Agunot Campaign Forum Speech
Sharon Shenhav, JD
‘Seeking Halachic Solutions to the Problems of Get and Agunah’
LONDON, 13 NOVEMBER 2000
Thank you to the Agunot Campaign, especially Sandra Blackman and Gloria Proops, the co-founders, for organising this Forum “Seeking Halachic Solutions to the Problems of Get and Agunah”. As a women’s rights lawyer in Israel, I have represented hundreds of agunot in the Rabbinical Courts of Israel during the last two decades so I am intimately familiar with the workings of these courts and the attempts to solve the problem of recalcitrant husbands. As the director of the International Jewish Women’s Human Rights Watch, a project of the International Council of Jewish Women, I have had an opportunity to visit and speak to Jewish audiences worldwide during the past few years. Therefore, I will be speaking to you tonight about three aspects of the problem of agunot.
First, I will update you on the efforts, which have been made on behalf of agunot in many Jewish communities. These efforts include the coming together of scholars and rabbis to discuss Halachic solutions; the formation of task forces and pressure groups to free agunot; the recognition by Jewish lawyers, legislators and judges that the civil courts may have an important role to play in restoring justice to Jewish divorce and finally the recognition by many leading rabbis that the current situation is morally and ethically intolerable.
Secondly, I will describe efforts in Israel to solve the problem of agunot, by the Orthodox establishment as well as by scholars, lawyers and women’s rights activists.
Lastly, I will discuss the infringement of Jewish women’s human rights resulting from the continued inability of agunot to be freed to remarry and form new families.
Let me begin by discussing a recent New York case where a Jewish woman was awarded damages because despite the fact that she had obtained a civil divorce on grounds of mental cruelty, her Orthodox husband refused to consent to a get for over 8 years. As you may know, New York has had what is known as the “Get Law” for over 17 years, legislation, which is similar to that being proposed here in the UK. This legislation provides that a civil divorce will not be granted unless all impediments to the remarriage of the partner have been removed. Appalled by the husband’s behaviour, the judge stated, and I quote, “The State of New York has made painfully clear that it will not tolerate perversion of the Jewish Get process into an unconscionable instrument of coercion by husbands who have the sole power to cause delivery thereof, a situation putting wives at the mercy of unscrupulous, often sadistic husbands”. In this case, despite the fact that according to New York law the wife was entitled to one half of the marital property, including the marital home, she signed an agreement waiving her property rights in exchange for the husband giving her a get. Despite this agreement, the husband refused to give the get. When she turned to the Civil Court for help, the judge was so outraged that he awarded her 100% of the marital assets. Describing the husband’s behaviour, the judge said, “Not content to use the awesome coercive power he possesses as the male in the process to jam an “unfair agreement” down his wife’s throat, the husband has gone further. For good measure and with no further economic goodies to extract from her since the coerced agreement took away virtually everything from her, he has tortured his wife for an additional eight years simply out of spite by persisting in his refusal to deliver the get even after agreeing to do so in exchange for this agreement”. Confronted by the dual outrages of greed and spite, the judge stated that the courts have reached zero tolerance for this sadistic practice.
This case represents the increasing use of civil courts by agunot and their lawyers in the last few years, particularly in the USA, Canada and Israel. In a number of cases, agunot are filing claims for damages resulting from emotional distress as well as economic loss. Some of the claims have been filed against rabbis and dayanim as well as against recalcitrant husbands. No doubt this new use of civil courts to rectify the injustices and suffering experienced by agunot, has resulted from a failure of the rabbinical authorities to apply halachic solutions in appropriate cases.
Another fairly new phenomenon is the recognition by Orthodox rabbis that the widespread blackmail connected to Jewish divorce has become a source of shame and embarrassment, the symbol of injustice and inequality for Jewish women. This past July, the ORA (Organisation of Rabbis of Australasia) held their annual conference and published a resolution stating that “This conference is of the view that the withholding of giving or accepting a Get may never be used as a tool for revenge or for ill-gotten financial gain and is determined to root out this evil from our community”. Similarly, rabbis in the US have been organising and participating in conferences dealing with the problem of agunot. Admitting that the steep rise in the divorce rate in the Jewish community, including within the Orthodox community, has reached crisis levels, the rabbis have become more active in searching for solutions. At the Conference of European Rabbis last spring, Halachic solutions to the problem of agunot produced by the IJWHRW were distributed to the over 200 Orthodox rabbis in attendance. Individual rabbis in Europe, South Africa, Australia, Canada and the US have publicly committed to renewing their efforts on behalf of agunot. Women liaisons have been appointed in rabbinical courts.
Pre nuptial agreements, which contain financial sanctions, are being promoted and an increasing number of rabbis refuse to marry couples unless both parties sign such an agreement. In the US, the mainstream Rabbinical Council of America, or RCA, recommends the use of such a pre-nuptial agreement and many rabbis report that they refuse to marry a couple unless they sign such an agreement. Similarly, rabbis in Switzerland, Holland, Belgium, South Africa, Australia, France and Israel are recommending that couples sign such an agreement in order to prevent the blackmail which is so prevalent in Jewish divorce today. Essentially, the rabbis are attempting to bring some balance to the process of Jewish divorce so that husbands will suffer financial loss if they withhold the get.
