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To all readers of Agunahandherget.com,
First, we want to thank Agunah and Her Get for all the wonderful services they provide
for Agunos throughout Canada, U.S.A and the world. Your work is needed in Jewish
Communities everywhere. May Hashem bless everyone involved in your organization,
with long life, health, nachas and Simchos in your families.
Know that the Monsey, Lakewood and Flatbush Jewish communities support all you are
doing. It is unbelievable how many people want to help. You have tapped into a
groundswell of support that has been waiting to find a way in which to channel their pent
up frustration with how Agunos are being treated. Kol Hakavod and may you go from
strength to strength.
We have known Nechama Esther for many years.
We went to school together in Monsey, New York, lived together in Lakewood, New Jersey and are neighbors in the Jewish community of Flatbush (Brooklyn, New York).
Some of our kids attend the same school as Nechama Esther’s children. We have
always viewed Nechama Esther as a frum woman who conducts herself according to
Orthodox Jewish law we all adhere to.
We have sympathy for the terrible situation she is in.
We can not understand why, since her marriage is over, she should not be granted a
Get as expeditiously as possible in a Jewish Court of Law, a Beis Din, as this is what is
expected by those who adhere to Orthodox Jewish law. If Nechama Esther is not given
her Get, she is called, in Orthodox Jewish law, an Agunah (chained), which means she
is forever chained until such time Nechama Esther is given a Get.
In addition, by Nechama Esther not being given her Get, she is not allowed to move on
with her life and have closure. She can not date, or, if she so desires, remarry. It is
cruel, inhumane, and against Orthodox Jewish law to withhold a Get.
Historically, in every instance in a couple’s life where a Get is withheld, it is either to
maintain control over the Agunah, or to use it as a negotiating tool, which ends up with
demands of exorbitant, biased, and unfair settlement agreements which would never
stand up in a secular court on its own merit.
We have, unfortunately, witnessed too many situations where either one of the above instances was the case.
Please daven for Nechama Esther bas Chava Shira, that she may have a yeshua and
be given her Get immediately.
representing the many friends of Nechama Esther Wasserman, who are behind this
If any readers of the above letter would like to assist this Agunah in receiving her Get and require more detailed information, please send an email to the website.
To all readers of Agunah and Her Get.com,
First, we want to thank Agunah and her Get for all the wonderful services they provide for Agunos throughout Canada, U.S.A and the world. Your work is needed in Jewish Communities everywhere. May Hashem bless everyone involved in your organization, with long life, health, nachas and simchos in your families. Know that the entire Brighton, Brookline, Crown Heights,and Boro Park Jewish communities support all you are doing. It is unbelievable how many people want to help. You have tapped into a groundswell of support that has been waiting to find a way in which to channel their pent up frustration with how Agunos are being treated. Kol Hakavod and may you go from strength to strength.
We have known Atara for many years.
We grew up together in Brighton/Brookline, (Boston, MA) Crown Heights (Brooklyn, New York) and went to the same schools; Maimonides, (Brookline, MA), Shearim Women’s College, (Har Nof, Israel), Ohr Chaya Seminary, (Jerusalem Israel), and are neighbors in the Jewish community of Boro Park (Brooklyn, New York). Some of our kids attend the same school as Atara’s son. We have always viewed Atara as a frum woman who conducts herself according to Orthodox Jewish law we all adhere to.
We have sympathy for the terrible situation she is in.
We can not understand why, since her marriage is over, she should not be granted a Get as expeditiously as possible in a Jewish Court of Law, a Beis Din, as this is what is expected by those who adhere to Orthodox Jewish law. If Atara is not given her Get, she is called, in Orthodox Jewish law, an Agunah (chained), which means she is forever chained until such time Atara is given a Get.
In addition, by Atara not being given her Get, she is not allowed to move on with her life and have closure. She can not date, or, if she so desires, remarry. It is cruel, inhumane, and against Orthodox Jewish law to withhold a Get.
Historically, in every instance in a couple’s life where a Get is withheld, it is either to maintain control over the Agunah, or to use it as a negotiating tool, which ends up with demands of exorbitant, biased, and unfair settlement agreements which would never stand up in a secular court on its own merit.
We have, unfortunately, witnessed too many situations where either one of the above instances was the case.
Please daven for Atara Michal bas Yael, that she may have a yeshua and be given her Get immediately.
Chayah Mushka R.
Devorah Leah L.
Nechama Dena N.
representing the many friends of Atara Michal (Lauren Simkovitz) Kreindler, who are behind this letter.
If any readers of the above letter would like to assist this Agunah in receiving her Get and require more detailed information, please send an email to the website.
Update #1: We have been contacted by many friends of Atara in the Beverley Hills/Los Angeles, California Jewish communities, where she lived for close to three years, wanting to be part of this worldwide effort to help Atara receive her Get.
representing the many friends of Atara Michal (Lauren Simkovitz) Kreindler who are part of the Beverley Hills/Los Angeles, California Jewish communities, who are also behind this letter.
Update #2: It is heartwarming to be contacted by so many people, organizations, websites and blogs throughout the world wanting to help this Agunah, and requesting the detailed information package. It contains a lot of legal and medical information, so please be patient. We are responding first to the Crown Heights, New York, and Beverley Hills/Los Angeles, California requests.
Israeli rabbinical courts granted authority to rule in cases of ‘chained wives’ even if neither spouse is an Israeli citizen.
For the first time in its history, the State of Israel will provide a solution for Agunot (women who are unable to remarry because their husbands refuse to grant them a religious divorce), as well as men who find themselves in a similar situation, even if they are not Israeli citizens. Today, the Israeli government issued a memorandum which grants the rabbinical courts international authority over cases of Agunot.
Another issue which was dealt with is the issue of Jewish men and women, mostly from the former Soviet Union, whose marriage documents have been lost overseas or whose Jewish identity cannot be confirmed.
Until now, state religious courts were authorized to deal only with cases of Agunot in which at least one spouse is a citizen or resident of the state. As a result, the state has been unable to answer requests from Agunot living abroad, or to apply sanctions against the recalcitrant husband.
The Conference of European Rabbis, headed by Moscow Chief Rabbi Pinchas Goldschmidt, turned to the Israeli rabbinical courts to find solutions for these Agunot.
The explanatory notes of the memorandum state that “The Conference of European Rabbis and other parties have raised the issue of the difficulties faced in situations where husbands from couples from around the world who have been married according to Torah law refrain from divorcing their wives, leaving them as Agunot without the possibility of remarrying. In some cases they even ignore the rulings of the local court in the absence of jurisdiction on the part of the local court to force the husband to divorce and to impose sanctions on him in order to grant a Get to his wife.”
The notes continued: “The centrality of the State of Israel as a Jewish nation-state and its importance in the life of Jews around the world, in contrast to the inability of Jewish women around the world to find a solution to the problems of refusal of divorce, justifies granting this authority to the Rabbinical Court in Israel.”
Religious Services Minister Rabbi David Azoulay (Shas) praised the move.
“I congratulate the Rabbinical Courts, which are working intensively and uncompromisingly to find a remedy for the plight of the Agunot by expanding the jurisdiction of the rabbinic courts, even if the parties are not citizens of the state. The State of Israel is a Jewish State and as such it should provide relief to every Jew, wherever they may be and anywhere in the world.”
A recent conference call provided anonymous listeners with answers to the delicate question “Does the Mizbeach Cry When an Abusive Marriage Ends?”
The call was co-hosted by the Sholom Bayis Taskforce, Crown Heights Jewish Community Council and the Adai Ad organization.
Yiddishkeit emphasizes the importance of intact families and encourages working on the marriage. Yet, there are some people in terribly abusive marriages for which divorce is the only option, but it is always the last resort after all else has been tried.
None of these people make this decision lightly. Mrs. Devora Krasnianski, organizer and moderator of the call, explained the inspiration behind this call.
“I’ve spoken to several women who lamented that they stayed for years in their intolerable marriage because people told them that the Torah frowns on divorce and the Mizbeach cries. It is time that people truly understand that piece of Gemara and the Torah’s view on divorce, in certain circumstances. Based on the numbers of participants on the call – over 300 – we see that this topic is on the mind of many.”
On this conference call, renowned teacher Rabbi YY Jacobson shed much light on the issue of divorce in Judaism. After the call, many listeners reached out with gratitude for Rabbi Jacobson’s strong words of validation of their plight, clarity into the Torah’s views, and practical advice.
We try to do anything to sustain a marriage. Divorce is not an option that we embrace initially or easily. Judaism is opposed to creating a culture of divorce. Divorce is sad. It is like an amputation. You do not do it unless there is no other option. Sometimes it is necessary to save the life. The same Torah that tells us the value of a marriage also legislates divorce. Is divorce immoral? Absolutely not! Sometimes it is the most moral thing you can do for yourself and your children.
Rabbi Jacobson stressed: It is very unfair and unjust to make a man or woman in an abusive marriage feel guilty that their thoughts about leaving the marriage are against Torah. When living with fear and walking on eggshells all the time, we are a dealing with a serious situation. You can’t tell someone to just endure it. If you don’t know what people are going through, don’t give advice. Just be quiet! Be empathetic. Be understanding.
With real empathy to the plight of these abused women and with disgust for the vindictiveness of the abuser, Rabbi Jacobson cried about the disgrace that so many people in our communities cover up for abusers. When a woman is suffering, it should be the pain of the entire Jewish people. Shame on all people who cover up for perpetrators and abusers. They allow victims to suffer for years. If he is cruel to his wife, people should go over to him in Shul and call him out on it. He shouldn’t be getting aliyahs and other honors.
“It is one thing to disagree with your spouse. It is one think to get into a fight with your husband or wife. But inhumane cruelty? This must never be tolerated,” Jacobson said.
Throughout the talk, Rabbi Jacobson described what abuse really is. Being in an abusive relationship means constant fear, misery, and agony in the relationship. There’s no happiness in the house. Everybody deserves to live a happy life. No one should be living in a marriage where the atmosphere is always tense, blaming, no trust, and agony, filled with malicious and vindictive behavior. If the parties involved are ready to take accountability for their vice and seek help and act on it, that is awesome. Such marriages can become meaningful and wholesome. But when there are denial and blame, no honesty and accountability, and no willingness to work on yourself, it becomes a nightmare.
When there is an addiction, there is no authenticity and there cannot be a real relationship. If there is an addiction, the spouse must not become an enabler. The addict must go into recovery. Empathy is very different from enabling. Don’t enable in the name of empathy.
Mental illness is not the fault of the person suffering. But they must be willing to take accountability and deal with it. The spouse must learn about the illness and know the boundaries of where you can support and where you must create boundaries. Should one stay in a marriage with mental illness? That is something each person must decide. There are those who remain in such a marriage; they are unique and special people, and at times, there is a special beauty and love in such a marriage. These people are from the noblest and dedicated people you will find on the planet. Yet they love each other, and they learn how to deal with the challenge that Hashem has given this person.
Can an abusive marriage be saved? If the one with the problem – mental illness, abusive tendencies, addiction – acknowledges the struggle and sincerely works to correct the situation, then perhaps the marriage can be salvaged. However, if they don’t get the help, it can be a very tough situation.
With that background, Rabbi Jacobson explored the famous Gemara in Gittin, 90b: (Talking about the husband) “With regard to anyone who divorces his first wife, even the altar sheds tears for him,” quoting the prophet Malachi 2:13-14: “And this further you do: You cover the altar of the Lord with tears, with weeping, and with sighing, insomuch that He does not regard the offering any more, nor does He receive it with goodwill from your hand. Yet you say: What for? Because the Lord has been witness between you and the wife of your youth, against whom you have dealt treacherously, though she is your companion and the wife of your covenant.” In short: You have betrayed your wife – she is your friend and the wife of your covenant, but you have betrayed her. And that is why the altar cries.
Metzudas Dovid explains this posuk: The women were crying because of their shame, abuse and lack of dignity. And when the women cry, the altar cries.
Rashi explains: The women say to the altar ‘What iniquity has our husband found in us to treat us in such a derogatory fashion?’ and hence the altar cries.
The whole point of this Gemara and verse in Malachi is: There are some women hurt so badly and they cry, and therefore the altar cries.
To the comment that every situation is from Hashem and Hashem only gives what we can handle, Rabbi Jacobson said: We do not always know exactly what Hashem wants in a particular situation. He wants us always to work hard on our marriage and try to make it work. But sometimes G-d’s will is to get out of the situation. How does anyone know that G-d wants me to stay in the marriage? If G-d wanted people to stay in an abusive marriage, why does He include the concept of Gittin in the Torah?
Rabbi Jacobson then spoke directly to those in abusive relationships, some points to the abused and some to the abuser:
– Often, you will get foolish advice from people who are clueless. Learn not to take all advice seriously. It is important to speak to people. But people who are empathetic and knowledgeable.
– You need to speak to top experts in the areas you are dealing with.
– Divorce is difficult. But it is an option to consider in certain situations. Divorce should not be decided impulsively. You need to have get very sound advice and follow also your gut.
– Consider the pros and cons. Objectively, from a place of strength, not weakness. Talk with experts. Know what is available to you – legally, mentally, emotionally, financially. Be informed. Read books on your struggles. Become educated. So you can make decisions from a place of empowerment. Evaluate your future from a place of power. Find out what legal powers you have.
– Don’t get into ego struggles. It is more important for you to be happy than to be right.
– Don’t always think about social pressure. Listen to your own voice, and don’t get affected by what others will say. When we give into social conformity, we abuse ourselves even more. Don’t betray your own emotions.
– Don’t forget to take care of yourself. Do things that nurture your body, mind and soul. You need to give yourself to deal with your challenges. Don’t become a shmatte (rag).
– If getting divorced, do it amicably. The children suffer terribly from the animosity in an ugly divorce. It is such a tragedy when friends and families instead of encouraging amicability, justify heinous behavior.
– Stop torturing your spouse after you are getting a divorce. Let it go! Move on! Let everybody move on.
Rachel Bluth The Jewish Press.com
She sits on the sofa, so ill at ease
her moist eyes looking down at the floor,
White knuckles, worn hands, twist a tissue to bits,
“Please help me, I can’t take anymore!”
Her story unfolds, mixed with tears of great pain
Her words come out haltingly hushed,
Often she stops in mid-sentence for breath;
She needs time and must not be rushed.
The wall clock ticks time going by
As I wait for her to continue to speak,
So much grief etched into her pitiful face,
She begins, in a voice soft and meek…
“My name is Batsheva and I’m 40 years old,
I have five young children at home,
My concern is now more for their safety,
I no longer care for my own.
I married when I was 28,
To a man said to be ‘one of a kind.’
I was alone with no family to look out for me
And given very little time to make up my mind.
So I allowed myself to be convinced he
Was my zivug, my partner for life,
Little did I know that his ideas were different;
He wanted a punching bag for a wife!
He was nice enough during our engagement
Acting kindly when we were alone,
But as soon as the wedding was over
It was a demon who brought me home.
The cruelty I suffered the first few weeks
Became a way of life,
And the scars he inflicted by word and by fist
Cut much deeper than that of a knife.
He called me every foul name known to man
Never once did he call me by name,
He degraded me, beat me and cut me down,
Taking pleasure in seeing my shame.
When his anger was spent, when he had time to think,
He would apologize and promise ‘no more!’
That he loved me and would never do it again,
And begged me not to go through the door.
And each time I bought his promises and lies,
I wanted to believe him, and then…
Something would upset him, the anger returned
And it would start all over again!
I had thought of leaving him thousands of times
Where would I go? Who’d take me in?
With five little children to care for
And with no family or friends or kin.
So I stayed and I suffered, alone and afraid
As long as it was just me he attacked
And for years it went on in this endless way
Until last week it was my daughter he smacked!
He’s a master at knowing how to conceal his abuse
Never leaving a mark or a track,
My poor child was in shock as she ran from his reach
With the imprint of his hand on her back!
I awoke, as if from a drug-induced dream
My kids were in danger for sure,
I had lost three pregnancies to beatings
I would not lose any more!
I sit before you broken and alone
Not knowing whom to trust,
I know one thing for certain
That leaving him is a must.
I am depleted in body, spirit and mind
My heart aches from waiting so long,
I should have found the courage to leave long ago,
For this I know I was wrong.
Please help me and tell me what I must do
Where to go, whom to see, what to say,
I need to save my children you see,
I must make sure they are safe far away.
They are all that I have, that I love in this life,
I don’t care for myself, only them,
And I know that coming here today
Is truly the Will of Hashem.”
It was then that she broke down and sobbed in her hands
Her body racked with grief,
But somehow, the unburdening of her tale
Had also brought her relief.
Some moments passed as her weeping subsided,
I gently began my address
I offered her resources, organizations and places
That would help her resolve her distress.
Calls were made, and a secret dwelling arranged,
At this time a Get and divorce are pending,
Their future looks brighter with each passing day
A new life begins as an old one is ending.
If you see yourself mirrored in this woman’s strife
Please know you are never alone,
Just reach out and grasp all the helping hands
That are waiting for a call on the phone.
No one deserves to be beaten or hurt
No one should suffer abuse,
It is precisely for reasons such as these
Hashem gave Hilchos Gitten to the Jews.
Rachel Bluth is a writer and lecturer with an active practice
in the Five Towns.
Esther M. Schonfeld, Esq.
It continues to amaze me that not all couples are signing Halachic prenuptial agreements to eliminate the issue of Get-Refusal, especially in light of the growing Agunah crisis. When I meet with clients and ask why they did not sign a prenuptial agreement, the response is almost always the same—“I never thought this could happen to me.” Others have admitted that they were told it was not necessary.
The newest dispute arises with the International Beit Din, which has been attempting to utilize two Halachic tools to resolve cases where a Get is being withheld or not accepted. The Rabbis use the mechanisms of declaring the witnesses from the wedding not kosher or declaring that there was a preexisting flaw in the husband that was not disclosed to the woman prior to the wedding, so that the marriage was a mistake.
Both these tactics have been used, in rare cases, by other Rabbinic courts around the world, but the International Beit Din is interpreting cases with wider latitude, looking to find Halachic loopholes. Not surprisingly, this has generated fevered controversy. But this is not the first time efforts have been made to find loopholes to justify the granting of a Get when one of the parties is not cooperating. In the past, similar attempts have also ultimately failed to win acceptance. For example, Rabbi Emanuel Rackman created a Beit Din in the 1980s to free Agunot by granting annulments and circumventing the need for a Get. This, however, was not universally accepted as a valid termination of the marriage.
Each time the Agunah problem makes the news, clients, friends, and Rabbis reach out to me with the same question: “Esther, how do we solve this problem?” Despite the seeming proliferation of serious discussions as to the depth of the problem, to date there exists but one practical method to solve the crisis. The solution lies in prevention. That is where the concept of the prenuptial agreement comes into play; at this point, the most widely accepted Halachic method meant to circumvent the problem of Agunah altogether is the Halachic prenuptial agreement. If couples would enter into a valid, enforceable prenuptial agreement and agree that should the marriage break down, neither will withhold the giving or accepting of the Get from the other, the problem would be avoided.
The leading prenuptial agreement used within the Orthodox community is the Beth Din of America’s “Binding Arbitration Agreement,” also referred to as the “RCA prenup.” By signing the RCA prenup, the bride and groom are authorizing the Rabbinical court, as an arbitration panel, to render a binding decision on all issues relating to a Get. There are also optional clauses empowering the religious court to decide all of the divorcing couple’s monetary disputes and child custody and related issues. The entire agreement is in keeping with the law of the state where it is signed and can be enforced as a binding arbitration agreement in the secular court. The core of the prenuptial agreement, however, is the groom’s obligation to support his wife at the rate of $150 a day as long as he refuses her request for a Get.
The basic idea of the Halachic prenuptial agreement is that it brings about financial penalties against the resisting spouse for being recalcitrant in the divorce proceedings. The Beth Din of America reports that in practically every divorce proceeding where a prenuptial agreement was signed, the Get has been given within a reasonable time. This is a remarkable track record. Since 2006, the Beth Din of America has even mandated that its member Rabbis have the couple sign a prenuptial agreement before officiating at the marriages.
It should be noted that the RCA prenuptial agreement is not the only way to effectuate the desired outcome here. Similar prenuptial agreements can be drafted for couples that are more comfortable with a different Beit Din or with their attorneys drafting the prenuptial agreement.
It is important for everyone to understand that when signing any legally binding document, such as a Halachic prenuptial agreement, it is advisable to seek legal counsel. An experienced attorney will help a person make choices appropriate to their situation and that will meet their comfort level. For example, in the RCA prenuptial agreement, parties can choose which aspects of the divorce they would want arbitrated in the Beit Din. The agreement can be as narrow as to just include the Get, or it can encompass all end-of-marriage issues, thereby empowering the religious court to decide all of a divorcing couple’s monetary disputes and questions of custody and visitation. Because this can be a binding arbitration agreement, it is advisable to discuss the various options with an attorney. As a side point, and to further emphasize the importance of consulting with an attorney, is the potential non-enforceability of custody-related decisions made by a Beit Din. Therefore, in order to avoid potential conflict and prolonged litigation in the future, the parties should be aware of their legal rights and be educated on potential future outcomes. Avoiding doing so can have dangerous ramifications.
While the prenuptial agreement is vital in this day and age, it is a preventive measure, not a cure-all. Think of a prenuptial agreement as a form of insurance which is reliable for the problem of Get-Refusal, but is not effective in all circumstances. What is most remarkable about the prenuptial agreement is that, for now, it seems to actually be working. It has been utilized in scores of cases, including many of my firm’s cases, and has consistently prevented the use of the Get as a tool for improper leverage or extortion. It has even worked in highly contentious cases, where the parties litigated all the other issues of the case. Where there is a prenuptial agreement, most often the Beit Din does not even need to begin formal proceedings to award support under the arbitration provisions of the agreement.
The problem is that many people are either ignorant of the problem or of the importance of signing a prenuptial agreement, or it was recommended to them not to sign it. As a result, there are still many recalcitrant husbands who are able to use the Get as leverage or extortion over their wives. While husbands can also be refused the acceptance of a Get, men have other options to be granted a Get, such as permission from 100 rabbis, called a Heter Meah Rabbanim. Moreover, the prenuptial agreement may ameliorate the plight of the Agunah, but it does not solve the problem totally, since the monetary demands imposed on a husband will have no impact on a husband who is wealthy, is mentally unstable, or has absolutely no funds, and therefore would not be threatened by the monetary obligation.
The Halachic prenuptial agreement can only be effective as a solution to the community-wide problem of Get-Refusal if it is adopted for use by the community as a whole, since those who are most likely to need it are usually those least likely to sign it. There must be communal pressure to sign prenuptial agreements. It should be universally accepted that a couple must sign one, similar to it being universally accepted to attend classes concerning family-purity laws. Unfortunately, in some circles, the signing of a prenuptial agreement is taboo. While there is still a need to find a more comprehensive solution to the Agunah crisis, the prenuptial agreement serves as an effective solution by way of prevention.
Esther Schonfeld, Esq., is a founding partner of the law firm Schonfeld & Goldring, LLP with offices located in Cedarhurst, New York. . Schonfeld & Goldring, LLP limits its practice to divorce law, family law, and matrimonial law in both secular court and rabbinical courts. Ms. Schonfeld, also a trained mediator, is a member of the NY State Council on Divorce Mediation.
The Jewish Press.com
During the recent Pesach holiday I had the opportunity to reflect on the freedoms we take for granted each day.
In this country we are afforded a wide array of freedoms previously denied our ancestors, neighbors, and colleagues. While we may take it for granted, most of these freedoms were obtained through such measures as military action, widespread protest, substantial political maneuvering, legal action, and judicial intervention.
When a woman is denied a Get following the disintegration of her marriage, she is denied her freedom. She is denied the freedom to separate herself permanently from a spouse to whom she no longer wishes to be married. She is denied the freedom to move on in her life and forge a new relationship. She is denied the freedom to have (more) children.
Too often, unfortunately, woman are also asked to forgo their parental and economic rights as well in exchange for their freedom. I would like to pose a question that may be viewed as controversial: Should a woman, and her supporters, negotiate with a recalcitrant spouse in order to gain her freedom? In essence, should we negotiate with a terrorist?
Terrorists make demands because they believe the demands will be met. When those demands are met or negotiated over, the tactic proves effective. When people or governments negotiate with terrorists, at least two important consequences invariably follow. There is an immediate relinquishing of what was demanded and there is a future fallout that can almost always be directly connected to the initial exchange. (For example, future terrorist activity on the part of prisoners freed in a negotiation).
To simplify the rationale for terrorism for the purpose of this article, let us assume that terrorists act in pursuit of a specific quid pro quo or to attain an overall sense of power and acquisition. (All too often, men who withhold a Get do so simply to gain and maintain power and control over their spouse.) It would follow, then, that if a terrorist understood that no matter what the demand and no matter how dire the situation, there would be no negotiation, the terrorist would not continue to incite terror.
How is such a goal achieved? Through zero tolerance. By not negotiating with terrorists under any circumstances.
Get refusal exists because we allow it to exist. Without looking to change halacha, we certainly have the power to effectuate change through a communal climate shift. If public pressure were such that recalcitrance in granting a Get would – without exception – be abhorred rather than tolerated, there would be no place for Get refusal in our communities.
When the Get of even one terror victim is negotiated, the freedom of so many others is sacrificed. In the absence of an unadulterated zero-tolerance policy, there will always be room for acceptance. Negotiating with a man who refuses his wife a Get sends a message to the community that Get refusal is within the norm and that the granting of a Get carries a price.
I do not want to suggest that even one woman serve as the sacrificial lamb in her fight for freedom. However, change will only come if there is a systemic and unwavering movement toward a policy of not negotiating with terrorists.
May we soon experience freedom and redemption for all of Klal Yisrael.
Rachel Marks, Esq., is associated with the law firm of Schonfeld and Goldring, LLP, with offices located in Cedarhurst, New York. (Schonfeld and Goldring, LLP limits its practice to divorce, family, and matrimonial law in both secular and rabbinic courts.) A former assistant district attorney, she sits on the boards of directors of Shalom Task Force and Ohel Children’s Home and Family Services.
Miriam, a former Agunah
I finally got my Get. But I had to pay my ex $40,000. Here is my story of pain and extortion.
I got married at 26 to Dovid, the son of a prominent NY family who owned a large medical supply company. After only a few weeks, the abuse began. He was physically and verbally abusive, and often threw me out of our apartment. At first, my parents pointed to the vast amount of money spent for our wedding and asked me to try to work it out. When the abuse escalated, they recanted and supported my desire to leave. I walked out seven months after I stood with Dovid under the Chuppah. I thought the Get process would be simple, especially considering the fact that he had been divorced before, under similar circumstances. I approached a Rabbi in a well-known Bet Din our community, but Dovid’s family refused to allow that beit din to adjudicate the divorce. They kept refusing to show up to any Bet Din proceedings.
I had reason to be worried. I found out that the ex wife had been sworn to secrecy in exchange for her Get and had not disclosed to us about his mental health issues. Dovid’s mother had told me that if I wanted a Get, I would have to “Pay for it or I could wait until I was post-menopausal.” I was confused as this was a wealthy family and they knew my parents had no financial means. Where did they think I would get money to ransom myself from this man?
After months of threats and stonewalling on their part, I was put in touch with a bonafide writer for a NY Jewish newspaper and an Agunah activist. She wrote a story about me and the family was told that if they did not agree to arbitration, the story would be published. The family was very concerned about their reputation and immediately agreed to allow the divorce to be adjudicated by means of a Beit Din established by a Zabla, a three-member rabbinic panel in which one rabbinic judge, is chosen by the wife; one is chosen by the husband, and the third is chosen jointly. Since I was pushing for the divorce, I was responsible for paying the fees charged both my Rav and the joint Rav. They each charged $250 per hour. The first meeting was arranged and it soon became clear that dragging it out for hours meant that more money could be made by all. At the end of a long day, in which all three Rabbis took breaks for davening, meals, phone calls, and talking, my bill was nearly a whopping $10,000. They came to no conclusion and told me they needed another meeting.
I later realized that I did not only lose a lot of money that day. My Rav told me that I should just say yes to everything they accused me of and keep repeating that I simply want my Get. They said I was a whore, a bad wife, “proving” their accusations with pictures from our honeymoon in which I was wearing a bathing suit. They were speaking quickly in Yiddish and I did not understand what they were saying. I just kept nodding and saying that I just wanted my Get. The Rabbis agreed that I “admitted” to being a “Moredet,” a woman who has not fulfilled her duties as a wife. Because I incriminated myself, my Rav then told me that I would have to pay a large sum of money to settle the divorce out of court.
