Jewish law – halakhah הֲלָכָה – provides norms for marriages and divorces. Jewish marriages and divorces are also done in accordance with state law to satisfy Dina DeMalkhuta Dina – the civil law of the land is binding as Jewish law.
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In Jewish law, when a couple gets divorced, it is the man who presents the woman with a bill of divorce, called a get. Without a get, the couple is still married by Jewish law, whether or not a civil divorce is obtained. Until the 19th century, most Jews lived in at least nominally observant Jewish communities: If a woman had reason for a divorce, and her husband refused to give his wife a get, a bet din (rabbinical court) could force the man to do so. A bet din was authorized to use fines, imprisonment and even physical force if all other options failed.
However, since the age of emancipation, most Jews no longer live in an observant Jewish community. Thus, husbands now unfairly have the power to keep wives married to them whether a civil divorce has been granted or not. As one can imagine, this has led to serious abuses: some men have refused to give a get out of spite; some have demanded money before they will grant them a get, which is a form of blackmail. Other times gets are withheld unless the wife agrees to grant certain unfair benefits or custody arrangements.
As such, today in the Orthodox Jewish community, husbands can literally keep their wives’ marital ties intact for indefinite periods of time. This forces women to be faced with the impossible choice of either giving into her blackmailing husband or becoming an agunah (Hebrew: עגונה, plural: agunot (עגונות); translated as a “chained woman”.
This problem of husbands refusing to give their wives a get is a widespread phenomenon. The number of agunot in New York state was estimated to be as high as 15,000. (2)
Fortunately, there are halakhic solutions available, the most simple being that the Talmud allows marriages to be annulled outright.
Unfortunately, even after many decades of discussion the Orthodox community still has not taken any decisive action. Orthodox institutions still have yet to assemble a bet din to grant annulment, nor have they decided upon a binding and enforceable t’nai (pre-nuptial agreement) that can guarantee that a woman will not become an agunah. (3)
The best that Modern Orthodoxy has developed is a t’nai that would financially penalize the husband if he refused to give his wife a get. However for a man who disregarded such a t’nai and still refused to give his wife a get, she could still be kept as an agunah. (4)
One of the reasons for this problem within Orthodoxy stems from historical revisionism. Many yeshiva students have told me that Jewish law forbids annulment, and it never has existed. When I pointed out specific cases in the Talmud and post-Talmudic responsa literature, I am told that these texts have been “misinterpreted”.
Braver souls admit that in Talmudic times annulment was indeed done, but only for a handful of cases, and perhaps a handful were done in post-Talmudic times; I was then assured that such actions are virtually impossible today, as today women would use it “brazenly”, and the rabbis of our generation are not of the same caliber as those times past, and we thus do not merit the use of such measures. The general consensus was that if it allowed women more freedom from men, it was bad, and must not be utilized.
What then should we insist be taught in Orthodox Yeshivas and seminaries? The truth. Rabbi David Novak, in a responsa for the Union for Traditional Judaism, explains the authentic Jewish view of annulling marriages:
“The most daring of all strategies was the rabbinic enactment that allowed for the retroactive annulment of a marriage. This strategy is based on an important Talmudic discussion. According to scriptural law, as long as a divorce document was not placed in his wife’s possession, the husband has the right to change his mind and declare it invalid. Consequently, she is not divorced. Nonetheless, the elder Rabban Shimon ben Gamliel ruled that a man who divorces his wife through an agent may not annul the get while the agent is on his way, that is to say, without the knowledge of either the agent of the wife. (Gittin 32a). Should the husband cancel the divorce sent by the agent anyway, the rabbis declare the husband’s cancellation null and void, the get is valid, and the wife is divorced. This meant that the rabbis were willing to uphold the validity of a get against scriptural law.
The Talmud then questions the boldness of this ruling and its far-reaching consequences by asking “Is it possible that where a get is issued and canceled in accordance with scriptural law we should, in order to preserve the authority of the Bet Din, declare it valid and allow a married woman to marry another?” The question proves to be rhetorical for the Talmud emphatically answers “Yes! When a man marries a woman, he does so under the conditions set down by the rabbis and in this case the rabbis annul his marriage”. (5)
Rabbinic annulment of marriages became a standard tool that the rabbinate used to alleviate the plight of the agunah. From Talmudic times onwards, rabbis understood that this ruling gave them the authority to annul marriages in a wide variety of cases. This was accepted by most rabbis up to the 14th century; After that time annulments continued, but more rarely, and with more hesitancy. (6)
Annulment was most often done through the enactment of a takkanah (rabbinic legal enactment) that stated that the kiddushin (state of marriage) would be annulled retroactively upon the happening or non-fulfillment of certain laid out conditions, such as the husband being missing or his willful refusal to grant his wife a get. (7)
Contrary to popular belief, merely refusing to give one’s wife a get was sufficient cause to allow a marriage to be annulled. Although such takkanot have rarely been employed since the 14th century, they have never been invalidated.
