Agunah
Encyclopedia
Agunah is a halachic
term for a Jewish woman who is "chained" to her marriage
. The classic case of this, is a man who has left on a journey, and has not returned, or has gone into battle and is MIA
. It also refers a woman whose husband refuses, or is unable, to grant her an official bill of divorce
, known as a get
.
For a divorce to be effective, Jewish law
requires that a man grant his wife a get of his own free will
. Without a get no new marriage will be recognized, and any children she might have with another man would be considered ([[illegitimate]], [[bastard]]
. It is sometimes possible for this woman to receive special dispensation, called a heter aguna (dispensation by a halachic authority
based on a complex decision (based on substantial evidence) that her husband is presumed dead.
Because of the difficulty of the situation for women in such situations, it has been a task for every generation of halachic authorities to try to find halachically acceptable means to permit such women to remarry. In the past it was somewhat commonplace, due to the danger of travel and primitive communication means, for people leaving home never to be heard of again; as such, rabbis have had to deal with this issue on a constant basis. Over the past few centuries, thousands of responsa
have been written to deal with cases of agunot.
In the past, most aguna cases were due to a husband dying without leaving clear evidence of his demise
, or becoming mentally ill (insane). Nowadays, in the atmosphere of the irreligious, many aguna cases arise as a result of a husband withholding a get in order to extract a more favorable divorce settlement, sometimes as brutal as extortion, or as a means of vindictively delivering a parting abusive blow to his wife. In response, aguna groups have organized to support these women and try to find a solution to this problem. Various remedies have been proposed, but as yet, no one solution has common acceptance. Nevertheless, the Prenuptial Agreement for the Prevention of Get-Refusal
is one remedy which is in use in Modern Orthodox Jewish communities worldwide and is accepted by moderate halachic authorities.
While it is widely assumed that the problem lies primarily in men refusing to grant their wives a get, and that it is a widespread issue; in Israel, figures released from the chief rabbinate suggest that men are refused divorce in equal numbers, and that the numbers are actually a couple of hundred on each side.
Nevertheless,
A woman who is denied a divorce from her husband is not considered an aguna until her husband refuses an order by a rabbinic court
to give her a get.
What constitutes a legitimate request for a divorce is based on halachic considerations and the particular case of the couple. See Mesorevet get below.
in Jewish law, an aguna is forbidden to marry another man, regardless of the circumstances, whether accidental or malicious, that left her an aguna in the first place, or the amount of time that has passed since she first became an aguna. A child born from another man to an aguna is considered a mamzer
(halachically illegitimate), and may only marry another mamzer or a convert.
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 rabbi
s, 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 talmud
ic assertion: "The Rabbis taught: 'If he fell into a lion
's den,[bring witnesses to] testify [that he is dead] , if he fell into a ditch of snakes and scorpions - [there is] no [need] to testify [that he is dead] '" (Babylonian Talmud, Yevamot 121a). In other words, if it is known that the man fell into a ditch of snakes and scorpions and did not come out, it can be assumed that he is dead, and there is no need for further evidence (unlike falling into a lion's den where there is still a slight chance of survival). 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 (bastards), 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 also occurred frequently in the wake of pogrom
s 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 ensure 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 Halakhic 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 halakhic 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 the beginning of the 11th century, Rabbenu Gershom issued a decree prohibiting Jewish men from practising bigamy
(though this was not accepted by certain remote Jewish communities such as the Yemenite Jews). To prevent this decree from causing flippant divorces previously unnecessary, Rabbenu Gershom also decreed that "a woman may not be divorced against her will." 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 rabbanim
(exemption by one hundred rabbis) may permit him to take a second wife (in the latter case, after depositing a get with them). This exemption is applied nowadays, only in extremely rare circumstances. Thus, it is not uncommon for a woman to maliciously refuse acceptance of a get, in effect "chaining" her husband.
In modern and ancient times, war
fare has been a major cause of women being declared agunot (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 chaplain
s 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 Bathsheba
(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'" (Talmud Bavli
, Tractate Shabbat
56a). 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 halakha, a get is only valid when it is given by a husband to his wife out of his own free will (Yebamot, 14:1). However, under certain circumstances pressure may be applied on a husband to force him to grant a divorce to his wife. Where a woman has proven one or more of a list of particular grounds for divorce, the rabbinical court (beth din
) may apply pressure on the husband in those situations (Ketubot, 7:10; Gittin, 9:8). There are some halakhic decisors who would act accordingly in the cases of abuse or neglect (Shulchan Aruch
, Even HaEzer, 154:3). Nevertheless, not under all circumstances is a wife entitled to demand a divorce according to halakha. If a wife who is not halakhically entitled to a divorce does demand one, she may not be considered as a mesorevet get by a Rabbinical Court. However, not any woman who wants to leave an unwanted marriage but is refused by her husband, is considered to be a victim of get refusal. There are opinions that deem a woman's repugnance for her husband as acceptable halakhic grounds for coercion (Rambam, Mishna Torah, Hilchot Ishut, 14:8). "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; Rambam, Mishna Torah, Hilchot Gerushin, 2:2). Nevertheless, in almost all cases, it is required to leave the man some say in the matter, lest the get be considered a "coerced divorce", which is halachically invalid. As ruled by Rabbeinu Tam
(Sefer HaYashar, Response 24; Rema, Even HaEzer 154:21), pressures that can be exerted against the man include shunning
, denying him communal benefits and honors, and in extreme cases even imprisonment. Legend has it that as a last resort where all else has failed, a tactic has been sparingly used in the past, to let him spend a night near a nameless grave, or to frighten him in some other way. In Israel, rabbinical courts are allowed by law to implement various measures to persuade a man to grant his wife a get (Rabbinical Courts Law [Enforcement of Divorce Rulings] 5755-1995). These sanctions are a modern day version of the aforementioned, Harchakot D'Rabeinu Tam, which include: revoking of a driver's license, closing of bank accounts, revoking professional licenses such as medical and legal, cancellation of a passport, and incarceration. Practically, one of the most effective of these has turned out to be revoking a recalcitrant husband's driver's license. Even so, neither the laws nor the Israeli Rabbinical Courts' enforcement, or lack thereof, have succeeded in erasing the blight of get refusal within Israeli society. In the Diaspora, the Rabbinical Courts have no such powers. Any practical power that they may wield would be the product of a binding arbitration agreement (Prenuptial Agreement for the Prevention of Get-Refusal
), if signed previously by the combating couple. Within the past decade, both Orthodox rabbinical groups and women's organizations have decried the increasing number of cases of get refusal, as well as establishing task forces to deal with the issue and to help individual victims of get refusal.