The negotiations began at $30,000, but when I agreed, the sum escalated to $50,000, then $80,000, then $100,000. We realized there would be no end. So we gave up negotiations and tried to hire another Rabbi. This new Rabbi threatened Dovid that he would convene a Bet Din and annul my marriage through a process called “Mekach Taut.” Dovid called his bluff, knowing that there was not a Bet Din who would be willing to do that. In the end, a cousin finally pressured the family to renegotiate. He threatened to make their lives miserable, and tell everyone of his issues. He followed them upstate to their vacation home and continued to harass them. They broke after another month of negotations and agreed to take $40,000 in exchange for the Get. They demanded that we paid in cash and gave us 24 hours to come up with the money.
I was at their mercy. I begged and borrowed and paid for my Get. It was a ransom. I redeemed myself. After suffering for almost a year and not being in control of my own fate, I was crippled. I belonged to someone else. I knew that this would be money well spent and I have never looked back.
Yael C.B. Machtinger
Ta’anit Esther, the Fast of Esther, marked International Agunah Day, the purpose of which is to publicize the plight of Agunot, “chained” women who are not able to obtain a Get, a religious divorce, from their husbands.
The name “Esther” is related to the Hebrew word “hester,” meaning hidden. For nine years, Esther guarded the secret of her religious and familial heritage. As the Talmud notes, she “hid her words.” The Purim story heroine was thus kept silent.
How does this connect to this International Agunah Day?
Like Esther, the voices of Agunot have been hidden and silenced. Consequently, when a Mesurevet-Get, a woman whose husband has refused to grant her a Get, can voice her void, we must embrace it. And while some might find the act of shaming men who withhold Gets shameful in and of itself, I contend that any opportunity to empower Mesuravot-Get and recast the characters, making abusive husbands the object of shame, must be embraced.
“E-shaming,” is a constructive, re-imagined, rebooted version of traditional acts taken to shame men who refuse to grant Gets. Technology can help remedy instances of Get-refusal by exposing abusive husbands as those who should be ashamed. Intensified use of technology in our digital age offers a fresh take on remedying this deep-rooted phenomenon.
E-shaming, a term I coined in relation to the Agunah issue, is more beneficial than other grassroots remedies because it cuts across boundaries and networks of affiliation. The critique of traditional Cherem, or excommunication, is that abusive husbands can join new communities or synagogues easily, leaving their bad behaviour behind them. The effects of Cherem are not as severe or impactful as they were centuries, or even decades, ago when moving was more onerous and expensive and congregations less prevalent. E-shaming, reverses this effect, so that husbands, too, are chained to their choices to chain wives.
Most importantly, this nexus of Get refusal and technology enables women to be active participants in navigating complex legal orders, simultaneously challenging the imagery of the passive victims they are portrayed as. Transforming Mesuravot-Get from passive, helpless victims to active participants in campaigns to exact Gets is momentous, not shameful. Social media has become a platform whereby Mesuravot-Get can recast the mistaken perceptions about them and assert their agency (something we should celebrate as feminists, by the way).
That said, not every Agunah would feel comfortable with e-shaming. Individuals must be respected, and public campaigns are not always in everyone’s best interests.
However, in Canada, e-shaming could be particularly potent, since no other remedies, including a viable, legal and halachically endorsed prenuptial agreement, have yet to emerge. My objective is to alert the Jewish community to the e-shaming phenomenon and the transformative successes it has been known to produce in challenging dominant perceptions about Agunot as weak, passive, submissive victims, and in challenging dominant normative reactions by communities which deny the existence of Get-refusal altogether.
E-shaming contributes to the unsilencing and self-narration of Mesuravot-Get, and I welcome giving them a platform from which to tell their stories. Most of the women I have interviewed in the course of my work, including dozens in New York and Toronto, described the shame they feel, having endured abuse and accusations they wronged their families by failing at marriage and disappointing the community and the marriage ideal that the religion propagates. If empowerment can be achieved through e-shaming, that is noteworthy, and we mustn’t be ashamed of it. We must use every tool in our toolbox.
Let us not stand idly by, allowing the everyday heroines of our generation to remain hidden, to be silenced as Esther was. Let us reveal the hidden by empowering Agunot and their narratives.
Yael C.B. Machtinger is a PhD candidate in socio-legal studies at York University in Toronto
Yeshiva World News – Israel Desk, Jerusalem
In what is being hailed an unprecedented decision, Rabbanut Av Beis Din Dayan Shlomo Shapira has ruled a husband must give his wife a get after it was proven he was guilty of harshly abusing his wife psychologically. The Beis Din said this type of torture is viewed no less seriously than physical abuse.
The Psak Din states: ”הבעל התעלל נפשית קשות באישה ולדעתנו התעללות כזו היא אלימות קשה והיא אינה פחותה מהתעללות גופנית”.
It is reported that to date, a Beis Din would not take psychological or verbal abuse into consideration.
The couple in question was married for 15 years and they have a son. During the years the husband would avoid relations with his wife or was away at night or would ignore his wife, preferring to watch television. On Shabbos and Yomtov he would disappear as well, leaving her alone. He treated his wife disrespectfully and caused her great emotional pain and suffering.
After a number of sessions before the Beis Din, the Dayanim agreed that the wife was the subject of abuse for many years, in addition to threats made against her by her husband.
“התרשמנו כי אילו הבעל היה מפגין שמץ של יחס לאשתו האישה לא היתה מגישה תביעה לגירושין, אך דא עקא, הבעל רואה את אשתו כצעצוע וכרכוש השייך לו. הוא מתעלם מחובותיו, מתעלם מרגשותיה ולמרות האזהרות הרבות, התחינות של האישה והתראות בית הדין הוא אינו עושה דבר”.
The Dayanim explain that if the husband would have shown a hint of concern for his wife, she would not be seeking divorce but he views her as a toy and his property to do with as he wishes. He ignores his duties, her feelings and despite numerous warnings and pleas from his wife and the Beis Din, he does nothing.
The Beis Din added the essence of marriage is a life and not sorrow, and therefore it is ruling to compel the husband to grant her a get.
The report adds the position of the Dayanim is in line with rulings by many Poskim including Shulchan Aruch and the Rambam.
Dayanim Rav Avraham Meizles and Rav Ariel Oriel were of the same mind as the Av Beis Din.
Rabbi Michael Whitman
South of the border, rabbis have been able to address the problem of Agunot – women “chained” to their husbands because of the men’s refusal to voluntarily grant a Jewish divorce – by promoting adoption of a prenuptial agreement that includes a stiff financial penalty for recalcitrant spouses.
It might be effective, but that type of prenup isn’t enforceable under Canadian law, because courts here won’t uphold monetary penalties imposed by rabbinic authorities. With that in mind, a modern Orthodox Montreal rabbi has crafted his own agreement that he believes is halachically compliant, meets Canadian legal standards, and is intended to substantially reduce, if not eliminate, the problem of Agunot.
Rabbi Michael Whitman, senior rabbi at Adath Israel Poale Zedek Anshei Ozeroff, recently released his “Halachic Prenup for Canada” and is urging rabbis who perform marriages to recommend it to couples about to tie the knot. In his case, he goes further. He won’t marry couples who refuse to sign it.
Rabbi Whitman believes his prenuptial agreement would work in Canada. It names a specific Beit Din in New York – the Beth Din of America – to adjudicate disputes and pledges the parties to comply with its orders. It also includes a provision requiring the couple to each get independent legal and rabbinic advice.
Rabbi Whitman said the prenup was developed in consultation with retired judges, lawyers and law professors to ensure it conforms to Canadian law.
It does so by not asking Canadian courts, which adjudicate matters such as civil divorce, from deciding issues of a religious nature, nor does it allow rabbinic courts, sitting as arbitration panels, to impose financial repercussions, which a civil court would not enforce.
Instead a Canadian court would be asked to look at a legally-binding document that obliges the parties to appear before the Beth Din of America, or another rabbinic court it designates, “for the purpose of following the direction of that Beit Din concerning giving/receiving a Get [religious divorce] only.”
The prenup goes on to require the parties to follow the Beit Din’s suggestion of removing “barriers to religious re-marriage by obtaining a Get… It is our intention to address any other issues that may need at that time to be resolved between us, separate from the giving and receiving of the Get, outside the Beit Din proceeding.”
Rabbi Whitman said that when similar prenups were adopted in the United States and Israel, “there are no cases of Agunot.” But, he continued, “it’s like the polio vaccine. All we need to do is get people to take it.”
Rabbi Michael Whitman is the senior rabbi at Adath Israel Poale Zedek Anshei Ozeroff
The Torah on one foot according to Hillel is “what is hateful to you don’t do to your neighbor.” However, because the process of Jewish divorce, according to Torah law, gives the upper hand to the husband, men will sometimes abuse this power and use a Get (Jewish divorce document) as leverage against their wives in order to negotiate for a more favorable settlement for themselves.
Many Orthodox rabbis have spoken out against this practice, declaring that using a Get as leverage is a form of abuse and therefore prohibited. But some rabbis condone this practice with the justification that “the wife was being unreasonable.” In truth, in matters of matrimonial discord both sides can be unreasonable. Money can give one party the upper hand, children can be used as pawns; the list goes on and on. But having one side have more of an advantage solely because of his gender is difficult to understand and accept, which is why a ruling this week in Israel (according to Srugim.co.il) in the Beis Din of the Rabbanut Ha’Reishit of Israel, headed by Chief Rabbi, Dovid Lau, is so important.
In a ground breaking decision, they declared that it is not permitted to make any conditions or combine the giving of the Get to the division of property. Only after the Get is given may a division of property take place. The head of the Mavuy Satum organization, Batya Kahana Dror, told Srugim that this is a historic precedent that they have been working on for a number of years. “Until now men were totally unchallenged and unequally in control of being able to extort property from their wives on threat of not giving the Get. Now, the beis din has finally declared that division of property and giving the Get must be two completely separate issues and cannot be used as a threat. The husband must give the Get before the division of property may even begin to take place at this point. This ruling has a very progressive implication towards resolving the problem of men extorting their wives for Gitten, which is typically done simply for finances.
Kahana-Dror pointed out that the judges and specifically Rabbi Lau worked long hours in order to reach a solution. “Rabbi Lau and Dayanim Katz and Igra demonstrated tremendous effort, often sitting together in the Beis Din until the wee hours of the morning. It is unfortunate that a conclusion was not reached before this, but Rabbi Lau’s general practice is to put major effort and caring into every issue that he becomes involved in.”
Allison Josephs is the Founder and Director of Jew in the City.
The Jerusalem Post
Laws that already exist can also be utilized to prevent agunot, women chained to their marraiges.
It seems that most of what we hear today regarding agunot is what cannot be done. From heads of yeshivot to the regular person on the Internet, organizational announcements, blog posts and Facebook statuses are filled with what is wrong, unacceptable and dangerous about freeing Jewish women chained to their marriages.
Doors are closed before they can even be knocked on, and many women have nowhere to turn.
The lack of options has led Jewish women to the national media to plead their cases. The stories of women trapped in marriage have been spread across the pages of American publications such as The New York Post, Newsweek and other mainstream media. Unequal divorce laws in Judaism have become common knowledge, yet it still seems that there is no way out in Jewish law when a man refuses to grant a get.
Martin Friedlander of Martin Friedlander PC is a matrimonial attorney whose office is located in midtown Manhattan.
He appears regularly in the US Supreme Court and family courts, as well as in religious courts (batei din) for Jewish divorce cases. He is not only an attorney but also has rabbinical ordination (smicha) from Rabbi Avrohom Yaakov Hakohen Pam. What he has seen in his more than 20 years of handling divorces has prompted him to take action.
It was during the Tahel – Crisis Center for Religious Women and Children’s conference in Israel last year that Friedlander conceived Yashar. The conference presents research information and trains professionals in treating different forms of abuse, including get refusal. At Tahel, Friedlander met other matrimonial attorneys from around the world, and they quickly recognized a common desire to find ways to prevent get refusal.
Last June, he held preliminary meetings to present his vision of Yashar in his law office. In attendance was Tahel director Debbie Gross, prominent attorney Nat Lewin and other matrimonial attorneys interested in the coalition. Frustrated with what they regard as an unfair situation, the international group came together to do what they can to change the status quo and provide concepts within the secular court that would be approved by halachic authorities.
Unlike in Israel, courts abroad have no authority to punish a husband who refuses to grant a get or a wife who is unwilling to accept one. In fact, a couple can be civilly divorced, yet remain halachically married. This leads to a very difficult situation in which the get can be used to extort money, settlements, custody or inflict emotional pain on a spouse.
In addition to agreeing to not represent those who withhold a get, the organization has two main objectives. The first is to pursue a prenuptial agreement that would be accepted by a wide spectrum of the religious community and be approved by attorneys and rabbis. The second is to exchange ideas on how to use various laws worldwide as they pertain to agunot within both the religious court and the civil court and try to implement ideas that have been successful.
Many versions of a halachic prenup already exist, including one used by the Rabbinical Council of America; however, none is deemed acceptable by the more right-wing sects of Judaism. Friedlander has been working with community leaders to create a document that would be encouraged and effective within these communities. Having rabbinic ordination himself, he is aware of the potential objections and pitfalls and works within the halachic system to draft this document.
When asked why, after all other attempts have failed to bring certain communities on board with a halachic prenup, these communities might be amenable now, he says, “The divorce rate among Orthodox Jews is fast approaching that of regular society. But the ramifications of one couple’s divorce goes far beyond the couple and their children.
Because the community is family based, it becomes a battle between two families, and the acrimony and litigation become larger than the couple. This leads to third-party involvement, and the get then becomes a bargaining chip. The current agreement of the community leaders is a product of awareness and acknowledgment that divorce and get refusal is a real problem. It’s just not deniable anymore, so people are becoming more receptive.
Friedlander speaks to heads of yeshivot and rabbinic judges, who are prominent and influential, to get them on board. Getting these leaders to support the idea and encourage prenuptial agreements is essential in making them mainstream. Friedlander estimates that a widely accepted and regularly used prenup could reduce the incidence of agunot by up to 80 percent in the US.
And what of the other 20% – those whose spouses hang on for reasons such as extortion, spite or control? That is where Yashar hopes to bring the law into play. Courts cannot force a man to give a get – even when they want to – as this is considered a get meuseh, a forced divorce, and is not halachically valid according to most rabbis.
Yashar seeks ways to use existing laws or suggests new ones to help in cases of get refusal. An example of legislation created specifically to help agunot is New York’s Get Law, which states that a court will not grant a civil divorce when a Jewish divorce is being withheld.
Laws that already exist can also be utilized to prevent agunot. In one case in New York, a man ran off leaving his wife and children behind with no get.
The court could not arrest him for refusing to give a get, but the judge was able to order a substantial child support award, and the man was arrested when he did not pay. He was held until he gave his wife a get; she then released him of the exorbitant child support.
At this year’s Tahel conference, held a few weeks ago in Jerusalem, Yashar’s coalition was introduced. Lawyers from around the English-speaking world gathered and presented the various laws in their countries that protect agunot.
Esther Schonfeld of Schonfeld and Goldring spoke about amended New York laws regarding maintenance and equitable property distributions. The default status in New York is that property is split 50-50; however, if either side puts up a barrier to the other party’s remarriage, including a religious one, they risk losing their share.
According to Schonfeld, “We deal with this on a daily basis. In Kings County, the law has been applied in many decisions. In the past three decades that the Get Law has been on the books, it has nudged hundreds of men and women to go through the religious divorce process.”
But does the Get Law work? According to Goldring, it helps settle cases before or in the heat of litigation, with the law taking away the control the husband usually has. The marital estate, which includes retirement accounts, businesses and the family home, are usually divided on a 50-50 basis. The husband can’t use the get to ask for more than that. If he has not removed barriers to remarriage, he will not be able to receive anything.
One hotly litigated divorce case involved child custody, fees and property.
The husband refused to give a get. The court granted the wife the entire estate, including a house worth several million dollars. The man eventually did grant the religious divorce.
In a more recent case, the husband was plaintiff and had told his friends that he would not give a get. It was explained to his lawyer that they would invoke the Get Law. His attorney told him to grant it, and together with community pressure, it worked.
Canadian law states that if someone hasn’t removed religious barriers to the ex-spouse’s remarriage, they will have their claims dismissed or pleadings struck. If the husband gives the get, his pleadings will be reinstated. However, the religious court in Toronto does not like this law and will not allow a husband to grant a get if the reason is the civil court.
Sharon Shore, a partner at Epstein-Kohl in Ontario and frequent speaker on family law issues, explained that religious courts that object to these laws claim that they render a get invalid because of coercion.
But, she says, “Coercion isn’t the problem – it’s who is doing the coercing.”
If the Jewish community coerces a recalcitrant husband via public pressure, the get will stand.
It is within the religious court’s power to torpedo a woman’s options if it chooses. In one case, Shore had a client from the Bobov community, and the husband said he would give her the get only if she gave up custody and property. She signed the agreement and planned to go to civil court, but the religious court then withdrew her religious dispensation (heter) to go to civil court. It was too late for her – she had given up her children and all her money.
In Canada, because there is no separation of church and state, divorce must go through an arbitrator; thus the Rabbinical Council of America’s halachic prenup does not work. Yashar is working with RCA executive committee member Rabbi Michael Whitman to create a prenup for Canada, and they hope to launch it by the end of this year.
The UK has passed a law called the Serious Crime Act of 2015, which essentially considers get refusal a criminal act – psychological and emotional domestic abuse. According to Dianna Levine of the UK, “It’s the most amazing piece of legislation yet.”
In Australia, prenups are not easy to create or enforce, but a creative and groundbreaking case by Talya Feigenbaum led to get refusal being considered domestic violence and grounds for extension of orders of protection that may be expiring. The withholding of a get is shown to be continued dominion and control by the husband.
These laws and the efforts to use them to release women from dead marriages are inspiring. It brings hope to those who see the agunah issue as a crisis in modern Judaism.
But for those who have advocated for the rights of agunot for years within the Jewish community, it is difficult to see that instead of wide-ranging solutions coming from rabbinic leadership, it is the secular courts that are finding creative ways to free women.
Queen Esther might be seen as the original agunah, stuck in a marriage she did not want, with no one able to free her. How ironic, then, that the words Mordecai said to her when she hesitated to go before the king (some say this voluntary approach to the king was her tacit acceptance of her marriage) were, “For if you remain silent at this time, relief and deliverance for the Jews will arise from another place.”
It seems that today Yashar and its band of heroic attorneys are the place from which many agunot will find their deliverance.
Rabbi Levi Brackman
In Judaism, when a man refuses to give his wife a religious divorce he is taking away her most basic human right – her freedom to live and be who she wants to be.
In my 14 years of practicing as a rabbi, I have been asked numerous times to offer counsel and support to couples in failing marriages.
Despite the fact that it takes two to tango, often the breakdown of a marriage is more the fault of one party than the other. Yet no matter how the marriage ends and who is at fault, if the husband does not actively agree to give a Get (Jewish religious divorce) immediately after the wife requests it, he is always in the wrong.
From a religious perspective, the Torah is very protective about the feelings and dignity of women – even more so than that of men. The Talmud warns men to never hurt their spouses’ feelings and/or cause them to weep. It cautions men to be exceedingly careful about their spouses’ dignity and honor (Baba Metzia, 59a) and to respect and honor them more than they honor themselves (Yevamot, 62b, Maimonides, Ishut, 15:19).
These guidelines are based on biblical sources and have been codified into Jewish Law. Furthermore the Talmud tells us that in matters of worldly and household affairs the women’s opinion takes precedence to that of the man’s (Baba Metzia, ibid).
Clearly, a man who refuses his wife’s request to give a religious bill of divorce for any period of time, after it is made clear that from her perspective the marriage is over, is contravening these extremely serious sections of Jewish law in the most grievous manner possible. But refusing to give a Get is also the mark of a man who lacks basic human empathy and common decency.
In civil divorces, either spouse has the right to file for divorce. Once the papers are filed, the process is set in motion and after all matters have been settled the divorce is finalized. Granted, this can take some time. But once one party files, the other has to go along with it.
In the case of a Get, it is entirely different. The wife has no ability to file. The best she can do is ask her husband to cooperate with a Jewish court or rabbi to have the Get written on his behalf and then handed over to her in front of witnesses.
Should he refuse, insisting instead that he would like to remain married, there is nothing she can do. She becomes an Agunah (chained woman) with no way of extracting herself from the man she no longer wants to be married to.
In Jewish Law, this means that she cannot remarry or have a serious relationship with another man. She remains stuck, unable to move on with her life. This is in contradistinction to the husband, who can still find ways to remarry should his wife refuse to accept a Get.
In addition, the religious sanctions the husband may face should he have a relationship with a woman other than his Get-refusing-wife are far less severe than those faced by a woman in the identical situation.
Thus, in Judaism, when a man refuses to give his wife a Get he is taking away her most basic human right – her freedom to live and be who she wants to be.
The moment the wife decides she no longer wants to be married to her husband, human empathy and common decency dictates that he must let her free. By finding excuses for not doing so, he is controlling her in a manner that contravenes every aspect of her basic human rights. There is only one apt description for that type of behavior – pure evil.
Some men hide behind Jewish Law as a reason not to give a Get. They argue that all aspects of the divorce need to be settled before they are halachically (according to Jewish law) allowed to give the Get. They then proceed to make any settlement as difficult as possible allowing them to continue their abusive and controlling behavior.
Tragically, there are some Jewish courts that allow men to behave this way. Happily, however, most of the larger reputable Jewish courts will not allow narcissistic men to use religion as a tool to further abuse and blackmail their wives.
The most obnoxious Get refusers, however, seem to avoid reputable Jewish courts. As pernicious are men who tell their wife who is desperate for a divorce that they “want to work on their marriage” and therefore won’t give a Get. Again, this ploy won’t work at most reputable Jewish courts.
In the final analysis, the refusal to give a Get by a husband, for any reason, will cause pain to his wife. Therefore, it is not only contrary to the spirit of Judaism; it contravenes the letter of the law as well.
But beyond that, it is a terrible desecration of G-d’s name because, in essence, it is just another example of the cynical use of religion to hurt and control another human being. Tragically, this is yet another case of women being especially disadvantaged in this regard.
Decent men and women must not be silent when they see religion being used to batter and abuse others. Saying that this is not my business or that I need to know the entire story before I can judge is not acceptable.
With regards to a Get, the man holds all the power and the women has none. Thus, the instant he refuses her request for a Get he is automatically in the wrong, no matter what the background story is or was.
Decent people everywhere, therefore, must speak out against such people to the degree that it becomes socially unacceptable not to immediately give a Get upon request.
As the halachic prenup, which ensures substantial monetary penalties for not giving a Get, becomes more popular, this problem will hopefully become a thing of the past.
But until that happens, there are still women who are chained and suffering, and it is up to you and me to do all we can to ensure that their evil tormentors do not get away with it.
Levi Brackman is a Rabbi and best-selling author.
‘Rising From Divorce’ seeks to engage the insular community with concrete methods to ease children’s pain in the aftermath of an all-too-modern problem.
NEW YORK – Coming on the heels of the North American release of “The Get,” an Israeli film about religious divorce in Israel, comes a new video targeted to the Orthodox Jewish community, “Rising from Divorce.” The short film, the first of its kind, stars real people and is designed to educate rather than entertain.
“Rising From Divorce” casts no judgment on a couples’ decision to divorce. It doesn’t address the reasons for divorce or try to prevent it. Rather it seeks to engage the Jewish Orthodox community about the impact it has on parents and children.
“Everything we do is confronting stigma in the community. We’re not dealing with the whys, but the what happens after,” said Derek Saker, from the New York-based OHEL Children’s Home and Family Services, which produced the video.
OHEL decided it was time to address the issue since currently in the United States, about 30 percent of Jewish marriages end in divorce. And as the largest social service organization serving the Jewish Orthodox community and beyond, OHEL felt it was uniquely positioned to offer advice, Saker said.
And so the call went out. Would men and women be willing to share their stories in front of the camera? The answer was a resounding yes, Saker said. Nearly 30 divorcees stepped forward.
“I look at this video as ‘it takes a village,’” said Dr. Hindie Klein, a psychologist and OHEL’s director of clinical projects.
“There are many different aspects on how we can help, on how to give divorcees and children of divorce the emotional support to make a difference. Everybody in the community needs to be highly sensitized,” said Klein.
To that end the video includes interviews with divorcees, rabbis, community leaders, children of divorce and teachers. The organization plans community-wide screenings followed by panel discussions in cities across the US and in Canada.
Rivky Sonnenfeld married at 22, had a baby at 23 and divorced at 25. Fifteen years later, she works full-time and goes to school, all while raising her daughter alone in Flatbush.
Sonnenfeld counts herself as fortunate. Although divorce carries a lot of stigma in the Orthodox community, her parents, who live in Scranton, PA, never questioned her decision. Nevertheless, she felt compelled to tell her story on camera.
“I was very impressed with their vision [OHEL] and what they wanted to do,” Sonnenfeld said. “I just felt if this could open everyone’s eyes to the situation, to what is going on. It’s about moving forward and how the community could better step up.”
Whether it’s inviting a newly divorced man or woman for Shabbat dinner, offering to take a divorcee’s child to synagogue or just listening, there are many ways for people in the community to help, Klein said.
It’s important for educators to be aware of what children of divorce are experiencing, said Rochel Chafetz, a teacher at an all girl’s Jewish Day school in New York City.
“I see a sadness and I’ll ask what’s wrong. ‘My parents are fighting like cats and dogs and they just pull me in,’” Chafetz said in the video. “The kids are not barter material. Do not pull them in.”
Klein said the video is a conversation starter; she hopes it encourages people to seek help during what can be a tumultuous time. The film highlights four areas, the pain of divorce, the consequence of a high conflict divorce, the intelligent divorce and lastly, the role of the rabbis, educators and the community at large.
Alan Cohen, the only male divorcee appearing in the video, decided to participate out of respect for OHEL and because “it has the potential to help other people.”
“I could have used some advice when I got divorced,” Cohen said “Not necessarily legal advice or financial advice, just overall practical advice for what to do and what can happen.”
The Times of Israel
As a professional agunah advocate, if I had a penny (or actually, I’ll take a dollar) for every time someone told me, “but there are two sides to every story!” I would be a Jewish Bill Gates. In the many agunah cases I have worked on, I have seen get refusal in a variety of forms. Men who are no longer religious claiming they should not be required to give the get because they are not part of the Jewish community, and men who claim to be deeply religious who argue that it would be a violation of their faith to release their wives. I have seen some people abandon their children and insist that they will only give a get if they are off the hook for child support, and I have seen others passionately rage that they are only doing this for their children, so they can get the control over them they feel entitled to.
Yet, in all of these different—and yet the same—scenarios, I have seen something even more curious: Communities, who ostensibly believe in Torah, in right and wrong, and in treating all humans with dignity and respect, consistently countering with the same question: “Aren’t there two sides to every story?”
Theoretically, yes. When it comes to a divorce, there are many shades of gray, and the “truth” is probably buried somewhere under the layers of pain and distrust and litigation documents that have accumulated over the years. But when it comes to get refusal—the decision to unilaterally withhold a divorce and chain your spouse to a dead marriage—that decision is black and white. Still not convinced? I’ll explain why.
Ever since the 1970s, our culture has been talking more and more about domestic abuse. We have slowly recognized that abuse is not just about black and blue marks, but can manifest itself in emotional assaults, psychological manipulation, and financial control. Domestic abuse is not just about a smattering of rude comments, but a pattern of controlling behavior. It can take years for a victim of domestic abuse to decide to leave, and it takes noticeably longer for victims in the Jewish community. But for a Jewish woman, the largest hurdle to her escape is likely awaiting her after her departure: her struggle for a get. The get is often the last vestige of control an abuser has over his victim, and the husband’s refusal to issue a get is the final act in a long series of abusive behaviors. As a pattern of controlling behavior in which the husband repeatedly asserts his power and control over his wife by refusing to issue her a get, get refusal is undoubtedly a form of domestic abuse.
If you hear of a woman who has been beaten severely by her spouse, would we ever respond with “But there are other sides to the story!” Unlikely, because we as a society have accepted that regardless of a person’s behavior, there is no justification for beating up your spouse. Human beings are entitled to a basic amount of dignity, and such treatment is never, ever acceptable. While get refusal may not leave marks on the body, it can and does leave marks on the soul. It is a form of domestic abuse like any other, and as such is never acceptable. Period. If a couple has issues they need to work out with one another, be they finances, parenting, or anything else, there are ample forums to use to achieve a fair and just resolution of the issues: beit din, litigation, arbitration, mediation, etc. Extortion is not and should not be viewed as a reasonable means for resolving such weighty and complex issues.
