March 17, 2005
The Agunah: A Modern-Day Nightmare
A couple of years ago I received two back-to-back phone calls in my office: The first, from a 21-year-old ultra-Orthodox woman who had escaped her physically abusive 6-month long marriage, only to find herself trapped two years later because her husband refuses to give her a Jewish divorce (a get). She can never remarry or have children as long as her husband remains recalcitrant.
The second call was from a Modern Orthodox young woman who was ready to marry the man of her dreams -- only to discover a few weeks before the marriage that her rabbi refused to conduct the ceremony after he learned that the groom was a mamzer (illegitimate child of an incestuous relationship), because his mother had failed to obtain a get before marrying the groom's father.
These two cases vividly illustrate the current problems of the modern day agunah (a woman chained to an unwanted marriage), because halacha (Jewish law) gives the husband the sole, unfettered power of divorce. While under Ashkenazic tradition a woman can withhold her "consent" to such a divorce, the remedies available to the victim of a recalcitrant husband or wife differ substantially. A woman whose husband refuses to grant her a get can never remarry and have children from another man because if she does so, her children and all their progeny are considered mamzerim, who are forbidden to marry any Jew other than other mamzerim. In contrast, a man whose wife refuses to "consent" to the get, has options: he can obtain the consent of 100 rabbis (a heter) to remarry without the wife's consent, or if he does remarry without a heter, his children from the subsequent marriage do not bear the stigma of being mamzerim. (In Sephardic tradition, a husband may even divorce his wife without her consent, eliminating his need for a heter.)
These disparate consequences, coupled with the husband's exclusive power to terminate the marriage, have resulted in a modern-day nightmare to Orthodox women. The power to condemn their wives to remain chained in marriage, to a man who often remarries without granting his wife a get, has spawned an entire marketplace for extortions. Men have demanded hundreds of thousands of dollars, waiver of the wife's rights to spousal support and even custody of children they have abused, in exchange for the wife's right to remarry. This bartering for the wife's freedom has become so universal that, unbidden, some rabbis even begin a get process by asking the wife what she is willing to give her husband in exchange for the get.
While remedies have been suggested and some implemented, none have cured the basic ill resulting from this gross imbalance of power. In Israel, laws have been enacted allowing incarceration and forfeiture of driver and professional licenses of recalcitrant husbands. Most recently, an Israeli court awarded a woman monetary damages for her husband's refusal to give her a get for more than 12 years. But these laws fall pitifully short of a final solution. First, these laws are unavailable to women outside of Israel. Second, some men have opted to remain jailed or do without their licenses rather than give their wives a get. Even the judgment of monetary damages was a mere Pyrrhic victory -- while she has a judicial decree for money (which she may never be able to collect), the courts could not force her husband to give her the get, and thus she remains an agunah.
Other suggested solutions have met with only limited success. Many conscientious rabbis now refuse to perform a marriage ceremony unless the couple first signs a prenuptial agreement authorizing the beit din (Jewish court) to award daily monetary support (or damages) for each day the husband refuses to give a get or the wife refuses her consent. Such prenuptial agreements, however, must meet the civil requirements of the state where it's executed -- a condition of which rabbis are often unaware. Additionally, such prenuptial agreements have the same flaw as any of the Israeli laws. No prenuptial agreement can force a recalcitrant husband to give a get -- it can only award monetary sums to the wife, but it can still leave her trapped. A very poor or a very rich man can afford to disregard the monetary damages he would suffer under the agreement, and the opportunity for extortion or revenge inherent in the husband's unfettered power to withhold the get cannot be eliminated. Finally, there are many rabbis who refuse to mandate the signing of such a prenuptial agreement, and an Israeli rabbi recently even decreed such prenuptial agreements invalid. Clearly, the prenuptial agreement is not universally accepted nor does it result in a global solution.
More recently, some have advocated "annulment" of the marriage as a way to eliminate the agunah problem. But this solution has been met with tremendous opposition in the Orthodox rabbinical community. Some rabbis who have granted or advocated annulments in such cases have been marginalized and their status in the Orthodox community threatened. In one recent case, a rabbi who granted annulment to a woman who had been an Agunah for more than 10 years was publicly condemned and his rulings in other cases delegitimized by another rabbi.
The lack of consensus among Orthodox rabbis on a permanent global end to such unfettered misuse of the husband's power has led to homespun solutions. Some have advocated the use of nonobservant witnesses at Orthodox weddings to assure that an Orthodox get would not be necessary in the event the marriage fails. Others have simply ignored the law and remarried without the get, leaving it to the next generations to untangle the mamzer problems thereby created.
There is, however, concurrence on one thing -- a permanent solution must be found to eliminate the agunah problem. The Jewish Orthodox Feminist Alliance (JOFA) has begun an agunah-awareness campaign this year, beginning with the Fast of Esther. JOFA hopes to generate education, discussion and resolution. While many might dismiss this issue as just the "women's problem," it should be an equal cause for concern for every Orthodox man who has a sister, a daughter or a mother. They are all potential targets for extortion or imprisonment in an insufferable marriage.
Alexandra Leichter is a Beverly Hills family law attorney, and is a member of the Westwood Village Synagogue.