The Modern Day Agunah: In Retrospect
Posted on 7:14AM October 05, 2004 | Email This
The most serious challenge facing Jewish women today, is the modern day agunah, women whose marriages have failed, but who cannot obtain a get from their husband.(1) For even if their marriage is dissolved by civil authorities, under Jewish law the couple remains married and unable to enter into a new marriage, leaving married Jewish women exposed and endangered to years of anguish and blackmail.Historical Overview(2)
When considering the history of get, it becomes clear that the modern agunah problem is one born of the American Jewish experience.
The Torah states "and he shall write her a bill of divorce and place it in her hands" (Deut. 24:1). In other words, the giving of a get is the husband's exclusive domain. He and only he can initiate divorce and he may effect divorce unilaterally. While it is difficult to pinpoint why the Torah so decreed, it could be suggested that since women in biblical times found it difficult and even impossible to fend for themselves socio-economically, they would under no circumstances desire a get.(3) The Torah reflects this reality by providing that the husband give a get as the wife would never initiate such a proceeding.
This unilateral right of the husband to divorce his wife was limited by the advent of the ketubah (marital contract)(4) which details the many obligations that a husband has to his wife, including an amount of money that his wife would receive in case of divorce. In this way, a husband's absolute power to divorce his wife was severely restricted. This financial obligation would make him think twice before indiscriminantly giving a get to his wife; thus the ketubah served as a deterrent to the unilateral divorce.
The unilateral power of the husband to give the get disappeared in its entirety a thousand years ago when Rabbenu Gershom declared that a get could not be given without the wife's consent. If the ketubah made it difficult for a husband to unilaterally divorce his wife, Rabbenu Gershom obviated that unilateral power in its entirety. The get became a bilateral process rather than a unilateral one.
With time, the get process entered yet a different stage, a stage in which women could initiate a get. In the middle ages, for example, central communities in Europe were governed by the Va'ad Arba Aratzot, the committee of the four major Jewish population centers. Jews there had their own political sovereignty and judicial autonomy. In such a setting, the courts ruled with an iron hand and their decisions had to be followed. Given the fact that mobility was difficult, and, moreover, the relationship between these respective Jewish communities was sound, few people could escape a decision not in their favor. In this situation a woman could start the divorce proceedings by going to a bet din and registering complaints against her husband.(5) If the bet din found her claims reason enough for divorce, it was powerful enough to order the husband to give the get to his wife.(6) While the get was still physically given by husband to wife, it was effectively taken out of the husband's exclusive domain and placed into the domain of the bet din. As long as the bet din was strong enough, the agunah problem was resolved.
Of course, the situation in the United States at this time is different. Here, because of the principle of separation of Church and State, a bet din has no legal power to implement its decisions. In this sense, American Jews are weaker than their counterparts who lived in Babylonia or medieval Europe. In the United States, as in other places in the exile, a husband can flout the demands of the bet din and simply refuse to give his wife a get.
This has created a situation where a husband could blackmail his wife by demanding exorbitant sums of money or custody of their child(ren) before giving his wife a get, even when the bet din believes the get should be issued.
Solutions
In the past, several approaches have been suggested to solve the agunah problem. Many of the suggestions have been rejected by the rabbinate.
For example, in the late 19th century, Rabbi Michael Weil of Paris suggested that all marriages be made conditional. At the marriage ceremony, the groom would say to his bride "Behold, you are wed to me; however, if the judges of the state will divorce us and I not give you a Jewish divorce, this marriage will be retroactively invalid."(7) The proposal was rejected by the European rabbinate. In 1967 Rabbi Eliezer Berkovits of Skokie IL, attempted to reopen the issue of conditional marriage. It too was rejected. The rejection, in no small measure, had to do with the belief that a conditional marriage would undercut what should be the unconditional commitment between husband and wife.(8)
In 1954, Professor Saul Lieberman of the Conservative movement's Jewish Theological Seminary introduced a new clause to the Conservative ketubah. In it, bride and groom agree that the Rabbinical Assembly bet din will arbitrate in case of divorce. Thus the husband would be obliged to give his wife a get if the bet din so decreed. In the event he refused, the new stipulation provided that the bet din would "impose such terms of compensation as it might see fit, for failure to respond to its summons to carry out its decision." Professor Lieberman maintained that the civil courts could enforce this agreement.
The Lieberman proposal was rejected by the Orthodox rabbinate. The latter argued that an agreement to pay a non-specified amount of money is an asmakhta, and not halakhically valid.(9) Moreover, constitutional questions were raised as to whether the civil courts could enforce the ketubah which many viewed as a religious document.(10)
Today, however, there have emerged three viable halakhic options.
