The Agunah Problem, Part 1; Incarceration and Free Speech

Marc B. Shapiro blogs:

As for the problem of women not being able to get a divorce because the man refuses, there are some important points that must be made which I don’t think everyone is aware of. Today, many people assume that a woman who wants out of a marriage, for whatever reason, has that right. After all, a woman is not a prisoner and a husband should not force her to be married to him if she doesn’t want to. However, this viewpoint is very much a modern approach.[6] If you look at the standard halakhic sources you will find that there is no obligation for a man to give his wife a divorce just because she wants it. Ever since R. Gershom, the same situation is also found in reverse, namely, a husband is not allowed to divorce his wife against her will just because he no longer wishes to be married to her. This approach to ending marriage is very much in line with how secular society use to operate before the introduction of no fault divorce…

However, it is the view in opposition to Maimonides that became the standard position, and it is this view that is recorded in the Shulhan Arukh[9] and followed by batei din. According to this approach, even if a woman says she can no longer live with her husband, he is not obligated to give her a get. What this can lead to is most vividly illustrated by the movie Gett, available here to watch for free for Amazon Prime members.

I have been told that the Beth Din of America operates on the principle that if one of the parties wants a divorce, for whatever reason, and there is no chance for reconciliation, then the Beit Din will instruct the other spouse to comply. But this is not how many other batei din operate. We have to be honest and acknowledge that the problem many women face is not because the dayanim are cruel or anti-women, but that it is Jewish law itself, or rather an interpretation of Jewish law, that is preventing them from receiving their divorces.

I feel it is necessary to stress this since we can now better appreciate why certain rabbis have attempted to find solutions within Jewish law to the contemporary agunah problem. Many on the right don’t see why this is necessary and why batei din cannot just follow Jewish law as it has operated until now instead of looking for “solutions”. These people might not realize the difficult situation this puts women in, a situation that might have been tolerable years ago but for more and more Orthodox Jews that is no longer the case. On the other hand, many on the left think that it is a simple matter to solve the agunah problem, and that it is just cruel and insensitive rabbis preventing this. This too is a distortion as the rabbis’ hands are often tied by halakhah, and this remains the case no matter how much of a “rabbinic will” they have.

Let me illustrate what I am talking about. As an example of how sentiments have changed over the centuries, here is a passage from R. Hayyim Benveniste that I have cited in two previous posts. In Keneset ha-Gedolah, Even ha-Ezer 154, Hagahot Beit Yosef no. 59, in discussing when we can force a husband to give a divorce, R. Benveniste writes:

ובעל משפט צדק ח”א סי’ נ”ט כתב דאפי’ רודף אחריה בסכין להכותה אין כופין אותו לגרש ואפי’ לו’ לו שחייב להוציא

Can anyone imagine a posek, from even the most right-wing community, advocating such a viewpoint today? The logic behind this position, as can be seen by examining the original responsum in Mishpat Tzedek, is that even if the man is running after her with the knife, we don’t assume that he will actually kill her. He must be doing it just to scare her, and that is not enough of a reason to force him to divorce her, or even to tell him that he is obligated to do so. And if we are wrong, and he really does kill her? I guess the reply would be that this isn’t anything we could have anticipated even if we saw the knife in his hand. This example shows how some poskim from prior generations made it extremely difficult for women to receive a divorce…

It is simply not true that a woman unable to obtain a get from her husband “for whatever reason” is an agunah. I wish it were different, and I wish Maimonides’ ruling carried the day. But that is not the case, which means that an agunah has to be defined as one whose husband refuses to issue a get after ordered to do so by a beit din.

