OHR SOMAYACH'S ASK THE RABBI 
Issue #253, November 6, 1999 
Parshat Chayei Sarah
=====================================
In this issue:
THE PLIGHT OF THE AGUNAH AND A SUMMARY OF POSSIBLE SOLUTIONS 
=====================================

THE PLIGHT OF THE AGUNAH AND A SUMMARY OF POSSIBLE SOLUTIONS

Rachel Forman <Thurbie@aol.com> wrote:

Dear Rabbi,
Hello! I have been wondering about a controversial topic in Orthodox 
Judaism -- the fact that it can be extremely difficult for women to get a 
Jewish divorce, if the husband does not agree to the divorce. Why 
should it be so difficult for the women to get a divorce? This does not 
make sense to me. I love my Jewish religion, but I find it very hard to 
understand this one aspect. Please clarify it for me. I would greatly 
appreciate it! 
 
Dear Rachel Forman,

	One of our Rabbis, Rabbi Yitzchak Breitowitz, has written 
the following essay on this topic:

THE PLIGHT OF THE AGUNAH AND A SUMMARY OF 
POSSIBLE SOLUTIONS
Rabbi Dr. Yitzchak Breitowitz

The problem of the agunah -- the "chained" or "anchored" wife -- is a 
serious one, though it is not as prevalent as many Jewish feminists 
maintain. The term "agunah" appears in the Talmud primarily in 
connection with a husband who disappeared or was missing in action. 
While such agunot (plural of agunah) certainly exist in this day and 
age as well (consider the Holocaust or the Israeli soldiers who are 
MIA's), the primary use of the term today refers to a woman who 
cannot obtain a religious divorce (a "get") even after her marriage has 
been civilly terminated and hence is prohibited from marrying others. 
Husbands sometimes withhold such a divorce out of malice or spite or 
an attempt to extort money or concessions in the areas of child 
support, custody, visitation, or marital property. Whatever the reason, 
the withholding of a "get" can be a source of great anguish to a 
woman, and it is incumbent upon the halachic community to do 
whatever it can within the framework of halacha to enable these 
unfortunate women to rebuild their lives anew.

THE FUNDAMENTALS OF JEWISH DIVORCE LAW

To understand the nature of the problem and why solutions are not 
easily found, it is necessary to explore some of the dynamics of the 
Jewish law of divorce. Briefly, this law consists of the following 
propositions:

	A halachically-valid marriage may be terminated only by the 
death of either spouse, or by the husband (or his agent) delivering to 
the wife (or her agent) a specially prepared document known as a 
"get." A civil divorce has absolutely no validity in the eyes of Jewish 
law.

	If a woman attempts to marry without obtaining a get, the 
second marriage is null and void, the relationship is adulterous, and 
any children born from that union are tainted with the irreversible 
stigma of "mamzer" (illegitimacy -- note that a child born out of 
wedlock is not a mamzer but a child born from an adulterous 
relationship is, and cannot marry anyone except another mamzer or a 
convert, and in either case their children all continue to be 
mamzerim.)

	A get must be authorized by the husband. Even the most 
eminent rabbinic court cannot (except in the rarest of circumstances) 
terminate, dissolve, or annul a marriage. Moreover, the husband's 
authorization must be without duress or compulsion. If the husband's 
consent was obtained by such duress, the get is termed a "get meusah" 
(coerced get) and is invalid (but see below).

	Under specifically defined circumstances such as abuse, 
abandonment, non-support, refusal to cohabit, a Jewish rabbinic court 
known as a beit din, pursuant to a petition or complaint filed by the 
wife, may order the husband to authorize the writing of the get. Note 
that even here, the beit din does not terminate the marriage but merely 
orders the husband to do so.

	If, and only if, the duly qualified beit din issues such an 
order, the restrictions on get meusah are inapplicable and the order 
may be enforced even by physical force. Thus, an identical instance of 
force or compulsion that would invalidate a get in one instance, i.e., 
no order of beit din, may be totally permissible and appropriate in 
another, i.e., such an order was obtained.

WHAT CANNOT BE DONE

Any halachically-acceptable solution must work within these 
parameters. Thus, proposals that call for the recognition of civil 
divorce, or that would allow a woman to give a get to her husband, or 
that would allow a beit din to annul a marriage without a get 
(kiddushei ta'ut), or that would allow the beit din to write and issue a 
get on behalf of the husband without the husband's consent or 
authorization (get zikui), or that would attempt to secure that consent 
by duress or compulsion (except as stated in the paragraph above) will 
by definition fail to solve the problem because none of these methods 
terminates a marriage halachically.

