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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
“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.
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
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…”
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 ________________________________________ I. Introduction
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.