Because after all, although many stories have two sides, some of them have just one: The right one; the good one; the one that fulfills the Torah’s injunction to care for the vulnerable among us. And that’s the one we should follow.
Keshet Starr holds a J.D. from the University of Pennsylvania Law School, and has spent her career working with Orthodox victims of domestic abuse.
The Australian Jewish News
A VICTORIAN magistrate’s decision could have an important impact on the granting of a gett (Jewish bill of divorce) if a husband refuses to do so.
In Orthodox Jewish tradition, a woman who does not receive a gett cannot remarry within the Jewish community and is considered an “agunah”, a woman “chained” to her marriage. While Australian figures are not available, there have been 462 recorded cases of gett refusal in North America in the past five years.
In a Victorian court last week, a magistrate broke new ground when she accepted a legal argument that withholding a gett constituted unlawful “psychological and emotional abuse”.
The magistrate made the legal interpretation in the case of a woman whose husband has refused to grant her a gett in the Melbourne Beth Din (MBD) unless she paid him “a substantial amount of money”, according to family lawyer Talya Faigenbaum, who represented the woman.
Faigenbaum told The AJN the couple had separated some years ago and had been through Family Court proceedings and were given final orders. In the case before the magistrate, the woman had applied for an extension of an intervention order, and gave the husband’s refusal to grant a gett as a ground for the extension. Privacy laws prohibit publication of the applicant’s name, the court’s locality and the name of the magistrate.
The court heard that despite a request from the MBD and negotiations through a rabbi, the husband insisted that the sum of money was paid in exchange for even considering granting the divorce bill.
Faigenbaum, who was handed the case by the MBD which she represents when difficult Jewish marriage issues become secular law disputes, said she decided to argue that gett refusal, as “psychological and emotional abuse”, is a form of family violence.
“This was an argument that had not been put before the Magistrates Court before,” she said of the landmark ruling. “It’s created quite a bit of excitement amongst legal circles.”
Rabbinical Council of Victoria president Rabbi Mordechai Gutnick, a senior dayan (judge) of the MBD, this week welcomed the ruling. “This precedent would allow us another method of using the civil court system to help provide a gett from a recalcitrant husband.”
But he cautioned that “the involvement of the civil courts needs to be carefully applied so that it does not interfere with the requirement that a gett only be mandated and enforced by a duly constituted Beth Din”.
MBD registrar Rabbi Ian Goodhardt said the court’s ruling should instil confidence “that the Melbourne Beth Din will not sit idly by and allow people to linger without a gett without energetically pursuing all options to achieve a satisfactory resolution.”
He added, “Secondly, the option of identifying the behaviour of a spouse who is refusing to cooperate with a gett as infringing the law against domestic violence should now be considered by people in that situation, who may find that it is appropriate in their particular circumstances.”
Dr. Rachel Levmore
The Jewish Press.com
With International Agunah Day approaching (March 4, Taanit Esther), there is yet another very public story of an agunah fighting for her get.
Her name is Viviane Amsalem. Although Viviane is not married to a scion of a rabbinic family or a politically powerful figure, her case has made headlines. All around the world – not only the Jewish world – her dilemma is elucidated in detail, entering the minds and hearts of those who observe her travails.
Yes, Viviane can be considered a figment of siblings Ronit and Shlomi Alkabetz’s imaginations, but she is, in a very important sense, quite real. Viviane may exist only on the silver screen but she is every woman suing her husband for a get in every rabbinical court in the Jewish world.
The film “Gett: The Trial of Viviane Amsalem” is being screened all over Israel, Europe, and North America. Produced by experienced filmmakers, it quickly made a splash by winning or being nominated for several movie industry awards.
Shining a spotlight on the difficult proceedings that take place within the Israeli rabbinical court system serves to illuminate a dark corner of Jewish society. Ronit Alkabetz’s presentation of the longsuffering wife, along with Simon Abkarian’s performance as the devout husband, ring true. The fact that there is no over-dramatization of what are in fact dire circumstances gives the story a compelling feel of everyday life. The story leaves its mark on viewers, who find their minds grappling with the facts as their hearts break with the suffering.
Viviane Amsalem is an ordinary woman. Her husband, Elisha, is an ordinary man – a regular at the neighborhood minyan. Although acquaintances cannot – or choose not to – discern any unusual strife between them, the discord runs so deep that Viviane leaves home.
Unable to communicate to the rabbinical court the causes underlying her desperate situation (although viewers immediately sense them), Viviane actually finds herself on trial. Instead of the judges taking her husband to task for refusing to give her a get, the tables are turned. She finds her motives examined, is refused assistance, and is told she must return to the man with whom she cannot possibly live.
This film was not made for the purpose of “rabbi bashing.” Nor is it an immodest movie. In fact, “GETT” is being screened for Israeli Rabbinical Court judges at their annual convention. It simply relates the fairly typical experience of a victim of get refusal, desperate to escape a crushing home life, trying to achieve her freedom and live normally.
Most significantly, it imparts through the victim’s eyes the procedures of a rabbinical court dealing with a recalcitrant husband. This actually is an opportunity for men, rabbis and laymen alike, to gain understanding of the impact their actions have on women seeking a divorce.
There is a message here for all audiences, including viewers unfamiliar with Jewish law. Abuse is not limited to physical forms. The crushing of the spirit is equivalent to the crushing of bones. Quiet manipulation of power within the parameters of the law undermines both law and society. Taking advantage of one human being’s dependence on another for freedom is the ultimate form of abuse.
It behooves us – and not only because we are about to mark International Agunah Day – to take note of this ordeal forced upon so many ordinary women.
Rachel Levmore (Ph.D. in Jewish Law from Bar Ilan University) is a rabbinical court advocate, coordinator of the Agunah and Get-Refusal Prevention Project of the Council of Young Israel Rabbis in Israel and the Jewish Agency, and author of “Min’ee Einayich Medim’a” on prenuptial agreements for the prevention of get-refusal.
Rabbi Dr. Eliyahu Saffran,
Not every marriage is successful. Despite our desire for each to be perfect, we know the truth is that there are hundreds of reasons a man and a woman, once joined in love and joy, should no longer remain together. When that happens, Judaism recognizes the need to let the marriage come to an end in a way that allows both bride and groom, husband and wife, to grieve for what “could have been” but wasn’t, for promise unrealized, and then go forward with a productive and meaningful life. The Torah envisions the reality of our deepest relationships by providing both the road map for marriage – the kesuba – and the mechanism for ending a marriage – the Get.
In recent months and years, we hear more and more of the men – learned, yeshiva-taught men – who withhold Gitten from their wives; wives who have a G-d-given right to be released from their failed marriages. Such cruelty by such men damns these agunot to a non-life.
And it is wrong.
Just how wrong can be clearly understood by an examination of the Bais Din’s elevated role in the community and the holiness of Sabbath and yom tov. Simply consider that the Bais Din does not convene on Sabbath or yom tov. At first glance, this would seem obvious. But it is closed not only for judgment but also for deliberations among the dayanim (judges) even though one could suggest that dayanim deliberating without issuing piskei din (decisions) is little different that Talmud Torah. However, the Talmud, in the latter part of Masechet Beitza (37a) which Daf Yomi recently concluded, teaches that the Bais Din does not issue judgments on Sabbath and yom tov lest they would be prompted to write the psak din and transgress the prohibition of kesiva (writing). Likewise, merely deliberating runs the risk that it may lead to their writing their thoughts and observations on a given case.
But the role of the Bais Din is not only to rule but also mete out punishment. Further, it is empowered to imprison one whom it suspects may escape in order to avoid appropriate punishment. It would seem that these Bais Din actions would be excluded from the Talmud’s prohibition of lo danin, not to issue rulings. These responsibilities and actions require no writing. Yet, quoting Shibolei Haleket, the Rema rules that it is prohibited to punish or imprison on Sabbath and yom tov, a ruling founded not on the Talmud’s positions on danin but rather because G-d ordained that punishments not be administered on Sabbath and yom tov. As Rambam teaches (Hilchot Sabbath 23:14), “we do not punish on the Sabbath… if one was sentenced to lashings or to death, we do not mete out the lashings (malkos) or execute him on the Sabbath…” The Shibolei Haleket further ruled that it is likewise forbidden to imprison one who is suspect of escaping from punishment – because imprisonment is also a form of punishment.
The Sefer Hachinuch (Vayakhel) explains the basis of this principle that all are gifted with a day of rest Sabbath that, “…It was the will of G-d to honor this day, that all should find rest in it, even the sinners and the guilty. A parable teaches that a great king summoned the people of the country to a one-day feast; a feast when he would invite every man, bar none, to the celebration even though immediately after the feast day he would sit in judgment (of some who were present at the feast). So in this matter, HaShem commanded us to hallow and honor the Sabbath day for our good and our merit.”
This too is for the honor of the day.
Even the administration of punishment which may not entail any chilul Sabbath is forbidden on the Sabbath. To imprison one who may escape punishment is not deliberation of law; it is not adjudication of law which is rabbinically forbidden; it is also not administering punishment which is Biblically forbidden, “that the judges should not carry out judgment on the Sabbath” (Chinuch 114). It is merely subsumed in the logic and grace of the prohibition to administer punishments – so that all may equally enjoy G-d’s desire for all to rest, whoever they are.
Such a blessing and gift! That all should enjoy the beauty of Sabbath! Imagine then what it means to learn that there is an exception to this rule. A single, sole exception. The one exception deemed by Chazal as possessing an intention and goal to cause such misery that he can be imprisoned on Sabbath, is not a murderer, is not a thief, and is not even one who has waged war.
Who then has committed such a grievous sin that even the blessing of enjoying Sabbath as a free man can be denied him? Who is considered so depraved that he is not welcome to G-d’s feast unless and until he fulfills his G-dly and human obligation? Who is called out even when the thief and criminal are not? It is the husband who seeks to escape and leave his wife without a valid get, an agunah.
The Mishna Berura is emphatic, v’ein b’klal zeh – not included in this general rule [that we may not imprison one whom we suspect will escape] – im echad rotzeh l’vroach k’dei lehagen ishto – if one wants to escape in order to leave his wife an Agunah – mutar haya l’chovsho (it is permitted to imprison him).
It is only this one that the bais din is allowed – no! obligated! – to detain on the Sabbath. His imprisonment is not regarded as punishment which is forbidden on Sabbath, but rather an emergency permit granted to the bais din to assure that this vengeful, spiteful fellow is denied an escape route which denies the woman her G-d-given right to go on with her life. This one can be detained on Sabbath in order to assure that he not destroy countless future Sabbath feasts of this unwanted wife.
Again, it is understandable that there is bitterness after a marriage fails. There is grieving for a life envisioned and promised that did not come to fruition. But that bitterness, that grief, that unfulfilled promise, cannot and does not allow a man to become a virtual jailor of his wife’s future.
We can all weep for the marriage that does not succeed. But our sadness necessarily turns to astonishment and then anger when we learn that the husband, far from acknowledging and accepting this reality, lashes out in anger and vindictiveness by withholding the Get (divorce decree that must be given by husband to wife for a halakhic divorce, ed.).
Such a man who then seeks to flee so his poor wife remain an Agunah is NOT a category of punishment (onesh) forbidden by Torah law. It is not a category of deliberation/adjudication of law (din) forbidden by rabbinic law. It is, in fact, a category unto itself and, as such, presents the Bais Din with the power and authority to put the man in his “place” in order to protect the legitimate rights of the potential Agunah.
Chazal are clear, being an Agunah is an unspeakable curse, one that necessitates the suspension of this Sabbath rule.
That our tradition and ways are consistently concerned and sympathetic to the Agunah is made even more evident when Poskim discuss this exception to the rule regarding imprisonment on Sabbath. They cite an additional example of one who may also be detained on Sabbath. In Mishna Berura, it is written, “…that it is likewise mutar (permitted) to receive testimony from a dangerously ill witness [who may very well die, unless we receive his testimony immediately, on Sabbath] about a woman whose husband died, where we are concerned that no other witness will subsequently be found to verify that the husband indeed died.”
It is clear that halacha is determined to find a way to free a married woman from remaining in a perpetual state of limbo, without being able to move on with her life – going so far as to allow the imprisonment of a husband on Sabbath if he refuses to provide his wife with a get or by detaining a dangerously ill man in order to receive his testimony regarding the death of a husband. In both cases, the intention is clear – to ensure a way for the wife to move on and live a meaningful, happy life, unshackled by the sadness of a failed marriage or lost husband.
Jewish law does not tolerate allowing a woman to remain chained. It clearly stands for justice for the Agunah.
Rabbi Dr. Eliyahu Safran is an author, educator, and communal worker.
Rabbi Ephraim Sprecher,
I recently attended the International Agunah Day Event in Jerusalem. An Agunah (literally a chained wife) is one whose husband deserts her and refuses to give her a Get, thus preventing her from remarrying. The leading Rabbis in every generation have tried to find solutions, even far-fetched ones, for the distress of Agunot.
Rabbi Akiva Eiger helped to release an Agunah with the explanation that, “The time is right to release a Jewish wife from being an Agunah, and Jewish women should not be Hefker (ownerless victims who are trapped and might be led to sin). Thus we are going to be lenient with an Agunah.”
The Maharam of Rotenberg in his Responsa goes so far to rescue an Agunah by invoking the concept of “Mekach Taoot” (“a marriage under false pretenses”). Had the wife known that her husband was so cruel, she never would have married him. Therefore the act of Kiddushin (marriage) is annulled “L’Mafrea” (retroactively) using the concept of Hefker Beis Din Hefker (what Beis Din declares null and void is null and void). The Maharam also explains, “Kol Hamekadesh al daatei d’Rabbanan Mekadesh” “Everyone who contracts a Jewish marriage does so with the consent and agreement of the Rabbis.”
These great Rabbis of the past were no less G-d fearing than the Dayanim of today. They were also familiar with the warning of the Talmud (Sanhedrin 7) against hastiness in judgment, ” A Dayan (Rabbinic judge) must always see himself as though the gates of hell are open beneath him”. However, the Maharam and Rabbi Akiva Eiger in their awareness of their great responsibility were not afraid to seek solutions for complex questions about Agunot. Moreover, according to Kabbalah, releasing an Agunah brings the Final Redemption closer.
Today we also have the widespread syndrome of Jewish wives being Hefker and denied a Get. Solving their problem according to Halachah is one of the major Rabbinic challenges of today. Israeli law has authorized the Rabbinical Courts to send a husband, who denies a get to his wife, to prison. However, there are Dayanim (Rabbinic Judges) who are opposed to such an enforcement, for fear of a Get Kofui – a divorce, granted under coercion, which is not considered valid. Consequently there are many cruel husbands who exploit this situation for prolonged abuse against their chained and captive wives.
This is a complicated and complex issue. On the one hand, a Get, imposed on the husband against his will, is invalid according to the Halacha. On the other hand, the Rambam rules concerning a husband who refuses to give his wife a Get, “He is beaten until he says, ‘I agree’ “. The Rambam says that such a Get is kosher and valid. This seeming contradiction is explained by the existence or lack thereof of a decree of Beis Din requiring the husband to divorce his wife. Most opinions agree that without such a prior Rabbinical Court decree, even mild persuasion might threaten the non-coerced requirement of the Get.
With such a Rabbinical Court decree, requiring the husband to divorce his wife, persuasion, coercion and even force are considered valid to bring the husband to really want to comply with the decree of the Beis Din and give a Get of his own free will.
Today’s Rabbanim are divided over the types of sanctions which, according to Halacha, can be imposed on husbands who deny their wives a Get. The unresolved nature of these differences of Rabbinical opinions has caused many wives to live as captive women to unscrupulous and cruel husbands who hold them in chains to blackmail them to receive a Get. Many Rabbinical Judges seem to ignore the directive of the great Maharsha in the Talmud Bavli Yevamot who says, “To free an Agunah our Rabbis invoked many far reaching leniencies.”
The Maharsha concludes that,” G-d must grant courage to Rabbinical Judges so that trapped and captive suffering wives will be blessed with peace and domestic tranquility.”
Rabbi Ephraim Sprecher, Dean of Students and Senior Lecturer at Diaspora Yeshiva, is not only a popular speaker and teacher, but also a dynamic thinker and writer. A student of Harav Yaakov Kamenetsky and Harav Gedalia Schorr, Rabbi Sprecher was granted smicha (rabbinical ordination) by Torah Vodaath Yeshiva. Prior to his current position, Rabbi Sprecher was a professor of Judaic studies at Touro College in New York. In addition to his duties at Diaspora Yeshiva, Rabbi Sprecher writes a regular column on various Judaic topics in the Jewish Press, and lectures regularly at the OU Israel Center in Jerusalem.
The Jewish Press.com
All we need to do to solve the Agunah problem for the next generations is to ensure the widespread use of the “halachic prenuptial agreement,” right?
Pre-nups are agreements by which the husband, who is obligated by Jewish law to support his wife (mezonot), voluntarily obligates himself to give his wife a sum (usually about $200 per day) for every day he fails to appear before a bet din for purposes of giving her a get. Indeed, these agreements can be enforced in a court of law in the manner of any executed contract. The pre-nup, however, addresses only those cases where the husband refuses to appear before a bet din and give a get.
Yet to be addressed is this question: What happens when the husband gets to the bet din? What happens when he demands, as a precondition to his giving the get, that all matters related to the divorce – including property distribution, support, and custody – be submitted to the bet din, not to a secular court, for adjudication? Worse, what happens when he declares to the bet din that he will “voluntarily” give the get on condition that his wife waive all her interest in the property and/or reasonable support?
In effect, such a demand compels the bet din to serve as a go-between rather than an arbitrator, and pressure is placed on the wife to accept the husband’s grossly inequitable terms in order to obtain her get. Unfortunately, such a demand is entirely in keeping with Jewish law orhalacha; in fact, there is a stringenthalachic injunction against submitting any civil matter against another Jew to a non-Jewish court.
This demand is the unspoken subtext that, my experience proves, continues to bind women in agunah’s chains.
I do not address myself here to the extreme cases in which mean-spirited men inflict anguish on their estranged wives. Nor do I address myself to the oft-repeated refrain that batei din are corrupt. Rabbi-bashing is not a constructive use of resources, especially since batei din are integral to Jewish life, particularly on the issue of the get, and are here to stay.
My focus, rather, is on the common and pervasive use of batei din, by many men, to secure the kind of inequitable financial settlement they could never obtain in a secular court of law.
Marriage under secular law (unlike under Jewish law) is deemed an economic partnership. Assets accrued during the course of a marriage are equally, or, as in New York, equitably, distributed upon dissolution of the partnership. Jewish law does not recognize assets accrued during the marriage to be “marital” or shared property. Instead, property and money acquired by the husband alone or the couple together belongs solely to the husband. (A business that the wife alone created and managed may be acquired by her under certain conditions.)
What this means is that if the wife had been taking care of the children while the husband was running a business, under Jewish law she is not entitled to any portion of that business. Nor is she entitled to any maintenance (formerly alimony) or retirement benefits, as a man has no obligations whatsoever to his divorced wife. His sole responsibility is to support his young children (to the age of six) and to provide for their education. The only property to which she is entitled is that which she brought to the marriage; her dowry; separate property; or that which she received by inheritance or gift during the marriage.
In other words, he says to her, “O.K., honey, you want your get? Fine! But I will only give it to you if you do not go to secular court.” Even if the wife has already sued and obtained a civil divorce and court adjudication as to all financial issues, she may have no choice but to acquiesce in re-opening all issues before the bet din on pain of not getting her get.
Is it any wonder, then, that most men prefer to have their financial divorce issues decided in accordance with Jewish law – even men who would never consider submitting their own business disputes to a bet din? The coupling of personal greed and religious justification has thus given birth to a perverted use of batei din.
In earlier times, the ketubah was meant to provide for the divorced wife and is, in fact, a pre-nup. But at some point in history it lost its efficacy and has been transformed into a liturgical document, especially among Ashkenazi Jews. (Some Sephardim negotiate the ketubah seriously and specify large sums in the event the man wants to divorce his wife – one or two million dollars rather than the proverbial “two hundred zuzim.”)
But today we are confronted by a terrible void – one that is exploited by many men who know they have no halachic obligation to support a divorced wife while the wife is bereft of any claims to marital property.
What can be done to remedy this dire state of affairs? As our Sages tell us in Pirkei Avot, “It is not your obligation to complete the task, but neither are you free to refrain from attempting to do so.”
We who are experienced attorneys must engage with the rabbinic courts to ensure that the procedural safeguards to which batei din are subject, both under New York State Rules of Arbitration and under halacha, are enforced.Among those safeguards: no ex-parte communications between parties orto’anim (rabbinic advocates) and the dayanim/ arbitrators; discovery of all financial matters must be produced or subpoenaed; evidence presented to judges is also to be provided to the other parties; witnesses are to be subject to cross-examination.
Additionally, we licensed attorneys must master a course of study in practical halacha so that we can effectively argue cases before rabbinic courts. Since the rabbinic courts generally act as courts of equity and base their decisions on peshara (compromise) rather than din (the strict letter of the law), our professional training and presence is especially warranted.A course of study is available in Israel to train to’anot (female advocates who are not lawyers) to appear before the rabbinic courts only. Yet there is no institution anywhere in the Diaspora that offers something similar.
There are many male and female attorneys who are conversant with Jewish texts and adept in the art of persuasion. Our clients who must submit to the jurisdiction of a bet din would be better served if we were also trained in the halachot governing divorce and bet din procedure.
As attorneys, we are held to a professional standard of ethics and are empowered to invoke the rule of law in safeguarding proper procedure before a bet din under the rules of arbitration. Will this solve the problem? No – but it will go a long way toward improving the professionalism of batei din, and that is an essential part of the solution.
Tze u’lmad – let us go and learn.
The Jewish Press.com
Jewish law mandates that either spouse can request a get but only the husband can grant one. This technicality in the Jewish divorce process has led to nefarious manipulations by husbands who wish to gain the upper hand in divorce settlements or permanently punish and control their wives.
Such a flagrant imbalance of power enables a get-threat shakedown. Women, some with many children, are faced with impossible demands, forced to yield homes, assets, even custody; coerced into accepting drastic reductions in spousal and child support payments; driven to rely on welfare and social services to survive. Unless women relinquish their rights, the get is often withheld. This deliberate flaying of Jewish law is clearly contrary to its designed intent.
Rabbis who should be reining these men in, enjoining them from using bullying and coercive threats of withholding the get, frequently act as active or passive agents facilitating the husbands’ outrageous demands in bet din. Even well intentioned rabbis encourage women to yield so they can obtain their freedom. The system is tragically out of balance in the diaspora – the number of agunot is on the rise and the abuse of the system by recalcitrant husbands has become common practice.
Many women receive ransom calls, usually through emissaries of the husband, the indirect intimidation stance of cowards. My husband’s rabbi, privy to details of the abuse I’d endured, had no qualms about requesting $250, 000 for the get – and that was twenty years ago. Several years ago my father-in-law said it would take $500, 000 just to coax his son to the negotiation table, and that offer was contingent on my taking out an ad in a major paper begging his forgiveness for all the horrible things I had done to him.
Yes, I got custody of our child; yes, he got supervised visitation. That’s what happens when you can’t control your rages or stick to the mandates of the court – but that’s not his fault, its mine. He remains the martyred, offended party.
A get was never intended to be used as a weapon or a bargaining chip. All custodial and monetary issues are resolvable, either through arbitration, settlement, p’sak in bet din, or court mandate.
Can you imagine being deprived, in the prime of life, of conjugal relations, intimacy, and a home life for years and years? The beauty of two people living in harmony works when a couple creates a loving, cooperative, respectful life together. However, when marriages don’t work, the family home can become acrimonious and the marriage unsustainable. The Torah made provisos for such cases. Yet many judge a woman’s choice to exit a bad marriage. They feel she should weather the worst, go for more marital therapy, stay for the sanctity of marriage and the sake of the children… What naiveté to think a marriage has to be happy!
Sometimes marriages just need to end. It’s a fact of life. Common causes are financial strife, deceit, infidelity, or couples who’ve grown universes apart, their differences irreconcilable. There are those who endure extreme physical and emotional abuse. Most are women, afraid to leave; many, in fact, stay longer than they should, their bruises not always visible to outsiders.
Children deserve a stable, nurturing, uncontentious environment, not a hostile battleground etched onto their indelible consciousness, shaping their future relationships. Some couples erroneously think that conceiving another child together will somehow mend the family. It only builds the casualty count. When a marriage is dead, there is a moral imperative to facilitate a divorce and to establish the proper separation mechanisms for the two parties.
To date, there is very little recourse for women in my position. Whatever funds we’ve managed to squirrel away are spent with astounding diminution on litigation in bet din, civil court, or both. My husband joined a cadre of recalcitrants, expert in strategic prolonged pro se litigation, advocating “father’s rights” but unable to stay the course of court-appointed forensics or adhere to court-ordered visitation schedules. My life savings went quickly down the rabbit hole during years of bet din and court procedures. Many husbands cleverly hide assets and women are stuck raising children alone, juggling job, motherhood and household with limited assistance, bereft of funds, struggling and vulnerable.
As time passed and the threat of “No Get Ever” became my reality, I heard several cavalier remarks along the lines of “Why don’t you just have someone beat the guy up?” The urban myth had some recurrent circulation among agunot, but very few entertained the idea seriously; it was both illegal and risky. I’ll tell you what I was thinking: He robbed me of my life, took my neshamah out with his vindictiveness. For twenty years and counting I’ve had no man to share my life, no ability to bring more children into the world. I’m looked at askew by my community, with people uncertain about whether they should support me or avoid me like the plague they might catch, and I live on the periphery, existentially alone…waiting.
I’m a good person, but don’t think I didn’t fantasize about hurting my husband back as the stress of prolonged litigation wore on, the loneliness became unbearable, and the chains rattled loud enough to chafe my life raw. Never much of a gambler and all too cognizant of the rules of consequence, I wouldn’t risk my child’s safety or risk depriving him of his mother. Retaliation would have been inevitable, because retaliation and control are what my husband lives for and thrives on.
And though I could imagine inflicting pain on my husband, I could not envision harming the father of my child or looking into my son’s eyes knowing that violence was the means to my freedom.
No one in Klal Yisrael should feel so isolated or desperate that brute force becomes the go-to means of expediency in the procurement of social justice. The ancient Jewish code of law stresses compassion wherever possible. Our moral and ethical compass can be an instigator for real change through the living well of Torah. The desperate actions of a few who resort to drastic halachic measures to obtain a get from men who refuse to give one only highlight the exasperation of these women and rabbis and batei din. The allegations against those rabbis should be seen as a call to action rather than an opportunity to vilify the few who try to break the status quo and change the state of our imprisonment – while everyone else sits on the sidelines waiting for something to happen.
We need to mobilize our resources in a unified way to rectify this abusive mockery of our halachic system. We are the children of the Torah, steeped in rich Talmudic analytic precedence, interpreting law and its applications with analytical prowess dipped in the honey of compassion. Rabbinic law expounds and deciphers, adapting ancient laws to new circumstantial variances, technological advances, and even new twists on subversive amorality. How long do agunot have to wait? How long must we be left barren and forsaken on the roadside? Do we need the Messiah to deliver a rabbinic consensus on this matter?
We need to find better ways to free agunot. In Israel, men are fined for non-compliance with bet din orders, some have rights and privileges rescinded, some are jailed. In the U.S., the Get Law and prenups have been somewhat useful. We have halachic precedence for annulling; what rabbis initiate, such as kiddushin, they can undo and annul. From rishonim to acharonim, notables like the Node B’Yehuda and more recently Rav Moshe Feinstein, zt”l, and Rav Ovadia Yosef, zt”l, freed some agunot on a case-by-case basis.
The Rackman get initiative had some halachic basis but lacked consensus and was problematic on several fronts. There is now word of a new bet bin formed by the erudite Rabbi Simcha Krauss and supported by the respected posek Rav Zalman Nechemia Goldberg, chief justice of the rabbinical high court in Jerusalem. The primary function of this bet din will be to address the agunah crisis using “systematic halachic solutions.” Let’s hope their efforts will help agunot trapped in the quagmire of this injustice.
As Jews, we must send a clear message that twisting tenets originally meant to safeguard will not be tolerated. Recalcitrants should be shunned by the community, made to feel uncomfortable and accountable while their agunot remain stuck. If there is a siruv, ostracize; forbid them from participating in prayers and communal gatherings. Every lion of every community and Torah institution should be instructing students and congregants that the get is not a weapon, not a means to extort – period, the end.
