A Real-Life Solution to the Agunah Problem

I’ve testified unsuccessfully in Annapolis three times over the past 20 years before committees of the Maryland legislature to urge the enactment of a modified version of the “get bill,” which I personally drafted in 1982 at the urging of the late Rabbi Moshe Sherer, z”l, chief executive of Agudath Israel of America. On the first two occasions, I was accompanied by Rabbi Herman Neuberger, z”l, of the Ner Israel Yeshiva in Baltimore.

The “get law” was adopted by the New York Legislature and signed by Governor Mario Cuomo in 1983. It withholds a civil divorce from any spouse who fails to take steps that would free his or her partner to remarry. Imposing a “barrier to remarriage” — be it a secular or religious barrier — is, under this New York law, an insurmountable barrier to receiving an official legal judgment of divorce. The clerk of New York’s matrimonial court refuses to accept a complaint from a plaintiff in a divorce action who does not swear that he or she has removed (or will remove) all “barriers to remarriage.”

In the three decades that it has been on the books, the law has probably nudged hundreds of men in New York who would otherwise not willingly go through the very uncumbersome Jewish divorce procedure to authorize the writing of a Jewish bill of divorce (get) to wives whom they are civilly divorcing. (And, on more rare occasions, it has even persuaded a wife who initiates divorce proceedings to voluntarily accept a get — which is also a requirement for a valid Jewish Ashkenazic divorce.) If not for the New York law, there would probably be many more “chained women” (agunot) in New York’s Orthodox communities.

Although the latest effort in Annapolis was endorsed by the Orthodox Union and by the Jewish Relations Councils of both Baltimore and Washington and appeared to have broad support, it was scuttled because State Sen. Jamie Raskin, a professor at American University Law School, persuaded his colleagues that the law violated the constitutional principle of separation between church and state. In fact, over the 30 years it has been in place in New York, no constitutional challenge to the law has succeeded.

There is no similar legal remedy in Maryland, Virginia or the District of Columbia. There have been instances of couples living in Maryland, sometimes with one spouse employed by the federal government in Washington, who have divorced and the husband has refused to authorize the writing of a Jewish bill of divorce. Husbands have various personal motives for refusing to free their wives to remarry under Jewish Law, ranging from pure vindictiveness to financial extortion. When I last appeared in Annapolis in 2007, we brought three real-life agunot to tell their stories to the Maryland legislative committees. All said they believed if Maryland had a “get bill” they would not be in the difficult straits in which they found themselves. Even this dramatic presentation did not move the Maryland legislature.

At the urging of Rabbi Shmuel Herzfeld of Ohev Sholom Congregation, the District of Columbia Council is now considering a bill introduced by Councilmember Muriel Bowser that is titled “Protect Ex-Spouses from Harassment and Abuse Act of 2013.” It would make a spouse “who, following a civil divorce, maliciously interferes by act or omission with the ability of the person’s former spouse to remarry” liable in a D.C. court for actual damages. The law applies explicitly “to instances in which the alleged interference or omission is related to religious law or practice.”

Granting actual damages to an agunah against a recalcitrant husband for the injury she suffers by being deprived of support and the opportunity to remarry is plainly equitable. It is also halachically correct even though a get given under the compulsion of a secular court is halachically considered a “forced get” (get meuseh) and is invalid. If a secular court orders a husband to give a get and imprisons him for contempt for failing to do so, a get authorized by the husband to free himself from prison is halachically defective. The relevant question under Jewish Law is when secular law’s coercive power can be said to make the husband’s consent involuntary.

My New York “get bill” was submitted by Rabbi Sherer to Rabbi Moshe Feinstein, z”l, the leading Jewish halachic authority in America, and Rabbi Feinstein approved it in a written opinion in 1982. He said that withholding a secular divorce from a recalcitrant spouse was not halachic coercion that would invalidate a get given as a condition of being receiving such a divorce.

I quote here from an earlier responsum of Nov. 12, 1979, that Rabbi Feinstein wrote to Rabbi Jacob Zeltzer of Johannesburg: “Your second question asked whether it is considered a forced bill of divorce (‘get meuseh’) if a secular judge imposes on a husband who does not want to provide a Jewish divorce liability for the support and all needs of his spouse until he divorces her with a valid Get. In fact, until the wife is divorced the husband is halachically (‘mi-dinah’) obligated to support her and provide for her needs. She is entitled to go to a secular court to compel him to provide her support and all her needs. This is true even if the judge requires the husband to make support payments to a wife who is employed and earning an income. In any event it is elementary (‘pashut’) that if the husband then divorces her with a Get because he wishes to be relieved of this legal obligation it is not considered a forced bill of divorce (‘get meuseh’), and it is a valid get beyond doubt (‘le-chatchila’).”

This responsum by Rabbi Feinstein clearly authorizes an agunah to seek a damage remedy against a recalcitrant husband in a secular court for her support and other needs. If, in order to avoid the prospect of such a judgment or to be relieved of further liability, the husband then authorizes a get to be written, it is a valid Jewish divorce. Jewish organizations that are concerned over the plight of agunot have a duty to support this proposed D.C. legislation and see its equivalent enacted throughout the United States.

Nathan Lewin is a partner at Lewin & Lewin, LLP.