	There is a beit din operating out of New York that seeks to 
release agunot by either annulling the marriage on the grounds of 
fraud or mistake, or by acting as the husband's agent in writing a get 
in spite of his vociferous objections to the contrary. This beit din has 
received much positive coverage in the popular media and is often 
touted as a savior for agunot. In light of this widespread 
misconception, it is important to note that the rulings and general 
approach of this beit din have been roundly condemned and rejected 
by virtually all reputable halachic authorities in the world and its 
decisions are held to be without any validity whatsoever.

	One may resent halacha or decline to follow it, as regrettably 
so many Jews have decided to do, but it is fraudulent to claim that 
halacha allows certain things that it simply does not. The requirement 
that a Jewish marriage be terminated by a get, and that a get may be 
authorized only by the husband, is stated explicitly in the Torah, is 
reaffirmed countless times in the Talmud, and is not open to legitimate 
debate. One may of course raise the question of why it is that only the 
husband can authorize the get, and here admittedly our understanding 
is limited. Perhaps the Torah requires that a marriage be terminated 
the same way it is created -- by the husband's giving something to his 
wife. Perhaps the Torah took away the woman's right to divorce the 
man because it was more confident of her superior ability to stabilize 
and improve a relationship and did not want to give her a quick and 
easy exit. We really don't know, but to the believing Jew, this 
ultimately makes no difference. The Written and Oral Torah of 
Hashem establish the parameters within which this problem must be 
addressed, and any "solution" to a halachic problem that is anti-
halachic is by definition illegitimate. (Note also that at least since the 
11th century, Jewish divorce requires mutual consent, so that if a 
woman refuses to receive a get, a man can be in the state of igun as 
well.)

WHAT CAN BE DONE?

In Israel, rabbinical courts are empowered by the secular law to deal 
with all issues of marriage and divorce. Thus, in the State of Israel, if 
a man was ordered by a beit din to give a get to his wife and he 
refuses, he may be imprisoned until he complies. (Note that this is no 
panacea -- some men who refuse to comply are already serving prison 
sentences. In one case, a man remained in jail for over thirty years for 
refusing to give a get to his wife until he eventually died.) Other 
sanctions include revocation of driver's license or passport, 
termination or denial of employment. These sanctions appear to 
coerce, but because they are efforts to enforce the decision of a beit 
din, they constitute halachically-acceptable mechanisms.

	Outside of Israel, the decision of a beit din are generally not 
enforceable by the secular courts. A beit din may issue an order but 
there is no particular means to back it up. Even there, however, the 
beit din does have the power to excommunicate the recalcitrant 
husband; synagogues can and should exclude him from membership 
and honors (including, for example, attending his son's Bar Mitzva). 
Admittedly, bans of excommunication issued by one beit din are often 
routinely ignored by other groups and thus don't have real bite. As a 
result, batei din are often reluctant to even issue the cherem 
(excommunication order) but nevertheless, the potential for a 
powerful and effective remedy is clearly there.

	Some authorities have advocated a pre-nuptial agreement 
signed at or before the wedding in which the parties agree to submit 
their marital disputes to a beit din and abide by its decisions. 
According to secular law, this would constitute an arbitration 
agreement. Such agreements are legally enforceable by the imposition 
of fines or even imprisonment. Thus, by the expedient of such an 
agreement even the decisions of a beit din outside of the State of Israel 
could be civilly enforced. (Such an agreement would be totally 
superfluous for couples residing in Israel since the decisions of a beit 
din are enforceable even in the absence of an agreement.)

	An alternative type of pre-nuptial agreement -- which can 
either stand alone or be signed together with the one mentioned above 
-- and one that would be effective and useful in Israel as well -- is an 
agreement that stipulates that for the period that husband and wife will 
not be living under the same roof, husband will pay wife X amount of 
dollars per day to cover her support needs until such time as the 
marriage is halachically terminated by a get or death. Such a legally-
enforceable obligation creates a powerful incentive to grant a get in 
order to terminate what may be a significant financial liability of 
spousal support.

	(Of course pre-nuptial agreements work only for parties who 
signed them and provide no relief for agunot who failed to sign such 
agreement. Moreover, some rabbinic authorities are reluctant to 
introduce the signing of such an agreement at weddings on the 
grounds that it introduces thoughts of divorce at a time when parties 
should be pledging to each other lifelong fidelity and commitment. It 
should be noted, however, that the standard ketubah that is signed at 
every halachic marriage makes reference to financial compensation in 
the event of divorce and, in any case, these agreements do not have to 
be signed at the wedding. They can be signed before or afterwards.)

	In the State of New York there is a law that essentially 
provides that a husband will be unable to even obtain a civil divorce 
unless he removes the impediments to his wife's ability to remarry. 
Similar laws exist in the Republic of South Africa and Canada. This 
also creates a legal incentive to give his wife a get. (According to 
poskim, the enactment of this type of law should be encouraged 
elsewhere, but to date it has not been widely enacted.)