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 agunot when he ruled that a man refusing his wife a get must pay her NIS 425,000 in punitive damages, because "[R]efusal 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 "[T]his 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." This ruling stemmed from the Public Litigation Project initiated by the advocacy organization Center for Women's Justice
as one of a number of successful lawsuits filed in Israeli civil courts claiming financial damages against recalcitrant husbands.
In 2007, an Israeli survey revealed that there only 180 cases of refusing-get husbands including 69 documented agunah cases. In contrast, there are 190 cases in which the wife refuses to give the husband a divorce.
Outside Israel, an agunah could obtain a civil divorce and remarry via civil marriage
, as non-Israeli legal systems generally do not recognize the agunah status. Nevertheless, an agunah would not typically pursue a second marriage, since her first marriage is still valid according to halakha, any other sexual relationships would constitute adultery
from her first husband. Furthermore, according to halakha, any children born by an agunah are considered mamzer
im (bastards).
It is observed on the Jewish calendar
date of the Fast of Esther
.
The Fast of Esther was chosen by ICAR as Agunah Day in order to symbolize identification with the Agunah for two contrasting reasons – due to affliction and due to salvation. Like Esther, the Agunah of the present era does not want to be in the marriage in which she finds herself. Like Esther, many women who are refused a get live in fear of their spouses and live a double life. Like Esther, the Agunah, a victim of get-refusal, finds herself lacking control of her own freedom.
, explained the four approaches taken by leaders of Conservative Judaism to find remedies for the problem of the agunah.
The first, beginning in the 1950s, was the inclusion of the Lieberman clause
, named for Talmudic scholar and Jewish Theological Seminary
(JTS) professor Saul Lieberman
, in the ketuba, requiring that a get be granted if a civil divorce is ever issued. Most Orthodox rabbis have rejected the Lieberman clause, although leaders of the Conservative movement claim that the original intent was to find a solution that could be used by Orthodox and Conservative rabbis alike, and that leaders of Orthodox Judaism's Rabbinical Council of America
, and respected Orthodox rabbis, including Joseph B. Soloveitchik, recognized the clause as valid. Later, because some civil courts viewed the enforcement of a religious document as a violation of the constitutional principle of the separation of church and state
, Conservative rabbis began to require couples to sign a separate letter, stating that the clause had been explained to them as part of pre-marital counseling, and that both parties understood and agreed to its conditions, recognizing that this letter would constitute a separate civil document, enforceable in a civilian court. However, many Conservative rabbis, including some on the movement's own law committee
, had growing misgivings about the clause for religious reasons.
The second approach fell into the category of conditional marriages, t'nai b'kiddushin, and was based in part on past approaches used by both the French and Turkish rabbinates—but, according to Rabinowitz—had improvements gleaned from lessons learned from those past experiences. The ketubah was not changed, but a separate pre-marital agreement was signed, and in the presence of the rabbinical court, the prospective groom read it, and the prospective bride stated that she agreed to it. The agreement was that the parties understood that if a civil divorce were ever granted, then a get must be delivered within six months of that date. A refusal to abide by that agreement would give the court no choice but to consider the original marriage, and the original declaration of the groom, so flawed that it would be as if that marriage never occurred.
The third approach, using contacts both within Judaism and external to it, was to coerce the recalcitrant husband to grant a get. One example cited at the conference was a case where the civilly-divorced husband planned to remarry, this time to a Catholic woman in a Catholic religious ceremony. The Conservative movement's Bet Din contacted the Catholic Church, which agreed to refuse to have the marriage performed until the previous marriage was religiously dissolved, resulting in the almost immediate granting of the get by the husband.
Finally, in 1968, by a unanimous vote of the law committee, the final approach was initiated, when it was decided that the Joint Bet Din of the Conservative Movement could annul marriages as a last resort, based on the Talmudic principle of hafka'at kiddushin. According to Rabinowitz, just the threat of this action was sometimes enough to compel the former husband to grant a get..
