The Agunah a contemporary view
Esther Tager MPhil MA
According to Jewish law a husband has the power to delay and even to prevent his wife from divorcing him by refusing to give her a Get. A religious divorce requires mutual consent and co-operation and consequently may result in one of the parties refusing to co-operate in order to inflict financial or emotional advantage. Neither civil nor religious authorities can effect a religious dissolution; only the parties themselves may.
A vindictive husband unconcerned with the requirement of Jewish Law not only denies his wife a religious divorce but forces her to live as an Agunah (a chained, or anchored, wife) treated as still married in the eyes of her religion even though her marriage has irretrievably broken down. She cannot remarry within Orthodox Judaism without receiving a Get. Remarriage for a woman without a Get has serious consequences. The second marriage will not be recognised, and she will be treated as committing adultery: any child born to that union would be regarded as a Mamzer.
Conversely if it is the wife who is unwilling to consent to the divorce, Jewish law provides a solution for the husband. A Heter, or permit, to take another wife without the need for a divorce from the first wife may be issued by the Rabbinical courts. A husband is not prohibited from marrying an unmarried woman with whom he has committed adultery; yet a woman is forbidden to marry a man with whom she has committed adultery.
Judaism during the Geonic era, 700-1000CE, was vital and innovative. In its responses to the plight of the Moredet (originally the woman who has denied her husband sexual relations for a real or imagined offence) the Beth Din was willing to coerce her husband physically into giving her a Get if she found her husband to be repulsive to her. The millennial process that saw a move from oppressive legislation to compassionate legislation came to an end when Rabbenu Tam, in the 12th century CE, no longer permitted the wife to initiate divorce and reinforced the view that religious courts did not have the right to annul a marriage. This remains the position up to the present time. Contemporary Halakhic authorities, unable to find or use a solution to the Agunah which would meet with a consensus of Rabbinic approval, have turned to threats of punishment, the civil authorities and bribery. Yet there are a number of Rabbis – most controversially Rabbis Rackman and Morgenstern of New York – who believe that Halakhic solutions to the problem of Agunah do exist to enable the process of retroactive annulment to be made easier in a case where a Get cannot be obtained. In general the Rackman-Morgenstern Beth Din adopts a liberal definition of fraud (Kiddushei Ta’ut) to annul marriages. Their critics claim that the two Rabbis are deluding women into believing that they have a valid divorce and that the consequences of these Gittin may jeopardise the religious status of these women who remarry and have children.
It is evident that where the state becomes involved in an attempt to alleviate the problem of the Agunah the problem may be actually aggravated. The most obvious example is the so-called ‘New York Get Law’ (1993), which proved an excessive entanglement of Church and State. Indeed in those states in the USA or Canada which have attempted to resolve the question of the Agunah in this way, the Rabbinic authorities have questioned the validity of a Get given to avoid potential economic claims. Such a Get may be considered a Get Me’useh (a coerced Get), and thus invalid.
Legislative remedies which are not uniformly acceptable to all Batei Din raise the issue of the proliferation of Gittin of doubtful validity and the consequent misfortune of Mamzerim. The divisions within Judaism mean that attempts to resolve the problem within the Halakhah fail to gain general acceptance. Orthodox Judaism does not recognise the authority of a Reform Beth Din and, as is only too apparent, divisions exist within Orthodox Judaism. The question which needs asking is whether civil legislation, pre-nuptial agreements or the imposition of communal sanctions will actually alleviate the plight of the Agunah, or have we reached the millennium without solving the problem? Indeed, on 1st July, 1999 a High Court judge refused to enforce an earlier version of the United Synagogue’s Pre-nuptial Agreement. Surely the Halakhic authorities ought to be rediscovering their own sources and interpreting them creatively and dynamically to solve the tragedy of the Agunah.