Rabbis should insist that every religious marriage ceremony be preceded with a prenup. When a couple goes to bet din and dissolution of the marriage is clearly the only alternative, the get should be given and held in escrow, with details of custody, visitation and financial arrangements to be hammered out via arbitration, p’sak, or court order. No matter how deserving, justified and righteous the husband is in his claims, the get should not be withheld for monetary or custodial recompense.
There should be zero tolerance for buying a heter meah rabbonim for $10,000 and upward because a husband doesn’t like how the bet din process is trending. There should be a ceiling on costs for bet din proceedings. Sitting rabbis should be paid regular salaries by the community so that monies are never exchanged by interested parties or one side given an advantage via fiscal staying power or powers to procure through payment.
Coupling of the get with the civil divorce process, as acrimony builds, is counterproductive. It transmogrifies rock throwing into radiological dirty-bomb detonation in a malevolent minute. When the fireworks are over, most settlements are fairly boilerplate and predictable once everyone finally comes to the table.
Personally, I have done all I can to obtain my get through the legal and halachic system. In the interim, I live each day with gratitude and joy, having attained an internal liberation that no controlling misogynist can set asunder. I mothered lovingly, was resourceful, and creative. My child never lacked emotionally or physically, and merited growing up in an environment of normalcy that co-parenting in toxicity can never sustain. All those who know my son adore him. He is a beautiful human being, whole, bright, caring and sensitive, possessing wise insights into life and people.
I thank God every day for all His blessings, and live life around the abyss. I leave bitterness for the “victimized” husband who still believes he has the power to truncate my life.
Batya Israel is the pseudonym of a freelance journalist whose focus is on social justice issues.
The Jewish Press.com
There are always two sides. That’s what makes discussion of this issue so difficult for me. But not difficult enough to have a firm opinion on how to handle a religious divorce in Judaism otherwise known as a Get.
There is never an excuse to withhold a Get from a woman. NEVER! So strongly do I feel about this issue now, that I can’t envision any circumstance where a Get should not be given when a marriage is no longer viable. Even when there are legitimate issues to discuss like custody of the children or post divorce financial arrangements (e.g. alimony and/or child support). If there is no hope that there will ever be reconciliation, the Get should be given without any preconditions.
I do not say this lightly. Because I am absolutely certain that divorce is not always the husband’s fault. Sometimes it is the wife who is a fault. People can be evil. Evil knows no gender. I need not go into details but it isn’t too difficult to imagine how some husbands are treated during divorce proceedings. Like being accused by the wife of molesting their children in an attempt to get full custody. These things unfortunately do happen.
Nevertheless, there is no way I could in good conscience ever support using the Get as any kind of leverage in any situation. Because that gives an unfair advantage to husbands. Once you allow the Get to be used for leverage, there is no end to the kind abuse it can entail. Since a woman can only be freed of the bonds of marriage if the husband willingly gives her a Get, he is the one holding all the cards. Even long after they stopped living to together as husband and wife and a civil divorce had been executed.
I am not saying that serious issues between divorcing couples shouldn’t be addressed. Of course they should. But not at the point of a gun. Once the marriage is over – a Get should be executed right away. Then they can talk. I believe justice will prevail most of the time. A truly good father can get custody over an irresponsible mother. I know at least one Orthodox family where the wife sued for full custody and father wanted joint custody. They went to court and the father got full custody. The Get was never used for leverage. It was given right away.
Unfortunately the world doesn’t work that way. The plight of Agunos is very much alive precisely because there are husbands that do use a Get for leverage. They will extort exorbitant amount of money as the price of giving one. One such case was reported recently in the New York Times. Meir Kin is withholding the Get from his civilly divorced ex-wife. He is asking for full custody of their 12 year old son and $500,000.
This is extortion pure and simple. Not only that, but he has remarried. Or more correctly, he married a second wife.
Now Halacha clearly forbids a man from having more than one wife. This has been the case for over 1000 years. But the prohibition is rabbinic. Biblically he is allowed to have more than one wife. A rabbinic prohibition may be structured any way the rabbis choose to do so. Which in this case enabled loopholes. Specifically one called a ‘Heter Meah Rabbonim.’ In very unusual circumstances, one may seek 100 rabbis to ‘permit’ a husband to marry a second wife.
One example where a man might be given a Heter Meah Rabbonim is when the reverse happens. When a man wants to give his wife a Get, but she refuses to accept it. A Woman who does not accept a Get remains married to him, whether he likes it or not, and whether he lives with her or not. A Heter Meah Rabbonim frees him to marry a second wife. A woman whose husband refused to give her a Get has no such recourse.
Nonetheless, I don’t think it is unreasonable to utilize this loophole if it is the wife who refuses to co-operate. There is no reason to insist that men should be put in the same ‘Agunah’ box as woman if there is a legitimate option for them. It isn’t going to help Agunos to force men to suffer from the same problem.
But the Heter Meah Rabonim does have potential for abuse. And in the case of Meir Kin, that is exactly what happened. He found a court that would execute the Heter Meah Rabbonim for him. He was thus permitted to marry a second wife and continue withholding the Get from his first wife until she pays his ransom and gives up custody of their son to him.
According to the Times, no other Beis Din (religious court) outside of the one that gave him this Heter recognizes the court that issued it. There is even some question as to whether he actually got one. But even if he didn’t, he is biblically allowed to have two wives. His wife may not have two husbands. Doing so is biblical level adultery. This situation is outrageous. This Rasha gets to go on with his life all while holding his first wife hostage – unable to remarry unless she pays his price!
Mr. Kin has been ostracized by the religious community. The court that issued him the Heter Meah Rabbonim is discredited. But I guess none of this bothers him. $500,000 is a lot of money. In my view, maximum pressure must be exerted on people like this to stop torturing others for financial – or any other gain.
The New York Times reports that there are two Chabad shuls in Las Vegas (where he currently lives) that allow him to Daven there. They do not count him for the minyan – but in my view that is not enough. They must ban him entirely. The entire community must publicly shun him. Unless and until he gives his first wife a Get, he should be completely rejected by everyone. There should be absolutely no place for this man to go.
It is people like this that result in the kind of court that caused another Chilul HaShem in reverse. Members of that court were arrested for kidnapping and torturing husbands like this into giving their wives a Get. We cannot have these two extremes in Judaism. Torture is not what Judaism is all about under any circumstances. But that does not absolve us from our responsibility to do whatever we can on a communal level to see that justice is done for the Agunah.
Harry Maryles runs the blog “Emes Ve-Emunah” which focuses on current events and issues that effect the Jewish world in general and Orthodoxy in particular. It discuses Hashkafa and news events of the day – from a Centrist perspctive and a philosphy of Torah U’Mada.
Dr. Rachel Levmore,
The Jewish Press.com
You are the mother of a me’agen – a young man who has turned his wife into an agunah.
Sometimes a person in your situation can get so caught up in defending her position or her son’s position that she fails to realize there is no longer a battle. She takes no notice that the oft-repeated justifications are irrelevant after all the issues have been settled – all the issues, that is, aside from the giving of a get.
Most significantly, she does not lift her eyes to take note of the effect her actions will have on her family members.
For the entire family, immediate and extended, is affected when a man refuses to give his wife a get. His mother may naturally stand behind her son to a certain point. After all, he is her son. But that is just the point – she is in a unique position of authority to tell him what to do.
A son, no matter how adult-like in years or independent in disposition, listens to his mother. The true support a mother should give her offspring is one that protects him from ruining his own life. And if she feels she has no right to interfere in his life, she is mistaken. For her son’s ongoing get-refusal will continue to ruin her life. She has a complete and moral right, as a mother and as a grandmother, to demand that her son give his wife a get.
The tannaitic sage Rabbi Shimon was asked by his teacher (Pirkei Avot 2:9), “What is the straight or honest way a man should follow?” He replied, ” He who sees what is yet to come.” Rabbi Ovadiah MeBartanura explains: “He foresees…what will come to be in the future and…calculates the loss incurred of a mitzvah as opposed to its reward, and the reward of a transgression as opposed to its incurred loss.”
Put in today’s terms – before taking action one should calculate the gain and loss incurred by that action before proceeding.
Examine your role not only as a mother but also as a grandmother and calculate the gain/loss ratio of your actions in the ongoing saga of your son’s get-refusal. For your granddaughter – the one who calls you Bubbie – is still quite young. At this point in time she relates to you as a young grandchild should, with love and trust that you truly look out for her welfare.
The fact is, however, that your son is refusing to give a get to her mother. In a short period of time she will begin to comprehend what this means. She will sense that your family hurt her mother.
In another few years your clever granddaughter will begin to use the Internet. Before you know it, she will, out of curiosity, search for her name, her parents’ names and yes, even your name, online. Toward the end of elementary school days, having studied Hebrew and some Jewish law, she will enter the word “agunah” in a search engine. Hundreds if not thousands of links will be displayed on her computer screen. Your granddaughter will be exposed to what the Jewish media wrote, explicated and shouted about the actions of your son. Her father.
Moreover, when your bright granddaughter enters her teens, it will dawn on her that it is not only her father who is actively involved in battling her mother. There is an entire family constellation at play. She will examine her Bubbie’s role in this preventable tragedy. The very same Bubbie who professed her love for the granddaughter and who, as a matriarch, is entrusted with a granddaughter’s welfare.
In fact, she will be so sharp that in her search for the word “agunah” she will notice that this very publication published many articles about agunot. Your teenaged (or even younger) granddaughter will find this very article you are reading – this article where the call is on you, as the mother of the me’agen and as the grandmother of the agunah’s daughter, to compel your son to give his wife a get.
You can do it! It is within your power! You have a moral standing to do so. For your granddaughter will note that this article was published in February 2013, right before International Agunah Day (Taanit Esther), and look back. Was there a get given two weeks after publication? If there was, then you will have done your part to see to your granddaughter’s welfare. You will have allowed a healthy relationship to develop between the two of you. You will have actively let your granddaughter know she can trust you with her secrets, her dreams and her love. You will not have allowed your son to ruin your chances of dancing at your granddaughter’s wedding. Your granddaughter will understand all of this sooner than you think – because she will read these words and recognize the truth.
The question that remains is whether you appreciate the enormity of the loss/gain ratio of your actions now that it has been spelled out for you. Two weeks is the reasonable amount of time for you to bring your son to give your granddaughter’s mother a get. Two weeks for it to sink in that for the sake of your relationship with your granddaughter you need to heed the words of our sages (Tamid 32a): “Who is wise? He who sees what is yet to come.”
Rachel Levmore (Ph.D. in Jewish Law from Bar Ilan University) is a rabbinical court advocate, coordinator of the Agunah and Get-Refusal Prevention Project of the Council of Young Israel Rabbis in Israel and the Jewish Agency, and author of “Min’ee Einayich Medim’a” on prenuptial agreements for the prevention of get-refusal.
Rabbi Dr. Eliyahu Saffran,
Breaking up is hard to do, but we must not have a situation where we marry as Bnai Torah and divorce like terrorists.
Getting married is easy – the joy, the grace, the dignity of the wedding day! The beauty of the bride. The nervous anticipation of the groom. The proud and delightful parents.
Ending a marriage is hard, hurtful, painful. There is sadness and shame. Where there had once been joy and respect, there is now recrimination. And questions. Hard questions. What had gone wrong? Where should you go from here?
Marriage and divorce are not two sides of the same coin but polar opposites on the same spectrum. Still, they have one thing in common. In both, there must be respect and dignity. We must embrace the same dignity and care at the end of a marriage just as we do at the beginning. We must. And yet, too often in the Orthodox community we do not. Too often, we are seeing men withholding a Get as an emotional – and practical – cudgel which, in effect, enslaves a woman, damning her to a life that is neither here nor there, neither married nor able to move on with her life.
When our sages speak of God spending His days after creation arranging marriages, they are suggesting that each marriage, each good marriage, is ordained; is bashert. Our sages were wise, but they were not blind. They knew that not every marriage that is entered into is “meant to be”. Marriages do not always work.
As much as a wedding is filled with joy hopefulness, a divorce often brings feelings of shame and failure. Couples cannot help but feel that they “fell short”. In our small communities and villages of long ago, and even in our modern shul communities, there is often a sense of shame in obtaining a Get. And if there are children involved? Well, there were practical matters.
In the past, rather than end an unhappy marriage, a couple – two strangers occupying the same house – often lived a lifetime of misery, imposing that misery on their children even as they tried, with uncertain results, to hide their feelings and behavior from their neighbors and friends.
Such an unhappy life is simply unacceptable in most, if not all, of the Orthodox world today.
Notice, at no point have I suggested a reason for the unhappiness of the unsuccessful marriage. Whether because the husband was an insufficient provider or because of the stress of a difficult child or any other reason is immaterial. It really does not matter what the reason is for the failure of a marriage. What matters is only that, despite an honest attempt by at least one of the partners to make a successful marriage and life, the marriage is untenable.
It was not bashert.
That realization is a hard blow. Sometimes the truth that a marriage is unsuccessful takes years to become clear. Other times, it takes nearly no time for either the husband or wife to discover that the marriage will not work. “Only three days into the marriage, I knew I had made a terrible mistake.” He is “controlling and belittling.”
We can all weep for the sadness of a marriage that simply does not work. But our sadness necessarily turns to astonishment and then anger when we learn that the husband, far from acknowledging and accepting this reality, lashes out in anger and vindictiveness by withholding the Get.
Let us, as Chazal did, acknowledge that our belief in marriages as bashert is more ideal than truth. In candor, let us confront the truth that many, many marriages are entered into with little preparation or understanding about even the most basic truths about living in intimacy with another person.
It is a rare young scholar who is schooled – in even the most cursory manner – in his bride’s emotional, spiritual, psychological and physical needs and priorities. And it is only a rare young woman who is taught to look beyond her groom’s learning or his ability to make a good living. It is a wonder that any marriage survives and succeeds!
Yet, most do. Some do not. There needn’t be any shame in that.
Chazal were well aware that a number of marriages would not be successful. It is for that reason that Tractate Gittin [the laws of divorce] precedes tractate Kiddushin [the laws of marriage]. Just the order of the tractates alone tells us that we are best prepared for marriage when we prepare for a marriage not being successful. Chazal teach that when that is the case there is a decent and considered way to dissolve the marriage without dissolving one another!
If the marriage does not work… let it come to an end in a way that allows both bride and groom, husband and wife, to grieve for what “could have been” but wasn’t and then allows them to go forward with a productive and meaningful life. That is the process that Torah envisions by providing both the roadmap for marriage – the kesuba – and the mechanism for ending a marriage – the Get.
The Get is like God’s blessed fingers, untying the ribbon tied at marriage. To use it to bludgeon the person for whom you once declared love and devotion is wrong. Is that the route a ben Torah should take? Assuredly not!
And yet, in recent months and years, we hear more and more of the men – learned, yeshiva-taught men – who withhold Gitten from their wives; wives who have a God-given right to be released from their failed marriages. It matters not one iota the names of the bride or groom, husband or wife or which prominent or prestigious family is involved. What does matter is the harm being done to both man and woman by the withholding of a Get – and make no mistake, grievous harm is visited upon the one who withholds the Get as well as the poor woman who is not given one.
Worse, God’s name is desecrated. How have we allowed this situation come to pass?
How is it that our talmidim are so wonderfully schooled in Torah and yet kept so ignorant in basic human decency? How is it that the same so-called ben Torah, who was so well-educated in yeshiva – and undoubtedly well-versed in the tractates Kiddushin and Gittin – who sat at the feet of rebbeim, who was surrounded by roshei yeshivas, who had his most distinguished Rosh Yeshiva serve as mesader kiddushin, who invited other Torah scholars to recite the sheva brachos, who celebrated seven days of sheva brachos with speeches extolling the beautiful Yiddishe home that would be established by this wonderful talmid, this young man “of whom we are all so proud…”, how is it that this same young man can be so quickly transformed into a beast simply because the marriage did not work out?
Saddened? Hurt? Disappointed? Of course. Such feelings are understandable. But to be so vindictive as to punish his bride by withholding the Get? No! And not even just to make a point, not just to vent his hurt. No. No, even to withhold the Get for a month, two is wrong and damaging, but perhaps as some commentators have suggested, necessary to protect himself against false accusations and to ensure access to his children. But we are seeing men withholding Gettin for three years, seven years, eighteen years! A lifetime!
Such wrong-headed cruelty damns these agunot to a non-life. It is a kind of death imposed with more cruelty and horror than any evil Haman ever visited upon our people.
How does a person allow such evil into his soul? Where does such a person learn such hatred? Not in yeshiva certainly. Not in Kiddushin or Gittin. Not in the Rishonim or Acharonim or any commentary. So where? By what authority does such a person determine such an act, a cold, hard, mean-spirited act that must be repeated almost consciously every hour, every day, every month and year that the Get is withheld?
The lesson was most certainly not learned from the words of our Talmud or our Sages. Quite the opposite. The Talmud (Kiddushin 50a) teaches that if a man refuses to give a woman a divorce, he is forced until he declares, “I am willing.”
The Talmud does not accept the notion that a husband can or should refuse to give a Get; if the marriage fails, it must be terminated. Period. No husband has the right to withhold the divorce contract. If he does, the Talmud teaches, “he must be forced until he is willing.”
Now, let us be quick to protest that one inhumanity does not justify another. By “forced” the Talmud is not condoning the crude and inhumane methods that we have heard about in the media recently. These too are forbidden.
So then, what is meant by “forced”? First and foremost, under no circumstances are the husband’s actions to be approved of – tacitly or overtly. It must be made clear in every personal, professional and religious interaction that his behavior is wrong. The community must speak with one voice to him, condemning his behavior. He must be ostracized. He must be cut off from the community. He should suffer the same consequences as the cherem of old.
He must be forced “…until he is willing.” But isn’t a “willingness” earned by duress considered null and void. In most circumstances, yes. But not in this instance. Rambam teaches us the harsh truth of what we are dealing with in these situations. “Because … he whose evil inclination induces him to … commit a transgression, and who is lashed until he does what he is obligated to do, or refrain from what he is forbidden to do, cannot be regarded as victim of duress; rather he has brought duress upon himself by submitting to his evil inclination.”
The person who withholds a Get is, by the Rambam’s reasoning, evil. “…therefore, this man who refuses to divorce his wife…has only been overwhelmed by his evil inclination.”
He is not a ben Torah. He is not a scholar. He is not a mensch. No matter his pedigree. No matter the wealth or position of his family or the yeshivot he attended. He is simply a rasha.
Such evil harms not just the man’s own soul. Such evil harms not just the wife seeking divorce. Such evil harms not just the families involved. Such evil stains an entire community. It is a cancer that will rot the community from within. It must be excised or the community will go the way of the man.
At its recent conference, the European Conference of Rabbis (CER) together with European Jewish Congress discussed not granting any religious services or membership in any of its European communities to all who are “mesarvei gitin” (refusing to grant a wife a Get). Would that every community not only have this discussion, but decide to move forward with just such a decision.
There was a time, not so terribly long ago, when we naively thought it was enough to teach our young men how to get married, how to give and cherish the kesuba. Now we know that isn’t enough. Now we know that it is even more important to teach and learn how to divorce, how to respect and use the Get when it is needed.
I know it is hard to divorce, because I too have been divorced. But when my then-wife asked me for a Get, I placed it in her hand within a week – and it took me that long only because I could not get an appointment with the Bais Din sooner. I presented the Get as soon as it was clear that the marriage was over. Period.
Of course there were still many issues to resolve and, indeed, many tough arguments yet to be had. Many hurts still to be worked out. But all that was to be dealt with after I had fulfilled my Torah obligation of handing my ex-wife a Get.
All the issues of divorce, the financial decisions, the personal decisions, the practical decisions came after the Get was delivered, as they should. Which is not to say that it was emotionally easy. Of course it wasn’t. But to be a Jew is not to be dictated to by transitory emotion but by the moral and ethical dictates that God has given us, by living the life God expects you to lead, by proving to God, to your fellows and to yourself that despite all the pain, angst and doubts of divorce, you were, still are and will continue to be a mensch. You are still a human being, created in the image of God.
You must behave as such. Good Jews have always behaved as such. Put down the cudgel. Grant the Get.
Rabbi Dr. Eliyahu Safran is an author, educator, and communal worker.
By Rabbi Yair Hoffman:
The New York Times recently ran a front-page story about someone who took advantage of a heter mei’ah rabbanim to marry a second wife, without having to issue a Jewish divorce document to his first wife. According to the NYT article: “Meir Kin, the new husband, has been divorced for more than seven years, under California’s civil law. But he has refused to give his previous wife the document known as a get, as required by Orthodox Jewish law to end a marriage. In the eyes of religious authorities, the woman he married in 2000 is what is called an agunah—Hebrew for chained wife. Without the get, the woman, Lonna Kin, is forbidden under Jewish law to remarry.”
The Prohibition Of Polygamy
What is a heter mei’ah rabbanim?
In Judaism, polygamy was not forbidden until the time of Rabbeinu Gershom (960–1040?). Roughly in the year 1000 CE, Rabbeinu Gershom of Mayence issued a decree forbidding taking more than one wife. This is known as the Cherem Rabbeinu Gershom. Aspects of the decree and subsequent halachic developments concerning it are found in the Prague Edition of the responsa of the Maharam MiRottenberg, siman 1022 (see also Be’er HaGolah, Y.D. 334).
What was Rabbeinu Gershom’s reason for prohibiting polygamy? The Rashba (cited by the Maharik #101) explains that people were mistreating their wives and taking them for granted. The Mordechai (Kesubos 291) explains that the rationale was to avoid the excessive fighting that multiple spouses bring on. There is a third opinion that it was to prevent siblings from two different countries marrying each other by accident. Others write that it was on account of economic reasons (Maharam Paduvah #14). Others write that it was on account of socio-religious factors in that the surrounding Christian gentiles only married one wife (Yaavetz Vol. II #15; it is not a violation of ‘chukas ha’goyim’ because it is a non-action rather than an action).
With the prohibition against polygamy, there will be times when the woman will be unable to receive a get due to illness, will refuse to receive a get, or will have run away and the husband will be unable to give a get. These three factors will cause a situation where the husband will be unable to remarry. Therefore, to enable the husband to remarry in these three situations, the heter mei’ah rabbanim was enacted.
There are a number of requirements for the heter mei’ah rabbanim. One hundred rabbis from at least three different countries must sign on to giving the husband permission to remarry. They must be scholars and may only do so after having looked into the details of the situation to ensure that the heter not be abused. They must also issue a get and place it with a third party, along with the money that they had originally promised the first wife in the kesubah.
There is great debate regarding who exactly first promulgated the leniency of the heter mei’ah rabbanim. Rabbi Yoel Sirkes (Bach old responsa #93) explains that the heter mei’ah rabbanim was handed down orally from Rabbeinu Gershom himself. The Mordechai in Yevamos #108 also indicates that it was Rabbeinu Gershom himself who promulgated its use.
Rav Menachem Mendel Krochmal, author of the first responsa of Tzemach Tzeddek (#67), writes that a subsequent beis din was the one that initiated the concept. The Mishkenos Yaakov (siman #1) explains that the beis din that first promulgated its use was acting on behalf of Rabbeinu Gershom.
Finally a third theory is presented by the Chasam Sofer (Responsa E.H. Vol. I #3) that Rabbeinu Gershom outlined a general path for a future beis din to undo the prohibition against polygamy on an individual basis through 100 rabbis, and the parameters of this general path were further expanded upon.
Must the rabbis be communal leaders? The response of the Noda BiYehudah explains that there is no such requirement. They must, however, be worthy of ruling.
In the United States, some rabbis have utilized the heter mei’ah rabbanim in a manner that has never been discussed in the poskim. They use it to allow husbands to remarry while not giving the first wife a get.
Strangely, we do not find a discussion of this new use in the poskim. The reason is that historically, there was no need to “even the playing field” while Jews lived in Europe. And in Eretz Yisrael now, the legal infrastructure is there to deal with such cases. The problem is primarily an American one—where the halachic infrastructure does not really exist to deal with problems and abuses. Thus, some have used this tool incorrectly.
So what is motivating the Rabbis who incorrectly provide husbands who, against Daas Torah, are vindictive in not giving their wives a Get? There are always three motivations behind a person’s actions: the motivation they want you to think they have, the motivation they think they have themselves, and the real underlying motivation that they may not even realize they have.
The first motivation often has to do with the fact that husbands do not always get a fair shake in terms of visitation and custodial issues. The second motivation involves the fact that there is remuneration. Their perception is that the remuneration is warranted and necessary in order to continue the selfless task of helping the downtrodden. What is the third motivation? Perhaps the astronomical cost of a heter mei’ah rabbanim—$100,000 at times or even more—should be indicative of what motivation number three is.
This is not to say that the husbands are not suffering. The unfortunate reality is that, in contemporary divorces, false accusations abound about husbands. Fathers are also denied the right to see and visit with their children. This horrific situation needs to be resolved, but we should not try to even the playing field by making agunos and circumventing the Cherem Rabbeinu Gershom.
But what if it was the woman who is at fault? Is there then a rationale to hold back the get? There is a fascinating Chasam Sofer (Nedarim 29) that even in an extreme case where a wife sinned with an extramarital relationship, “Ein lanu le’agein osah—we are not to make her into an agunah.” The Chasam Sofer continues that this is both obvious and clear.
What should our reaction be when we see an agunah? The Responsa Yeshuas Malko (E.H. #54) by Rabbi Yisroel Yehoshua Trunk (Poland 1920–1893) writes, “All of Israel is obligated in trying to help such a woman.”
Rav Moshe Shternbuch of the Eida HaChareidis in Jerusalem (Teshuvos v’Hanhagos Vol. V #44) writes regarding someone who is refusing to give a get to his wife, it is “permitted and proper to publicize” that “no one should have anything to do with him.” One poseik qualified this ruling of Rav Shternbuch as applicable only when the husband is not trying to get the spouse to remove false charges, and only when the charges have not been accompanied with corroborating evidence. If false charges are alleged against the husband with no corroborating evidence, then the poseik ruled that one should not necessarily publicize that no one should have contact with him.
The Shulchan Aruch (Even HaEzer 1:11) rules that it is proper to enact laws and stipulations regarding marrying an additional wife (this was according to those that had not adopted the ban of Rabbeinu Gershom on polygamy). The Vilna Gaon explains that the Shulchan Aruch writes this in order to avoid situations that may cause or tempt the husband to make his first wife an agunah.
Rav Moshe Feinstein, zt’l (Igros Moshe, Y.D. Vol. IV #15) in a letter to Rabbi Chanina Simcha Posner written in the summer of 1976, writes categorically that no one party has the right to be me’agein the other party for financial purposes. (Me’agein is the verb form of making someone into an agunah.)
Elsewhere, the Shulchan Aruch rules that it is generally forbidden to judge on Shabbos (Orech Chaim 339:1). The Rema adds that even if someone needs to be punished it is forbidden to place him in jail so that he not run away. The Mishnah Berurah (329:14), written by the saintly Chofetz Chaim, rules that this ruling of the Rema does not apply to husbands who are refusing to give their wife a get. He writes that one is allowed to put such a husband in jail over Shabbos so that he will not run away and will thus be present on motzaei Shabbos to give a get to his wife.
Not one of these sources is denying the right of a husband to present his side of the story to a beis din. These sources demonstrate that the refusal to come to the table and the withholding of a get to inflict psychological harm or pressure to capitulate in other matters is an abominable form of behavior that causes people to lose their share in the World to Come and justifies jailing them on the Sabbath itself.
What do the beis dins that perform the heter mei’ah rabbanim do about the fact that the get must be given to a third party? They claim that the husband did indeed issue a get. However, they will not be forthcoming with that information unless the first wife agrees to certain demands.
It is clear that the use of the heter mei’ah rabbanim is not at all in keeping with the halachos and underlying reasons for the heter mei’ah rabbanim. This author would like to add another point as well.
The Chezkuni (Bereishis 3:16) cites a Midrash and writes that if someone is betrothed to a woman and leaves her stuck as an agunah, then he is a denier of the World to Come. Consequently, he loses his share in Olam HaBa—the World to Come. The Ba’alei HaTosefos cite the same exposition and come to the very same conclusion: Making an agunah causes one to lose Olam HaBa. Presumably, this would apply to the enablers of such activities as well.