So far, no solution has been found that satisfies most orthodox religious leaders.
A number of modern papers and conferences have continued to discuss both issues and possible solutions, including the possibility of a modern takkanah
, religious legislative enaction, to empower the Chief Rabbinate of Israel
to intervene to annul marriages retroactively, in a way that was possible for some time during the Middle Ages. Such proposals are considered too radical—and not legally permissible (in terms of halakha/Jewish law) -- by most orthodox leaders.
However, as studies and discussions continue, a number of modern works and conferences have referenced the work of past Orthodox rabbis, such as Ya'akov Moshe Toledano
, who recommended in 1930/31 that every Jewish marriage be made contingent on the "continuing agreement" of the local rabbinic court,so that the court could retroactively annul the marriage as a remedy to the agunah problem; and Mnachem Risikoff
, who recommended in 1937 that such consideration be given not to every local court, but at least to the Jerusalem rabbinical court, specifically recognizing that authority in the words recited under the chuppah
, the wedding canopy. Risikoff, among others, also proposed a discussion of the reinstatement of the Biblical status of the pilegesh
, a relationship status between man and woman that does not require a Get upon dissolution, thereby avoiding the category of agunah.
Other approaches that have been discussed by religious leaders, including leading orthodox rabbis, have included the possibility of prenuptial agreement
s, not incorporated into the ketubah or mentioned in the words recited by the groom during the ceremony, through which the husband and wife agree to abide by orders of a designated Beth Din, regarding the giving or acceptance of a get. Rabbi Jechiel Perr
discussed such a proposal, and it has been reported that Rabbi Moshe Feinstein
, looked upon this idea with favor. Additionally, discussions have considered the possibility of various forms of coercion that could be applied to the husband, to compel him to grant the Get.
No proposal has so far met with universal approval on the part of the orthodox rabbinate, although there have been some cases of individual rabbis taking what has been viewed as "maverick" individual action, including the convening of rabbinic courts to annual marriages, using the Geonic
model. Such actions have been widely condemned within the orthodox community.
with the widow so as to have children with her in the name of the deceased. The brother can refuse to do yibbum and instead perform a ceremony known as chalitza to release her from her bond to him (in modern times chalitza is nearly always performed instead of yibbum). If the brother is missing, or if he is still a child, the woman is required to wait until he is located or has reached adolescence
so that he can perform the chalitza ceremony. There have been recorded cases of the husband's brother trying to blackmail the widow by delaying the chalitza ceremony, effectively leaving her as an agunah.
Halakha
Halakha — also transliterated Halocho , or Halacha — is the collective body of Jewish law, including biblical law and later talmudic and rabbinic law, as well as customs and traditions.Judaism classically draws no distinction in its laws between religious and ostensibly non-religious life; Jewish...
term for a Jewish woman who is "chained" to her marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
. The classic case of this, is a man who has left on a journey, and has not returned, or has gone into battle and is MIA
Mía
Mía is a song written by Mexican songwriter Armando Manzanero. Was first released as a double-side single along with the track "Felicidad" in 1969...
. It also refers a woman whose husband refuses, or is unable, to grant her an official bill of divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
, known as a get
Get (divorce document)
A is a divorce document, which according to Jewish Law, must be presented by a husband to his wife to effect their divorce. The essential text of the is quite short: "You are hereby permitted to all men," i.e., the wife is no longer a married woman, and the laws of adultery no longer apply...
.
For a divorce to be effective, Jewish law
Halakha
Halakha — also transliterated Halocho , or Halacha — is the collective body of Jewish law, including biblical law and later talmudic and rabbinic law, as well as customs and traditions.Judaism classically draws no distinction in its laws between religious and ostensibly non-religious life; Jewish...
requires that a man grant his wife a get of his own free will
Free will
"To make my own decisions whether I am successful or not due to uncontrollable forces" -Troy MorrisonA pragmatic definition of free willFree will is the ability of agents to make choices free from certain kinds of constraints. The existence of free will and its exact nature and definition have long...
. Without a get no new marriage will be recognized, and any children she might have with another man would be considered ([[illegitimate]], [[bastard]]
Mamzer
The Hebrew noun mamzer in the Hebrew Bible and Jewish religious law, is a person born from certain forbidden relationships, or the descendant of such a person. A mamzer is someone who is either born of adultery by a married woman, or born of incest , or someone who has a mamzer as a parent...
. It is sometimes possible for this woman to receive special dispensation, called a heter aguna (dispensation by a halachic authority
Posek
Posek is the term in Jewish law for "decider"—a legal scholar who decides the Halakha in cases of law where previous authorities are inconclusive or in those situations where no halakhic precedent exists....
based on a complex decision (based on substantial evidence) that her husband is presumed dead.
Because of the difficulty of the situation for women in such situations, it has been a task for every generation of halachic authorities to try to find halachically acceptable means to permit such women to remarry. In the past it was somewhat commonplace, due to the danger of travel and primitive communication means, for people leaving home never to be heard of again; as such, rabbis have had to deal with this issue on a constant basis. Over the past few centuries, thousands of responsa
Responsa
Responsa comprise a body of written decisions and rulings given by legal scholars in response to questions addressed to them.-In the Roman Empire:Roman law recognised responsa prudentium, i.e...
have been written to deal with cases of agunot.
