The Agunah Dilemma, #5

In previous posts I’ve tried to define the terms “agunah” and “systemic solution”, generally showing that they can mean many different things and are affected by social and legal environment.  In this post I’ll begin a discussion of systemic solutions thus far proposed.  They fall into the following categories, which I will discuss seriatim:

  1. Preventing kiddushin
  2. Retrospectively invalidating kiddushin
  3. Constructing kiddushin that dissolve automatically in reaction to get-refusal
  4. Creating a consent-independent mechanism for get-delivery
  5. Creating a disincentive for get-refusal
  6. Coercing get-delivery
  7. Dissolving kiddushin by means other than a get

Preventing Kiddushin

One advocate at the Agunah Summit argued that the best way to prevent get-refusal is to prevent get-necessity.  She accordingly suggested that woman be encouraged to find ways of formalizing relationships that do not count halakhically as kiddushin.

Rabbi Meir Simchah Feldblum z”l suggested – I have never been quite sure how seriously – that this had already happened in practice, on the ground that no contemporary woman actually intends to accept the terms of kiddushin, specifically the vulnerability to get-refusal.

This proposed solution, especially when proposed systemically and for both Israel and the United States, raises many, many halakhic and moral difficulties, and in any case would be ineffective.  Here’s why:

1) It likely actively suborns sin.  Halakhah forbids both men and women to engage in non-exclusive sexual relationships, (although the ground of the prohibition is different for men and women).  Rabbi Feldblum and others noted that some or many medieval authorities permitted pilagshut = concubinage, which they understood to be a  relationship that limited the woman to one partner but did not require her to receive a get for it to be dissolved.  However, most commentators believe that Maimonides believed that pilagshut is Biblically forbidden to everyone but the monarch, and other authorities believe that it is rabbinically forbidden.  It is therefore profoundly unlikely that this suggestion would be adopted by a significant percentage of the halakhically committed population.

2) It leaves women without the protection of marriage.  Kiddushin provides women with the ketubah, which provided for her in the case of divorce or widowhood.  While the ketubah is of little practical value today, this is because secular has adopted the ketubah model – but again, only for married couples.  Israeli law would not, so far as I know, recognize concubines as married.  Women would therefore run the risk of being left without any claim if the relationship ended.  Pilagshim could still obtain marriage licenses in the United States and marry secularly, so this objection does not apply in the United States.

3) Some authorities require a get to sever a pilagshut relationship.  I suspect that many batei din, especially in Israel, would not permit a woman who had been formally designated a pilegesh to remarry without a get.

4) Those authorities who do not require a get to sever a pilagshut relationship might nonetheless require the male to actively and willingly sever the relationship.  (I have been unable to find a satisfying discussion of this question and welcome references).

The purported lack of need for a get therefore does not enhance the woman’s legal position in any way, but rather harms it, because—

  1. she has none of the protections of marriage;
  2. the male has none of the obligations of marriage;
  3. there are no precedents for compelling or even pressuring the male to end the relationship, even if the female wishes to.
  4. Even if the male consents, the woman may be left with no proof that the relationship has ended.

In other words – it seems to me likely that women who enter into such relationships will become agunot at the same or greater rate than present, and gain no other practical advantages.  The proposal could only be effective if batei din accepted that such relationships could be contracted and sustained without requiring a get, or the husband’s consent, to dissolve them, and batei din are not intellectually compelled or religiously desirous of accepting such proposals.

An alternative version of the proposal is for woman to eschew any and all relationships that have halakhic significance, on the grounds that either

  1. It is worth committing the sin of sex-outside-exclusive-relationship to avoid the risk of agunah, or
  2. Kiddushin is hopelessly sexist and should therefore be abandoned.  The risk of agunah is symptomatic and emblematic of the fundamental problem that kiddushin involves a kinyan of the woman by the man.

This is sometimes described as “reverting to kiddushei bnei Noach” and/or solemnized with creative rituals and texts such as brit ahuvim.

With regard to b), my custom in premarital counseling is to mention Rabbi Shlomo Riskin’s very plausible claim that substance of the kinyan of kiddushin is not that the man acquires the woman, but rather that the man acquires his obligations toward the woman.  The prima facie evidence for this claim is that kiddushin effected by document happen when the man transfers the shtar to the woman, and in commerce it is the seller who transfers the shtar to the buyer.  A secondary supporting framework is that wives have no Biblical obligations toward husbands in marriage, whereas husbands are obligated to provide for their wives’ food, clothing, and sexuality.  Wives do have a one-way Biblical prohibition against sexual nonexclusivity, but that is an obligation to G-d rather than to the husband.

With regard to a), I think this approach runs the risk of blaming the victim.  As I noted last week, agunot in America are always in a sense volitional – no one forces them to keep halakhah.  Proposing “solutions” that require women to violate either the letter of the spirit of Halakhah as understood by their home communities will not diminish the incidence of agunah in America; it will only diminish sympathy for them.

Nor is it clear that this solution works in Israel for those not halakhically committed.  Just as secular law in the United States recognizes “common-law marriage”, meaning that a couple who acts married for some period of time is treated legally as having married, so too batei din, via mechanisms we will discuss in the future in the context of conditional marriage.

However – and this is a big however – I think that it is intrinsically problematic for a halakhic system to have compulsory jurisdiction over people who fundamentally reject its assumptions, especially when that combination accidentally but inevitably generates severe human suffering.  In Israel the absence of civil marriage creates this situation; in America having a valid kiddushin necessitates a valid get.

I have wondered for years whether Orthodox rabbis should officiate at weddings for the non-Orthodox in a culture where divorce is common and gittin rare.  I have heard several stories about American rabbis deliberately making errors when officiating at weddings to forestall issues of mamzerut; perhaps the same kind of thing occurs in Israel to forestall agunah.  Nowadays I tend to think that insisting on the prenup (which will of course be the subject of a later post) should allow a rabbi to educate such couples so that the risk that they will choose not to obtain a get should they divorce is minimal.

 

Rabbi Aryeh Klapper
Dean, The Center for Modern Torah Leadership

www.torahleadership.org

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One response to “The Agunah Dilemma, #5

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