There, the status of the agunah was created at the very beginning of a marriage—upon halachic betrothal. Nonetheless, the idea is the same—these Rishonim hold that the husbands have lost their share in Olam HaBa. Their fate and future no longer lie with Abraham, Isaac, and Jacob and their grandparents and great-grandparents for generations. Rather, the fates of husbands who improperly use the heter mei’ah rabbanim and, it seems, of those rabbis who falsely provide a heter mei’ah rabbanim are with the likes of the evil Bilaam and Gechazi. v
The author can be reached at Yairhoffman2@gmail.com.
By Jennifer Medina, New York Times
March 21, 2014
LAS VEGAS — The wedding was a modest affair, held in a reception hall overlooking an artificial lake tucked behind a suburban strip. But just minutes after it ended, the bride and groom hurriedly scurried past dozens of protesters here who were chanting “Bigamist” and “Shame on you!”
One of the wedding guests on Thursday evening glared at the demonstrators, repeatedly hissing: “Mazel tov. Mazel tov. Mazel tov.” The bride, in a lace and sequin floor-length gown, grasped the hand of her husband and looked at the crowd in silence.
Meir Kin, the new husband, has been divorced for more than seven years, under California’s civil law. But he has refused to give his previous wife the document known as a “get,” as required by Orthodox Jewish law to end a marriage. In the eyes of religious authorities, the woman he married in 2000 is what is called an agunah — Hebrew for chained wife. Without the get, the woman, Lonna Kin, is forbidden under Jewish law to remarry.
Jewish law prohibits men from taking multiple wives. But Mr. Kin, according to several rabbis here, apparently relied on a legal loophole, which says that if a man can get the special permission of 100 rabbis to take a second wife, he is able to do so.
The case has become a powerful symbol for what activists say is a deepening crisis among Orthodox Jews — hundreds of women held hostage in a religious marriage, in some cases for years after civil cases have been settled. According to the intricate religious laws dictating marriage and divorce, only the husband has the power to grant a divorce.
“What has happened here is really shameful,” said Rabbi Kalman Topp, who drove from Los Angeles to protest the wedding, along with other rabbis and congregants from Orthodox synagogues there. “Not only is he in clear violation of Jewish law, but he is utilizing and corrupting Jewish law to commit cruel domestic abuse.”
Ms. Kin, who runs a real estate company, and her supporters say that Mr. Kin, a physician assistant, is demanding $500,000 and full custody of their 12-year-old son in exchange for the divorce. And they cast doubt on whether he really has the support of 100 rabbis. Reached at his Las Vegas home on Thursday, as a photographer took pictures of him and his bride in the driveway, Mr. Kin declined to comment.
Traditionally, Jewish communities relied on the threat of ostracism to persuade a recalcitrant husband to give his wife a divorce, but many say the threat became far less potent as these communities opened and spread out. In recent years, Orthodox activists with the Organization for the Resolution of Agunot, which organized the protest at Mr. Kin’s wedding, have tried to publicly shame men into giving the get.
When a congressional aide refused to give his wife the decree several years ago, protesters wrote to the congressman, created sophisticated social media campaigns and protested in front of his Washington apartment. Last year federal prosecutors filed charges against a New Jersey rabbi whom they accuse of taking tens of thousands of dollars to kidnap and torture recalcitrant husbands refusing to give their wives a religious divorce.
Ms. Kin’s nearly decade-long fight for a religious divorce illustrates the limited power of such women.
“This is not supposed to happen, that even with all these people against him he can marry anyway,” Ms. Kin, 52, said in a telephone interview from her home in Monsey, N.Y., where she lives with their son and three daughters from a previous marriage. “I would like to find a man who could be a good life partner, to have the kind of marriage my parents have. I want to marry someone and have a life like that, but now I am chained to a dead marriage.”
When she heard several weeks ago that Mr. Kin planned to remarry, Ms. Kin said she felt a momentary sense of relief — it was a clear sign that he was ready to move on with his life. But his new marriage could make it even less likely he will give her the document she desperately wants.
“He’s basically a bigamist,” she said, “and basically, I’m just stuck.”
The couple first separated in January 2005, shortly after Ms. Kin filed for divorce in New York. But she withdrew the motion, on the advice of a lawyer who later told her that it would be easier to secure a get if her husband initiated the civil divorce. Mr. Kin then moved to Los Angeles, and filed for divorce there six months after he arrived. Long before the divorce was finalized in 2007, she said, he told her he never planned to give her the religious document.
Typically, such disagreements are adjudicated by a religious court made up of three rabbis, known as a beit din. Mr. Kin was approached by a local rabbi with a list of several such religious courts his wife would be willing to submit to, but he has not responded, according to Rabbi Yehoshua Fromowitz, who runs the Ahavas Torah Center, a synagogue here.
Instead, Mr. Kin, who in recent years moved to Las Vegas, has repeatedly insisted that Ms. Kin agree to binding arbitration from one particular religious court based in Monsey that is controversial and has been widely denounced by rabbinical authorities in the United States and Israel. Several leading rabbis, including the chief rabbinical office of Israel, have said they would not accept a divorce document signed by this particular court. Mr. Kin has said that the head of the beit din, Rabbi Tzvi Dov Abraham of Monsey, granted him dispensation to marry again.
“The rabbinical court system is such an ad hoc system where any man is able to call himself a rabbi and any three rabbis are able to call themselves a court, so that even if it’s not accepted by anyone, he is able to hide behind this,” said Rabbi Jeremy Stern, the executive director of the group that organized the protests against the wedding. “What empowers him to continue is the support of friend and family and community. We need everyone to say clearly we will not tolerate this kind of behavior.”
A Las Vegas rabbi declined to perform the wedding on Thursday. The groups protesting say they believe Mr. Abraham traveled from New York to officiate. He did not return repeated phone calls for comment.
Mr. Kin, according to several members of the small Las Vegas Orthodox community, has worshiped at two synagogues affiliated with the Chabad-Lubavitch Hasidic movement, which is known for welcoming a broad array of Jews. The rabbis at those synagogues do not count him toward a quorum needed for prayer because of the controversy over his divorce case, but they have declined to publicly rebuke him or force him out, according to Rabbi Shea Harlig, the head of Chabad of southern Nevada.
Mr. Stern and other rabbis supporting Ms. Kin say they will continue to press that Mr. Kin be exiled from the local Jewish community.
Ms. Kin is still holding out some hope she will receive the get — she communicated with Mr. Kin by email as recently as this week, she said, and she continues to send her son across the country several times a year to spend time with his father.
Little is known about Mr. Kin’s new wife, Daniela Barbosa, who is said to have recently emigrated from Brazil. Friends who attended their wedding refused to answer questions from a reporter. If their marriage were to disintegrate, she, too, would need to receive a get for a religiously valid divorce. Although rabbinical leaders outlawed men taking multiple wives in the Middle Ages, the practice is biblically allowed.
“We’ve outlawed this for thousands of years,” Rabbi Fromowitz said. “It is totally unacceptable.”
But Rabbi Fromowitz conceded that Mr. Kin had historical precedent to rely on. After all, he said, the biblical patriarch Jacob had four wives.
By Beverly Siegel and Barbara Zakheim
The tawdry spectacle of “get” refusal and extortion in Jewish divorce has made the rounds in both Jewish and secular media for decades. But the Jewish community now faces an historic opportunity. We have within our hands the data on which to base a plan of action to alleviate the plight of “agunot” and a tool to drastically cut the future risk of chained women.
A 2011 survey of agunot in the U.S. and Canada, co-sponsored by the Orthodox Union (OU), Organization for the Resolution of Agunot (ORA), Jewish Women International (JWI) and Jewish Orthodox Feminist Alliance (JOFA), revealed 462 cases of agunot between 2005 and 2010. While the survey understates the problem due to some right-wing organizations’ refusal to respond, the results clearly outline the case for a clarion call to action.
Most agunot are under 40 years old. They have children yet little money, and are unaware of even the limited resources available to them. During the survey period, religious courts considered just half of reported cases, and contempt of court citations were infrequently issued against recalcitrant husbands. When a case did go to rabbinical court, some agunot were required to forgo financial payments or custody of their children in exchange for a get.
The survey shows that many agunot are living near or below the poverty level and most receive no child support. Respondent organizations generally reported that they make no financial support available. When family members come to the aid of agunot, the money generally goes toward food, shelter and clothing. Sometimes it goes toward extortionate payouts to husbands in exchange for a get. Other times it goes toward long-term assistance to mother and children, in the absence of whatever support the wife would have been awarded in civil court, had she not traded it away for her freedom.
The resolution of these cases often requires strong legal support, but the survey reported that most agunot cannot afford a lawyer.
Based on this data, rabbis and community leaders can no longer claim, “we didn’t know.”
We know full well. The time has come for the community and its rabbinic leadership to step up to the plate in the same way as the Torah commands us to care for the widow and orphan.
The establishment of a community-wide fund is critical to reduce the financial pressure on agunot at the poverty level to relieve the monthly struggle to pay for shelter, food and clothing. Counseling and support groups must be established for agunot, both in person and online, to relieve the debilitating sense of isolation.
Rabbis must ensure that the acts of kindness (chesed) and hospitality committees of their synagogues are made aware of agunot in their communities. They should encourage members to extend invitations to agunot and their children for Shabbat and after-school play-dates for their kids, and inclusion in all regular community activities. Similarly, recitation of a tefillah for agunot during Shabbat services can help foster warmth and inclusion, as well as focus the community on this ongoing tragedy.
The most important step Rabbis can take to prevent the problems associated with get refusal is to require all couples they marry to sign an approved pre-nuptial agreement. The Beit Din of America (BDA) pre-nuptial agreement has recently been upheld by a Connecticut court. This signal victory marks a landmark in the struggle for Jewish women’s rights in religious divorce. We now have a tool that is a proven deterrent.
However, based on data collected by the BDA in 2009, only about 33% of Rabbinical Council of America members (representing modern and Centrist Orthodoxy) who officiate at marriages require all couples to sign the pre-nup. About 38% recommend or encourage couples to sign it, but will officiate at the ceremony if the couple demur. This leaves close to 30% who neither require nor recommend signing the agreement.
Like the ketubah, which was instituted by Rabbis to prevent abandonment, the pre-nup must become standard fare, to put teeth into the spirit of protection the ketubah promises but fails to deliver.
The community shares this rabbinic responsibility. Each community must ensure that the rabbi it employs requires a pre-nup for EVERY marriage at which he officiates. Communities have control over contracts with their clergy; a clause stipulating that a pre-nup be employed in every synagogue-related wedding must become de rigeur.
The community must ensure that agunot are socially integrated and financially secure, and that rabbinic leadership leads the charge both to end their deplorable status and protect other women from its peril. Those in a position to resolve this problem, who instead choose to ignore it, are guilty of withholding the most basic acts of chesed from agunot as well as the ounce of prevention needed to prevent future suffering and injustice.
Barbara Zakheim initiated and coordinated the 2011 Survey of Agunot, serves on the board of the Organization for Resolution of Agunot (ORA) and is the Founder of the Greater Washington Jewish Coalition Against Domestic Abuse (JCADA).
Award-winning filmmaker Beverly Siegel is writer/director of “Women Unchained” which was screened at the Brussels Jewish Film Festival on March 7, 2013. She is also a public relations professional.
Dear Yeshiva University Students,
I was once a Yeshiva University student like you. I was surrounded by women getting engaged, with their doors decorated and their beautiful diamond rings, and I eagerly looked forward to the day when it would happen to me. However, I didn’t get engaged or married while in Stern. Finding my bashert didn’t come so easily to me.
Eventually I did meet someone. He wasn’t Prince Charming and was more controlling than I would have liked, but we had similar hashkafos and felt we could grow together. We dated for 3 months. I asked him for a halachic prenup. He refused. I felt uneasy about it, but I foolishly ignored it, figuring it wasn’t a big deal. I am not stupid – I made Dean’s List for four years and graduated with honors. In hindsight, I can’t understand why I didn’t leave the relationship. Desperation hinders good judgment. Ultimately, we didn’t grow together. We grew apart.
Backed by a supportive family, I was able to muster the strength to leave an abusive marriage with two small children. For a year and a half I plead for my get. At one point my ex-husband told me I would never get my get. Then he said I would get it after civil court was completed. Civil court cases can drag on for years and my ex-husband would make one excuse after another to delay proceedings. Months passed and I wasn’t getting any closer to getting my get or my civil divorce. I was living with uncertainty.
The more I reached out to people for help, the lonelier and more trapped I felt because no one wanted to get involved. I didn’t feel human anymore, rather like a caged animal. I cried incessantly, my weight fluctuated, and I couldn’t focus at work. I had lost my freedom. Then one morning, after months of intense pressure on my ex-husband’s rabbi, employer and family, I got a call from a rabbi who informed me that my ex-husband wanted to give me a get. I didn’t believe it. I went to beis din and it was true. We had the get ceremony and I walked out an hour later a free woman. It was one of the most emotional days of my life. I was in control of my life again. Hashem finally answered my tefilos. I had spent 18 agonizing months crying – on the train, at work, at home, at the dinner table, everywhere. I didn’t recognize myself anymore. I am a new person now. I am one of the lucky ones.
My story has a happy ending. Unfortunately, I know women of all ages who are being extorted for their get, or whose husbands have refused to give a get for years already. The community doesn’t do enough. These men still get aliyos and kibbudim in shul, serve on boards and are honored at dinners. Thankfully, however, we have organizations like ORA who defend Jewish women and give them strength to fight for their freedom.
I am writing this letter to prevent you from making the same mistake I made. I am advising you to go with your heart when you are dating. If it doesn’t feel right, it usually isn’t.
You must protect yourselves. You need to be prepared if, chas v’shalom, things don’t go as planned. No one thinks divorce will ever happen to them. I surely didn’t. The halachic prenup is designed to restrain a husband from withholding a get and extorting huge sums of money or concessions from his wife and her family. Don’t let anyone talk you out of getting a halachic prenup. Think of it as an extension of the kesuba. Someone who refuses to sign is refusing to put their name down that they love, care, and respect you.
No one wants to think about divorce when they are getting engaged. Go into marriage with a positive attitude, but go in with your eyes open. A halachic prenup is imperative. I wish I had known better.
Former SCW Student and Agunah
By: Cheryl Kupfer,
The Jewish Press.com
Throughout the long dark night of our exile, when we found ourselves at the precarious “mercy” of the inhabitants of the lands we were residing in, each and every Jewish community made it their utmost priority to rescue any man, woman or child who had the misfortune to be kidnapped, captured or unjustly thrown in prison. Whether these unfortunate souls were being held by bandits, landlords or greedy officials eager for ransom money, every effort was made to free them.
Pidyon Shevuyim – the redeeming of captives, was a mitzvah that all members of the kehillah participated in. All community resources were immediately pooled to that end – be it money, political influence or social contacts. No effort was spared in the pursuit of a prisoner’s release.
The holy mitzvah of freeing the “chained” was a priority that everyone engaged in to the best of their ability.
Unfortunately, it appears that this sacred dedication to securing the release of the incarcerated has evaporated when it comes to a certain vulnerable element of the community – the agunah.
The term “agunah” is universally recognized as the word to describe a woman whose husband will not give her a “get” – a writ of divorce as prescribed by Jewish law. This is a modern, rather recent interpretation of the word. Originally, agunah referred to woman whose husband was missing, likely someone who had gone on a journey, – decades ago a risky undertaking – and had not returned. Without a body to confirm his death, the man was considered to be alive. His spouse was left in a marital limbo – neither widow nor wife, married in name only.
The Torah understood how horrendous the status quo was for the wife of a missing man whose fate was unknown, and did not apply the traditional legal requirement that two competent male witnesses verify that indeed they saw him dead. A lone woman’s testimony that she knew the man had perished was enough to transform the agunah into a widow, and allow her the possibility of a cherished second chance at life.
The agunah as she exists today – the getless woman, was a rarity – as was divorce. But in those infrequent situations where a marriage was burdensome but a get not forthcoming, the husband became an outcast- a pariah, with all members of the kehillah snubbing him and making his life difficult – until he granted a divorce. The agunah’s plight concerned everybody and the community at large rallied around her and lent their support in helping her obtain her freedom – and the priceless opportunity to build a bayit ne’eman with someone else.
Today there are hundreds of frum women in the Jewish world who are prisoners being held against their will to remain in marriages that in their minds are over. Often they have been granted a civil divorce, but without a get, it is only a piece of paper.
These hapless souls are neither married nor single, and though they are free to leave their homes and interact with other human beings, they are shackled and held back socially and psychologically, halachically joined to men they no longer view as their husbands.
How disturbing and heartbreaking that those locking them in what can be described as marital prison are Jews – and consider themselves Torah observant.
What a sad irony, that in the 21st century, where most Jews do not have to “tzitter” (be nervous or antsy) as they go about their business, ever mindful that they can be set upon and abducted by anti-Semitic louts and brutes; where laws and rules are in place to protect all members of society from the arbitrary whims of powerful or ruthless individuals or institutions, the great majority of shevuyim of this era are overwhelmingly Jewish women held captive by Jewish men.
Equally distressing and demoralizing is the community’s lack of response to this deplorable situation.
Where once entire communities would collectively rally to obtain the release of an enslaved or incarcerated Jew, indifference seems to be the rule rather than the exception when it comes to the doleful plight of the agunah.
How else do you explain, for example, the seruv list published in The Jewish Press? Some of the names have been on the list for years. That means their wives have been unable to get remarried, nor have children. A waste of so much potential.
Why have these men been able to keep their spouses tethered to a sham marriage for so long, cementing them to an unbearable reality where life passes them by. And they are cementing themselves as well – a mutually destructive situation.
Getting involved in someone’s domestic dispute is not a pleasant prospect. It is considered prudent to “mind your own business” and “see not, hear not, speak not.” Everyone has his or her own problems.
But we must try. Ours is a religion based on rachmanut and responsibility to others. It revolves around treating people the way you would want to be treated, with the logical extension being that it is incumbent on everyone to help others be treated the way you would want to be.
Since you would not want to be trapped in a marital nightmare, unable to remarry and build or increase your family; since you would be devastated if your daughter, sister etc. were in this cruel situation for months and potentially years – you need to do what you can to alleviate an agunah’s misery.
Nothing heroic is required, just concern and some time and effort, it could be as simple as approaching the husband -he might be a former classmate, a chevrusha, a relative, someone you do business with. Engage him in dialogue, point out how it is in the community’s best interest, and his, – that he emancipates his wife and allow both to get on with their lives.
Each woman who is prevented from having children – or more children – is a victory for Amalek. Hitler tried to wipe out every Jew on this planet. He succeeded in destroying over six million, and preventing the existence of millions of others. We all know Holocaust survivors who have left dozens, even hundreds of descendants. We are many of them.
Each stubborn husband who prevents a future marriage and future children unwittingly is in league with our enemies who wish to annihilate the Jewish people.
This must be emphasized over and over again. He is not just punishing his wife – he is punishing all Yidden. He is helping in our decimation.
I know that in some cases the wife is the problem: she is unreasonable, punitive and conniving, either refusing to allow her husband to have access to the children; claiming falsely that he did unspeakable things to her or the children, or demanding more than a reasonable share of their assets. For him, withholding the get is his only leverage in getting what is fair. In such situations it is crucial that both be approached and encouraged to go for divorce mediation or therapy, where they can possibly resolve such thorny issues as custody, visitation, support and the division of assets, a resolution that hopefully will result in a mutual giving and acceptance of a get.
By Martin Berman-Gorvine
In this Passover season, consider the plight of Jewish women whose marriages have ended but whose (former) husbands refuse them a get (bill of divorce), which only the man can grant under the traditional version of halachah (Jewish religious law). The spectacle of thousands of Jewish men behaving like little Pharaohs, in whose hands is the power to enslave or free their former wives, has become sadly familiar.
Not so well known is the inner world of the agunah. What are the emotional and spiritual consequences of being “chained” to a dead marriage? I spoke to “Deborah,” a former agunah from an Orthodox community in England, who was married for 13 years and had two children with a man who refused her a get for nearly five years following their February 2007 civil divorce, until he decided to get remarried.
Describe the community you and your ex came from.
I come from an ultra-Orthodox community in Manchester. I am the eldest of nine children. The average family has seven or eight children. My ex came from a modern Orthodox family in London, one of four. We were never on the same level of orthodoxy. No two families are!
At what point did you become aware that your ex was not going to grant you a get? How did he inform you?
I knew from early on this would be an issue. My ex mentioned in [British civil] court that he would give me the get after the “decree nisi [provisional decree of divorce].” Many times afterwards, he would say he would grant it on certain conditions. He asked for money—half the value of the matrimonial home, £200,000 [about $320,000]. He asked my family to pay him money in order for him to grant the get.
Was the Orthodox community supportive of your struggle? What are your feelings about that?
It was “oh dear, poor fella”—meaning my poor ex. It was a case of how can we support the man. I never had support. Of course my friends supported me, but even that became an issue. I lost people I thought were friends, but seemed to side with my ex. You definitely learn who your friends are when you divorce. I felt the community did not know how to handle the situation. For example, should my ex and the children be invited for Shabbat lunch, or me with the children? The rabbi carried on allowing my ex in the synagogue. I feel very let down by my community, then and now. I tried talking to so many people and so many rabbis. I have over 20 rabbis’ numbers in my cell phone. … I wanted action. I never got it. After I agreed to take part in a TV documentary about agunot, I was even more shunned. In the end, I left the Orthodox community, five years ago now.
What steps did you take to appeal to the Jewish religious court, the Beth Din, and other community authorities, and what did they do to try to convince your ex to grant the get?
I applied to all four Beth Dins here in London for a get. I do not feel there was any pressure for him to grant me a get. His rabbi made him his gabbai [sexton]. That had a ripple effect. People left the synagogue. But my ex would not go to the Beth Din when called to do so. Except on a few occasions, I was called to the Beth Din, I would go with my solicitor [attorney]. [My ex] got me excited, feeling the get was almost there, but then it all fell apart. I had various meetings with my rabbi and solicitor, but to no avail. He said he will go when he is ready. I always prayed that he would meet someone, it would be the only way he would grant the get. I was right!
What were the practical and emotional implications of your agunah status for you?
My life was put on hold, I was in limbo land. I couldn’t date, I couldn’t marry, I couldn’t anything. I tried talking to various people and rabbis to assist, but to no avail. I was depressed, I was very unhappy. I was doubting myself, I was doubting G-d, life, religion, everything that I always lived by. What was my purpose in life? I cannot live like this, I felt strangled. It all vanished.
It was an awful situation to be in. It was a very dark time for me. I felt I would never have love again in my life. It was scary, frightening.
I did have wonderful people and friends around me who supported me through my awful ordeal. The husband of a friend of mine walked out of the synagogue my ex-husband was a member of when he was honored with an aliyah to the Torah.
I was so desperate I got a liberal [non-Orthodox] get [not requiring the ex-husband’s consent], but that did not do it for me. I still felt chained to my ex as I am not a liberal.
I have so many questions now. What is the Jewish life and way all about?
I do not wish being an agunah on any woman. I feel the power should be taken away from the man. It is wrong! I am a free woman.
by Talia Lavin, JTA
The websites look like those of political prisoners.
Under the caption “Free Tamar Now!” there is a close-up photo of demonstrators with signs and megaphones. “Stop the abuse,” one sign reads.
But FreeTamar.org and the Free Gital Facebook group seek emancipation not from literal bars or chains. Rather, they seek liberation for agunot — so-called chained women being denied religious writs of divorce from their husbands.
Under Jewish law, divorces are not final until the husband gives his wife the writ, known as a get. If a husband refuses, the woman cannot remarry; any intimate relationship with another man is considered adultery. Children born from such a relationship are considered mamzers, a category of illegitimacy under Jewish law that carries severe restrictions.
Under Jewish law, women chained to recalcitrant husbands have little recourse, and the problem of agunot long has plagued the Jewish community. In one recent case that garnered broad media attention, the FBI arrested several men in New York who allegedly kidnapped and tortured recalcitrant husbands — for fees of tens of thousands of dollars.
A more common and increasingly popular tactic agunot advocates are adopting to try to compel recalcitrant husbands to relent and grant their wives gets is the public shaming campaign.
Gital Doderson, 25, of Lakewood, N.J., brought her divorce fight to the front page of the New York Post on Tuesday. After three years of pursuing but failing to obtain a get from her husband, Dodelson wrote, “I’ve decided to go public with my story after exhausting every other possible means. The Orthodox are fiercely private, but I am willing to air my dirty laundry if it means I can finally get on with my life.”
The Organization for the Resolution of Agunot, known as ORA, is at the forefront of a campaign to harness public remonstrance as a means to thwart recalcitrant husbands.
Using the slogan “Get-refusal is a form of domestic abuse,” ORA, in cooperation with Yeshiva University, has organized rallies outside the homes of recalcitrant husbands like Albert Srour and Ephraim Ohana. Their website features a “Recalcitrant Husbands” page that prominently displays the images of husbands who refuse gets to their wives.
When Aharon Friedman, an aide to U.S. Representative Dave Camp, refused his wife, Tamar, a get, ORA took out a billboard ad on the DC Metro, with his face emblazoned against a demand to “Give a get now!”
“If and when we’ve exhausted all amicable means of resolving the situation, we will try to get him ostracized, and publicize his name,” Rabbi Jeremy Stern, executive director of ORA, told JTA.
The jury (or beit din) is still out on whether this tactic will prove more effective than other attempts to sway recalcitrant husbands. What is certain is that the spate of recent media coverage about agunot is drawing broad attention to a problem more often contained within certain segments of the Jewish community.
by Layah Lipsker
It always fascinated me that Jewish law allows for divorce, even without cause. With all the hoopla about finding your “bashert,” the one person who completes your soul, it would seem reasonable for the Torah to prohibit divorce. “Stick it out,” you might think the G-d of Israel would say. “The Chosen People should know a thing or two about choosing right the first time.” And yet, there is an entire Talmudic tractate called “gittin” that describes the Jewish way to get out of a marriage. At the center of the Jewish divorce ceremony is the Get, a handwritten writ of divorce given by the husband to the wife. A religious process that facilitates divorce underscores the Jewish values of self-determination, compassion and forgiveness. For most couples, a Jewish closure to their marriage can be comforting and even healing. But sadly, the legal nuances of the Get proceedings can chain some women to dead marriages and leave them vulnerable to abusive spouses. Jewish law requires the consent of both parties to proceed with divorce, but it must be initiated by the husband. In a growing number of cases, men use the threat of Get refusal as a bargaining chip in financial or custodial negotiations.
Just ask Beth, a single mom in Newton, who recently paid $30,000 to her ex-husband in exchange for her Get. Or Hannah of Marblehead, who fled her Israeli husband more than two decades ago, leaving Jerusalem with her newborn child. Her son was 17 when her husband finally granted her a Get. Despite their civil divorces, Hannah and Beth were considered legally married and could not remarry in a Jewish ceremony until receiving their Gets.
Neither of these women is Orthodox. Get refusal is a domestic abuse issue that exists in every segment of our Jewish community. But for religious women, the stakes are even higher. In the Chassidic community in which I grew up, these women cannot even date without a Get in hand. They quietly resign themselves to lives of loneliness.
For most of Jewish history, a classic “agunah” (literally, chained woman) was a woman whose husband never returned from war. Without a body, there was no proof of death, leaving the woman in a tragic state of limbo, unable to move on with her life. With a rising divorce rate in the Jewish community, women often obtain the status of “agunah” by way of Get refusal, a powerful tool in the hands of an abusive spouse. In Israel, where all marriages and divorces must go through the religious rabbinical courts, the rate of Get refusal by both Orthodox and secular men is climbing. In a recent study, one in three women divorcing in Israel is subject to threats of Get refusal and extortion. Sadly, most of these women are young mothers leaving a first marriage. Without a Get, their future is uncertain.
In my experience as an agunah activist, I see women willing to give up financial resources or their right to child support in order to escape bad marriages. The future of these women and their children is compromised, often in the name of Jewish law. As a passionate feminist and observant Jew, that is deeply troubling to me. I am grateful that the rabbinic community is joining forces with advocates to promote solutions for Jewish families. One preventative measure is the use of a prenuptial agreement, requiring a Get if there is a civil divorce. The halachic (Jewish legal) prenup was co-authored by Dr. Rochel Levmore, a rabbinical court advocate, and my partner in creating a website to support agunot and educate women on the Jewish divorce process. As a research associate at the Hadassah-Brandeis Institute, I am working with the HBI and Rabbi Aryeh Klapper of the Boston Bet Din, to create “The Agunah Taskforce of Greater Boston.”