In the past, most aguna cases were due to a husband dying without leaving clear evidence of his demise
Death in absentia
Death in absentia is a legal declaration that a person is deceased in the absence of remains attributable to that person...
, or becoming mentally ill (insane). Nowadays, in the atmosphere of the irreligious, many aguna cases arise as a result of a husband withholding a get in order to extract a more favorable divorce settlement, sometimes as brutal as extortion, or as a means of vindictively delivering a parting abusive blow to his wife. In response, aguna groups have organized to support these women and try to find a solution to this problem. Various remedies have been proposed, but as yet, no one solution has common acceptance. Nevertheless, the Prenuptial Agreement for the Prevention of Get-Refusal
Prenuptial Agreement for the Prevention of Get-Refusal
Jewish prenuptial agreements have been developed in recent times to keep the Jewish woman from becoming an agunah in cases where the husband refuses to grant her a get . Without such an agreement, Jewish marriages cannot be dissolved without the consent and cooperation of both spouses...
is one remedy which is in use in Modern Orthodox Jewish communities worldwide and is accepted by moderate halachic authorities.
While it is widely assumed that the problem lies primarily in men refusing to grant their wives a get, and that it is a widespread issue; in Israel, figures released from the chief rabbinate suggest that men are refused divorce in equal numbers, and that the numbers are actually a couple of hundred on each side.
Nevertheless,
"A woman suffers more in this situation, as she is Biblically forbidden to marry again, and children she might bear to another man would be considered mamzerMamzerThe Hebrew noun mamzer in the Hebrew Bible and Jewish religious law, is a person born from certain forbidden relationships, or the descendant of such a person. A mamzer is someone who is either born of adultery by a married woman, or born of incest , or someone who has a mamzer as a parent...
im (bastardsLegitimacy (law)At common law, legitimacy is the status of a child who is born to parents who are legally married to one another; and of a child who is born shortly after the parents' divorce. In canon and in civil law, the offspring of putative marriages have been considered legitimate children...
) according to Halakhah [Jewish Law]. A man is similarly not permitted to marry before being divorced, but the ban is much less severe (because monogamy was instituted by one single overreaching authority in Europe in around the year 1000CE, and was accepted in Europe(Ashkenazim), whereas Sefardic and Mizrahi (Eastern) Jewish communities did not until very recently.) This comsidered, his future children will not be considered illegitimate."
Causes
Circumstances leading to a woman being declared an aguna are:- The disappearance of the husband without any witnesses declaring that he is dead;
- The husband succumbing to a physical or mental disease that leaves him in a comaComaIn medicine, a coma is a state of unconsciousness, lasting more than 6 hours in which a person cannot be awakened, fails to respond normally to painful stimuli, light or sound, lacks a normal sleep-wake cycle and does not initiate voluntary actions. A person in a state of coma is described as...
or insane and unable to actively grant a divorce; - The husband refusing to grant his wife a get when she is deemed entitled to one under Jewish law. A woman denied a get by her husband is technically called a mesorevet get, although the term aguna is more commonly used.
A woman who is denied a divorce from her husband is not considered an aguna until her husband refuses an order by a rabbinic court
Beth din
A beth din, bet din, beit din or beis din is a rabbinical court of Judaism. In ancient times, it was the building block of the legal system in the Biblical Land of Israel...
to give her a get.
What constitutes a legitimate request for a divorce is based on halachic considerations and the particular case of the couple. See Mesorevet get below.
Background
Because of the serious nature of adulteryAdultery
Adultery is sexual infidelity to one's spouse, and is a form of extramarital sex. It originally referred only to sex between a woman who was married and a person other than her spouse. Even in cases of separation from one's spouse, an extramarital affair is still considered adultery.Adultery is...
in Jewish law, an aguna is forbidden to marry another man, regardless of the circumstances, whether accidental or malicious, that left her an aguna in the first place, or the amount of time that has passed since she first became an aguna. A child born from another man to an aguna is considered a mamzer
Mamzer
The Hebrew noun mamzer in the Hebrew Bible and Jewish religious law, is a person born from certain forbidden relationships, or the descendant of such a person. A mamzer is someone who is either born of adultery by a married woman, or born of incest , or someone who has a mamzer as a parent...
(halachically illegitimate), and may only marry another mamzer or a convert.
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:
- Locating the husband and persuading him to give his wife a get;
- Providing evidence that the husband is dead;
- Finding a flaw in the original marriage ceremony, thereby retroactively annulling the marriage.
According to most rabbi
Rabbi
In Judaism, a rabbi is a teacher of Torah. This title derives from the Hebrew word רבי , meaning "My Master" , which is the way a student would address a master of Torah...
s, 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 talmud
Talmud
The Talmud is a central text of mainstream Judaism. It takes the form of a record of rabbinic discussions pertaining to Jewish law, ethics, philosophy, customs and history....
ic assertion: "The Rabbis taught: 'If he fell into a lion
Lion
The lion is one of the four big cats in the genus Panthera, and a member of the family Felidae. With some males exceeding 250 kg in weight, it is the second-largest living cat after the tiger...