	A second statutory enactment -- applicable only in the State 
of New York -- provides that when a secular court determines the 
amount of alimony a husband must pay his wife or how marital assets 
should be divided, it may take into account the husband's failure to 
grant a get as a basis for decision. Essentially, a judge may state, for 
example, that a husband's alimony obligation is $1000 a week until a 
get is executed and $500 thereafter. Eminent halachic authorities have 
raised serious questions as to whether a get granted pursuant to such 
an order would be valid, but strong support for validity may be 
inferred from a decision of R. Moshe Feinstein, zatzal.

	An extremely important tool in helping agunot and potential 
mamzerim rests on the simple idea that only a marriage that is 
halachically valid requires a get for its termination. In many cases, a 
marriage may be found to be halachically invalid, particularly if it was 
performed under Conservative or Reform auspices, because of 
irregularities in the ceremony and the absence of kosher witnesses 
(male, Jewish, unrelated to each other or to the bride and groom, and 
observant of the mitzvot). This has been a lifesaver to countless 
ba'alei teshuva (newly observant) who are the progeny of second 
marriages whose mothers did not obtain gittin (plural of get) from 
their first husbands. (Again, it is important to emphasize that the 
invalidation of a marriage does not result in the offspring of that 
marriage being tainted with mamzerut -- they are simply children born 
out-of-wedlock who in the eyes of halacha have no disability.)

	Finally, there are various "informal" methods of pressure that 
may be employed (I am not referring to the use of "goons," mafia or 
violence): Boycotts, shunning, etc., all have their place. In one 
instance, the women of a particular community refused to go to the 
mikveh until a man gave a get to his wife. The get was delivered 
within a week!

	Having surveyed the variety of responses that might avail 
women in their plight, one might be tempted to ask: "If things are so 
good, why are they so bad?" One reason might be that some women 
are indeed not pursuing their remedies under the system. A second 
reason might be that, particularly outside of the State of Israel, it is 
sometimes difficult to find a beit din that will assume jurisdiction of 
the case. In both Israel and the United States, batei din are sometimes 
overly reluctant to order the granting of a get, preferring to encourage 
reconciliation and shalom bayit, laudable goals but sometimes 
unrealistic. Batei din are also reluctant to utilize and impose the 
sanctions they have at their disposal: For example, cherem is rarely 
employed, and the Israeli batei din rarely impose imprisonment. The 
Jewish community itself often does not respect, obey and support the 
decisions of the batei din; they will continue to give a recalcitrant 
husband synagogue honors, community recognition and the like, 
which in turn makes a beit din less likely to impose sanctions that will 
be ignored. Sometimes the husband cannot be found or no longer 
affiliates with the Jewish community, so the purely "religious" 
sanctions prove ineffective. Too few jurisdictions have something like 
the New York and South African get law and too few couples have 
pre-nuptial agreements. The point is, there are things that can be 
legitimately done to help women and these avenues should be pursued 
vigorously, but it is irresponsible -- although well-intentioned -- to use 
annulment or get zikui, mechanisms that may, G-d forbid, greatly 
increase the proliferation of mamzerut and the transgressions of 
adultery. The attempted "cure" is worse than the "illness."

	A final point : Ultimately the agunah problem will be 
resolved only when human beings learn to relate to each other with 
respect and decency even in the painful situation of a divorce. We 
must educate our children in how to build good, solid committed 
relationships but, at the same time, they must also learn that there is a 
right way even in saying "good-bye."
=====================================
Submit your questions to "ASK THE RABBI" at: 
http://asktherabbi.com
Or E-Mail: info@ohr.org.il   
=====================================
EVERY question EVER published in ASK THE RABBI is available 
on-line in an easy-to-use index!    
http://www.ohr.org.il/web/index/askidx.htm   
=====================================
Ohr Somayach's other e-mail publication:
Ohrnet, Torah Weekly, Parsha Q&A, Ask the Rabbi, The Weekly Daf,
Seasons of the Moon, OS-Special, Torah and Nature, Judaismo, 
Judaismo-p, Light Lines,Ohrnews, Simcha, OS-Alum. 
To subscribe, write to info@ohr.org.il
=====================================
IF YOU WANT TO UNSUBSCRIBE from this list, send the 
message:
unsubscribe ask to: listproc@vjlists.com 
=====================================
Dedication opportunities available for ASK THE RABBI!   
Please contact us for details.   
=====================================
General Editor: Rabbi Moshe Newman   
Production Design: Eli Ballon
=====================================
ASK THE RABBI is written at   
Ohr Somayach Institutions / Tanenbaum College   
22 Shimon Hatzadik Street, POB 18103    
Jerusalem 91180, Israel    
Tel: 972-2-581-0315 Fax: 972-2-581-2890    
E-Mail:  info@ohr.org.il   Home Page:  http://www.ohrnet.org 
=====================================
(C) 1999 Ohr Somayach International - All rights reserved.