The Encyclopedia Judaica puts it concisely:
“Another legislative principle of the Amoraim is stated that in matters of marriage and divorce ‘a man who marries a woman does so subject to the conditions laid down by the rabbis, and his marriage is annulled by the rabbis.’ The meaning of this is that since every marriage takes place according to “the law of Moses and Israel” it takes place subject to the consent of the scholars who laid down the relevant laws. Therefore the scholars have the power, in circumstances deemed proper, to annul the marriage and hold it to have been invalid ab initio.” (8)
Even without relying on this rule, the Talmud tells us that rabbis can annul valid marriages. This is shown “in the case of the kiddushin celebrated between a man and a woman forcefully snatched by him.” (9)
For centuries, rabbis debated over whether or not this was a proper course of action; however the majority of the Geonim and Rishonim accepted this as normative.
…the majority of other Rishonim – including Nahmanides and Asher ben Yehiel – did not question the stated legislative authority in matters of marriage and divorce as a matter of principle. They held the Geonim to have relied upon this principle that a marriage is subject to the requirements of the halakhic scholars and the latter consented to annul a marriage on the case of ma’us alai. (10)
Note that the Hebrew term “ma’us alai” means that the wife’s reason for divorce is that she feels that her husband is repulsive. Jewish law accepts that this alone is grounds for divorce or annulment; extraordinary circumstances are not – nor have they ever been – required.
Additional halakhic support can be found in the rulings of the Rosh – Rabbi Asher Ben Yehiel (1250-1327) – in his commentary to Ketubot 63b, and in his Responsa (43:8). The Rosh says that the Geonim can decree an immediate divorce, without the consent of the husband; He sees the Geonic decrees to do this as having been legitimately based upon the rights of the Sages to “cancel a betrothal”. However in this teshuvah he writes that this procedure should no longer be used as in our times women are “brazen” (shahtzaniot) and may take advantage of such laws. Despite sexism characteristic of that era, he admits the existence and validity of rabbinic annulment. (11)
Another example can be found in the responsa of Rav Shimon Kiara (9th century). In one of his responsa he rules that a Bet Din may grant a woman an immediate divorce, even in the face of the husband’s objection. It does not state that the Bet Din forces the husband to give his wife a get, rather it says that this the action is taken directly by the Bet Din itself. (12).
Yet another eminent halakhic authority who recognized the legitimacy of rabbinic annulment was Nahmanides, Rabbi Moshe ben Nachman (1197-1270). He writes that the Geonic decree introduced the coerced bill of divorcement. Note that the Geonim saw this power as pre-existing in the Talmud, while Nahmanides saw this as a Geonic innovation. (13)
See “Agunah and the Problem of Authority”, by Bernard S. Jackson, Co-Director, Centre for Jewish Studies, University of Manchester.
http://www.manchesterjewishstudies.org/agunah-history-and-authority
Conservative/Masorti Judaism is the only Jewish denomination that has dealt with this issue in a comprehensive fashion. Its Committee on Jewish Law and Standards (CJLS) of the Rabbinical Assembly spent years studying the agunah problem.