's den,
Pogrom
A pogrom is a form of violent riot, a mob attack directed against a minority group, and characterized by killings and destruction of their homes and properties, businesses, and religious centres...
s 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 ensure 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 Halakhic 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 halakhic 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 the beginning of the 11th century, Rabbenu Gershom issued a decree prohibiting Jewish men from practising bigamy
Bigamy
In cultures that practice marital monogamy, bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy is a crime in most western countries, and when it occurs in this context often neither the first nor second spouse is aware of the other...
(though this was not accepted by certain remote Jewish communities such as the Yemenite Jews). To prevent this decree from causing flippant divorces previously unnecessary, Rabbenu Gershom also decreed that "a woman may not be divorced against her will." 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 rabbanim
Heter meah rabbanim
Heter meah rabbanim is a term in Jewish law which means that one hundred Rabbis agree with a Rabbinical court that a particular situation warrants an exemption to permit a man to remarry even though his wife refuses or is unable to accept a get .In about 1000 C.E...
(exemption by one hundred rabbis) may permit him to take a second wife (in the latter case, after depositing a get with them). This exemption is applied nowadays, only in extremely rare circumstances. Thus, it is not uncommon for a woman to maliciously refuse acceptance of a get, in effect "chaining" her husband.
In modern and ancient times, war
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...
fare has been a major cause of women being declared agunot (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
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, some American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Jewish and other chaplain
Chaplain
Traditionally, a chaplain is a minister in a specialized setting such as a priest, pastor, rabbi, or imam or lay representative of a religion attached to a secular institution such as a hospital, prison, military unit, police department, university, or private chapel...
s 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 Bathsheba
Bathsheba
According to the Hebrew Bible, Bathsheba was the wife of Uriah the Hittite and later of David, king of the United Kingdom of Israel and Judah. She is most known for the Bible story in which King David seduced her....
(see II Samuel 11
Books of Samuel
The Books of Samuel in the Jewish bible are part of the Former Prophets, , a theological history of the Israelites affirming and explaining the Torah under the guidance of the prophets.Samuel begins by telling how the prophet Samuel is chosen by...
). 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'" (Talmud Bavli
Talmud
The Talmud is a central text of mainstream Judaism. It takes the form of a record of rabbinic discussions pertaining to Jewish law, ethics, philosophy, customs and history....
, Tractate Shabbat
Moed
Moed is the second Order of the Mishnah, the first written recording of the Oral Torah of the Jewish people . Of the six orders of the Mishna, Moed is the third shortest. The order of Moed consists of 12 tractates:# Shabbat: or Shabbath deals with the 39 prohibitions of "work" on the Shabbat...
56a). 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.
Mesorevet get / Get refusal
Mesorevet get is a term for a Jewish woman who is chained to her marriage because of her husband's refusal to give her a get she is entitled to. A mesorevet get is a "victim of get refusal," otherwise known as a "modern-day aguna."According to halakha, a get is only valid when it is given by a husband to his wife out of his own free will (Yebamot, 14:1). However, under certain circumstances pressure may be applied on a husband to force him to grant a divorce to his wife. Where a woman has proven one or more of a list of particular grounds for divorce, the rabbinical court (beth din
Beth din
A beth din, bet din, beit din or beis din is a rabbinical court of Judaism. In ancient times, it was the building block of the legal system in the Biblical Land of Israel...
) may apply pressure on the husband in those situations (Ketubot, 7:10; Gittin, 9:8). There are some halakhic decisors who would act accordingly in the cases of abuse or neglect (Shulchan Aruch
Shulchan Aruch
The Shulchan Aruch also known as the Code of Jewish Law, is the most authoritative legal code of Judaism. It was authored in Safed, Israel, by Yosef Karo in 1563 and published in Venice two years later...
, Even HaEzer, 154:3). Nevertheless, not under all circumstances is a wife entitled to demand a divorce according to halakha. If a wife who is not halakhically entitled to a divorce does demand one, she may not be considered as a mesorevet get by a Rabbinical Court. However, not any woman who wants to leave an unwanted marriage but is refused by her husband, is considered to be a victim of get refusal. There are opinions that deem a woman's repugnance for her husband as acceptable halakhic grounds for coercion (Rambam, Mishna Torah, Hilchot Ishut, 14:8). "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
Talmud
The Talmud is a central text of mainstream Judaism. It takes the form of a record of rabbinic discussions pertaining to Jewish law, ethics, philosophy, customs and history....
, Arachin 21a; Rambam, Mishna Torah, Hilchot Gerushin, 2:2). Nevertheless, in almost all cases, it is required to leave the man some say in the matter, lest the get be considered a "coerced divorce", which is halachically invalid. As ruled by Rabbeinu Tam
Rabbeinu Tam
Rabbeinu Tam , born Jacob ben Meir, was one of the most renowned French Tosafists and a foremost halachic authority of his generation...
(Sefer HaYashar, Response 24; Rema, Even HaEzer 154:21), pressures that can be exerted against the man include shunning
Shunning
Shunning can be the act of social rejection, or mental rejection. Social rejection is when a person or group deliberately avoids association with, and habitually keeps away from an individual or group. This can be a formal decision by a group, or a less formal group action which will spread to all...
