How Halakhah Solves the Agunah Crisis

On a chilly October evening we rallied outside the home of Albert Srour yelling, “Albert Srour: give your wife a get!” and “Albert Srour: stop the abuse!” ORA (The Organization for the Resolution of Agunot) organized the rally in hopes that that our hollering (or the neighbor’s complaints about our hollering) would provide the requisite social pressure to motivate Srour to provide his wife with a get.

Why did Srour’s wife need our help in order to obtain a divorce? After all, such sensitive matters are typically resolved behind the closed doors of a court room – not on a public street in Brooklyn!

Srour’s wife needed our help because Jewish divorce law only allows for the husband to finalize the divorce process. The logic is as follows: Jewish marriage occurs when a man is koneh a woman,[i] so divorce happens when that man willingly[ii] decides to end the marriage.  This structure is biblical in nature; the verse’s masculine form and content of “ve-katav lah sefer keritut-and he shall write for her a bill of divorce,”[iii] indicate that the power to finalize divorce lies in the husband’s hands.

The modern day agunah crisis begins when a husband elects to withhold the get. While it is easy to blame Halakhah for the entire agunah crisis, it is unfair to do so. Yes, a woman is subject to her husband’s decision to provide her with a get or not – but her inability to formally end her marriage without her husband’s consent is not the cause of the agunah crisis. Rather recalcitrant husbands who abuse their halakhic privilege are to blame for the crisis. After all, these chained women would be free if their husbands were willing to cooperate.

Nonetheless, halakhists have responded to the agunah’s plight by using the halakhic system to try to find means of freeing her from the bondage of a dead marriage. Other than organizing a rally on behalf of an agunah, Reform, Conservative, and Orthodox movements have each discussed and enacted different methods to combat the agunah crisis.

The Reform movement, which does not view itself as bound by normative halakhic standards, is using a clever and unprecedented solution to prevent agunah cases. Since the 1850’s,[iv] the Reform movement has been utilizing the civil divorce to double as a religious divorce under the halakhic justification of dina d’malkhuta dina. They reason that since Jewish matrimony is categorized as dinei mamanot (financial law) because of its contractual nature, and since dina d’malkhuta dina is binding in situations of mamanot, one’s halakhic marital status is consistent with one’s secular marital status. Effectively, this completely nullifies the need to marry with kiddushin or to divorce with a get so long as the couple married or divorced in a secular court.[v]

This logic of dina d’malkhuta dina effectively prevents the possibility of a woman becoming an agunah for two reasons. First, this method gives the woman the power to file for divorce so long as her country of residence’s secular court allows for it (a power which Halakhah cannot afford to her). And second, if the country has laws about default divorce, it is now possible for her to become a divorcé even if her husband does not want to end the marriage. While this method is convenient in these respects, it is so halakhically creative that Orthodox poskim cannot rely on it.[vi]

On the bright side, there are two halakhic principles which are similar to dina d’malkhuta dina insofar as they both have the potential to allow for a woman to attain a divorce even without her husband’s explicit consent. They are often referred to kiddushei ta’ut and hafka’at kiddushin.

Hafka’at Kiddushin, [vii]  the hakhamim’s annulment of a marriage, is predicated on a fascinating idea. The handful of Talmudic sources which mention this principle explain that the hakhamim have the power to annul a marriage because the couple acquiesces to the will of the hakhamim the moment they marry ke-dat Moshe ve-Yisrael. Thus, if the hakhamim no longer approve of the couple’s marriage for a certain reason, they have the power to annul it.[viii] .

For example, in the Talmud the hakhamim used hafka’at kiddushin to annul a marriage in a case where a husband sent a get to his wife through a shaliah and then invalidated the get without informing his wife.[ix] In such a situation, the wife, who is unaware that her get is no longer valid, runs the risk of becoming an adulteress according to Halakhah and giving birth to mamzerim should she remarry. In order to ensure that she is no longer married to her husband according to Jewish law, the Talmud states that the hakhamim can retroactively annul their marriage.

Although all Jewish marriages are performed ke-dat Moshe ve-Yisrael, the use of hafka’at kiddushin is so rare in the Talmud that it is implicit that hafka’at kiddushin should not be used on a regular basis.

Today’s halakhists have debated whether we can utilize hafka’at kiddushin to combat the mounting agunah crisis. While the Conservative movement performs approximately 20 annulments per year,[x] the Orthodox movement is far more hesitant to use hafka’at kiddushin today.

