Divorce is accomplished by the Bais Din through a document known in Hebrew as a ‘Get’. The official documentation of divorce according to Jewish law is required for either party to remarry. It is therefore extremely important that couples who divorce follow the proper procedure with a respected Bais Din (Religious Court). Much grief can be avoided by performing and documenting the Get properly, thereby avoiding the tragic situation where one party is left unable to remarry without an acceptable Get, and must remain an Agun or Agunah until a Get is executed.
Many misconceptions exist concerning the traditional divorce method and how it is administered now. We are including a short description of the procedure here for your information.
The Jewish Divorce Decree (Get) and Proceeding:
A woman denied a get by her husband is technically also called a mesureves get, although the term agunah is more commonly used.
Because of the serious nature of adultery in Jewish law, an agunah is forbidden to marry another man, regardless of the circumstances, whether accidental or malicious, that left her an agunah in the first place, or the amount of time that has passed since she first became an agunah. A child born to an agunah from another man is considered a mamzer (halachicly illegitimate), and may not marry a Jew.
Because of the dire situation of the agunah, every effort is made to release her from her marriage. This can be done in three ways:
According to most rabbis, reasonable circumstantial evidence is sufficient to prove the death of the husband, and no direct testimony is required. This is based, among other things, on the talmudic assertion: “The Rabbis taught: ‘If he fell into a lion’s den, there is no need to [bring witnesses to] testify [that he is dead]’ (Babylonian Talmud, Yevamos 121a). In other words, if it is known that the man fell into a lion’s den and did not come out, it can be assumed that he is dead, and there is no need for further evidence. If, however, it is later discovered that the husband is not dead, the woman will find herself in particularly bad circumstances: her children from her second marriage will be considered mamzerim (plural of mamzer), and she will be forced to divorce both her first and second husbands, subject to the halachic ruling that an adulterous woman “is forbidden to her husband and the man with whom she fornicated”. While such situations are extremely rare under normal circumstances, they did occur in the aftermath of the Holocaust and have occurred frequently in the wake of pogroms and other forms of persecution.
Finding a flaw in the marriage ceremony is considered to be a last resort in releasing an agunah. It is rarely used as it is typically difficult in finding actual cause in most marriages to retroactively invalidate it. In Jewish law, a marriage must be performed in front of two witnesses. In order to release the agunah, efforts are made to identify reasons why one of the witnesses was ineligible. This is typically unachievable as strong efforts are made at the time of marriage to insure the validity of the witnesses and the marriage ceremony. Another possibility is to prove that the woman did not consent to the marriage clearly and of her own free will, so that the marriage ceremony is declared invalid. This too is not generally accepted amongst the Halachic authorities as there is generally no method to disprove intent. It is felt that the purpose of this endeavor is solely or primarily to retroactively delegitimize a marriage that was performed and accepted often many years previously. Annulling the marriage has no impact on the status of the woman’s children. However, since it is not a generally accepted mechanism, it may leave the wife susceptible to a halachic ruling that she was still married, and any subsequent relations with another man to be adultery. And it may lead to other halachic problems, so it is only used as a last resort by the authorities that do accept its use.
Only a woman can be declared an agunah. None of the prohibitions listed above goes into effect for a man whose wife has disappeared. This is because there is no prohibition in the Torah for a man to have two wives, and a child born to a married man with a single woman is not considered to be a mamzer. In medieval times, Rabbenu Gershom issued an edict prohibiting Jewish men from practicing bigamy (though this was not accepted by certain remote Jewish communities such as the Yemenite Jews). In certain extreme circumstances, however, such as the case of a man whose wife is missing, or who refused to accept a get for an extended period, a Heter meah Rabbonim (exemption by one hundred rabbis) may permit him to take a second wife; (in the latter case, after depositing a get with them).
In modern and ancient times, warfare has been a major cause of women being declared agunos (plural of agunah), as (especially in ancient times) soldiers are often killed with no one knowing. Many efforts have been made to resolve this problem in accordance with halachic principles. During World War II, some American Jewish and other chaplains provided combat soldiers with a “provisional get”, which only goes into effect if the husband is missing in action, leaving his wife an agunah. This is based on a talmudic explanation of the incident of King David and Batsheva (see II Samuel 11). According to one interpretation, David did not sin by lying with a married woman, since all of his soldiers gave a “provisional get” to their wives before leaving for battle. “Rabbi Shmuel bar Nachmani said in the name of Rabbi Yochanan: ‘Everyone who went to war on behalf of David, left a provisional get for his wife'” (Babylonian Talmud, Shabbos 96a). In the modern state of Israel, the Chief Rabbinate has rejected this proposal, not in the least, because of the impact it would have on the morale of the troops.
According to halacha, under certain circumstances pressure may be applied on a husband to force him to grant a divorce to his wife. Circumstances where this pressure may be applied are in situations where a wife is entitled to a divorce. Some examples may be abuse or neglect. Not in all circumstances is a wife entitled to demand a divorce, according to halacha. If a wife who is not halachicly entitled to a divorce nevertheless demands one, she is not considered to be a Mesureves get. “It is said: In cases of granting a get to a woman, the man is forced until he says, ‘I wish to do so'” (Babylonian Talmud, Arachin 21a). Nevertheless, it is still required to leave the man some say in the matter, lest the get be considered a “fabricated divorce”, which is halachically invalid. Pressures that can be exerted against the man include shunning, denying him communal benefits and honors, and in extreme cases, even imprisonment. In Israel, Rabbinical courts are allowed by law to implement various measures to coerce a man to grant his wife a get. Practically, one of the most effective of these has turned out to be revoking his driver’s license.
Many men and women’s groups feel that Rabbinical courts fail to use all the measures at their disposal to force men to grant their wives a get, thereby allowing a vengeful husband to blackmail his wife for years. Public criticism of the courts, as well as demonstrations, have been attempted to influence particularly notorious cases.
Several solutions have been proposed to help women who are denied a get:
In 2004, Justice Menachem HaCohen of the Jerusalem Family Court offered new hope to agunos when he ruled that a man refusing his wife a get must pay her NIS 425,000 in punitive damages, because “refusal to grant a get constitutes a severe infringement on her ability to lead a reasonable, normal life, and can be considered emotional abuse lasting several years.” He noted that “this is not another sanction against someone refusing to give a get, intended to speed up the process of granting a get, and this court is not involving itself in any future arrangements for the granting of a get, but rather, it is a direct response to the consequences that stem from not granting a get, and the right of the woman to receive punitive damages.”