The Contemporary Agunah

Popular discourse identifies the contemporary agunah as the “mesurevet get”, the woman who wants a Jewish divorce but whose husband refuses to grant her one.  This definition is simultaneously too broad and too narrow.  It is too broad because it fails to account for the differing circumstances and motivations for a husband’s refusal, and it is too narrow because it excludes circumstances in which everyone agrees the divorce is still legitimately in process. 

I therefore seek to distinguish and define at least four separate categories of ‘contemporary agunot”.

Definition:

  1. Women (in America) whose civil divorce is complete, or (in Israel) where a court agrees that good-faith negotiations over issues other than the get have ended.
  2. Women who remain in marriages because they fear that seeking divorce will not free them from an undesirable marriage, but rather lock them into a dead marriage.
  3. Women who are in the midst of divorce negotiations and are explicitly told that they must make concessions in order to receive the get.
  4. Women who are in the midst of divorce negotiations and worry that the husband may use get-refusal to demand concessions, even though he has never threatened this.

Values Approaches:

  1. Halakhic marriage is formally a contractual relationship that presumes, or at least makes considerable room for, a significantly integrated financial life and a joint endeavor to properly raise children.  These aspects of marriage, perhaps even more so than the intimate emotional and physical elements of the relationship, necessitate the formalization of its ending.

It is reasonable to argue that each spouse has a principled right to hold the other spouse in the relationship until a good faith effort has been made to resolve financial and custody issues.

It is also reasonable to argue that neither party should have a right to hold the other’s future hostage even if negotiations in good faith do not lead to what he or she thinks is a reasonable outcome.

  1. A prominent dayyan once argued to me – and I suspect that his position was not idiosyncratic among his colleagues – that diminishing the risk of get-refusal would generate an unfortunate rise in divorces, as women would then choose to exit marriages that could, with work, be salvaged.  In my humble opinion, this is a perversion of Jewish values that needs to be named and fought vigorously.  What kind of marriage can be sustained by the fear that one’s spouse would rather hold you prisoner than allow you to leave?  Is it not likely that many of the marriages thus sustained will be heavily abusive?  The legitimate goal of improving marriage stability and lowering the divorce rate can and must be met without making marriage a prison and turning daughters of Israel into slaves and blackmail victims.
  2. Here significant subtlety is necessary.  A reasonable person might hold the opinion that the secular divorce laws in a particular jurisdiction are biased against husbands, whether in the realm of custody or of property of division.  (One way to reach this conclusion is by assuming that wives halakhically are presumptively entitled to no more than the amount of their ketubah; those who properly wish to use beit din for the financial aspects of divorce should investigate the rulings of particular batei din in this regard.)

Furthermore, even in the most theoretically just system there will be cases where injustice seems the likely outcome, as for example when one side is financially desperate and therefore under extreme pressure to settle.

Under each of these circumstances, there is a strong temptation to see get-refusal as a legitimate means of obtaining justice.  It is therefore critically important to understand that this argument is dangerously wrongheaded, and why.  Here’s why.

It is obviously wrong to use the get to extort money unjustly.  But where the divorce is being litigated in civil court (and in the United States the courts will not recognize the decisions of arbitration panels with regard to custody, so all custody disputes must be litigated in civil court), the beit din will not have the capacity to determine whether the get is being used to obtain rather than to pervert justice.  A beit din has no subpoena power, and no access to court records, and therefore cannot adequately investigate claims of hidden bank accounts, abuse, and the like.  Every get-refusing husband will therefore claim that he only seeking to prevent an unjust court ruling, and the beit din will be powerless to distinguish the extortionists from the genuine among them.  So we must use the classic rabbinic mechanism of “lo plug” – we do not make exceptions when doing so will undermine the rule.

  1. No negotiations should take place in the shadow of one party’s capacity to torture the other with impunity and for any reason.  This seems to me self-evident.

 

Rabbi Aryeh Klapper
Dean, The Center for Modern Torah Leadership

www.torahleadership.org

 

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Filed under Beit Din, Jewish divorce, Jewish Values, marriages

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