R. Zvi Hirsch Grodzinski, perhaps the leading talmudist and halakhist in the United States in the early years of the twentieth century, discusses a case where a woman committed adultery (or only claimed to have done so; the matter is not clear, but for this post I am assuming she actually did commit adultery). She then wished to get divorced from her husband.[11] She must have had some connection to Judaism as she requested that her husband give her a get. I think most people would assume that in such a case, where the woman will no longer be living with her husband, that it is essential that the husband give her a get so that she is no longer committing adultery. With the get she can repent and move on with her life. Hopefully, she will be able to find another husband and live as pious Jew.
Yet just because most of us might intuitively feel this way, this does not mean all halakhists have to agree. R. Grodzinski concludes that the husband cannot be forced to give the get. To use today’s popular language, this meant that he was allowed to keep her as an agunah for the rest of her life. Of course, R. Grodzinski would deny that the woman was an agunah. Despite the woman’s adultery, I think most people will still be troubled reading the following words from R. Grodzinski, from which we see that he saw no problem in condemning her to live the rest of her life without receiving a get.
כ”ש בנ”ד שנאסרה עליו ע”י זנות דאין כופין אותו לגרשה בגט, כיון שהיא נתנה אצבע בין שיניה, וגרמה לעצמה במעשיה הרעים והוא לא עשה און, ולמה נכוף אותו ליתן לה גט, לא תבעל לו ותוצרר אלמנות חיות כל ימיה, הלא אינה מצווה על פו”ר, וכי בשביל שהיא הולכת אחרי שרירות לבה וזנתה תחתיו נכוף אותו לגרשה
I don’t think you need to be a member of JOFA or Open Orthodox to be upset by what R. Grodzinski writes, as it probably closed off any chance of repentance on the part of the woman. He also views the withholding of the get as a suitable form of punishment for the woman. Not being obligated in the commandment to procreate, she can be kept a “living widow”…

What is a woman supposed to do in a case like this? After learning that her husband frequented prostitutes she had even more reason not to want to return to him, and yet the beit din held that in such a case the husband did not have to give her a get since her initial reason for wanting to be divorced was something else. Again we see that a man can, if he chooses, prevent his wife from being free.
Also of interest are the three reasons the court suggests why a woman would not be happy if her husband was going to prostitutes: 1. He will be spending their money, 2. He will be using them as his sexual outlet and will not want to sleep with his wife, 3. He could pass on a disease to her.
While it is true that a wife’s anger will include reasons 1 and 3, these are not the main reasons she will be upset. For example, the husband could be as rich as a former New York governor and have used protection, yet the wife will still be devastated for the simple reason that his actions were a terrible breach of trust. More than anything else, modern marriages are based on trust. As for reason 2, it is hard to imagine that there is any modern woman who, if she discovered that her husband was going to prostitutes, would want to be divorced because of this reason…

These reasons undoubtedly reflect a different understanding of marriage, one which does not see the modern romantic notion of trust as the centerpiece of a marriage. Since people’s psychology has changed over the centuries, I don’t think that the reasons offered by medieval authorities operating in a completely different environment can determine what modern women will regard as “deal-breakers” when it comes to marriage. If a modern woman has different expectations of what marriage is than what people had years ago, I would think that this must be taken into account by a beit din in determining what situations require ordering the husband to give a get.
In fact, Sefer Agudah cites another reason why the court compels a husband visiting prostitutes to divorce his wife.

…It deals with a man who committed adultery with a married woman, and his wife therefore wishes to divorce him. In such a case, contemporary Orthodox Jews of all persuasions would agree with the general view in society, that if the wife can forgive her husband and remain married, then it is no one else’s business what goes on in their lives. However, contemporary Orthodox Jews would also agree that if the betrayal is so devastating that the wife will never be able to trust her husband again, and she wants a divorce, then the husband should be required to give the divorce. To paraphrase what the Sefer Agudah said, this is certainly on the level of the things for which the Mishnah in Ketubot requires a husband to grant his wife if she requests if.
Yet the Hakham Zvi refuses to require the man to issue the divorce. One of the things he says is that even the Sefer Agudah would agree that in order to force a divorce the husband has to have been given prior warning not to visit prostitutes. In the case the Hakham Zvi was asked about, he says that there is another reason not to require the get, and that is that the man claims that he wishes to repent. So here we have a case where a man commits adultery, his wife cannot accept this and requests a divorce, and the man refuses and says he will repent. Today people would say that this woman is an agunah, as she is trapped in a marriage she doesn’t want to be in with a husband who cheated on her. Yet the Hakham Zvi rules in favor of the man that no divorce is required…