, denying him communal benefits and honors, and in extreme cases even imprisonment. Legend has it that as a last resort where all else has failed, a tactic has been sparingly used in the past, to let him spend a night near a nameless grave, or to frighten him in some other way. In Israel, rabbinical courts are allowed by law to implement various measures to persuade a man to grant his wife a get (Rabbinical Courts Law [Enforcement of Divorce Rulings] 5755-1995). These sanctions are a modern day version of the aforementioned, Harchakot D'Rabeinu Tam, which include: revoking of a driver's license, closing of bank accounts, revoking professional licenses such as medical and legal, cancellation of a passport, and incarceration. Practically, one of the most effective of these has turned out to be revoking a recalcitrant husband's driver's license. Even so, neither the laws nor the Israeli Rabbinical Courts' enforcement, or lack thereof, have succeeded in erasing the blight of get refusal within Israeli society. In the Diaspora, the Rabbinical Courts have no such powers. Any practical power that they may wield would be the product of a binding arbitration agreement (Prenuptial Agreement for the Prevention of Get-Refusal
Prenuptial Agreement for the Prevention of Get-Refusal
Jewish prenuptial agreements have been developed in recent times to keep the Jewish woman from becoming an agunah in cases where the husband refuses to grant her a get . Without such an agreement, Jewish marriages cannot be dissolved without the consent and cooperation of both spouses...
), if signed previously by the combating couple. Within the past decade, both Orthodox rabbinical groups and women's organizations have decried the increasing number of cases of get refusal, as well as establishing task forces to deal with the issue and to help individual victims of get refusal.
Activism
Many 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:
- Increasing the means available to the rabbinic courts to force husbands to grant their wives a get. In Israel, rabbinic courts can even imprison a husband until he acquiesces and grants a get to his wife. This is not, however, an option for rabbinic courts elsewhere, since they do not have the support of the state.
- Having couples sign a Jewish prenuptial agreement, which requires the husband to pay high spousal support to his wife if he denies her a get, so as to provide incentive to the couple not to delay the divorce. Halakhic authorities in the United States have validated particular prenuptial agreements for the prevention of get-refusal.
- Having couples prepare a "provisional get," which will only go into effect under certain predefined circumstances.
- Having couples agree to a "conditional marriage," which includes a stipulation in the marriage ceremony citing that under certain conditions (such as living apart for an extended period of time), the marriage itself would be nullified with no need for a get.
In 2004, Justice Menachem HaCohen of the Jerusalem Family Court offered new hope to agunot when he ruled that a man refusing his wife a get must pay her NIS 425,000 in punitive damages, because "[R]efusal 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 "[T]his 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." This ruling stemmed from the Public Litigation Project initiated by the advocacy organization Center for Women's Justice
Center for Women's Justice Israel
Center for Women's Justice is a public interest law firm devoted to advancing and protecting the rights of women to justice, equality and dignity under Jewish law in Israel. CWJ is a member organization of ICAR, the International Coalition for Agunah Rights....
as one of a number of successful lawsuits filed in Israeli civil courts claiming financial damages against recalcitrant husbands.
In 2007, an Israeli survey revealed that there only 180 cases of refusing-get husbands including 69 documented agunah cases. In contrast, there are 190 cases in which the wife refuses to give the husband a divorce.
Outside Israel, an agunah could obtain a civil divorce and remarry via civil marriage
Civil marriage
Civil marriage is marriage performed by a government official and not a religious organization.-History:Every country maintaining a population registry of its residents keeps track of marital status, and most countries believe that it is their responsibility to register married couples. Most...
, as non-Israeli legal systems generally do not recognize the agunah status. Nevertheless, an agunah would not typically pursue a second marriage, since her first marriage is still valid according to halakha, any other sexual relationships would constitute adultery
Adultery
Adultery is sexual infidelity to one's spouse, and is a form of extramarital sex. It originally referred only to sex between a woman who was married and a person other than her spouse. Even in cases of separation from one's spouse, an extramarital affair is still considered adultery.Adultery is...
from her first husband. Furthermore, according to halakha, any children born by an agunah are considered mamzer
Mamzer
The Hebrew noun mamzer in the Hebrew Bible and Jewish religious law, is a person born from certain forbidden relationships, or the descendant of such a person. A mamzer is someone who is either born of adultery by a married woman, or born of incest , or someone who has a mamzer as a parent...
im (bastards).
Agunah Day
Agunah Day was established by ICAR - The International Coalition for Agunah Rights - in 1990, to raise public awareness to the plight of the Agunah and galvanize action to solve the problem.It is observed on the Jewish calendar
Hebrew calendar
The Hebrew calendar , or Jewish calendar, is a lunisolar calendar used today predominantly for Jewish religious observances. It determines the dates for Jewish holidays and the appropriate public reading of Torah portions, yahrzeits , and daily Psalm reading, among many ceremonial uses...
date of the Fast of Esther
Fast of Esther
The Fast of Esther is a Jewish fast from dawn until dusk on Purim eve, commemorating the three-day fast observed by the Jewish people in the story of Purim...
.
The Fast of Esther was chosen by ICAR as Agunah Day in order to symbolize identification with the Agunah for two contrasting reasons – due to affliction and due to salvation. Like Esther, the Agunah of the present era does not want to be in the marriage in which she finds herself. Like Esther, many women who are refused a get live in fear of their spouses and live a double life. Like Esther, the Agunah, a victim of get-refusal, finds herself lacking control of her own freedom.