I. In 1955 the Lieberman clause was created as an addition to the ketubah. It is in effect an arbitration agreement which states that the couple agrees to go to a central Conservative bet din (court of law) for counseling. It states that after receiving a secular divorce both parties must heed the directive of the bet din, and the husband must then give his wife a get. If not, the wife can then enforce the decision of the bet din in a secular court. (14)
After this clause was proposed, representatives from the Rabbinical Council of America (RCA, Modern Orthodox) and the Rabbinical Assembly (RA, Conservative) met to discuss this takkanah, as well as to develop a joint Orthodox/conservative Bet Din for marriages, divorces and conversions. Among other representatives, Rabbi Joseph Soloveichick (Orthodox) and Professor Rabbi Saul Lieberman (Conservative) met a number of times to discuss these issues. They agreed that the Lieberman clause was valid and could be used in ketubot. However, when word of this coming agreement became known, forces in Orthodoxy’s right-wing made pronouncements against this effort. The RCA, fearing a loss of respect from the right-wing of Orthodoxy, withdrew from cooperation, and so the effort died. Thus the Lieberman clause was only instituted by the Conservative movement. (15)
Some years later it became apparent that there was one problem with this solution: some state Supreme Courts might not accept the Lieberman clause due to concern over the principle of separation of church and state. There was one case in New York that was appealed to the Supreme Court of the United States. Rabbi Mayer E. Rabinowitz writes about this: “The husband claimed that the clause was never explained to him, and he was just told to accept the ketubbah as written. Based on this case, the Joint Bet Din created a Letter of Intent that is signed by both husband and wrom the ketubbah, the couple testifies to the fact that they met with Rabbm what is in the ketubbah, which obligates them to appear before the Joint Bet Din, and to obey its decision. The couple signs the letter indicating their acceptance of the ketubah and the Lieberman clause. They are informed that this letter is binding in a civil court.” (16)
II. Later secular court decisions might make it more difficult to enforce the Lieberman takkanah. Thus another approach was adopted by the Conservative movement, adapted from a proposal put forth by Rabbi Eliezer Berkowitz (Orthodox) from his book “Tenai be-nisuin uve-get”. (17) The solution was to use a t’nai based upon the proposals of the French and Turkish rabbinate. Rabbi Mayer Rabinowitz writes:
“In 1968 Conservative rabbis began using such a t’nai; This is a separate document and is not part of the ketubbah. The principle involved is that the husband betroths the woman kedat moshe v’yisrael with the following condition: If we should be divorced civilly, and within a period of six months after the civil divorce I give you a get, then the kiddushin are valid. But if we should be divorced civilly, and within a period of six months after the civil divorce I do not grant you a get, then the marriage was not a valid one. The groom reads the t’nai in the presence of a Bet Din and the bride says that she agrees. The bride and groom sign the document and the members of the Bet Din sign it as well. Under the huppah, before the groom betroths the bride, the rabbi asks them if they agree to be betrothed in accordance with the laws of Moses and Israel and the conditions they agreed to beforehand. If they agree at the time of kiddushin, then the wedding ceremony continues with the betrothal formula.
When the t’nai is used and the couple gets a civil divorce, the wife can appear before a Bet Din because her husband refuses to give a get. The Bet Din then verifies the fact that the condition was agreed to, but not fulfilled. Then the kiddushin is rendered invalid and the woman can remarry, based on the p’tur the Bet Din issues. There are no arguments or problems.” (16)
With the t’nai or the Lieberman Ketubah, the Rabbinical Assembly (RA) effectively ended most of the agunah problem. However, the Conservative Bet Din could only free a woman if she and her husband used either a Lieberman Ketubah or the t’nai. Since many Conservative Jews have not done this, and since all Orthodox Jews never are presented with the option to do this to begin with, there were still many Jewish women who could become agunot that the Bet Din would not be able help.
III. This problem was solved in 1969 when the Conservative movement reasserted the rabbinic privilege of outright annulment. At this time the CJLS voted to put into use a teshuva written by Rabbi David Aronson – “Kedat Moshe VeYisrael” [It was originally adopted in 1951 but a lack of support from JTS faculty made it inadvisable to use at that time.] This teshuva reasserts the rabbinic privilege of annulment, hafka’at kiddushin. As described earlier in this paper, this Talmudic principal is that all Jewish marriages take place in accordance with Jewish law, with the approval of the rabbis. In short, in cases of need, the rabbis have the power to revoke this approval, thus rendering the marriage null and void. (18)
In 1997, a few brave American and Israeli Orthodox rabbis (including a Rosh Yeshiva) created a new Orthodox rabbinical court, the Bet Din Tzedek Lebayot Agunot. They publicly declared that they would annul Jewish marriages based on the principles elucidated in this paper, and also based on principles from the responsa of Rav Moshe Fesinstein. This bet din was led by by Rabbi Moses Morgenstern of Queens, and Rabbi Emanuel Rackman, chancellor of Bar Ilan University. Most of the women who come to the bet din for help eventually receive a get from their husbands; but in those cases where the recalcitrant husband simply will not grant a get, the Bet Din annuls the marriage. (19)
Rabbi Morgenstern traveld to Israel to present the cases of the agunot to Israeli Torah sages; the use of annulments by his bet din was approved by Rabbi Ovadia Yosef, the Sephardic Chief Rabbi of Israel. His bet din’s decision to issue a get zikiu [bill of annulment] “has the blessings of Rabbi Dovid Lipschlitz and Rabbi Issac Libes….And Rabbi Morgenstern insists his responsa [rabbinical rulings] on the individual agunah cases have been signed by Rabbis Naftali Steinberger and Moshe Antelman of Rehovot in Israel. Rabbi Antelman belongs to the Queens based agunot bet din. (20)
“At a meeting with Israeli lawyers, rabbis, women’s rights activists, and agunot at the IJWHRW offices at the Jerusalem Center for Public Affairs in May 1999, Professor Rabbi Emanuel Rackman reported on the activities of his New York Bet Din. Confirming that his Bet Din has freed over 280 agunot, Rabbi Rackman elaborated on the halakhic basis for using annulment in these cases. He also announced that he and Rabbi Moshe Morgenstern no longer work together due to differences of opinion over halakhic approach.”
