I was honored last month to be a participant in the Tikvah/JOFA Agunah Summit. It was a powerful experience, and has caused me much and ongoing rethinking. That rethinking was certainly a goal of the summit, and much has been written optimistically about other outcomes.
But I also felt that much of what was said and happened at the Summit evidenced deep confusion about the nature of the challenge and about the ways in which proposed solutions would work in practice, and that this confusion often made it difficult even to have serious conversations, let alone to agree on action steps. I am accordingly starting this week a series of articles intended to describe the agunah issue as clearly as possible, in the hope that this will enable new collaborations and creativity. The first of the series follows below, and I hope others will follow on a roughly weekly basis.
1) Who is an Agunah?
A) The “Classic” Agunah: Definition and History
In popular discourse, the classic agunah is a woman whose husband has disappeared and may or may not be dead. The Rabbis relaxed their usual evidentiary standards and allowed her to remarry on the basis of normally invalid testimony or circumstantial evidence of death. However, fearing fraud, they also imposed severe penalties if the husband eventually turned up alive.
Thousands and thousands of responsa through the centuries address cases of disappeared husbands. These responsa generally reflect the commonsense understanding of the Talmud, namely that formal rules of evidence should not prevent a widow from remarrying, but that remarriage should be permitted only when the husband’s death can genuinely be seen as proven.
Rabbi Yoel Sirkes was among the most eloquent about the religious obligation to allow such women to remarry. He applied to them a midrashic reading of a verse from Kohelet “And I have seen the tears of the oppressed…and power flows from the hands of their oppressors – these are the Sanhedrin”, which originally was said regarding mamzerim, and he gave the task of freeing agunot Redemptive significance. But his responsum addresses a case, as he acknowledges in a coda, where the husband turned up alive, happily before the putative widow remarried.
The modern rabbinate has generally been admirably successful and humane in dealing with such cases. Under the leadership of Rav Ovadiah Yosef, the Israeli rabbinate has resolved all cases associated with the 1973 war, and more recently, the RCA Beit Din led a consortium of rabbis in resolving all cases associated with the 9/11 attacks. These decisions included bold and innovative consideration of forms of evidence that had not previously been accepted by rabbinic courts, such as DNA tests.
It is important to realize that popular discourse leaves out several other Talmudic cases that may have great contemporary significance.
The Talmud uses the term igguna to refer to a woman whose husband lives apart from her but is unable to obtain an effective divorce from him. In that case as well the Rabbis relaxed evidentiary standards to make long-distance delivery of an effective get practical.
The Talmudic method for enabling long-distance divorce has been effective ever since.
Without using the term “igguna”, the Talmud records several cases in which the Rabbis used extraordinary legal means to ensure that husbands could never deliberately place wives in doubt of whether they had been divorced.
Divorce in Talmudic times seems to have occurred fairly often without formal court oversight, with the husband privately hiring a scribe and delivering the document in person or by agent. In post-Talmudic halakhah, however, the husband almost invariably uses a court scribe and court agents, and delivery as well takes place in the presence of a court. Court practice is constructed so as to ensure that the divorce is proof against any subsequent attack or allegation.
The cases mentioned by the Talmud therefore occur nowadays only when they are deliberately constructed by courts. For example, one such case was used to allow a remarried woman to remain with her second husband, when, to everyone’s shock, her first husband turned up alive many years after the Holocaust and despite eyewitness testimony of his certain death.
Again without specifically using the term “igguna”, the Talmud records several cases in which the Rabbis uses extraordinary legal means to release women from marriages they had entered into with defective consent, for example if their genuine consent was obtained in circumstances of coercion.
I am not currently aware of any post-Talmudic cases in which this precedent has been applied.