Conservative Judaism
At the 1998 Jerusalem Agunot Conference, Rabbi Mayer Rabinowitz, the Chairman of the Joint Bet Din of the Conservative MovementConservative Judaism
Conservative Judaism is a modern stream of Judaism that arose out of intellectual currents in Germany in the mid-19th century and took institutional form in the United States in the early 1900s.Conservative Judaism has its roots in the school of thought known as Positive-Historical Judaism,...
, explained the four approaches taken by leaders of Conservative Judaism to find remedies for the problem of the agunah.
The first, beginning in the 1950s, was the inclusion of the Lieberman clause
Lieberman clause
The Lieberman clause is a clause included in a ketubah, a Jewish wedding document, created by and named after Talmudic scholar and Jewish Theological Seminary of America professor Saul Lieberman, that stipulates that divorce will be adjudicated by a modern Bet Din in order to prevent the problem...
, named for Talmudic scholar and Jewish Theological Seminary
Jewish Theological Seminary of America
The Jewish Theological Seminary of America is one of the academic and spiritual centers of Conservative Judaism, and a major center for academic scholarship in Jewish studies.JTS operates five schools: Albert A...
(JTS) professor Saul Lieberman
Saul Lieberman
Saul Lieberman , also known as Rabbi Shaul Lieberman or The Gra"sh , was a rabbi and a scholar of Talmud...
, in the ketuba, requiring that a get be granted if a civil divorce is ever issued. Most Orthodox rabbis have rejected the Lieberman clause, although leaders of the Conservative movement claim that the original intent was to find a solution that could be used by Orthodox and Conservative rabbis alike, and that leaders of Orthodox Judaism's Rabbinical Council of America
Rabbinical Council of America
The Rabbinical Council of America is one of the world's largest organizations of Orthodox rabbis; it is affiliated with The Union of Orthodox Jewish Congregations of America, more commonly known as the Orthodox Union, or OU...
, and respected Orthodox rabbis, including Joseph B. Soloveitchik, recognized the clause as valid. Later, because some civil courts viewed the enforcement of a religious document as a violation of the constitutional principle of the separation of church and state
Separation of church and state
The concept of the separation of church and state refers to the distance in the relationship between organized religion and the nation state....
, Conservative rabbis began to require couples to sign a separate letter, stating that the clause had been explained to them as part of pre-marital counseling, and that both parties understood and agreed to its conditions, recognizing that this letter would constitute a separate civil document, enforceable in a civilian court. However, many Conservative rabbis, including some on the movement's own law committee
Committee on Jewish Law and Standards
The Committee on Jewish Law and Standards is the central authority on halakha within Conservative Judaism; it is one of the most active and widely known committees on the Conservative movement's Rabbinical Assembly. Within the movement it is known as the CJLS...
, had growing misgivings about the clause for religious reasons.
The second approach fell into the category of conditional marriages, t'nai b'kiddushin, and was based in part on past approaches used by both the French and Turkish rabbinates—but, according to Rabinowitz—had improvements gleaned from lessons learned from those past experiences. The ketubah was not changed, but a separate pre-marital agreement was signed, and in the presence of the rabbinical court, the prospective groom read it, and the prospective bride stated that she agreed to it. The agreement was that the parties understood that if a civil divorce were ever granted, then a get must be delivered within six months of that date. A refusal to abide by that agreement would give the court no choice but to consider the original marriage, and the original declaration of the groom, so flawed that it would be as if that marriage never occurred.
The third approach, using contacts both within Judaism and external to it, was to coerce the recalcitrant husband to grant a get. One example cited at the conference was a case where the civilly-divorced husband planned to remarry, this time to a Catholic woman in a Catholic religious ceremony. The Conservative movement's Bet Din contacted the Catholic Church, which agreed to refuse to have the marriage performed until the previous marriage was religiously dissolved, resulting in the almost immediate granting of the get by the husband.
Finally, in 1968, by a unanimous vote of the law committee, the final approach was initiated, when it was decided that the Joint Bet Din of the Conservative Movement could annul marriages as a last resort, based on the Talmudic principle of hafka'at kiddushin. According to Rabinowitz, just the threat of this action was sometimes enough to compel the former husband to grant a get..
Changes in Orthodox approach
There is a long history of concern for the agunah on the part of orthodox rabbis, and a number of proposals have been put forth for consideration by religious leaders.So far, no solution has been found that satisfies most orthodox religious leaders.
A number of modern papers and conferences have continued to discuss both issues and possible solutions, including the possibility of a modern takkanah
Takkanah
A takkanah is a major legislative enactment within halakha , the normative system of Judaism's laws.A takkanah is an enactment which revises an ordinance that no longer satisfies the requirements of the times or circumstances, or which , being deduced from a Biblical passage, may be regarded as new...
, religious legislative enaction, to empower the Chief Rabbinate of Israel
Chief Rabbinate of Israel
The Chief Rabbinate of Israel is recognized by law as the supreme halakhic and spiritual authority for the Jewish people in Israel. The Chief Rabbinate Council assists the two chief rabbis, who alternate in its presidency. It has legal and administrative authority to organize religious...
to intervene to annul marriages retroactively, in a way that was possible for some time during the Middle Ages. Such proposals are considered too radical—and not legally permissible (in terms of halakha/Jewish law) -- by most orthodox leaders.