R. Jeremy Wieder,[xi] Rosh Yeshiva at RIETS, reasons that rabbinic authorities cannot utilize hafka’at kiddushin because it is not applicable to the modern day agunah crisis; in a creative article, R. Wieder proposes that hafka’at kiddushin works only if the husband annulled a get which he had already sent. However, the modern day agunah’s predicament is precisely predicated on the fact that she is unable to obtain any get at all. R. Shlomo Riskin,[xii] on the other hand, argues that the community should utilize hafka’at kiddushin since the severity of the agunah crisis should motivate halakhic authorities to use all halakhically viable solutions in its arsenal to free an agunah. The Orthodox community, however, has not enacted R. Riskin’s position.

Another form of annulment is kiddushei ta’ut, used when it can be established that a marriage was contracted under false pretenses. Kiddushei ta’ut is relevant in a case where one spouse had a defect present at the time of marriage, but the defect remained hidden from the other spouse until after the wedding; had the other spouse known about the defect prior to marriage, he or she would not have agreed to the marriage. Such a “mistaken marriage” is considered to have never taken place. Typically, this type of annulment is relevant when a party fails to disclose a physical defect, such as a woman’s inability to bear children, since a man would likely not have entered the marriage had he known that about her.[xiii]

This concept may be used in resolving agunah cases insofar as it is possible to say that a woman would have never entered into a marriage had she known of her husband’s overwhelming character defects; after all, no woman would knowingly enter a marriage with a cruel and vindictive person.[xiv]  R. Bleich argues that, perhaps, such intolerable defects are reasonable grounds to avoid marriage, and therefore function as reasonable grounds to annul it.[xv] The concept of kiddushei ta’ut therefore functions on the premise that the husband had a rotten character even before the marriage, but chose to expose his true self only after the marriage began. Because human nature is malleable and always changing, most halakhists do not use kiddushei ta’ut in this way.[xvi]

In the late 1990’s, R. Emanuel Rackman and his beit din employed this logic to annul the marriages of agunot. [xvii] However, the rulings of R. Rackman’s beit din were not accepted by most Orthodox poskim, and many of the women whose marriages he annulled were unable to get remarried because their annulments were not recognized.

A fascinating element shared by the approaches of dina d’malkhuta dina, kiddushei ta’ut, and hafka’at kiddushin is that they all circumvent the husband’s involvement in the divorce process. Since many halakhic adjudicators do not believe that the above mentioned principles would free an agunah within the parameters of the halakhic system, they proposed alternative solutions which function by altering or adding an element to the marriage ceremony. Such changes allow the couple to be halakhically married, and more importantly, assuage or avoid an agunah situation should their marriage sour.

Perhaps the most widely known and widely accepted solution in the Orthodox world is the Beth Din of America’s halakhic prenuptial agreement. It is regarded as the single-most effective way to prevent an agunah crisis from forming and is a popular solution. Before the nuptials, the couple signs this civilly binding arbitration agreement, whereby the husband obligates himself to pay his wife $150 per day for each day that they reside in separate domiciles until he provides the get. Thus, the payment will ensure that the husband continues to fulfill his halakhic obligation to provide mezonot to his wife, even though they remain physically apart. And for the purpose of this article – the daily payment functions as a financial disincentive for the husband to refuse to issue the get. Meaning, the mounting financial burden (approximately $55,000 per year) will motivate the husband to give a get.[xviii] The halakhic prenuptial agreement is civilly binding, and therefore a civil court has the power to enforce the husband’s obligation to pay his wife the $150 per day, unlike batei din in the United States and many places in the diaspora which have very limited authority to enforce their rulings.

A second method, which alters the wedding process itself, is called kiddushin al tena’i. Though it may sound similar to the premise of the halakhic prenup, it is effectively different. Literally, the term kiddushin al tena’i means that the couple’s marital status is contingent on the realization of a certain condition – such that if the condition is not met, then it is as though the marriage never occurred and the marriage is annulled retroactively. While the tena’i could be about basically anything, in respect to this conversation, the tena’i concerns the divorce process.

For example, R. Yosef Eliyahu Henkin proposed that couples marry al tena’i that either the husband or a beit din will authorize the writing and sending of a get upon the dissolution of the marriage.[xix] R. Moshe Feinstein held that a couple can marry al tena’i that the two will present themselves to a beit din upon the dissolution of their marriage.[xx] Thus, Rabbis Henkin and Feinstein both agree that a kiddushin al tena’i, where the condition pertains to the dissolution of the marriage, is a reasonable means of couple getting married. This is tremendous considering that this alteration to the wedding process allows for the dissolution of a marriage without the husband providing a get to his wife – thereby circumventing possible agunah situations altogether.