[INTERNATIONAL JEWISH WOMEN’S HUMAN RIGHT WATCH; FREEING WOMEN BY ANNULMENT; Fall 1999 Newsletter No. 5]
“Rabbi Shlomo Riskin, Chief Rabbi of Efrat, suggested that the time had come for the Israeli Rabbinate to establish a special court which would annul marriages. Citing talmudic precedents and insisting that annulment does not contravene halakhah, Rabbi Riskin stated that when a husband refuses to obey the order of a rabbinical court that he must give his wife a get, the court has the right to free her to remarry by annulling the marriage. When asked to respond to Riskin’s suggestion, Rabbi Ben Dahan stated that the Chief Rabbinate and the dayanim would be willing to consider Riskin’s proposal if it were presented in writing with the halakhic precedents. Riskin responded that he is in the process of preparing such an article to be published in the near future. However, he warned that the dayanim must do more than receive such an article, they must be willing to accept the halakhic arguments and act on them.” (21)
“Over 60 judges, rabbis, scholars, lawyers, and women’s rights activists gathered at the Jerusalem Center for Public Affairs on July 5, 1998, for the first day-long seminar on “Halakhic Solutions to the Problem of Agunot,” organized by the International Jewish Women’s Human Rights Watch….The opening speaker, retired Israel Supreme Court Justice Menachem Elon, is an ordained Orthodox rabbi and the world’s most respected academic expert on Jewish law. Justice Elon noted that the problem of agunot is a serious one in every Jewish community, both in Israel and abroad. In Israel the problem is particularly grievous and constitutes a violation of a woman’s dignity and freedom. One could say that by being married to a man who refuses to give her a get, despite the rabbinical court’s judgment that he should do so, the woman is serving a prison sentence until the day when she pays the sum he demands.”
“Furthermore, this situation is probably the most obvious violation of halakhah today. A situation which prevents a woman from remarrying because of the vicious refusal of her husband to release her from the marriage is contrary to the spirit of halakhah. Therefore, it is incumbent on us to sit together and consider all the possible solutions, discuss them in depth, and not give up until we find a solution which solves the problem. “Different solutions exist which many of those sitting in this room have raised, including: compulsory get, pre-nuptial agreement, conditional marriage, delivery of a get by an agent, and annulment. In my opinion, it is annulment that should be the central point,” stated Justice Elon.”(A)
[International Jewish Women’s Human Rights Watch; Jerusalem Seminar on the problems of religious divorce. Winter 1998/99 Newsletter No. 3]
We have seen that using pre-nuptial agreements (such as the Lieberman clause or t’nai) or annulling a marriage outright (such as is done by the Bet Din set up by Rabbis Rackman and Morgenstern, or the Conservative Bet Din) are in fact neither changes nor deviations from the tradition. When examined in a historical light, we find that such mechanisms are a vital part of halakha, which allow people stay strictly within the law and yet make certain the rights and dignity of Jewish women are fully protected.
Hopefully, enough lay people in the Orthodox community will learn about this subject, and will pressure their leaders to finally return to the traditional Jewish system of justice and equality that Orthodoxy is currently failing to live up to. (22)
Bibliography
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CJLS – “Proceeding of the Committee on Jewish Law and Standards of the Rabbinical Assembly: 1927-1970” Volume 2, Edited by David Golinkin, Published by the Rabbinical Assembly and the Institute for Halakhic Studies, Jerusalem, 1998.
Elon – “The Principles of Jewish Law” Ed. Menachem Elon, Keter Publishing House and the Encyclopedia Judaica. [This book contains all the enteries on halakha from the the Encyclopedia Judaica, published as a stand alone volume.]