These prenups have been upheld in civil courts in New York and Connecticut. However, not all rabbis require couples to sign the prenup, and this solution is only a preventative measure. Sadly, a systematic rabbinic solution to the agunah problem remains elusive. It is within the power of a rabbinical court to free a woman by invalidating the original marriage contract, thus eliminating the need for the Get (a process known as mekach taut). A rabbinical court can also annul a marriage without the consent of a recalcitrant spouse (hafkaat kidushin). These powers are used sparingly, however, and must meet nuanced halachic standards. Most women suffering from Get refusal have no access to halachic resolutions and some have recently turned to social media to exert pressure on their ex-husbands. In New York, two rabbis were arrested and charged with kidnapping and torturing a husband refusing to grant a Get. These rabbis were hired and paid by the wife, who hoped to finally end her own suffering. In the absence of systematic reform, women will resort to dire measures to obtain their freedom.
Total consensus on a perfect solution may be impossible in the current climate of Jewish legal debate. Nonetheless, I say, “bring it on.” The recent rise of female Torah scholarship adds much needed fuel to the halachic conversation on issues that affect women. Debate is not the problem. It is part of the solution. Our goal must be to create a large enough network such that women threatened with Get refusal will have a place to turn. We must find rabbis who will release them from their dead marriages, and defend their future children from the pernicious claim of illegitimacy under Jewish law. As a mother of four daughters, I cannot afford to stand at the sidelines of this debate. Neither can you.
Like good Jewish women everywhere, Layah Kranz Lipsker wears many hats. She is co-founder and educational director for Chabad of the North Shore, and is currently a research associate at the Hadassah-Brandeis Institute. As a mother of six, she wears her favorite hat at home in Swampscott.
By Alexandra Leichter
A couple of years ago I received two back-to-back phone calls in my office: The first, from a 21-year-old ultra-Orthodox woman who had escaped her physically abusive 6-month long marriage, only to find herself trapped two years later because her husband refuses to give her a Jewish divorce (a get). She can never remarry or have children as long as her husband remains recalcitrant.
The second call was from a Modern Orthodox young woman who was ready to marry the man of her dreams — only to discover a few weeks before the marriage that her rabbi refused to conduct the ceremony after he learned that the groom was a mamzer (illegitimate child of an incestuous relationship), because his mother had failed to obtain a get before marrying the groom’s father.
These two cases vividly illustrate the current problems of the modern day agunah (a woman chained to an unwanted marriage), because halacha (Jewish law) gives the husband the sole, unfettered power of divorce. While under Ashkenazic tradition a woman can withhold her “consent” to such a divorce, the remedies available to the victim of a recalcitrant husband or wife differ substantially. A woman whose husband refuses to grant her a get can never remarry and have children from another man because if she does so, her children and all their progeny are considered mamzerim, who are forbidden to marry any Jew other than other mamzerim. In contrast, a man whose wife refuses to “consent” to the get, has options: he can obtain the consent of 100 rabbis (a heter) to remarry without the wife’s consent, or if he does remarry without a heter, his children from the subsequent marriage do not bear the stigma of being mamzerim.
These disparate consequences, coupled with the husband’s exclusive power to terminate the marriage, have resulted in a modern-day nightmare to Orthodox women. The power to condemn their wives to remain chained in marriage, to a man who often remarries without granting his wife a get, has spawned an entire marketplace for extortions. Men have demanded hundreds of thousands of dollars, waiver of the wife’s rights to spousal support and even custody of children they have abused, in exchange for the wife’s right to remarry. This bartering for the wife’s freedom has become so universal that, unbidden, some rabbis even begin a get process by asking the wife what she is willing to give her husband in exchange for the get.
While remedies have been suggested and some implemented, none have cured the basic ill resulting from this gross imbalance of power. In Israel, laws have been enacted allowing incarceration and forfeiture of driver and professional licenses of recalcitrant husbands. Most recently, an Israeli court awarded a woman monetary damages for her husband’s refusal to give her a get for more than 12 years. But these laws fall pitifully short of a final solution. First, these laws are unavailable to women outside of Israel. Second, some men have opted to remain jailed or do without their licenses rather than give their wives a get. Even the judgment of monetary damages was a mere Pyrrhic victory — while she has a judicial decree for money (which she may never be able to collect), the courts could not force her husband to give her the get, and thus she remains an agunah.
Other suggested solutions have met with only limited success. Many conscientious rabbis now refuse to perform a marriage ceremony unless the couple first signs a prenuptial agreement authorizing the beit din (Jewish court) to award daily monetary support (or damages) for each day the husband refuses to give a get or the wife refuses her consent. Such prenuptial agreements, however, must meet the civil requirements of the state where it’s executed — a condition of which rabbis are often unaware. Additionally, such prenuptial agreements have the same flaw as any of the Israeli laws. No prenuptial agreement can force a recalcitrant husband to give a get — it can only award monetary sums to the wife, but it can still leave her trapped. A very poor or a very rich man can afford to disregard the monetary damages he would suffer under the agreement, and the opportunity for extortion or revenge inherent in the husband’s unfettered power to withhold the get cannot be eliminated. Finally, there are many rabbis who refuse to mandate the signing of such a prenuptial agreement, and an Israeli rabbi recently even decreed such prenuptial agreements invalid. Clearly, the prenuptial agreement is not universally accepted nor does it result in a global solution.
More recently, some have advocated “annulment” of the marriage as a way to eliminate the agunah problem. But this solution has been met with tremendous opposition in the Orthodox rabbinical community. Some rabbis who have granted or advocated annulments in such cases have been marginalized and their status in the Orthodox community threatened. In one recent case, a rabbi who granted annulment to a woman who had been an Agunah for more than 10 years was publicly condemned and his rulings in other cases delegitimized by another rabbi.
The lack of consensus among Orthodox rabbis on a permanent global end to such unfettered misuse of the husband’s power has led to homespun solutions. Some have advocated the use of nonobservant witnesses at Orthodox weddings to assure that an Orthodox get would not be necessary in the event the marriage fails. Others have simply ignored the law and remarried without the get, leaving it to the next generations to untangle the mamzer problems thereby created.
There is, however, concurrence on one thing — a permanent solution must be found to eliminate the agunah problem. The Jewish Orthodox Feminist Alliance (JOFA) has begun an agunah-awareness campaign this year, beginning with the Fast of Esther. JOFA hopes to generate education, discussion and resolution. While many might dismiss this issue as just the “women’s problem,” it should be an equal cause for concern for every Orthodox man who has a sister, a daughter or a mother. They are all potential targets for extortion or imprisonment in an insufferable marriage.
Alexandra Leichter is a Beverly Hills family law attorney, and is a member of the Westwood Village Synagogue.
By Rabbi Shlomo Weissmann …..Rabbi Shlomo Weissmann is the Director of the Beth Din of America.
One of the great challenges facing our community is the problem of the modern-day agunah: women who remain trapped in marriages that have already functionally ended, because their husbands refuse to grant them a get, a Jewish bill of divorce.
But over the course of the past 20 years, one particular solution – the Beth Din of America prenuptialagreement – has emerged as the most promising preventative solution to the agunah problem. It has been so successful that it carries the promise of effectively ending the agunah problem as we know it. This article is an attempt to explain the importance of the prenuptial agreement, and argue for its wider adoption among all segments of the observant Jewish community.
The Agunah Problem
Until relatively recently in our history, the agunah problem was limited to cases of women whose husbands were lost at war or at sea, and who could not remarry without halachically acceptable evidence of their demise. Today the term “agunah” has come to refer, more often, to women whose husbands refuse to give a get, a Jewish bill of divorce, even after their marriage has functionally ended.
Although a get is ultimately delivered in the vast majority of divorces in our communities, in many instances the giving of the get itself becomes a contested matter between a divorcing couple. While it is true that a get may also be withheld by a woman (as we shall see), because of a number of sociological and halachic considerations, the vast majority of cases in which a get has not been forthcoming have involved recalcitrant husbands, rather than wives. Without a get, a woman may not remarry and the children born from any subsequent unions bear the stigma of mamzerut (offspring of a relationship forbidden by the Torah).
The anguish experienced by spouses who are not assured their husbands will cooperate with the get process is heartwrenching. Some women in this position were victims of domestic violence in their marriages, and despite their best efforts to the contrary, remain wedded indefinitely and against their control to their abusers. They are robbed of the autonomy and freedom necessary to begin new relationships and attempt to rebuild their lives.
But the plight of the modern-day agunah should capture our attention not only because we have a responsibility to ameliorate the suffering of long-term agunot and prevent the occurrence of more such cases going forward, but also because the potential for get recalcitrance dramatically affects the balance of power in quite a number of divorce negotiations.
Divorce is a messy prospect. Two people who, until now, had ordered their social and economic affairs based on the proposition that they would remain together, are forced to negotiate a separate existence. Ideally, a husband and wife wishing to separate negotiate an agreement with the help of their rabbis, their lawyers, or a mediator, that involves mutual compromise and allows both of them and their children to move on with their lives. But that does not always happen, and sometimes the parties engage in a protracted and highly litigious ordeal (ideally in beit din, a rabbinical court but, too often, in a secular court), with each spouse fighting intensely over money and child custody and visitation arrangements.
In the very worst cases, a recalcitrant spouse may put a price tag on a get and use it to extort large sums of money. But even short of that, a husband might threaten to withhold a get until his wife meets certain demands that he genuinely views as reasonable. Sometimes, the get becomes a potent tool to extract financial or other concessions in divorce negotiations, beyond those that a disinterested third party would judge to be reasonable. A woman may be so desperate for a get that she will consider agreeing to an unfair financial settlement, or custody and visitation terms that are not in the best interests of the children. In some extreme cases, safety concerns may require supervised visitation arrangements, and the use of a get to obtain unsupervised visitation can be downright dangerous.
Halachic Attitudes Regarding Get Recalcitrance
On a practical level, a husband who can threaten to withhold a get possesses unfettered control in determining the outcome of his divorce dispute. This lack of balance is untenable, and stands diametrically opposed to the Torah’s vision of how irreconcilable conflicts must be resolved – through the determination of impartial dayanim (judges) in a system of conflict resolution that is entirely neutral. No civilized society, let alone a Torah society founded on a keen sensitivity for due process and justice, can tolerate a system where one side of a dispute gets to call the shots.
This means that, notwithstanding the supreme importance of shalom bayit (marital harmony) and preventing marital conflict and divorce, when a marriage has failed beyond any hope of reconciliation, and a wife unambiguously expresses her desire to be divorced, the husband has a moral obligation to deliver a get to his wife. Rabbi Yosef Eliyahu Henkin, one of the foremost halachic decisors in the United States in the 20th century, put it this way: ”One who withholds a get because he desires money for no just cause is a thief. Indeed, he is worse than a thief as his conduct violates a sub-prohibition (abizrayhu) related to taking a human life.”
Throughout the ages, Chazal have interceded and introduced rabbinic solutions when people have sought to take advantage of the halachic system of marriage and divorce. At the most basic level, Torah law grants a husband full control over the divorce process. He is free to unilaterally divorce his wife, and a get may only be given by a husband “meritzono hatov,” of his own free will, and may not be coerced.
So to protect women from the sudden dissolution of their marriages with no economic protection, the rabbis (and in some cases, the Torah itself) provided a financial incentive to prevent unilateral divorce, in the form of the ketuba. In the tenth century of the common era, Rabbeinu Gershom altogether removed a husband’s power to divorce a woman without her consent. And various Rishonim, such the Rambam and Rabbeinu Tam, discuss rabbinically sanctioned methods which batei din may utilize in certain circumstances to compel a husband to divorce his wife, such as social ostracism and, sometimes, even physical compulsion.
But if Chazal were successful in curbing many of the potential abuses of the system, some of their methods simply cannot be implemented in today’s open society. In pre-Emancipation Jewish communities where authority was centralized and individuals could not easily relocate, social ostracism was a harsh punishment, and a recalcitrant husband could not easily escape the consequences of his bad acts. Today, we suffer from a multiplicity of batei din and a lack of communal cohesion. If one shul denies privileges to a recalcitrant husband, he may be welcomed by the shul down the block. If not, he might move to another community. In too many cases, unfortunately, he is simply immune from communal pressure because he has left the observant community altogether.
In a nutshell, this is the problem of the modern-day agunah: a husband’s unilateral ability to deny a divorce to his wife, combined with a lack of communal authority to regulate the behavior of individuals who violate Torah norms and the frequency and contentiousness of divorce in our contemporary society, creates a perfect storm that can result in the use of the get as an improper tool for leverage or revenge.
While numerous solutions to the agunah problem have been proposed, only one has received the backing of many prominent halachic authorities and consistently lived up to its promise of preventing situations of get recalcitrance. This is the Beth Din of America prenuptial agreement, which was first developed in the early 1990s by Rabbi Mordechai Willig in consultation with halachic and legal experts. It consists of a mechanism that authorizes a beit din to determine when a get should be given, and empowers the beit din with the necessary tools to ensure that its rulings will be followed.
The prenup, which is available at www.theprenup.org, is signed by a couple prior to their wedding, and provides that in the event of an impending divorce, either spouse may require the other to appear before the Beth Din of America. Under the agreement, if the couple no longer lives together, the husband becomes obligated to provide monetary support to his wife at a fixed, daily rate (which adjusts for inflation) for so long as they remain married under Jewish law. The default daily rate is $150, which comes to approximately $54,000 per year, but may be adjusted by a couple at the time they sign the agreement to reflect their actual standard of living. Once the beit din orders the daily support to be paid, it becomes a legal obligation, enforceable in secular court.
The solution is as elegant as it is effective. Under the terms of the prenup, a husband is not fined or forced to give his wife a get (either of which could potentially harm the validity of the get as a matter of halacha). The husband is free to decline to give a get and to remain married to his wife for as long as he wishes, provided he financially supports her pursuant to the prenup until he is prepared to end the marriage. The agreement provides a clear incentive for the husband to give the get once it is clear the marriage is over, but is not halachically overreaching.
What is most remarkable about the prenup is that it actually works. It has been utilized in scores of cases before the Beth Din of America, and has consistently prevented the use of the get as a tool for improper leverage or extortion. It has worked dramatically to produce a get even in highly contentious cases, where couples have bitterly litigated all the other issues on the table. Most often where there has been a prenup in place, the Beth Din has not even needed to begin formal proceedings to award support under the arbitration provisions of the agreement. The mere existence of the prenup, and the husband’s knowledge that it is an enforceable document, has convinced the husband that he has nothing to gain by delaying the delivery of the get.
The Challenge Going Forward
In my position as menahel (director) of the Beth Din of America, I speak regularly with women seeking gittin from their husbands. Their stories span the spectrum of the modern-day agunah experience. Some already obtained their civil divorces, but their husbands are withholding gittin for better financial or custody deals, or simply out of spite. Others are in the midst of ongoing, bitter divorce contests, and live with the uncertainty of when or whether they will receive their get, or have been explicitly told by their husbands that the get will be an issue.
While the marriages of some of these women predate the introduction of the prenuptial agreement in the early 1990s, many do not. They had either not heard of the prenup, or they dismissed it as unnecessary. But in each one of these cases, the simple act of signing the prenup would have averted the potential for tremendous human suffering, not to mention the chillul Hashem (desecration of G-d’s name) that results from their terrible stories. All the time, I hear women tell me that they wish they had insisted on signing the prenup.
So why is it that this solution, 20 years after its introduction, has not been universally adopted? To be sure, the most important prerequisite to any solution to the agunah problem is its halachic viability. A halachically problematic solution to a halachic problem is no solution at all. In particular, any mechanism that incentivizes the giving of a get must not unwittingly create gittin that are invalid because they have been improperly coerced. But the prenup has been unconditionally approved by a wide range of rabbinic authorities, particularly because it was intentionally structured in a way that poses no risk of improper get coercion.
Among others, Rabbis Ovadia Yosef, Zalman Nechemia Goldberg, Gedalia Dov Schwartz, Asher Weiss and Chaim Zimbalist have all endorsed the use of the prenup. In 1999, a group of leading roshei yeshiva at Yeshiva University, including Rabbi Hershel Schachter, issued a statement endorsing the use of halachic prenuptial agreements like the Beth Din of America prenup. In 1993 and 1998, the Rabbinical Council of America passed resolutions encouraging the use of prenuptial agreements such as the prenup, and in 2006 the RCA passed a resolution declaring that rabbis should not officiate at a wedding where a proper prenuptial agreement has not been executed.
For the most part, the obstacles to wider adoption of the prenup have consisted of cultural and practical concerns. Some are reluctant to advocate the use of new tools, particularly in the context of the age-old and sacred traditions that surround the Jewish wedding. Others have argued that the joy of a young couple about to be married should not be upset by conversations about divorce and the agunah problem that would inevitably result from discussions about signing the prenup.
But surely the promise of preventing situations of get recalcitrance justifies the introduction of this modest innovation in Jewish life. And even at the happiest times of our lives we are duty-bound to plan realistically for the future and to address contingencies that we do not anticipate happening. At a wedding we sign a ketubah, even though it is an economic document that addresses worst case scenarios such as death and divorce. When we buy a new house we purchase homeowner’s insurance, even if we do not ever expect our homes to burn down, Heaven forbid. New parents buy life insurance and vaccinate their babies, even if they do not want to think about topics like death or disease, r”l.
Consider, also, that the claim that signing a prenup disturbs the joy of premarital planning is overstated. When I got married, I knew that the vast majority of my friends had signed a prenup prior to their weddings, and my wife and I treated it as just another pre-marital task that needed to get done. As time goes on, and as the prenup becomes accepted among more and more segments of the Orthodox Jewish community, the argument that it conjures negative associations will become increasingly less compelling. Signing a prenup will become as routine and expected as signing a ketubah, buying insurance, or vaccinating our children.
Introducing the prenup to couples prior to their weddings carries one more advantage: it provides a valuable opportunity to teach them a critical lesson about healthy marital relationships. In its essence, the agreement represents a commitment to selfless behavior, a promise from a prospective husband to his wife-to-be that he will treat her with dignity not only when it benefits him, but always. By signing the prenup, a chattan (groom) communicates to his kallah (bride) that even in the worst of circumstances he will not act indecently to exploit advantages he may possess. In a society where marital strife affects too many households and where divorce is an epidemic, this is a worthwhile message. There is no better time to sign a document that provides the basis for a marriage that is grounded in love and respect than in the period preceding a wedding.
For those who have felt compelled to take action to address this tragic problem, but who have sat on the sidelines until now because no ready solution appeared possible, the 20th anniversary of the introduction of the prenup is a good time for a reassessment of its virtues. An idea that two decades ago may have seemed like a fine scheme in theory has now withstood the test of time and represents an effective, long-term solution to the agunah problem. To the extent that the prenup is signed by more and more couples and eventually becomes a prerequisite to marriage in our communities, we have the opportunity to virtually obliterate this problem from our midst.
By Rabbi Efrem Goldberg,
Boca Raton Synagogue
“Let my people go!” This refrain, introduced by Moshe in Egypt when he appealed to Pharaoh to liberate the Jewish people from bondage, has not only been referenced throughout Jewish history, but has been embraced by multiple peoples and cultures around the world in campaigns against injustice. In our time, I can vividly remember chanting, “let my people go!” as a child, together with thousands of others, as we rallied on behalf of Soviet Jewry.
Who would have ever dreamt that today, in the year 2013/5773, among the only people to whom we need to address the demand “let my people go,” are a small group of Jews themselves. Yes, even in our time there remain those shackled and in chains. I am referring to the tragic circumstances of Agunos.
In Talmudic times, the tragic status of Agunah was attained when a woman’s husband went off to war or on a faraway business trip and his whereabouts became unknown, leaving his wife’s status in question thereby preventing her from remarrying. More recently, this horrific reality has been cast upon women electively by their recalcitrant husbands who use the Get (Jewish divorce) as a weapon and tool to extort, manipulate, or just plain torture their wives.
Lest you think this is a rare phenomenon, a 2011 survey of agunos in the U.S. and Canada, co-sponsored by the Orthodox Union (OU), Organization for the Resolution of Agunot (ORA), Jewish Women International (JWI) and Jewish Orthodox Feminist Alliance (JOFA), identified 462 cases of Agunos between the years 2005 – 2010, most of whom were under 40 years old at the time they were placed in a holding pattern in life. The leadership of ORA confirms that though they have helped over 190 women attain a Get, at any given time they are working on 70 cases and that number is only growing.
For friends, community members, and even Rabbis, it sometimes seems easier to not get involved or take sides in what is usually a deeply emotional and often controversial conflict. However, the great Nobel laureate and Holocaust survivor Elie Wiesel has taught us:
“Of course, indifference can be tempting — more than that, seductive. It is so much easier to look away from victims. It is so much easier to avoid such rude interruptions to our work, our dreams, our hopes. It is, after all, awkward, troublesome, to be involved in another person’s pain and despair. Yet, for the person who is indifferent, his or her neighbor are of no consequence. And, therefore, their lives are meaningless. Their hidden or even visible anguish is of no interest. Indifference reduces the other to an abstraction. In a way, to be indifferent to that suffering is what makes the human being inhuman. Indifference, after all, is more dangerous than anger and hatred.” (April 12, 1999 speech at The White House as part of the Millennium Lecture Series)
Indifference, apathy or not wanting to get involved are not Jewish concepts, particularly as they relate to those suffering from injustice. In many places the Torah explicitly calls upon us to protect, defend, and support the almanah, the widow. Rabbi Yaakov Zvi Mecklenburg, author of the Ksav V’Kabbalah (Parshas Mishpatim) explains that the Torah doesn’t limit this mitzvah to the widow, but expects it regarding all those who are vulnerable and tormented within our community. He explains that the world “almanah” comes from al-manah, missing a portion. The almanah is simply a symbol of those that are incomplete, missing something in their lives. Our mandate and our mission must be to protect and support them.
It is in this spirit that the Rabbinical Council of America (RCA), the professional organization of over 1,000 Orthodox Rabbis in North America, held a Yom Iyun this week, a day of study regarding the plight of Agunos. The day began with a talk by Rav Herschel Schachter on the Halachic parameters of applying social pressure to encourage a man to give his wife a Get. Rav Schachter serves as the Posek of ORA and has been courageously vocal and instrumental in advocating on behalf of women being held hostage by their husbands.
The second session contained a panel discussion including Rabbi Yonah Reiss, Dean of RIETS, Rabbi Eliyahu Teitz, member of the Beth Din of Elizabeth, NJ and Rabbi Shlomo Weissmann, Director of the Beth Din of America, regarding “Practical Considerations in Handling Divorce.” These experienced Dayanim (Rabbinic Judges) shared their experience and wisdom regarding at what point a woman is considered an Agunah, when is the appropriate time for a Get to be given, and how to balance the timing of the Get with the civil divorce. Most notably, they reminded us that once it is clear that a marriage will not continue, the giving of the Get in a timely fashion is an ethical imperative and from the Torah’s perspective, the absolutely right thing to do.
The third session was a panel discussion on “The Role of the Rabbi, Applying Communal Pressure.” I was honored to participate in this panel and share my experiences in working with our outstanding community in organizing rallies, utilizing social networking, and excluding those that refuse to grant their wives a Get. Most importantly, I tried to communicate the critical importance of being outspoken and taking advantage of the teachable moments by including our children and teenagers in advocacy and standing up to fight injustice. Even if we can’t always achieve the Get in a timely fashion, the community’s response clearly demonstrates our intolerance for the intolerable and sends a blunt message to all men within the community that withholding a Get is simply not an option. Moreover, the community’s vocal advocacy provides much needed comfort and support for the Agunah, who often otherwise feels alone, insignificant and even invisible.
My fellow panelist was Dean Michelle Greenberg-Kobrin, Dean of Students at Columbia Law School and Chair of the Board of ORA. Dean Greenberg-Kobrin shared legal considerations and guidelines for Rabbis and communities involving themselves in Agunah advocacy. She spoke passionately about isolating the Get from the other divorce considerations such as custody and division of assets and not conflating it with parallel disputes or negotiations.
While the first three sessions were for members of the RCA only, the evening session was open to the public. The audience heard from a courageous woman who had been an Agunah before finally receiving her Get with the help of ORA. Following her presentation, Dr. David Pelcovitz, a prominent psychologist and professor at the Azrieli School of Yeshiva University, shared research results on the psychological impact on Agunos, as well as the impact on their children who often suffer for years to come. Dr. Pelcovitz shared suggestions for how Rabbinic and community support can relieve the suffering and anguish in very real and measurable ways. The next presenter was Rabbi Jeremy Stern, the Executive Director of ORA. He described the work of ORA and delineated a number of ways ordinary citizens could get involved in advocacy on behalf of Agunos. Lastly, Rabbi Shmuel Goldin, Rabbi of Ahavath Torah in Englewood, NJ and President of the RCA offered our organization’s vision for improving Rabbinic efforts on this critically important issue.
We can and must do absolutely all that we can within normative halacha to put an end to the plight of Agunas and to prevent them from ever arising again. The Yom Iyun produced a number of initiatives towards that end that we intend to bring to our membership in a timely fashion:
1) Firstly, the RCA will continue to urge all of its members to refuse to officiate at weddings unless the Beth Din of America Halachic Prenup** is signed. Though the RCA is unable to force every member to use this particular document, we will suggest that every member be obligated to use a halachic prenuptial that would be acceptable to them, even if it simply delineates which Rabbinical Court the couple would turn to, should the need arise. The Beth Din of America reports that in every single dispute they have adjudicated between a couple that has irreconcilable differences and seeks divorce, if the Beth Din of America halachic prenuptial agreement was signed, the Get was delivered. Moreover, as recently as this February, an American Civil Court upheld the terms of the Beth Din of America Halachic Prenup, affirming the potency that it contains to solve this crisis, if only every single couple would sign one. ORA maintains that even a minimal prenuptial agreement will help in the vast majority of cases.
2) The RCA intends on establishing a network of Rabbis designated by region, who will serve as a resource and source of support for any Agunah who reaches out for their help, whether they are member of their community or not.
3) RCA members will be encouraged to place ORA’s literature in their Shuls and to promote ORA’s new campaign, “Friends don’t let friends get married without a halachic pre-nup.”
4) The RCA will encourage its members to host post-nuptial events in which already married couples who didn’t use a prenup are invited to sign halachic post-nuptials and thereby contribute to a culture in which all married couples from newlyweds to octogenarians have a halachic prenup in place.
5) The RCA will encourage its members to revisit their Shul’s bylaws and insert language that would not allow a man who has been instructed by a Beis Din to give his wife a Get and refuses to comply, to be a member or receive an honor.
Many wonder, some out loud and others to themselves, why can’t Rabbis simply create a solution to this problem? Do Rabbis not have the will to find a halachic way for women to go free? It is important to understand that those that who don’t embrace more radical halachic approaches to solve this issue are no less sympathetic, caring, or concerned for the plight of Agunos. The laws of personal status in general, and divorce in particular, are detailed and complex. Pushing a position rejected by the majority of the Torah community will only further isolate the woman who relies on it, instead of freeing her in a universally recognized fashion that will allow her to remarry in a manner that all will accept.
I don’t believe any of us can claim to understand why God would design His laws in such a way that allows a man to chain his wife in this cruel fashion. But it seems to me that rather than be paralyzed by our incomprehension or devote energy to solutions that will not gain traction broadly, let’s apply all of our focus to solutions that we believe will work effectively, each and every time.
I am proud to belong to the RCA, an organization that has placed the issue of Agunos on its lists of priorities. With the leadership of our members and the partnership of our communities, we can collectively stand up and say “let my people go,” thereby achieving the freedom that everybody deserves.
**See www.theprenup.org Each spouse agrees to appear before a panel of Jewish law judges (dayanim) arranged by the Beth Din of America, if the other spouse demands it, and to abide by the decision of the Beth Din with respect to the get. If the couple separates, the Jewish law obligation of the husband to support his wife is formalized, so that he is obligated to pay $150 per day (indexed to inflation), from the date he receives notice from her of her intention to collect that sum, until the date a Jewish divorce is obtained. This support obligation ends if the wife fails to appear at the Beth Din of America or to abide by a decision of the Beth Din of America.
Each of these provisions is important to ensure that a get is given by the husband to his wife in a timely manner following the functional end of a marriage. The first obligation grants authority to the rabbinical court to oversee the get process. The second obligation provides an incentive for the husband to abide by decisions of the rabbinical court, and give a get to his wife once the marriage is over and there is no hope of reconciliation.
May it be Your will, our beloved Father in Heaven,
To bring the tragic plight of Agunos before Your Throne of Glory most favorably.
May Your mercy be aroused by the unbearable suffering they undergo constantly.
Remember them for salvation and mercy from the eternal high heavens.
O Hashem, please draw near to them in their anguish, please deliver unto them a complete redemption.