Although R. Henkin and R. Feinstein are well respected for their halakhic genius, the Orthodox community has not widely adopted the practice of kiddushin al tena’i, perhaps because the halakhic prenuptial agreement is so effective and already widely accepted in many parts of the Orthodox community. Alternatively, some suggest that it is halakhically unacceptable for the tena’i of the marriage to pertain to the marriage’s end.[xxi] Additionally, both the halakhic prenuptial agreement and kiddushin al tena’i can only prevent an agunah situation from arising, but cannot help a woman who is currently suffering as an agunah.

The Conservative movement has accepted kiddushin al tena’i. The idea is that before the huppah, the couple marries al tena’i that the husband will provide a get once the marriage dissolves.[xxii]  If the husband refuses to provide the get within 6 months of the marriage’s dissolution, he has failed to abide by the tena’i of the marriage, thereby nullifying it retroactively.

A similar and popular method in the Conservative movement is referred to as “The Lieberman Clause,” named after the late R Saul Lieberman of JTS. The couple inserts a clause into their ketubbah stating that they agree to present themselves to the Conservative movement’s beit din should they civilly divorce, and if they fail to appear before the beit din, then they have failed to uphold the clauses of their ketubbah.

The difference between the Conservative movement’s kiddushin al tena’i and the Lieberman Clause is just that the Lieberman Clause refers to the couple’s agreement to appear in beit din, whereas this tena’i indicates that the marriage will dissolve once the husband refuses to provide the get.

I will mention one last solution referred to as kofin oto ad she-yomar rotzeh ani. Kofin oto, in the Mishnah, [xxiii] refers to whipping a the recalcitrant husband until he says “I want to [give a get].” This principle is discussed in cases where a husband became physically disabled[xxiv] or forced his wife to transgress Halakhah, and is refusing to issue her a get. In such a situation, rabbinic courts have the right to whip him until he agrees to divorce his wife.[xxv]

Although the Mishnaic law intended for the torture to merely reveal the husband’s true desire to issue a get to his wife, the Talmud[xxvi] forbade such torture because of concerns that such a get could be viewed as a get me’useh – a forced – and therefore halakhically invalid divorce. Since such a concern existed, it is understandable why the rabbis of the Talmud felt that it was reasonable to limit the Mishnaic law.

Our community utilizes a related form of kofin oto in what is called harhakot Rabbeinu Tam (named for the Tosafist who initially proposed the idea).[xxvii] Rabbeinu Tam argued that a community can use social pressure and ostracization against a recalcitrant husband to pressure him into giving a get. The harhakot take form in a community’s refusal to offer kibbudim to a recalcitrant husband, refraining from engaging in any social or financial matters with him, and holding rallies outside his home. Together, the matrix could perhaps cause a husband to buckle and issue his wife a get.

Although some rabbinic authorities hold that these harhakot are equivalent to the Mishnaic form of kofin oto[xxviii] most authorities approve of harhakot Rabbeinu Tam when trying to motivate the husband to give a get.[xxix]

The benefit to using the harhakot is that it maintains the husband’s authority to issue a get and it does not involve an alteration to the wedding ceremony. Though the frustrating element to the harhakot is the element of uncertainty – the community can ostracize and rally for years and some husbands nonetheless refuse to issue a get. An excellent example of this is Kurt Flascher, a recalcitrant husband living in Brooklyn; although ORA has arranged for tens of rallies outside Kurt’s home, his wife still remains an agunah today, over 13 years after the date of the couple’s separation.[xxx]

To me, the most important element of the harhakot is that they demand a community’s involvement in ending the agunah crisis. Unlike all other solutions mentioned in this article, the harhakot function precisely because of the community’s refusal to ignore the plight of the agunah.

A community has a moral obligation to aid agunot. The logic is simple: we cannot stand idle when our sister is chained. Her husband’s refusal to issue a get means she can either live the rest of her days as a chained woman or defy Halakhah by marrying a worthier man. This puts her between a rock and a hard place.

Remarrying without first receiving a get could have disastrous results for an agunah, because a polyandrous marriage explicitly transgresses the law of adultery[xxxi] and opens the possibility of her bearing mamzeirim.[xxxii]  And worse, adultery is a sin Biblically punishable by death[xxxiii] and mamzerim cannot marry within the Jewish people.[xxxiv] Thus, the wife’s inability to obtain a divorce is not just a halakhic issue – it is also a moral issue. Since she is powerless to her husband, it is our duty to aid her in her time of need. We rallied outside Srour’s home for this very reason.

Unfortunately, there are many more agunot in our community who remain chained to their spouses. Until they are free, we have an obligation to help.

This was not my first agunah rally, nor will it be my last.

Sarah Robinson is a second year student majoring in Jewish Studies and Psychology. Sarah is a staff-writer for Kol Hamevaser.