Klein – Issac Klein “A Guide to Jewish Religious Practice” (2nd edition), JTSA, New York, 1992
Riskin – Shlomo Riskin, “Women and Jewish Divorce: The Rebellious Wife, the Agunah, and the Right of Women to Initiate Divorce in Jewish Law, a Halakhic Solution” Ktav Publishing, 1989
Novak – “Tomeikh KaHalakhah: Responsa of the Panel of Halakhic Inquiry” Volume 2, The Union for Traditional Judaism, 1994
Footnotes
———-
(1) Klein, p.380-394
(2) “The Problem of Recalcitrance in Jewish Divorce” by Marc S. Cwik, The Jewish Domestic Abuse and Agunah Problem Web page; http://members.aol.com/agunah/
(3) Klein, p.498,499
(4) “The New York Get Law: An Exchange”, Tradition [Quarterly journal of the Rabbinical Council of America] (Summer 1997); “The Prenuptial Agreement: Halakhic, Legal, and Pastoral Considerations” Ed. By Rabbi Kenneth Auman & Rabbi Basil Herring, Jason Aronson Inc., 1995
(5) Novak, , p.80-82. For more information on this topic, also see Prof. Judith Hauptman’s “Rereading the Rabbis”, Westview Press, 1998, p.102-129 and her on-line essay: “Annulment of marriage in the Mishna”
http://learn.jtsa.edu/topics/luminaries/monograph/annulm.shtml
(6) Elon, p.86
(7) Elon, p.85,89
(8) Elon, p.83
(9) Talmud Bavli, Yevamot, 100a and Bava Batra 48b
(10) Elon, p.85
(11) “Responsa of the Rosh” (New York, 1954) 43:8, p.40b
(12) See Riskin’s discussion of this. Original source is Hemda Genuzah, editior. Venice, p.69a This also can be found cited in ‘Otzar Ha-gaonim’, ed. Lewin, volume 8 (Jerusalem, 1938) part 1, p.194
(13) Milhamot of the Ramban, on the Rif, ketubot, p.27a.
(14) CJLS, p.810-813; 816-822
(15) Four sources for this information: “Seventy Faces” by Norman Lamm, Moment Vol. II, No. 6 June 1986 – Sivan 5746; also see Lamm’s speech from the Proceedings of the CLAL Critical Issues Conference, on March 19, 1986; “Tradition Renewed: A History of the Jewish Theological Seminary of America”, Vol. II, p.450, 474 (JTS, NY, 1997) ; Newspaper article by Emmanuel Rackman published in “Jewish Week” May 8, 1997, page 28.
(16) Excerpted from an essay by Rabbi Mayer E. Rabinowitz, adapted from his comments to the Agunot Conference in Jerusalem in July 1998. The full essay is available on-line at:
http://learn.jtsa.edu/topics/luminaries/monograph/agunot.shtml
(17) CJLS, p.914-926
(18) CJLS, p.731-756
(19) For more information on Rabbi Rackman’s Orthodox bet din see these sources:
The Jerusalem Post “Rackman’s ‘aguna’ challenge” By David Weinberg, July 19, 1998
http://www.agunot.org/Further.html
Rabbis stir furor by helping ‘chained women’ to obtain divorces. By Nadine Brozan
New York Times, August 13, 1998
http://www.wordsmithy.com/jew-family/brozan.txt
Contact with the Beit Din is being coordinated by Rabbi Moshe Morgenstern
Phone: 718-793-2135 E-mail: betdin@agunah.com
(20) From the newspaper, “The Jewish Week”, September 12, 1997, in a special section entitled “Jewish Women: Changing the face of Jewish life”, page 28.
(21) INTERNATIONAL JEWISH WOMEN’S HUMAN RIGHT WATCH; JERUSALEM SYMPOSIUM ON AGUNOT; Winter 2000/2001 Newsletter No. 9
http://www.icjw.org.uk/ijwhrw/JERUSALEM_SYMPOSIUM_ON_AGUNOT.htm
(22) For further reading on the Agunah problem see the books listed in the above bibliography, and these books and websites:
Jewish Domestic Abuse and Agunah ProblemWeb Page http://members.aol.com/agunah/
Mevo Saturn: Helping Agunot in Israel http://www.agunot.org/About.html
Breaking the Chains:A Rabbinical Method of freeing Agunot http://www.agunah.com/
Agunot Conference with Rabbi Mayer E. Rabinowitz
http://learn.jtsa.edu/topics/luminaries/monograph/agunot.shtml
Judaism and Domestic violence: A statement from the United Syangogue of
Conservative Judaism
http://www.uscj.org/scripts/uscj/paper/Article.asp?ArticleID=392
“The Great Agunah Debate” Moshe Shlomo Antelman
“Women in Chains: A Sourcebook on the Agunah” Edited by Jack Nusan Porter
Jason Aronson,1995
“The Dynamics of Judaism: A Study in Jewish Law”, Robert Gordis, Chapters 10 and 11.
Pub. by Indiana Univ. Press, 1990
“A Living Tree: The Roots and Growth of Jewish Law” by Elliot N. Dorff and Arthur Rosett. SUNY Press, NY, 1987
Merrimack Valley Havurah 