I think people will be shocked to learn that a woman who wants to divorce her husband because he went to a prostitute is being told by the beit din that she must stay with him if he promises not to do it again. But this only illustrates that the so-called agunah problem is inherent to the halakhic system, which according to the dominant interpretation does not recognize that a woman should be able to exit a marriage if she feels she can no longer live with her husband. There are literally hundreds of examples in the responsa literature and beit din proceedings where a woman is told that even though she wants to be divorced, there is no obligation on her husband to give her a get. Isn’t this where poskim must put their efforts to see if changes can be made? What a woman will tolerate today is not necessarily the same thing as what the Sages and earlier poskim assumed, and this is a point that was already made by halakhic authorities in prior generations.[19]
To further illustrate my point, R. Joseph Karo states that even if a husband is beating his wife he can’t be forced to divorce her.[20] She will obviously live apart from him, but R. Karo does not accept the view of some earlier authorities that the husband can be forced to issue her a divorce. This means that the woman is what we would today call an agunah, but the problem we are facing is not just about an evil man but arises from the halakhah itself. As we have just seen, according to R. Karo it is the halakhah that prevents us from forcing a husband to divorce his wife, even if he beats her…

There is another noteworthy decision given by the Supreme Rabbinic Court, again consisting of Rabbis Yitzhak Nissim, Bezalel Zolty, and Yosef Shalom Elyashiv.[24] The case was that a married man left his first wife and married another wife. The problem was that he never divorced the first wife, making him a bigamist. Furthermore, he refused to give his first wife a get. The woman therefore turned to the Beit Din asking them to force him to do so. The conclusion of the Beit Din was that while in this case, as opposed to the ones we saw earlier, the man was indeed obligated to divorce his wife, nevertheless the Beit Din could force him to do so. Since the Beit Din ruled that he was obligated to give the get, his not doing so would make the woman an agunah in the eyes of the court. But since the Beit Din felt that it was unable to force the man to issue the get, who knows how long (maybe her entire life) the woman was forced to remain an agunah. Unfortunately for the woman, R. Shaul Yisraeli, also a member of the Supreme Rabbinic Court, was not one of the dayanim in this case, since he wrote to R. Elyashiv arguing that the court should indeed force the husband to give the get…

R. Weinberg was asked about a man who was sent to jail for sexual abuse of young girls. Understandably, his wife wanted a divorce. The rabbi didn’t know what to do and therefore wrote to R. Weinberg. He mentions that he never had to deal with a case of sexual abuse and doesn’t know how to relate to it from a Jewish law perspective. He also assumes that there was no actual sexual relations but only fondling.
R. Weinberg, relying on the Hakham Zvi, states that the husband cannot be forced to divorce his wife, since he was never warned and there was no testimony in a beit din. He also says that one cannot rely on testimony given in a secular court, and makes the valid point that during that time, the Nazi era, there was a great deal of anti-Semitism and pleasure in making the Jews look bad.
None of this could have been of much comfort to the woman. We have no idea about her relationship with her husband. She might have already suspected him of being a pervert, or when he was arrested it might have clarified certain things that she wondered about. She might have confronted him after the arrest and seeing his reaction to her questions she knew he was guilty. Whatever the case, she no longer wished to remain married to someone she believed to be a sexual abuser. R. Weinberg was as open-minded a posek as one could imagine, yet even he was of the opinion that the husband could not be compelled to divorce his wife.
Today, if someone accused of sexual abuse refused to issue his wife a get, rabbis in the United States would call for protests in front of his house. Yet R. Weinberg does not see this as warranted. I think one of the most difficult things for people to grasp in his responsum, and in that of the Hakham Zvi, is the need for the husband to be warned. We are not talking about sentencing him in a beit din, where warning is a technical requirement, but whether or not the woman wants to live with him any more. In the two cases we have just seen, the issues of concern to the wives are one man’s visits to a prostitute and the other’s sexual abuse of children. Neither wife cared if her husband was “warned” in beit din since the offense is the same to her either before or after the “warning”.

About Luke Ford

I've written five books (see Amazon.com). My work has been followed by the New York Times, the Los Angeles Times, and 60 Minutes. I teach Alexander Technique in Beverly Hills (Alexander90210.com).
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