Please take them out from darkness to light, from sadness to happiness, from suffering to total relief and from hopelessness to hope.
So that Your loved ones will be rescued, please deliver with Your right hand and answer them in the merit of Sarah, Rivkah, Rachel and Leah our Matriarchs.
When the humble will see Your salvation, they will rejoice – those who seek Hashem, and their hearts will be revived.
For You Hashem listen to the prayers and supplications of Your nation Israel with mercy.
By: Rabbi Eliyahu Fink,
The Jewish Presss.com
The ongoing conversation about the agunah problem in the wake of the Gital Dodelson article in the NY Post consistently raises one impossibly difficult question. I’ve been asked this question many times and in many different ways. In my opinion, it’s the fundamental issue of the agunah crisis.
The public is justifiably angry with a husband who does not give a get. But the recalcitrant husband has a pretty compelling argument in his favor.
The Torah itself gives the husband absolute authority in the matter of the divorce. If this is Torah law then we are forced to say that this is God’s will. If God gave the power of divorce to the man alone, how can it be considered wrong or evil if he does not give his wife a get? And how can we call it an injustice when he does not give a get? Don’t blame the husband, blame the Torah. The Torah is at fault. God is at fault. Change the laws of divorce and the problem will be solved!
Some variant of this question is the crux of the agunah problem. In simple terms, why is the husband a bad guy when he doesn’t give a get if God gave him the power to decide if he wants to give the get? It is a very difficult question for an Orthodox Jew. And now it is being asked over and over again.
I think I have an answer to this question.
It’s true that in terms of divorce law, the power to divorce vests in the husband and he is the only one who can dissolve a marriage. The husband must willingly give the get. We are stuck with that law. Pure legalistic Torah matters are almost always unassailable. There is almost no way for contemporary rabbinic authorities to change a law derived from the Torah or even established by Chazal. There’s just no acceptable mechanism within Orthodox Judaism to make changes to Torah law.
(Rabbinic laws often have loopholes baked into the law, e.g. eruvei chatzeros, eruv tavshilin. Pruzbul and hefker beis din hefker are examples of the rabbis creating a legal fiction that circumvents Torah laws with regard to money, they do not change the actual Torah laws.)
The thing is, divorce law is not the only part of the Torah that informs us how to behave in case of divorce. That part of the Torah will never change. There are other parts of the Torah that do fluctuate and are subject to societal norms and niceties. Ethical and moral laws in the Torah depend on the context. Kindness and virtue largely depend on the subjective expectations of one’s friends and community. Perhaps at one time a certain act or behavior was considered normal and fair. But at a different time it could be considered evil or wrong. Things in this arena are more subjective and they do change. These bein adam l’chaveiro elements of the Torah always apply and I think they are especially important during a divorce.
• One is obligated to love his fellow as himself. “That which is hated to you, do not do to others.” Would a husband want his wife to hold him hostage? No. Thus it is prohibited to hold the wife hostage.
• It is prohibited to cause an animal pain. All the more so it is prohibited to cause pain to a fellow human being. Withholding a get causes extreme pain to the estranged wife.
• One who causes emotional damage to another person is obligated to compensate the victim. One cannot act in a way that causes other emotional harm. R’ Elyashiv paskened that sexual abusers were rodfim (pursuers) because of the emotional harm caused by their violence toward their victims. Causing another person emotional harm is a very serious issue and is absolutely against the Torah.
• The Torah requires that we help unload the animal of our enemy. Many authorities learn from this that we are required to lend a helping hand to anyone who requires help. Does a wife waiting for her get not require assistance?
• We are obligated to follow in the merciful ways of God. Is it merciful to withhold a get? Clearly not. A recalcitrant husband violates this mitzvah as well.
• Read the prophets. Their words often constitute rabbinic obligations. They admonish us for mistreating the underprivileged. A wife at the mercy of her husband is underprivileged. The list goes on. There are many interpersonal obligations and prohibitions that are blatantly trampled upon when one withholds a get. I don’t think there is an doubt about it.
Perhaps the objective laws of divorce won’t ever change. But the subjective laws of how to treat one’s wife during a divorce are subject to change. Maybe at one time it was not evil to withhold a get. I don’t understand it, but I accept that it may have been normative behavior at one time in history. But our common sense tells us that today it is amoral to cause this kind of pain to anyone, let alone one’s wife.
Turns out that while the Jewish laws of divorce don’t obligate the husband to give a get and a wife really cannot divorce her husband, by refusing to give a get the husband is violating several other mitzvahs. In other words, if one isolates the get issue as a pure question of Jewish divorce law it’s true that the wife is powerless and seemingly unprotected. But the Torah is not so simple. We don’t isolate civil law from religious law and we don’t sequester civil and religious law from the Torah’s moral and ethical laws. It’s all part of one Torah given by one God. Exploiting a legal loophole does not justify violating ethical laws in the Torah. It’s forbidden to be a jerk. It’s an issur d’orysa in many instances. It does not matter that the Torah gives him the right to be a jerk. It’s still assur.
I think that the original question obfuscates just how terrible it is to withhold a get. It is so obviously a horrible way to act towards a fellow human being. Regardless of whether it is within the husband’s legal right to withhold the get, it is patently clear that by refusing to give a get a husband is in violation of the ethical and moral laws as well as the spirit of the Torah.
About the Author: Rabbi Eliyahu Fink, J.D. is the rabbi at the famous Pacific Jewish Center | The Shul on the Beach in Venice CA
Country Yossi Magazine:
In response to our community’s outcry about the areas of emphasis that Rabbis choose these days: discussing esrog specifications instead of addressing the topic of agunot, for example. In their defense, I offer the following comments.
One of the places where Hashem speaks of the geulah is, “Vzacharti es brisi Yaakov v’af es brisi Yitzchok, vaf es brisi Avrohom ezkor, v’haaretz ezkor.” The immediate question is, why are the Avos in reverse order? This is also connected to the fact that the first brocha of Shmonei Esrei closes with “Magen Avrohom” and does not list the other two Avos.
As we all know, “Al shlosha devarim haolam omed: Al haTorah, al havodah v’al gmilus chasadim.” Each of the Avos personifies these pillars. Yaakov is “Ish tam yoshaiv ohalim” symbolizing Torah. Yitzchok is the one from whom we learn davening. When Rivka came it says Yitzchok went out “lasuach basadeh” and we learn that sichah was davening. Avrohom symbolizes chessed, with his tent feeding strangers, bailing out his nephew Lot, etc.
These three pillars also represent the three stages before the final redemption. First there will be a lot of Torah learning. Then that will die down and there will be a lot of davening. Then there will not even be any davening but there will be chessed – we will perpetuate our patriarch Avrohom’s kindness to strangers, community and family alike. Right after Avrohom in the pasuk about the Geulah, it says, “V’haaretz ezkor!” then I will remember the land, meaning Eretz Yisroel and the final restoration of our nation.
I would like to argue for our community leaders allowing us as congregants and followers to embrace observing our rituals to the most minute detail, while larger issues of bayn adam l’chaveiro are largely put aside. We are busy inventing Shabbos lights, but agunot remain trapped and unable to start new relationships.
On the issue of agunot, I would like to relate my story. I have a friend who was a classmate of mine for thirteen years. She married a man with a double identity. He was cool, but wore a streiml to please her family. In the end he was deeply troubled, he would sleep all day and stay awake all night. She finally left him, taking her two children with her and moved back in with her parents. A few years later she found out he would not be needing a get because he would not be pursuing an Orthodox marriage anyway. After waiting for four and a half years, she borrowed money to pay him off. He agreed to give her the get in exchange for the money, and her returning all the jewelry. He took the silver and all the furniture, and house items as well.
The morning of her get, her father’s car had a flat tire. So, after trying a number of people, my friend called me in tears. Her father ended up borrowing my car to drive his daughter to the get. That was the day her freedom began.
After being witness to this story, I decided I would have to handle my affairs at home more strategically. I had been married for almost ten years. My husband had recently started coming home at 4:00 am. When I asked him where he had been his response was, “You don’t trust me?” There were other issues as well. We had been to ten marriage counselors over a period of four years. I was no mental health expert but I sensed a paranoia about him. One Friday night at the meal I could tell he was seething about something. I finally got him to explain his upset. “You cleaned up the whole house for Shabbos except my bed.” Apparently, in my haste, I had left the dry cleaning on his bed when the delivery boy had brought it while I was in the middle of five different Shabbos prep activities. He just could not get over how insensitive I had been.
I knew I had to play my cards right or I could end up like my friend the agunah.
I knew that whatever I wanted, my husband would want the opposite. So, while I wanted a get very much, I pretended that I wanted to stay married. He would talk to me about getting divorced and I would say, “No, we have been through so much together. I love you too much. I could never go on without you.” I told my mother briefly of my plot. She totally could not understand me. “If you want a divorce, just go ahead and say so.” A few months later, he wanted to go meet with Rabbi Landesman in Monsey, who is a real expert on gittin. I refused for a week. Then I said I would go only if my mother and a family friend could come, and he could not bring anyone. He agreed. I remember that meeting so well. I remember the shocking stares from Rabbi Landesman and the others at the table when I said I wanted to stay married. I remember my mother squeezing my hand under the table. I remember how frustrated he was that I was adamant about staying married.
A few weeks after that, I called a very prominent rabbi who had spoken to my children’s father about refraining from hitting our children. He knew our case well. I told him “I want out. I want out now.” He responded encouragingly, “Give me two weeks.” He called my ex and told him that he finally was able to convince me to accept a get. Four weeks later the get was written. Two weeks later I had the get in my hand.
In between Yom Kippur and Sukkos I will celebrate eight years of freedom. I thank Hashem that I saw the misery and pain of my friend the agunah. I thank Hashem for giving me the foresight to play my cards right. I thank Hashem for the Rav who felt my pain and turned his compassion into relentless action on my behalf.
Recently I met with a prominent Rav who believes in perpetuating Rav Moshe Feinstein’s dedication to agunot. He told me he performs annulments for women who can not negotiate gets from men who are emotionally unstable or mentally ill. There is still more to be done in being dedicated to the plight of agunot. I heard a wonderful story about a Rav in London who tracked down a man for over 18 months and was finally able to secure a get for the wife who was living in Israel. She had waited five years for her get. These are wonderful examples of Rabbanim being compassionate to the plight of women. We need to increase the numbers of such Rabbanim exponentially if we are to make a dent in the agunot problem.
Indeed, it is human nature to look away from pain that is not ours. Remember the famous story about the woman who was not bothered that a child had been injured until she realized it was “her” Itzik. It is so much easier to assure yourself that you are doing everything you should when you daven three times a day, observe Shabbos, have the right size esrog, buy badatz shmurah matzos and stay up all night on Shavuos. What about the three attributes of the children of Avraham Avinu: Bayshanim, RACHMANIM and Gomlei Chassadim?
Here is an example of “misplaced spirituality:” I called someone for directions to their home once, when I was lost. I ended up calling her three times and I could sense she was getting annoyed, but that just made me more anxious and unable to find my way. Finally she said, “Look, I need to go, I have to daven mincha.” And she hung up. I was shocked. Sure, this is what G-d wants from her, to stand and daven mincha while someone needs some help with directions! I chalked that one up to pre-Pesach panic. To her credit, when I got to her door, she apologized profusely. She was extremely welcoming and gracious and said, “I am sorry I was curt with you. There is a lot going on here.” Within minutes, she apologized to a complete stranger and owned up to what she did. Her recovery was remarkable.
I remember our childhood home, where the study was lined floor to ceiling with my father’s seforim. One Yom Kippur we decided to count them but gave up after we hit five thousand. Seforim connotes in my head someone who is learned – and what is learning without middos?
I decided to take out some photos of our home and the seforim. I came across a photo of my father that just hit the spot! It is a photo of him wearing his Rabeinu Tam tefillin. He is outside in the backyard, on the ground you can see a pick and he is holding a shovel. The grass is partially tilled. My father was helping my mother till the earth for her vegetable garden. I was happy to be reminded of a man who was a Talmid Chacham, wrote seforim and had an enormous heart for his family. We also have a photo of him mopping the kitchen floor. The kitchen floor was white and whenever the boys came home from yeshiva, their shoes would leave black streaks on it. My mother would mop the floor sometimes three times a day. My father took one shift. Eventually, they changed the floor to make my mother’s life easier.
This season, let us extend compassion to our families, communities and especially strangers. Let’s do less patchking in the kitchen, less shopping, and more expanding the size of our hearts and souls.
Let us hear more speeches about reaching out to others, taking a stand for people in need, from agunot to shidduchim to those without jobs. Let us hear about how to act OUTSIDE of shul.
May our chessed bring the true Geulah, “Umacha Hashem dimah ma’al kol panim…”
By Rabbi Michael Broyde,
Rabbi Michael Broyde is a law professor at Emory University, was the founding rabbi of the Young Israel in Atlanta and is a dayan in the Beth Din of America. He has authored many articles on the topic of get meuseh and written a book on the agunah problem.
If a husband and wife separate and he no longer desires to remain married to her and she desires to be divorced from him, in such a case divorce is a mitzvah and commanded by Jewish law. . . . One who withholds a Jewish divorce because he desires money for no just cause is a thief. Indeed, he is worse than a thief, as his conduct violates a sub-prohibition related to taking a human life.
– Rabbi Joseph Elijah Henkin
This short article deals with one of the more complex areas of halakhah – the area of get meusah, a coerced Jewish divorce. It will focus its time and energy on the prototypical modern case of a husband and a wife who both agree that they want to get divorced but cannot agree upon the terms of that Jewish divorce and the husband is thus withholding the Jewish divorce until he receives what he wishes even after the civil divorce is over and the case is settled as a matter of secular law. [As an editorial matter, it is worth noting that this situation is readily avoidable in advance through the use of a pre-nuptial agreement like the one widely distributed by the Beth Din of America at theprenup.org – but we assume here that, sadly, no such agreement was used. Everyone should use such agreements!] The question that is being addressed is simple. Is there an issue of a coerced get [get meusah] in the use of social pressure – picketing, boycotting, withholding aliyot, and the like – in such a situation? The answer is fairly clear as a matter of halakhah that there is no problem of a coerced get in such a case, although the reason is not obvious to many.
II. What is Coercion?
First and foremost, it is important to note that in order for a get to be invalid as a matter of halakhah, not only must coercion be used but this coercion must be halakhically illicit. Licit coercion does not invalidate a Jewish divorce, nor does illicit non-coercion. Certainly, of course, licit non-coercion is never a problem.
Thus, it is important to start any discussion of this topic with Rabbenu Tam’s famous view that even in a situation in which Jewish law rules that a man may not be licitly coerced into giving a Jewish divorce, social pressure may be applied on him in order to convince him to give a get (commonly called harchakot d’Rabbanu Tam). Although I could explain the history of this custom, it is easier to simply share a teshuva written by Rav Ovadiah Yosef, and cosigned by Rav Yehuda Waldenberg and Rav Yitzchak Kolitz which was first published in published in Yabi’a Omer, VII:23 (Even HaEzer).
“The appeal before us, the Supreme Rabbinical Court [of Israel], revolves around a decision of the Regional Bet Din in Jerusalem on 9 Sivan 5744. The facts of the case are as follows:
The woman in question has been married to her husband for twenty years, but was childless. For fifteen years they were treated by doctors and through medications. All this was to no avail, until the doctors despaired of successfully treating them. The problem is evidently to be ascribed to the husband, and so has the wife herself argued in his presence, and so she requests to be divorced from him on the grounds of her legitimate desire for children. The regional Bet Din at the time (9 Sivan 5742) ruled that the husband must grant his wife a get, but that he could not be coerced to do so. However, the husband rejected the court’s decision and did not wish to execute a get, despite the fact that they had already separated.
In the appeal which was presented before us on 14 Tevet 5745, we did not find sufficient cause to compel the husband to divorce his wife. We did, however, try to persuade the man, who is religiously observant, to follow the proper path and obey the decision of the court, for it is a mitzvah to heed the words of the Sages who obliged him to divorce his wife and that he has chained his wife needlessly. And we gave the husband an extension of three months within which to grant a get to his wife. However, when we saw that three months passed without response, we instituted the separations of Rabbenu Tam as found in the Sefer HaYashar (Chelek HaTeshuvot 24) which states:
Decree by force of oath on every Jewish man and woman under your jurisdiction that they not be allowed to speak to him, host him in their homes, feed him or give him to drink, accompany him or visit him when he is ill. In the event that he refuses to divorce his wife, you may add further restrictions upon him.
And this was also expressed by Rema in a gloss (Even HaEzer 154:21) based upon a responsum of Mahari Colon (shoresh 102). In his commentary Biurei HaGra (EH 154:67), the Vilna Gaon explains that exerting this sort of pressure does not constitute coercion in the granting of the get since he may escape it by moving to another city, and also since any pressure not exerted directly on his person is not considered coercion.
It is true that Mahari Ibn Lev (Part 2 sec. 18) wrote that:
Even though both SMaG and Mahari Colon agreed to implement the sanctions of Rabbenu Tam, and [furthermore] we have found no one who clearly dissented from that decision, nevertheless we have not seen any contemporary rabbis who have so acted. On the contrary, when such a step was considered by most of the sages, and the impulse was to impose the sanctions of Rabbenu Tam, an outstanding scholar arose and protested against this intention, possibly because he was of the opinion that the sanctions of Rabbenu Tam are more severe than excommunication itself; thus if excommunication constitutes coercion, a fortiori so do these sanctions! And even though some time ago I ruled that the sanctions of Rabbenu Tam be imposed, the case there was different than the one presently sub judice, and moreover even in that case it was not actually done.
This ruling of Mahari Ibn Lev was cited by R. Abraham di Boton in Responsa Lechem Rav no. 31, upon which he commented, that:
Nevertheless, if the outstanding scholars agree to impose Rabbenu Tam’s sanctions in this instance, I will go along and actually permit it in this case.
Moreover, in the case presently under consideration even Mahari Ibn Lev might have allowed it; either out of concern for the husband who had not yet fulfilled the commandment to procreate and who may yet build a family with a different wife; or out of concern for the woman who wants children towards her old age and since twenty years have already passed, and the “Harvest is gone and summer is ended and these have not yet been saved,” as indicated by an examination of Even HaEzer (154:6) and the commentaries there.
In Responsa Tzel HaKesef (I:5 6) [the author] goes on to great length in this direction and concludes that one is fully able to rely [upon his argumentation] to impose the sanctions of Rabbenu Tam in all such cases. And so I found also in Resp. Rosh Mashbir (Even Haezer 38) who cited the statement of MaHarhash in a responsum (no. 42):
And despite that which Mahari Ibn Lev wrote [cited above] that he could not bring himself to impose the sanctions of Rabbenu Tam even in an instance of chalitzah, and all the more so one of divorce which is more serious, nevertheless in a case where migdar milta is the concern one may well say that imposing such sanctions is in order, and the author of Kerem Shlomo similarly asserted that a majority of late authorities agreed to actually impose the sanctions of Rabbenu Tam.
Furthermore, see Resp. Yisa Ish (Even HaEzer no. 19) who also wrote that the sanctions of Rabbenu Tam may be imposed in line with the opinion of Mahari Colon. See furthermore Resp. Mahari Taytatzak (II:172) and Sefer Pachad Yitzchak (Lapronti; Ma’arekhet Samekh 18a).
We added to these strictures (of the sanctions of Rabbenu Tam), that no gabbai of any synagogue in the area where the husband resides be allowed to seat him in the synagogue, or call him to the Torah, or ask after his welfare, or grant him any honor, and all people are to distance themselves from him as much as possible until his heart submits and he heeds to the voices of those instructing him that he grant his wife a divorce in accordance with the Law of Moses and Israel and thereby free her from her chains.
This decision was adopted unanimously with my friends and colleagues Rabbi Eliezer Yehuda Waldenberg and Rabbi Yitzchak Kolitz. And so it was done, at which time the husband submitted and granted his wife a divorce in accordance with the Law of Moses and Israel.”
One sees from this teshuva a basic point: Even in situations where a person may not be coerced into giving a get, the decision to banish the person from the community and engage in lawful protest over his conduct is not considered coercion since it does not use any coercive force at all, neither against his money nor his person.
III. When Is Coercion Illicit?
Second, it is important to reiterate the basic view of Rabbi Moshe Feinstein that there is no issue of “coerced divorce” (get me’useh) where it is clear that the husband actually wishes to end the marriage and be divorced and is contesting only the fiscal details of the divorce. Similar sentiments are expressed by Rabbi Abraham Isaiah Karelitz when he states that even when there is illicit coercion, if the husband really does want to give the get and be divorced, the get is still valid, since the true desire of the husband is to be divorced. This point appears to be agreed to, in modified form, by Rabbi Yitzchak Isaac Herzog, who also states that coercion does not invalidate a get that is commanded even if it cannot be judicially compelled. While it is true that Rabbi Feinstein is hesitant to rely on this rationale absent other lenient factors, it is clear that in cases where no real coercion is used – but only harchakot d’Rabbenu Tam – Rabbi Feinstein’s reasoning is fully applicable.
A close examination of Rabbi Feinstein’s responsum is in order. That responsum states:
“There is another reason to validate the get [in a case of actual court-ordered financial coercion] even if there was coercion. You [the questioner] asked the husband if he would have divorced his wife anyway without the settlement after the secular divorce, and he answered that he would have, but he would have demanded certain arrangements concerning the children’s education; we see from this that he really wanted to be divorced, and only did not ask for certain things for the children because of the settlement, and gave the get immediately. In such a case, even if the settlement is coerced, or even actual force is used to write the get, we see that there is no coercion on the giving of the get, but only to prevent the get from being used to extract other things from her. . . . Every person desires to [support his wife]; however, one who does not wish for this woman to be his wife, or he knows that she will not reside with him in a marital relationship, such a person really does want to be divorced, and it is merely because she desires a get that he wishes to extract from her certain things . . . It is not good for a person to be legally married when one lacks any of the marital virtues from one’s wife.
Rabbi Feinstein advances two very important insights.
The first is that in a situation where the marriage is actually over, there is no halakhic problem with using what would otherwise be illicit coercion to compel the giving of a get, even if no money is paid to the husband.
The second is that where payment is made by the wife to settle this matter and is combined with some coercion placed on the husband (but where the marriage is in fact over) that coercion does not violate Jewish law and void the get. In the eyes of Jewish law, the husband is issuing the get in return for the payment of money, since the marriage really is over and he derives no real benefit from continuing it.
The first insight, while by no means unique to Rabbi Feinstein, is found in only a small number of authorities. However, the second insight is found in a large number of halakhic authorities of the last thousand years and is completely normative. Writing about a case where a husband received payment and was then coerced into writing the get, Rabbi Avraham Boorenstein in his Avnei Nezer states:
“Those who prohibit this type of coercion] are referring to a case where the husband wishes to live with this woman and represent her as his wife. In such a case halakhah never says because of the coercion and the money he divorced her [rather, the get is void because illicit force was used]. Certainly, even if one gave a man all the money in the world, he would not divorce his wife [with whom he is living]. But a man such as this who betrayed his wife, and abandoned her for many years, we certainly do say the coercion and the money persuaded him to sell the divorce to an even greater extent than it persuades one to sell a field, since this man does not desire his wife at all, and only desires leverage over her so that she cannot marry another without his permission, and he can get money from her for this. Certainly in such a case we say because of the money he divorced her. This is very logical.”
Included in the list of Jewish law decisors who accept this rule that payment of money with some coercion, in a case where the marriage is over (and in the case of some of the authorities, even if it is not) and the husband does not desire to return to the marital abode, produces a valid get are the above-mentioned Rabbi Boorenstein, Rabbi Samuel Ehrenfeld, R. Simeon bar Tzemach Duran Rabbi Abraham ibn Tawah, Rabbi Solomon ben Simeon Duran, Rabbi Yosef [Paimer] of Slutzk, Rabbi Moshe Zev Ya’avetz, Rabbi Solomon Kluger, and Rabbi David Tavli Rubin, as well as perhaps Rabbi Raphael Yom Tov Lipman Halpern. Similar but not identical analyses can be found in the works of Rabbi Solomon Zalman Lipshitz and Rabbi David Solomon Eibeschutz and is mentioned in the writings of Rabbi Yitzchak Elchanan Spektor and Rabbi Tzvi Hirsch Orenstein. One can add to this list the above-mentioned decisors who accept an even broader rule. Indeed, no less an authority than the Beit Shmuel notes that there are many circumstances in which one can rely on this approach, even when only a small amount of money is given by the woman. Many other authorities could be cited to support this halakhic rule, and it appears to be accepted ab initio (le-khatchillah) by many.
Rabbi Tzvi Gartner, in his recent work Kefiya Be-Get, dealing with many aspects of coerced divorce, summarizes the matter by stating:
It appears that it is difficult to rely on the approach of Iggrot Moshe and Tiferet Tzvi in a case where the only benefit which accrues to the husband is removal of the obligation to support his wife, since this is a matter in dispute between Tosafot and Rashba. Nonetheless, their analysis is persuasive at the minimum in the case where the husband does not desire a marital relationship and only desires to extract something from the woman in exchange for a get, and she gives him money for the divorce.
Indeed, a plausible reading of Rabbi Feinstein’s own words incline one to accept that his expressed hesitancy to rely on his “novel insight” applied only to the first of them, where there was no payment to the husband. The second insight is certainly accepted by many great authorities as normative Jewish law, and validates any get given in the process of a settlement where the wife gives anything of value to the husband to which he is not entitled. Nearly all contested secular divorces fit into this latter category.
Based on these two rationales alone – and many other are also present – it is clear that the use of social pressure to encourage the giving of a get in a situation in which the couple has already separated, a secular divorce has been granted and the marriage is over for both of them – and even more so where a bet din has issued a seruv against the husband — never creates a situation of get meuseh.
Having said that, a word of caution is also needed and is important. Matters of this type – when to protest and how to protest – are complex matters of judgment and halakhah both as to what Jewish law permits to avoid problems of an invalid get and what is proper in any given setting (something can be wrong without creating an invalid get, for example). In areas like this, people should not act on their own and determine the halakhah based on their own sense, but ought to follow the rules of a respected bet din or halakhic authority.
By Nathan Lewin,
December 18, 2013
I’ve testified unsuccessfully in Annapolis three times over the past 20 years before committees of the Maryland legislature to urge the enactment of a modified version of the “get bill,” which I personally drafted in 1982 at the urging of the late Rabbi Moshe Sherer, z”l, chief executive of Agudath Israel of America. On the first two occasions, I was accompanied by Rabbi Herman Neuberger, z”l, of the Ner Israel Yeshiva in Baltimore.
The “get law” was adopted by the New York Legislature and signed by Governor Mario Cuomo in 1983. It withholds a civil divorce from any spouse who fails to take steps that would free his or her partner to remarry. Imposing a “barrier to remarriage” — be it a secular or religious barrier — is, under this New York law, an insurmountable barrier to receiving an official legal judgment of divorce. The clerk of New York’s matrimonial court refuses to accept a complaint from a plaintiff in a divorce action who does not swear that he or she has removed (or will remove) all “barriers to remarriage.”
In the three decades that it has been on the books, the law has probably nudged hundreds of men in New York who would otherwise not willingly go through the very uncumbersome Jewish divorce procedure to authorize the writing of a Jewish bill of divorce (get) to wives whom they are civilly divorcing. (And, on more rare occasions, it has even persuaded a wife who initiates divorce proceedings to voluntarily accept a get — which is also a requirement for a valid Jewish Ashkenazic divorce.) If not for the New York law, there would probably be many more “chained women” (agunot) in New York’s Orthodox communities.
Although the latest effort in Annapolis was endorsed by the Orthodox Union and by the Jewish Relations Councils of both Baltimore and Washington and appeared to have broad support, it was scuttled because State Sen. Jamie Raskin, a professor at American University Law School, persuaded his colleagues that the law violated the constitutional principle of separation between church and state. In fact, over the 30 years it has been in place in New York, no constitutional challenge to the law has succeeded.
There is no similar legal remedy in Maryland, Virginia or the District of Columbia. There have been instances of couples living in Maryland, sometimes with one spouse employed by the federal government in Washington, who have divorced and the husband has refused to authorize the writing of a Jewish bill of divorce. Husbands have various personal motives for refusing to free their wives to remarry under Jewish Law, ranging from pure vindictiveness to financial extortion. When I last appeared in Annapolis in 2007, we brought three real-life agunot to tell their stories to the Maryland legislative committees. All said they believed if Maryland had a “get bill” they would not be in the difficult straits in which they found themselves. Even this dramatic presentation did not move the Maryland legislature.