However, as studies and discussions continue, a number of modern works and conferences have referenced the work of past Orthodox rabbis, such as Ya'akov Moshe Toledano
Ya'akov Moshe Toledano
Rabbi Ya'akov Moshe Toledano was an Israeli rabbi who served as Minister of Religions for two brief periods between 1958 and 1960. He also served as chief rabbi of Cairo, Alexandria and Tel Aviv....
, who recommended in 1930/31 that every Jewish marriage be made contingent on the "continuing agreement" of the local rabbinic court,so that the court could retroactively annul the marriage as a remedy to the agunah problem; and Mnachem Risikoff
Mnachem Risikoff
Mnachem HaKohen Risikoff , was an orthodox rabbi in Russia and the United States, and a prolific author of scholarly works, written in Hebrew. Risikoff used a highly stylized and symbolic pen-name, יאמהדנונחהים, made up of the Hebrew letters of his first name, the Hebrew word for Lord, and the...
, who recommended in 1937 that such consideration be given not to every local court, but at least to the Jerusalem rabbinical court, specifically recognizing that authority in the words recited under the chuppah
Chuppah
A chuppah , also huppah, chupah, or chuppa, is a canopy under which a Jewish couple stand during their wedding ceremony. It consists of a cloth or sheet, sometimes a tallit, stretched or supported over four poles, or sometimes manually held up by attendants to the ceremony. A chuppah symbolizes the...
, the wedding canopy. Risikoff, among others, also proposed a discussion of the reinstatement of the Biblical status of the pilegesh
Pilegesh
Pilegesh is a Hebrew term for a concubine with similar social and legal standing to a recognized wife, often for the purpose of producing offspring.-Etymology:...
, a relationship status between man and woman that does not require a Get upon dissolution, thereby avoiding the category of agunah.
Other approaches that have been discussed by religious leaders, including leading orthodox rabbis, have included the possibility of prenuptial agreement
Prenuptial agreement
A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other...
s, not incorporated into the ketubah or mentioned in the words recited by the groom during the ceremony, through which the husband and wife agree to abide by orders of a designated Beth Din, regarding the giving or acceptance of a get. Rabbi Jechiel Perr
Jechiel Perr
Yechiel Yitzchok Perr is an American Haredi rabbi and the founder and rosh yeshiva of Yeshiva of Far Rockaway in Far Rockaway, New York.- Biography :...
discussed such a proposal, and it has been reported that Rabbi Moshe Feinstein
Moshe Feinstein
Moshe Feinstein was a Lithuanian Orthodox rabbi, scholar and posek , who was world-renowned for his expertise in Halakha and was regarded by many as the de facto supreme halakhic authority for Orthodox Jewry of North America during his lifetime...
, looked upon this idea with favor. Additionally, discussions have considered the possibility of various forms of coercion that could be applied to the husband, to compel him to grant the Get.
No proposal has so far met with universal approval on the part of the orthodox rabbinate, although there have been some cases of individual rabbis taking what has been viewed as "maverick" individual action, including the convening of rabbinic courts to annual marriages, using the Geonic
Geonim
Geonim were the presidents of the two great Babylonian, Talmudic Academies of Sura and Pumbedita, in the Abbasid Caliphate, and were the generally accepted spiritual leaders of the Jewish community world wide in the early medieval era, in contrast to the Resh Galuta who wielded secular authority...
model. Such actions have been widely condemned within the orthodox community.
Zika le-Yibbum
A related case is that of a woman whose husband has died childless: in such a situation, the husband's brother is required by Jewish law to enter into a levirate marriageYibbum
Yibbum , or levirate marriage, in Judaism, is one of the most complex types of marriages mandated by Torah law by which, according to the law, the brother of a man who died without children has an obligation to marry the widow...
with the widow so as to have children with her in the name of the deceased. The brother can refuse to do yibbum and instead perform a ceremony known as chalitza to release her from her bond to him (in modern times chalitza is nearly always performed instead of yibbum). If the brother is missing, or if he is still a child, the woman is required to wait until he is located or has reached adolescence
B'nai Mitzvah
Bar Mitzvah and Bat Mitzvah are Jewish coming of age rituals. According to Jewish law, when Jewish boys reach 13, they become responsible for their actions and become a Bar Mitzvah . The age for girls is 12...
so that he can perform the chalitza ceremony. There have been recorded cases of the husband's brother trying to blackmail the widow by delaying the chalitza ceremony, effectively leaving her as an agunah.
Karaite Judaism
As followers of Torah exclusively, the Karaite Jews say that a woman can claim a divorce. If a man refuses to give divorce to his wife, the beit din (Jewish legal court) may exercise its legal power to grant a divorce instead: There is not agunot in the Karaite way of life.External links
- Etymology of "agunah"
- ORA Organization for the Resolution of Agunot
- Mavoi Satum organisation for agunot
- The International Coalition for Agunah Rights
- Council of Young Israel Rabbis Agunah and Get Refusal Prevention and Intervention
- Agunot (Abandoned Wives), Jewish Virtual Library
- Consideration of agunos arising from the attack on the Twin Towers
- The "Agunah Problem" -- a historical overview, as well as its modern-day manifestations, repercussions and attempted solutions.