A. Sanctions
One is to impose communal sanctions--both social and financial--on the recalcitrant party. In 1979 Rabbi Saul Berman and I drafted such a proposal and submitted it to the Rabbinical Council of America's Commission on Divorce. It included announcing the recalcitrant party's name every Shabbat morning in synagogue, publishing the recalcitrant party's name in the Anglo-Jewish press and general newspapers, and calling upon members of the community to avoid social and economic relations with such persons. For the past fifteen years it has been my practice to ban recalcitrant spouses from entering our synagogue.
Rabbi Berman and I also suggested that the RCA look into the legality of placing regular telephone calls at all hours of the day or night to the recalcitrant's home or business, using direct and repeated contact with employer and/or business associates to explain the gravity of the moral turpitude involved, picketing the recalcitrant's home or place of business, and systematically interfering with the earning capacity of the recalcitrant party.
Writing on the subject of sanctions, Rabbi Joseph Grunblatt in the RCA's Family and Marriage Newsletter (Spring 1979), declared "The least we can do is to recite every Shabbat morning a curse against those who make others suffer, just as we recite a blessing for those who work for the needs of the community."
B. Civil Legal System
A second approach is to solve the problem through the civil legal system. An example is the New York State Get Law, which says that the plaintiff must remove all barriers that would prevent his spouse's remarriage before a civil divorce could be granted. There is no issue of kefiyah (forced get) in the original New York Get Law, since the civil court was only acting to withhold a civil benefit, which is of no recognized religious value.
The 1992 amendment to the New York Get Law has raised kefiyah problems because, as I understand it, it empowers the judge to take into account the husband's refusal to issue a get, in the judicial determination of the equitable distribution of the marriage property. Here, Rabbi Saul Berman has argued that this could constitute kefiyah as there is direct monetary pressure placed upon the husband to influence him to issue a get.
C. Prenuptial Agreement(11)
A third approach has every bride and groom sign a prenuptial agreement.Such an agreement was drafted in the early 1980's by the RCA's Commission on Divorce chaired by Rabbi Abner Weiss. The agreement had the approval of Rav Yosef Dov Ha-Levi Soloveitchik of blessed memory. The agreement states that bride and groom agree that, in case of dissolution of the marriage by either divorce or annulment, each party consents to a get, that is, the husband agrees to issue the get, and the wife agrees to accept it. There is recognition in the agreement that the refusal of either party to give or receive the get results in actual damage to the party then kept unable to remarry against his or her will. Compensation for that damage is agreed to in advance by a specified per diem sum. There is no kefiyah as the payment is not a penalty to compel the husband to give the get, but rather a payment to compensate his wife for the damages imposed on her. Or, if the situation is the reverse, and it is the wife who refuses to receive the get, she compensates him for the damages she has imposed on him.
The prenuptial agreement drafted by Rabbi Mordechai Willig is different. It stipulates that for every day that husband and wife are separated, even prior to divorce, the wife is entitled to demand of her husband a specified per diem sum for her support.(12) Both husband and wife agree prenuptially to come before a previously designated bet din to arbitrate the get. Should the wife refuse to appear before the court or fail to abide by the court's decision, the husband's financial obligation is terminated.
This prenuptial agreement has been approved by Rabbi Ovadiah Yosef, former Sephardic Chief Rabbi of Israel, and Rabbi Zalman Neemiah Goldberg, who serves on the Bet Din of Jerusalem. The agreement has also been approved by the RCA, which urges its members to use it. The support that this document has received from across the Orthodox rabbinic spectrum makes it an extraordinary breakthrough.(13)
Importance of the Prenuptial
From my perspective, it would be irresponsible for any rabbi to perform a wedding without a prenuptial agreement having been signed. This has been my policy since 1984 and indeed, my own children have signed the prenuptial agreement.
In fact, it would be wise for our community to begin a campaign to have married couples similarly sign a postnuptial agreement. Not only would this be important for married couples, but it would also teach our children by example how crucial this document is.
So important is the prenuptial agreement, that it and the larger issue of agunah should be part of yeshiva curricula, in lower schools, high schools and colleges. I've devoted segments of courses in my classes at Stern College, Yeshiva University, to teach this issue.
And to underscore how critical it is to confront the agunah problem head-on, a special prayer for agunot should be recited in synagogue to sensitize our community to the agunah horror and our responsibility to resolve the issue.
A Final Word
There are many who ask "how can a rabbi insist that bride and groom, so deeply in love, sign a prenuptial agreement which deals with divorce?" The truth is that bride and groom already commit themselves to the ketubah which is primarily an alimony and insurance policy. As it is impossible for rabbis to pefform a wedding without a ketubah despite the fact that it deals with marriage termination, so should the collective rabbinate declare that no marriage will be peformed without a prenuptial agreement.
