Answering the Most Difficult Question About the Agunah Crisis

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