not only have legal jurisdiction over personal status, but have the power to levy sanctions against a recalcitrant husband or wife – although they too do not have the authority to dissolve the marriage through a divorce decree.
In the second type of dissolution of a marriage, namely annulment, the power actually lies in the hands of the Rabbinical Court. If the rabbis find cause in accordance with Jewish law to annul a marriage, they can rule accordingly even in the face of protestations of a recalcitrant husband. However, the laws governing annulment are so numerous and complex, with multiple disputes, that one could probably count on the fingers of one’s hands the number of rabbis today that are willing to render such a decision. As the rabbinic establishment says – one needs very broad shoulders to carry such an opinion.
In coping with the agunah problem there have been instances of laypeople and rabbis taking matters into their own hands. Several decades ago the Rabbinical Council of America (RCA) developed the halakhic prenuptial agreement for the prevention of get-refusal. The prenup continues to be promoted by the arm of the RCA – the Beth Din of America. This has proven to be a strong, effective preventative solution. The hands that sign a halakhic prenup protect a woman from get-abuse.
In cases where there is no preventative solution in place, the International Beth Din (IBD) in New York has taken upon itself the challenge of developing deep halakhic methods of annulment of the marriage in a hopeless situation. The number of hands that are raised in support of the IBD’s halakhic methodology will determine the endorsement of its rulings.
In parallel, laypeople who understand the responsibility handed to them by virtue of parenthood, make sure that their marrying children sign a prenuptial agreement for the prevention of get-refusal. Recently, communities have demonstrated support for the requiring of marrying couples to sign – by holding postnuptial signing events. The hand that signs a postnuptial agreement is a hand that lays down a family and communal minhag – binding custom: every couple must sign a halakhic prenup.
In outrageous cases of get-refusal, the agunah herself or members of her community have taken matters into their own hands with or without rabbinic sanction, utilizing the tools of the internet, the press and social media to employ “shaming” of the recalcitrant husband. Others have pulled their hands away from business dealings with a get-refuser.
What other creative ideas can be developed within Jewish law to solve instances of get-refusal and the agunah problem in general? I leave it in your hands.
