July 23, 2009 | 8:37 am
Posted by Rabba Sara Hurwitz
I recently met with several women, who have spent the greater part of their professional lives advocating on behalf of agunot—women whose recalcitrant husbands refuse to grant a get. They came to me hoping discover the solution to the agunah problem. The plight of wives—and husbands for that matter—whose spouse callously withhold a writ of divorce is a traumatic experience. It is hard to believe that despite many attempts by Rabbis, and advocacy organizations to circumvent the agunah problem, there are many, many men and women who are suffering. I don’t have the solution, but perhaps together, with our varied voices paired with our religious and ethical conscience, we may discover the magic bullet.
Here’s a just a few of the existing band-aides that attempt to prevent couples from becoming agunot as well as release those who are currently chained to loveless marriages:
1. RCA prenuptial agreement
2. Heskem L’ Kavod Hadadi (the agreement of Mutual Respect)
3. Rabbi Emanuel Rackman’s Beit Din
4. Rabbi Michael Broyde’s Tripartite Pre-nuptial Agreement
5. Nullifying a marriage based on a technical defect in the wedding ceremony
1. The RCA prenuptial agreement includes a “binding arbitration agreement, whereby both the groom and bride accept the Beit Din of America as an arbitration panel, and is legally able to render any decisions relating to the get. The BDA prenup agreement proposes to compel a husband to give a get or pay $150 per day for each day that he refuses to grant her a bill of divorce.
A few problems that are embedded in this solution: any person who is very wealthy, mentally unstable or has absolutely no funds, and therefore nothing to lose may not be threatened by the monetary obligation, and simply ignore the bet din’s pleas. In addition, the women may refuse to accept the get in exchange for child custody, or other demands.
2. Another prenup, called the Heskem L’ Kavod Hadadi (the agreement of Mutual Respect) works much like the RCA prenup. However, both the bride and the groom obligate themselves to support the spouse, the amount ranging from $1500 per month to half his/her monthly net income.
While the Israeli agreement has potentially increased the financial burden on the recalcitrant spouse, there are cases where the recalcitrant party may simply ignore the financial obligation and continue to withhold the get without concern for the pain this action may cause.
3. A third, rather radical solution was proposed by Rabbi Emanuel Rackman in 1997. The rationale behind the Rackman court is that since “grave errors,” “mistakes,” or “salient defects,” underscore the marriages at issue, the wives’ initial consent to marry their husbands was marred, rendering the marriages void. Therefore, the Rackman Beit Dins have freed many chained spouses without the need for a get to be given by the husband to the wife.
There has been many critiques written on the Rackman courts, and despite the fact that it has the potential to alleviate the suffering of so many, Rackman’s court’s are not widely accepted by the Orthodox community. (see Rabbi J. David Bleich in his 1998 article entitled Kiddushei Ta’ut: Annulment as a Solution to the Agunah Problem). Rabbi Dr. Michel H. Broyde dismisses Rackman’s solution, saying that the Rackman court allows for the annulment of marriages based on defects in the husband that arose after the marriage was entered into—something that Rabbi Broyde feels is unfounded in the halakhic literature.
4. Rabbi Broyde has advocated for the annulment of marriages in cases where unknown to their wives, their husbands were homosexuals, impotent, epileptics, mentally ill or apostates when their wives married them. (based on heterim by Rav Moshe Feinstein and others). Rabbi Broyde has also proposed a Tripartite Pre-nuptial Agreement: authorizing the rabbinic court to void a marriage by communal ordinance; establishes that a consecutive fifteen-month period of separation is a condition to void the marriage; and appoints agents to give the get in the husband’s stead. This agreement has not yet been authorized by the Orthodox community.
5. Yet another proposed solution that could free agunot is finding a defect with the marriage ceremony. If the wedding did not fit the halakhic requirements of kiddushin, then the marriage could be annulled. Some even advocate to purposefully introduce a technical error into the wedding ceremony—having a non-observant witness, for example. While this solution has its merits, it seems disingeneous to purposefully flaw the wedding ceremony.
So where des this leave us?
There should be no reason why any Rabbi officiating at a wedding does not insist that a couple signs a prenuptial agreement. Many of the agunah cases that have been resolved, have in large part been due to the binding prenuptial agreement. Yet, this is not enough. We must ask ourselves if there is a way to find a halahicly acceptable premise with which to accept the Rackman courts. If not, then we need to advocate for larger acceptance of Rabbi Broyde’s Tripartite Pre-nuptial Agreement, which it would seem would free many agunot, if employed. Or, perhaps, (and I am not sure how I feel about this) advocate for a small technical breech within the kiddushin ceremony.
Whatever the solution, let’s break the silence. Our community must galvanize together and raise a voice of moral conscience to advocate for the freeing of women who are currently agunot, as well as find solutions to prevent men and women from becoming chained to hateful, loveless marriages in the future.
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