Moreover, it is the rabbi's sacred task to tell and teach each bride and groom that a test of love is how one prepares when in control, for those moments when one is not in control.
The Talmud notes that God gathers the tears of those who divorce.(14) Divorce is painful enough. In recent years, with the surfacing of many agunot, it has become more painful. Perhaps, more than most of my colleagnes, I've seen the suffering of many agunot. This is because over the past 25 years, I've taught Torah to thousands of students at Stern College. Almost everywhere I go in my travels, a former student approaches me to share her agunah plight.
Too often we've heard the agunah cry out "if only I had signed the prenuptial agreement." It's a cry we should all heed.
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Footnotes:
1. While such issues as women in prayer and women in Talmud Torah have precipitated much discussion, it is the agunah problem that is far more overbearing, as it prevents women from marrying and continuing their personal lives. According to a paper published some years ago by an organization called Agunah, "there are an estimated 3000, to 6000 agunot in the U.S. and Israel."
2. Many thanks to Rabbi Shlomo Riskin, from whom I first heard the framework of this historical overview. See his excellent book, Women and Jewish Divorce, (New Jersey: Ktav, 1978).
3. See Resh Lakish's comment in Kiddushin 41a, "A woman would rather live with grief than live alone."
4. Some suggest that the ketuba goes back to biblical times. Others believe that it was instituted by Rabbi Shimon ben Sheta in 40 B.C.E.
5. The ability of women to initiate the get goes back to Amoraic times. See Rabbi Shlomo Riskin, Jewish Divorce, p. xii.
6. Of course, if a secular court coerces a husband to give the get, the get is invalid. However, if the secular court coerces a husband to follow the decree of the bet din, the get is valid. See Mishnah Gittin 9:8; Rambam, Code, Laws of Divorce 2:20; and Shulan Arukh Even ha-Ezer 134:5, 8, 9.
While the purpose of this paper is not to analyze what constitutes a forced get, note Rambam, Code, Laws of Divorce 2:20. There, Rambam the arch rationalist, resorts to a mystical argument when discussing the issue of kefiyah (forced get). He argues that every Jew possesses a higher will and desires to do the right thing. Therefore, if the bet din concludes that a wife's claim for divorce is justified, the bet din would merely be forcing the husband to do that which he in truth wants to do, i.e., give the get.
7. Quoted by Rabbi Moshe Meiselman, Jewish Women in Jewish Law. New York: Ktav Publishing House, 1978, p. 104.
8. See Rabbi Eliezer Berkovits, in Tnai be-Nisuin ve-Get (1967). See Rabbi Meiselman's volume for a summary of this proposal, pp. 104-108.
9. See Rabbi Norman Lamm, "Recent Additions to the Ketuba," Tradition 2, 1 (Fall 1959) pp. 93-119. In his words: "the essential fault of the Conservative proposal ... is its extremely indeterminate nature, a vagueness which Jewish law cannot tolerate as the proper basis for legal negotiation."
10. Some experts maintain the ketubah is a personal contract between two people which the civil courts can uphold. See Irwin H. Haut, Divorce in Jewish Law and Life, New York: Sepher-Hermon Press, 1983, pp. 81-82.
11. Rabbi Moshe Tendler is of the opinion that the ketubah itself can resolve much of the agunah problem, without resorting to a separate prenuptial agreement. To this end he has produced a document detailing the husband's obligation to his wife as found in the ketubah itself. The document is signed when the ketubah is witnessed. It is Rabbi Tendler's position that such a document--which is in effect a prenuptial agreement--constitutes real financial pressure on a recalcitrant husband. There are no new penalties, hence no problem of a get me'useh (forced get.) Furthermore there is no church-state dilemma, because the contract does not compell any religious act. The parties to the ketubah merely agree that the contract is abrogated once the specific act is performed.
12. The ketubah obligation of the husband to sustain his wife in marriage only applies when husband and wife live together. If they are apart even prior to divorce, the wife must demonstrate that their separation is her husband's fault in order to continue receiving financial support. In the prenuptial agreement drafted by Rabbi Willig, the husband undertakes an independent support obligation which takes effect only in the event of separation.
13. There are numerous other prenuptial agreements that have been drafted. See David Joseph Mescheloff, "The Problem of the Forced Jewish Divorce and Prenuptial Agreements as a Solution to the Problem of Abandoned Wives," MA Thesis, Bar Ilan University, 1994.
14. See Gittin 90b