At the urging of Rabbi Shmuel Herzfeld of Ohev Sholom Congregation, the District of Columbia Council is now considering a bill introduced by Councilmember Muriel Bowser that is titled “Protect Ex-Spouses from Harassment and Abuse Act of 2013.” It would make a spouse “who, following a civil divorce, maliciously interferes by act or omission with the ability of the person’s former spouse to remarry” liable in a D.C. court for actual damages. The law applies explicitly “to instances in which the alleged interference or omission is related to religious law or practice.”
Granting actual damages to an agunah against a recalcitrant husband for the injury she suffers by being deprived of support and the opportunity to remarry is plainly equitable. It is also halachically correct even though a get given under the compulsion of a secular court is halachically considered a “forced get” (get meuseh) and is invalid. If a secular court orders a husband to give a get and imprisons him for contempt for failing to do so, a get authorized by the husband to free himself from prison is halachically defective. The relevant question under Jewish Law is when secular law’s coercive power can be said to make the husband’s consent involuntary.
My New York “get bill” was submitted by Rabbi Sherer to Rabbi Moshe Feinstein, z”l, the leading Jewish halachic authority in America, and Rabbi Feinstein approved it in a written opinion in 1982. He said that withholding a secular divorce from a recalcitrant spouse was not halachic coercion that would invalidate a get given as a condition of being receiving such a divorce.
I quote here from an earlier responsum of Nov. 12, 1979, that Rabbi Feinstein wrote to Rabbi Jacob Zeltzer of Johannesburg: “Your second question asked whether it is considered a forced bill of divorce (‘get meuseh’) if a secular judge imposes on a husband who does not want to provide a Jewish divorce liability for the support and all needs of his spouse until he divorces her with a valid Get. In fact, until the wife is divorced the husband is halachically (‘mi-dinah’) obligated to support her and provide for her needs. She is entitled to go to a secular court to compel him to provide her support and all her needs. This is true even if the judge requires the husband to make support payments to a wife who is employed and earning an income. In any event it is elementary (‘pashut’) that if the husband then divorces her with a Get because he wishes to be relieved of this legal obligation it is not considered a forced bill of divorce (‘get meuseh’), and it is a valid get beyond doubt (‘le-chatchila’).”
This responsum by Rabbi Feinstein clearly authorizes an agunah to seek a damage remedy against a recalcitrant husband in a secular court for her support and other needs. If, in order to avoid the prospect of such a judgment or to be relieved of further liability, the husband then authorizes a get to be written, it is a valid Jewish divorce. Jewish organizations that are concerned over the plight of agunot have a duty to support this proposed D.C. legislation and see its equivalent enacted throughout the United States.
Nathan Lewin is a partner at Lewin & Lewin, LLP.
Darryle and Michael Gillman of Lincolnwood were determined to get the story out — to make sure others knew about the nightmare that their daughter was forced to endure for years.
They urgently told that story to local documentary filmmaker Beverly Siegel, and as disturbing and astonishing as it was, Siegel wasn’t in a position to jump into it right away. But once she and filmmaking partner Leta Lenik started, they knew they would not let go until “Women Unchained” was completed.
The documentary, which was eight years in the making, is a comprehensively-assembled examination of the heartbreaking and infuriating difficulty that women face in obtaining a Jewish divorce — known as a “get.”
Screened Sunday at Lincolnwood Jewish Congregation, it contains an array of women who tell different stories with certain commonalities: Men in each case held power over them by denying gets and standing in their way of moving on. Their lives were frozen as their husbands exerted vengeance, extortion and even blackmail, because the system and the way it was implemented allowed them to do so.
One of those lives belongs to Darryle and Michael’s daughter, Ariel.
“Seven or eight years later, we’re doing OK,” said Michael Gillman last week, a few days before the screening. “But what we went through was more than just eye-opening.”
Ariel married her husband in 1988. Ten years later, Michael said, “the marriage exploded” when she learned her husband had been having an affair with his business partner. Although she tried to stick it out and even went to marriage counseling, the relationship was clearly irreconcilable.
But Ariel was soon to find out that her husband was handed all power over whether to grant a get.
In the end, the great support from Ariel’s family, the threat of exposing her story in the Jewish press and the willingness to pay dearly — but unfairly — gained Ariel her freedom. Others are not so lucky.
Michael Gillman said that when he went through Jewish divorce court to try to unchain his daughter, he found many women in the same situation.
Like Gillman, Siegel knew of the issue, but she didn’t know the extent of it until she began to research her film.
“It was hard to believe how many women faced this terrible thing and what they had to go through,” she said.
Actually, no one really knows how many women go through it.
One study over a five-year period reported 462 “agunahs” — defined as Jewish women chained to their marriages. But that number is clearly under-reported, Siegel said, and there are multiple factors that make accurate statistical reporting all but impossible.
What’s easy to say, though, is that the terrible experience of being an agunah is far more prevalent than most realize.
“Making an independent film is a labor of love,” Siegel said. “This one you might say is a labor of love gone very, very bad. It’s also been a labor of passion for justice, and outrage for the injustice that takes place in so many Jewish divorces where the get becomes — as they say — an issue.”
According to traditional Jewish law, an agunah in religious circles cannot remarry and start a new life until she receives a get from her husband — regardless of her divorce status in civil court. If she does so without the get, Siegel said, her children are regarded as “bastards” and she is considered in violation of Jewish law.
Although the filmmakers were uncovering a lesser-known controversy when they began making their movie, news about the agunah problem in Orthodox Judaism has more recently exploded.
This fall, Brooklyn Rabbi Mendel Epstein, who appears in “Women Unchained,” was arrested in a federal sting for assembling a group to kidnap and torture a husband into granting a get.
“He’s been a very controversial player for a long time in the underworld of goon squads and strong-arm tactics against get-withholders,” Siegel said. “Now he has been silenced. I think this arrest has really upped the ante on this issue for the Jewish community. I think it’s raised the urgency to an unprecedented level.”
“Women Unchained,” narrated by Mayim Bailik of “The Big Bang Theory,” premiered a couple of years ago in Jerusalem as the opening film in the Women in Film Festival celebrating International Women’s Day. Since then, the film has been featured in Jewish film festivals across the world including Toronto, Boston, New York, Washington D.C., Palm Beach, and even Brussels and Budapest.
It also has played at special screenings and had a six-week-run on the Jewish Channel on cable television.
Siegel said that while the material is “sad and grim,” it was not their intent to create “a depressing movie,” drawing inspiration from the Holocaust film “Life is Beautiful.” There are laughs in “Women Unchained,” but none of them take away from the serious-minded determination that clearly fuels the project.
“According to Jewish law,” Bailik says in the film’s opening, “a Jewish woman may not remarry until her husband gives her a special writ of divorce. It’s known in Hebrew as a get. If he refuses to give her a get, she becomes an agunah. She is a chained woman, a prisoner in a dead marriage.”
All Jews in Israel are subjected to these restrictions since the law of the land is Orthodox Judaism. But many Jewish women in the United States regularly suffer because of the agunah problem as well.
In “Women Unchained,” we meet five of them who have been seriously wronged, even physically abused, but they have not been able to gain their freedom — at least not until their former husbands have exacted a tremendous toll over many years.
“It was an abusive relationship,” says Carrie, one of the women interviewed for the film (only first names were used by the filmmakers). “He was actually taking food away from me. I weighed 88 pounds when I left.”
“You believe you’re nothing,” says Leslee, who was in an emotionally and physically abusive relationship.
“As I was laying there on the gurney, I said to myself, ‘No one is going to convince me ever again that I am not worthy of breathing,’” says Jeanette, who was physically abused.
To break away from her husband, Ariel’s family has to pay the equivalent of more than $431,384 to her former husband.
The film is breezily paced, packed with important information along with the women’s heartfelt and sometimes-harrowing anecdotes. It is peppered with historical background provided by a cadre of knowing scholars and other experts.
Neither Siegel, nor the film’s activists, advocate changing Jewish law, but they believe there are ways to address the problem. A key one is for rabbis to require strong prenuptial agreements before they will marry couples. There are also creative interpretations of Jewish law that can better protect women.
“They have the tools,” says one of the film’s scholars, referring to the rabbis. “The problem is they’re not using them.”
Siegel believes all members of the Rabbinical Council of America should be forced to watch the movie and discuss why they don’t require a prenuptial agreement.
“I think there needs to be massive community education on this issue since all the rabbis don’t require the prenuptial agreement,” she said. “Every person needs to know about this so when they get married or their daughter gets married or their friend’s daughter gets married, they tell each other, ‘Don’t let that marriage happen unless there’s a prenuptial
Removing Barriers to Religious Remarriage in Canada: Rights and Remedies
Jewish Divorce, Remarriage and the Problem of Consent and the “Get”
Sections 2(4)-(7) and 56(5)-(7) of the Family Law Act, 1986
[para1] Although the Family Law Act provisions relating to religious remarriage could apply to any religion, ss. 2(4) to (7) and 56(5) to (7) of the Family Law Act were designed and developed to help solve a serious problem facing the Jewish community in Ontario. Under Jewish traditional laws, when a man and a woman seek a divorce a Jewish man gives a Jewish woman a piece of paper consenting to a bill of divorce or a ‘get’. The get must be given of his own free will and a Jewish woman must accept this get of her own free will. Not all Jews feel this is necessary, but a significant number do, no matter to which sect of Judaism they may adhere. The get is simply a contractual release between the parties. Unless a husband gives this get and unless the wife agrees to receive it, the couple, under Jewish tradition, is not divorced and neither party is free to remarry.
[para2] Without this freedom an observant Jewish spouse must force herself to overlook and set aside her deeply-held faith going back many millennia. When and if she then decides to remarry under secular or civil law before a secular judge without obtaining the get, she then must abandon her convictions and to some extent abandon traditional Judaism. Moreover, if such a spouse does remarry without his or her spouse’s consent to a Jewish divorce, then the children of a second and now strictly secular marriage may have their status within the observant Jewish community impaired, even though such a spouse will, in her second marriage, marry another Jew. Such children face religious restrictions on whom they can marry.
[para3] For these reasons, on separation or divorce, the obtaining of a get, or bill of divorce, from one’s spouse is critical not only to one’s own future if one is observant, but also to that of one’s children, one’s grandchildren and the generations to come.
[para4] In recent times, and with more increasing familiarity, a number of Jewish spouses are attempting to extort rights to which they would normally not be entitled under the Family Law Act or the Children’s Law Reform Act by offering to consent to a religious divorce only if their spouses give up property, support, custodial or access rights, or agree to a modification of these rights. Even where spouses do not resort to coercion, the matter of religious divorce frequently arises in negotiations leading up to the resolution of matrimonial disputes, which lead to separation agreements. Accordingly, the get has often become a negotiating chip to be exchanged for the modification of other rights.
Section 56(5)-(7) of the Family Law Act—Problems and Some Solutions
[para5] There should be no reason that this religious issue should be present in these negotiations. It is now the view of the Ontario legislature that abuse of religious custom has no place in interfering with matrimonial negotiations that lead to separation and divorce. Such legislation was necessary in light of a brief review of the common law principles of duress, undue influence and contracts void on grounds of public policy, which suggests that these common law principles may not be sufficient to render void a spousal agreement entered into under the threat of withholding a get (see Chitty on Contracts, Vol. 1 (25th ed.), 1983. Accordingly, s. 56(5) to (7) of the Family Law Act provides as follows:
56 (5) The court may, on application, set aside all or part of a separation agreement or settlement, if the court is satisfied that the removal by one spouse of barriers that would prevent the other spouse’s remarriage within that spouse’s faith was a consideration in the making of the agreement or settlement.
(6) Subsection (5) also applies to consent orders, releases, notices of discontinuance and abandonment and other written or oral arrangements.
(7) Subsections (4), (5) and (6) apply despite any agreement to the contrary.
[para6] This provision goes beyond the normal type of written agreement that can be set aside by the court, and includes, for the first and only time in the Act, a provision whereby agreements that are oral in nature can be set aside. Thus, even if the separation agreement or minutes of settlement made no reference whatsoever to the get, the entire agreement could be set aside if money was paid “under the table” or if consideration was exchanged for the get in any other surreptitious manner. Moreover, this section does not impose a test upon materiality: that is, the consideration paid or exchanged for the removal of barriers to one spouse’s religious remarriage does not have to be a material consideration, but merely a consideration or any consideration.
[para7] Of particular concern among some critics is that, because of s. 56(5), spouses who would normally provide or receive gets freely and willingly might be warned by their lawyers not to do so for fear that a carefully negotiated agreement could be set aside, even though a get played no role whatsoever in these negotiations. I would suggest that if any party wishes to consent to a get but is particularly nervous that the other party may later set aside an agreement merely because a get was exchanged, (even if the get played no part in the negotiations), then the parties should simply exchange affidavits under s. 2(4) to (7) in the manner reviewed below and in the context of an action. If no action was ongoing or pending during negotiations then an action may have to be commenced merely for the purpose of exchanging affidavits. Since the removal of barriers would then be made within the context of an action and pursuant to the provisions of ss. 2(4) to (7), the giving and the receiving of the get would therefore be sanctioned by statutory procedure as opposed to having taken place within the framework of a “negotiated” settlement.
[para8] Another course of action is to develop a standard acknowledgement clause in minutes of settlement or the separation agreement to the effect that “removal by one spouse of barriers that would prevent the other spouse’s remarriage within that spouse’s faith was not a consideration in the making of this agreement or settlement”. Notwithstanding the provisions of s. 56(7) (see above), such a statement would be a meaningful acknowledgement or indication between the parties. It might provide another hurdle that the court must overcome, since the onus would then likely be on the spouse seeking to set aside such an agreement to prove that he or she did not sincerely believe that such a statement was true.
[para9] If a civil court sets aside such an agreement under s. 56(5) and forces a spouse to return consideration obtained in exchange for a get, then under Jewish law the get may be impugned. A solicitor who is contemplating the setting aside of an agreement under this section would therefore be wise to consult with a Rabbi whose speciality and skill lies in the field of Jewish divorce before commencing an action under s. 56. Under the relevant circumstances, such an action could possibly jeopardize the divorcee’s status under Jewish marital law, even if she has already remarried under Jewish law.
[para10] One suggested method of employing this section is to pay the negotiated sum to her spouse, obtain the get, then immediately commence an action and obtain an interim ex parte order for the preservation of property, which in this case is money (under rules 44 or 45 of the Rules of Civil Procedure). Section 56(5) may be quite useful in respect of improvident settlements made prior to the coming into force of the Family Law Act (March 1, 1986). The Act is clearly retroactive in effect to at least June 4, 1985 but we would argue to even before that date, subject only to common law limitations of laches or the normal six-year limitation period under the Limitations Act. Section 2(4) to (7) of the Family Law Act—the Affidavit Route
[para11] In situations where one or the other spouse makes application for virtually any relief under the Family Law Act, even if merely for court costs if one is defending, the Ontario Legislature has enacted a procedure under s. 2(4) to (7) under the Family Law Act which obliges a recalcitrant spouse to remove all barriers that are within his or her control and that will prevent the other spouse’s remarriage within that spouse’s faith:
(4) A party to an application under s. 7 (net family property), 10 (questions of title between spouses), 33 (support), 34 (powers of court) or 37 (variation) may serve on the other party and file with the court a statement, verified by oath or statutory declaration, indicating that
(a) the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse’s remarriage within that spouses faith; and
(b) the other party has not done so, despite a request.
(5) Within ten days after service of the statement, or within such longer period as the court allows, the party served with a statement under subsection (4) shall serve on the other party and file with the court a statement, verified by oath or statutory declaration, indicating that the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse’s remarriage within that spouse’s faith.
(6) When a party fails to comply with subsection (5), (a) if the party is an applicant, the proceeding may be dismissed; (b) if the party is a respondent, the defence may be struck out.
(7) Subsections (5) and (6) do not apply to a party who does not claim costs or other relief in the proceeding.
[para12] Within ten days after the s. 2(4) affidavit is served, or such longer period as the court allows, the party which initiated the affidavit procedure may apply to the court to have his spouse’s proceeding dismissed or defence struck out by reason of his failure to comply with these subsections. The only way that the party who received such an affidavit can fulfil his statutory obligation and prevent himself from being faced with such an application is to complete whatever procedures are necessary to remove barriers within his control to permit his spouse’s religious remarriage within her faith. He must therefore immediately swear out and serve upon his spouse an affidavit stating that he has completed such a procedure and further indicating that he has removed the barriers that have been requested to be removed by his spouse.
[para13] The lawyer acting on behalf of a Jew who is concerned about obtaining a get should simply phone his client’s Rabbi and ask what has to be done. In almost all cases the procedure is invariably inexpensive, quick and simple. A get can be given and received in a matter of hours.
[para14] Although the court has a discretionary power, and not an obligatory one to dismiss an application or strike out a defence, it will probably closely scrutinize and be suspicious of any reason that a recalcitrant spouse might give for his or her failure to consent to the get procedure. This is particularly true insofar as s. 56(5) at the very least statutorily indicates the statute’s displeasure with spouses who use their ability to withhold their consent to a religious divorce as a negotiating tool in matrimonial disputes. The secular purpose of facilitating remarriage would also be in the mind of the court and we would suggest that the court should rarely, if ever, deny relief to a spouse who needs a get. Clearly such relief should not be denied because of any assertion that the recalcitrant party was withholding his consent for “religious reasons”. It has been documented repeatedly in the Rabbinic literature and by every informed Judaic source that in most cases there cannot be the slightest religious basis for the withholding of a get, and that, indeed, it is contrary to religious principles to do so. There cannot even be a financial reason for withholding a get as its cost is negligible. Even before the section came into force there was authority for the Supreme Court of Ontario withholding a portion of proceeds of the sale of matrimonial home pending the husband’s delivery of a get: See unreported decision of Solomon v. Solomon (Rutherford J., July 22, 1982, File No. D90844/81) and this decision was made over the objections of counsel for the husband (not appealed).
[para15] Since the enactment of these Family Law Act provisions, the very threat of these sections have substantially mitigated the problem of matrimonial blackmail in Ontario. Predictably the affidavit route ss. 2 (4) to (7) has been used more frequently than s. 56 and a brief survey of various counsel in the province suggest that once an application for such relief is made, the recalcitrant spouse eventually succumbs. The courts also do not appear nervous about applying the sections. In Glass v. Glass, unreported (Ont. H.C., Master Cork, February 23, 1987), digested at (1987), 6 L.W. 644-012 (6 Lawyer’s Weekly No. 44, March 27, 1987) and 3 A.C.W.S. (2d) 287, it was the husband who was seeking an order that the wife remove barriers to his religious remarriage. The wife argued that as long as they were civilly married, she could not remove all barriers to the husband’s religious remarriage. The court affirmed that the legislation envisioned the existing civil marriage and was intended to deal only with religious barriers whose removal was within the power of the parties. Mrs. Glass was ordered to give her irrevocable consent to a get. The court also ordered that the obtaining of a get be comparable with the civil divorce in the circumstances where a divorce action was proceeding.
[para16] In New York State, legislation similar to Ontario’s was recently upheld in a decision by its appellate court. The transfer of money and property under a settlement was stayed pending the husband’s compliance with the statute: Friedenberg v. Friedenberg, 523 N.Y.S.2d 578, January 19, 1988 (N.Y.S.C., Appellate Division).
[para17] Finally, on a practical note, due to the all-encompassing wording of s. 56 it is not advisable to make any mention of the religious divorce in minutes of settlement or a separation agreement. The alternative practice has grown to have these agreements signed, held in escrow and not delivered until the get procedure has been completed.
[para18] Recently, in the late fall of 1988, the United States Supreme Court confirmed the decision of the New York Appellate Court in the case of Shragai (unreported) by refusing the husband’s application to stay the lower court order that he be imprisoned for failing to give his wife a get. Mrs. Shragai had successfully registered an Israeli rabbinical court order that Mr. Shragai give his wife a get in New York’s court system. However, Mr. Shragai refused to honour what then became a New York court order on the constitutional ground that such an order violates Mr. Shragai’s freedom of religion under the United States Bill of Rights and its Constitution. By affirming the lower court decision, the United States Supreme Court has confirmed the appellate and lower courts’ view that Mr. Shragai’s failure to grant his wife a get offended public policy, and that his arguments raised no substantial constitutional issue. This decision substantially answers and dispenses with any of the constitutional objections to the Ontario Family Law Act and its sister legislation in New York State.
[para19] Effective August 12, 1990, Canada’s Divorce Act was formally amended by the proclamation of Bill C-61. Essentially, under Section 21.1 of the amended Act, after the deponent serves an affidavit reciting the other spouse’s refusal to remove barriers to the deponent’s religious remarriage within the other spouse’s control, the court has the discretionary power to dismiss any application filed under the Act, and to strike out any other pleadings and affidavits filed by such a “recalcitrant” spouse. If a husband refuses to give his wife a get, or if a wife refuses to accept same, then either can thus be refused the right either to present or defend any motion or claim for a civil divorce or corollary relief, including motions or claims for spousal support, child support, custody, access or the variation of any existing divorce judgments for such relief.
[para20] As a consequence of the ability to frustrate a defence to a variation claim, a Jewish spouse who needs a get to remarry, but who has already been civilly divorced by a court judgment rendered several years ago, can now bring a claim to increase child or spousal support and prevent her spouse from defending such a claim until he gives her a get. Needless to say, the relief under s. 21.1 cannot be brought independently of a proceeding for corollary relief or for variation of such relief and, for that reason, there should be some legitimate basis for the claim – such as true need or new parental conduct during access visits (or the lack of them) that adversely affects the child’s best interests.
[para21] Some of the differences between the Family Law Act and Divorce Act procedures are summarized as follows:
1. 2. 3.
Unlike the Family Law Act procedure, the Divorce Act procedure may prompt a court to prevent or delay the resolution of a recalcitrant spouse’s custodial or access claims to his/her child or children. Subject to the best interests test, a spouse who refuses to remove the religious barriers within his or her control could be restricted or even prevented from seeing his or her children: s. 21.1(3) (c) and (d).
The recalcitrant spouse under the Divorce Act normally has fifteen (15) days, not ten (10), to file his own affidavit confirming his having removed the religious barriers: s. 21.1(3) (a).
Unlike the Family Law Act, the Divorce Act permits a court to excuse a recalcitrant spouse from removing religious barriers if the spouse can satisfy the court that he has genuine grounds of a religious or conscientious nature for refusing to remove such barriers within his or her control: s. 21.1(4)(a) (b).
This apparent loophole is difficult to invoke because,
(i) the onus is on such a spouse refusing to give a get to make this expensive argument succeed, not the spouse requesting the removal;
(ii) under Jewish law there is no religious ground for refusing to remove barriers to one’s spouse’s religious remarriage once marriage breakdown has occurred; there is not even a one-year separation prerequisite before divorcing;
(iii) unlike the Family Law Act affidavit, the Divorce Act affidavit filed by the spouse requesting the removal must, inter alia, specify “the date and place of the marriage, and the official character of the person who solemnized the marriage [i.e., if the marriage officer was a rabbi or judge]”.
Presumably, a spouse who allowed himself or herself to be married by a rabbi cannot consistently maintain that he or she may have been a religious Jew for the purpose of marriage, but not divorce. Other extrinsic evidence pertaining to past participation in Jewish life, such as a bar mitzvah or even infrequent synagogue attendance also would be useful. Moreover, wise counsel who anticipate such a defence should “negotiate” for the get in writing and expressly state on such correspondence that the letters are not without prejudice. Including such exchange of letters in the affidavit may vitiate the recalcitrant spouse’s claim that his grounds for refusing to remove barriers on religious or conscientious grounds are truly “genuine”.
The section was designed to make the entire amendment more constitutionally defensible and less prone to attack on the grounds that it offends a recalcitrant spouse’s freedom of religion under Canada’s Charter of Rights.
4. Unlike the Family Law Act provisions, s. 21.1(b) of the Divorce Act excludes from its operation those spouses subject to religious divorces where “the power to remove the barrier to religious remarriage lies with a religious body or official”. Only Judaism (and occasionally Islam) vests control to remove barriers with the spouses themselves. Rabbis merely supervise or “umpire” the proceedings—they cannot effect the divorce itself. However, the Catholic Church and, in most cases, the Islamic religious courts can and do effect the termination of a marriage—often against the will of one of the spouses, albeit in Catholicism the process is annulment. The purpose of s. 21.1(b) was to ensure that the jurisdiction and practices of non- Jews would not be affected in any way, shape or form by the passage of remedial legislation designated to primarily assist blackmailed Jewish spouses whom the rabbis are powerless to assist. By contrast, a Catholic spouse may delay the annulment by refusing to co-operate, but he or she cannot prevent the annulment forever. For the remedial impact of these sections on Islam, see my article in 1 C.F.L.Q. 29 or Chapter 3 of my book Religion and Culture in Canadian Family Law (Butterworths 1992). In certain cases, the sections can help an Islamic woman significantly.
[para22] Finally, the constitutionality of allowing a court to indirectly oblige a spouse to remove religious barriers to remarriage in the face of a spouse’s “religious freedoms” was confirmed by the unreported decision of Shragai in the United States Supreme Court, confirming a New York appellate court’s decision to send a Jewish male to jail for refusing to give his wife a get. This decision was made in the face of strenuous “religious freedom infringement” arguments by the husband. However, the appellate court ruled that it was against public policy for him to be able to prevent his wife from remarrying within her own faith. This case, although not binding, should be very persuasive in a Canadian court.
[para23] Recently a Quebec Superior Court in E.S. v. O.S. confirmed the use of section 21.1 of the Divorce Act to “level the playing field” in situations where husbands use their ability to withhold their consent to a get to extract concessions. Therefore, Mr. Judge Tannebaum dismissed the husband’s contention that he was refusing to give a get on “conscientious grounds”. The Court concluded that the husband’s willingness to grant the get only after the civil divorce suggested that his real intention was to use his power over the wife in settlement negotiations. His offer to give the get after the civil divorce is meaningless since he would, in no way, be bound to do so. In the Judge’s view, section 21.1 clearly indicates that the barriers are to be removed prior to the completion of the civil proceedings, since it empowers the Court to dismiss any proceedings taken by the refusing spouse. Moreover, since the husband consents to the get once the civil divorce is pronounced, it was clear to the Court that no moral, conscientious or religious grounds really existed for his refusal. Accordingly, the husband’s proceedings were dismissed: E.S. v. O.S.  Q.J. No. 1263, Quebec Superior Court, October 6, 1995.
[para24]Section 21.1 of the Divorce Act and Sections 2 and 56 of Ontario’s Family Law Act provide remedies for Jewish and some Islamic spouses whose partners refuse to give their consent to a religious divorce. Although these sections have been law for several years, a recent survey of lawyers across Canada has shown that very few matrimonial counsel are familiar with these provisions or the reasons behind them. Basically, these laws are designed to thwart the coercive conduct of a spouse who withholds his or her consent to a religious divorce, called a “get” in Judaism. A similar problem exists among some Islamic clients. Caution should be used in employing these sections in a given case without close consultation with a religious figure, such as an experienced Rabbi. According to some opinions, counsel who employ these remedies without such consultation could contravene Jewish or Islamic law, rendering any prospective religious divorce invalid if sanctions are imposed by secular courts. In certain fact situations, the employment of such remedies imposed by a secular court might be considered “coercive” and improper by a Jewish religious court, since a spouse’s consent to a Jewish divorce or “get” must be given by one’s “free will”. However, others have expressed the view that the spouse who refuses to consent to a religious divorce and is now faced with a Court’s order will do everything possible to convince religious officials that he is in compliance with religious law if he wishes to escape sanctions that the secular courts would impose under these sections. In other words, the problem of “religious law” making it difficult to comply with the Court’s order will become his problem, not the problem of the woman or man who is suffering from an inability to remarry within Judaism or Islam. Such commentators suggest that it would certainly not be the problem of the secular courts which are governed by the Divorce Act or Ontario’s Family Law Act, not Jewish or Islamic law. These contradictory views on how best to approach these legislative remedies have yet to be reconciled, although the debate has recently come alive in a number of recent cases and articles that have appeared. Both have merit. One does not wish to do anything for a client that may frustrate her ultimate goal of obtaining a Jewish or Islamic divorce under religious law. Consultation with religious leaders therefore appears to be imperative. However, it equally may be true that these concerns should not necessarily stop counsel from employing these very unique statutory remedies. The spouse who withholds his consent often realizes that it is in his best interests to give consent when faced with the threat of these provisions. In fact, a study prepared by the federal government has confirmed that this very threat has proved to be effective. The problem has not vanished, but has been greatly ameliorated as a direct result of the legislation.