Perhaps the most significant change that is taking place in the discussion of Halachic solutions is the recognition that rabbis have powers which can be used to restore fairness and justice to Jewish divorce. Annulment is no longer a dirty word. Although the work of Rabbi Morgenstern and his Bet Din is still not accepted, other mainstream Orthodox rabbis have begun to talk more openly about annulment as a solution to the problem of agunot. Last February at the Jewish Orthodox Feminist Alliance Third International Conference on Feminism and Orthodoxy in New York, Rabbi Shlomo Riskin admitted that husbands have the upper hand in Jewish divorce and stated that Halacha provides a recourse known as cancellation of the marriage or hafkeat kiddushin. Reviewing the talmudic sources, Rabbi Riskin emphasised that Jewish Law recognised that there would be bad cases and dealt with them by giving rabbis the authority to take the power to withhold a get away from the husband who acts immorally and unjustly. Rabbi Riskin argued that the problem today is that rabbis do not use the power they have been given to annul marriages and suggested that a special Bet Din be established in Israel. Stating that in cases where a recalcitrant husband acts improperly by not giving his wife a divorce despite a rabbinical court’s decision that he should do so – in effect, holding the get for ransom – the special Bet Din could abrogate the marriage unilaterally.
Two months ago at a large public meeting in Jerusalem on the subject of Agunot, Rabbi Riskin repeated his call for the establishment of a special Bet Din which would annul marriages. Rabbi Eli Ben Dahan, Director of the Rabbinical Courts in Israel, did not fall off his chair. Instead, he requested that Riskin produce a scholarly paper on the subject and stated that the Chief Rabbinate and the dayanim would seriously consider the proposal.
This vision of a Jewish law, which is compassionate in cases of agunot, continues to resonate in scholarly and rabbinical circles. The Chief Rabbis of Israel have admitted, in private conversations with me and other women’s rights lawyers, that they annul marriages on a regular basis. However, they do so quietly and do not publish these decisions. This kind of “secret” legal process is not acceptable in a democratic society. By not publishing decisions, agunot and their legal representatives are unaware of the basis for such decisions and therefore unable to rely on them as precedent. Furthermore, a system that operates in secret lacks the transparency required by today’s norms of fairness and justice. About two years ago, I was personally involved as the attorney representing a women who was eventually freed from a recalcitrant husband whose behaviour was so cruel and vicious that even the Chief Rabbinate affirmed an annulment that had been granted in New York by the mainstream Rabbinical Council of America’s Bet Din. This case involved a man who was sentenced to 32 years in prison for sexually assaulting his two young children. Unwilling to free his wife from a non-existent marriage, the Bet Din relied on a Tshuva or Responsa of the late Rabbi Moshe Feinstein and annulled the marriage, thus giving this 37 year old woman a permit to remarry without the need of a get. More rabbis and dayanim must exercise this kind of compassionate and creative application of Jewish Law.
Civil solutions, such as the New York Get law and similar legislation in South Africa and Canada, have proven helpful in some cases but have failed to solve the most difficult cases where husbands who refuse to give their wives a get are often not interested in obtaining a civil divorce either. If the wife seeks a civil divorce and the husband refuses to cooperate, the legislation does not help. While in South Africa recently, I participated in a public discussion of agunot with Dayan Herstog of Johannesburg. Four years after the civil legislation in South Africa, he admitted that many cases of agunot have not been resolved. In those cases where the husband remains recalcitrant, he suggested public demonstrations – similar to the ones which were organised here in London a year ago and which resulted in the freeing of a young agunah. Dayan Herstog stated that he would personally lead any such demonstration.
Rabbis in Australia, South Africa, Canada and the US have stated that communal sanctions, which include the denial of any religious honours including being called to the torah and burial in a Jewish cemetery as well as a community boycott of the recalcitrant husband, whether it be social, professional, economic or communal, should be used in all cases.
In my visits to Jewish communities in the US, Canada, France, Holland, Switzerland, Argentina, Belgium, New Zealand, Australia and South Africa, I have found that there are agunot in every community. Wherever I have spoken to audiences, women have come forward to tell their painful stories. Activists have formed support groups and task forces in many of these countries with a goal of pressuring their rabbis to solve this problem which brings so much shame to the Jewish community. Jewish law was never intended to be used as a tool by greedy and vindictive men to deny their wives the right to remarry and found a family. Human rights organisations recognise the denial of these rights as an infringement of Jewish women’s basic human rights as established by all of the major human rights conventions of the last half-century.
The time has come for rabbinical leaders to act. As Blu Greenberg, President of JOFA, has said, “Where there is a rabbinic will, there is a Halachic Way”. The tools are there, now the rabbis must find the courage to use them.