Megillat [the scroll of] Ruth, traditionally read on Shavu’ot, tells the story of Naomi, her husband Elimelekh and their two sons, Mahlon and Chilyion. They moved to Moav because of the famine in Beit Lehem Yehuda. There, the sons married Moabites.
Elimelekh and his sons died in Moav. Naomi’s daughters-in-law, Orpah and Ruth became widows. At that point Naomi decided to go back to Beit Lehem. When her daughters-in-law wanted to follow her she tried to dissuade them by pointing out that she did not have more sons to offer them, (Since these women had no children, according to Jewish tradition, they would either have to marry their husbands’ brothers (levirate marriage) or be released by them (halitzah)). and that even if she was not too old to give birth to sons, they should not waste their life waiting for them.
She asks them: “Would you tarry for them till they were grown? Would you bind yourself to them? (halahen teagena) and have no husbands?” (Ruth 1:13)
This is the only instance in the Bible of a word with the root agn. From this same root derives the word ogen (anchor), which is dropped into the water to prevent a ship’s motion by binding it to the bottom of the sea.
The word agunah also derives from this root. The same way as a boat is bound to the ground by the anchor, an agunah is a woman who is bound to her husband by Jewish law. She cannot marry anyone else, because her husband left her without giving her a get (Jewish writ of divorce). Please take a look at Unmasked: The Ariella Dadon Story, a cartoon created by Inbal Freund-Novick and Chari Pere. It is a poignant illustration of what happens to hundreds and maybe thousands of women who did not take the necessary precautions before their wedding to protect themselves from such a possibility.
The Center for Women in Jewish Law at the Schechter Institute of Jewish Studies has worked for eight years on finding solutions to this problem within Jewish law.
The problem is compounded in Israel by the following law that applies to all Jews who live in the country:
Matters of marriage and divorce involving Jewish residents or nationals in the State of Israel will be under the exclusive jurisdiction of Rabbinic Courts. Jewish marriage and divorce in Israel will be performed
according to Jewish law (The Rabbinic Courts Jurisdiction (Marriage and Divorce) Law 5713-1953, par. 1-2).
In other words, the authority regarding matters of marriage and divorce is in the hands of the Rabbinic Courts. According to halakhah (Jewish law), it is the husband who divorces his wife and he must do so of his own free will: a get given against the husband’s will is called get me’useh and is usually invalid. The woman remains a married woman (eshet ish). She cannot remarry and, if she has children from another man, they will be considered mamzerim (according to Jewish law they and their descendants will be forbidden to marry other Jews unless they are mamzerim themselves or converts). In many cases, the husband takes advantage of the power given to him by Jewish law to prevent the wife from receiving the get. He does this out of revenge or in order to extort property from his wife or force her to give him child custody. As we mentioned above, as long as the husband does not give her the get, she cannot remarry, even though she and her husband no longer live together any more as husband and wife.
Statistics reveal that the family framework is much less stable in modern times than it was in the past. Approximately one third of all couples in Israel will go through a divorce. Therefore, the agunah problem increases and it is vital to find a solution to this dreadful reality (See details in To Learn and To Teach, number 4: “Prenuptial Agreements: A Solution for the Agunah Problem of Our Time” (Jerusalem, 2007, also available on www.responsafortoday.com)).
Rabbinic Courts, certain Orthodox organizations and much of the press, prefer to call these women mesoravot get (women denied a get). They limit the use of the term agunah to its original meaning describing women whose husbands have disappeared. Rabbinic Courts also narrow the definition of mesoravot get to include only those cases in which the husband refuses to give a get even after the Rabbinic Court ruled that he is obligated or will be forced to give a get. According to this narrow definition, the Rabbinic Courts report that there are only two hundred mesoravot get in Israel (Ibid. p. 16 note 31).
By avoiding the use of the term agunah in cases of recalcitrance, the Rabbinate is able to claim that the agunah problem in Israel is not so severe. However, women’s organizations that supportagunot, (See the list of organizations belonging to I.C.A.R. – International Coalition for Agunah Rights – ibid. Appendix 1, pp.33-35. Three organizations joined the coalition since this booklet was published. For further details see www.icar.org.il) do not distinguish between two types of agunot. They consider a woman agunah/mesorevet get not only when she fits the categories defined by the Rabbinate, but also when: a) the husband demands conditions for divorce that are outside the scope of what is provided by law for related issues such as property and child custody, and the wife is not willing to accept those conditions; b) the husband refuses to give the wife a get after a long period of time (at least a year) from the day the divorce case was filed; c) The Rabbinic Court rules that the husband should divorce his wife and yet he refuses to do so.
It is clear that according to the definition adopted by women’s organizations, the number of agunot/mesoravot get is not as limited as the Rabbinate claims. There are thousands of divorce files that languish for years within the system while no ruling is made (Ibid. p. 16, note 35).
The recalcitrance phenomenon becomes more severe because Rabbinic Courts are fearful of a get me’useh and therefore are unwilling to pressure husbands to grant a get. They often drag out proceedings, suggest shalom bayit (reconciliation) or a mutually accepted agreement between the parties, even in circumstances in which the couple has not been living together for a long period of time and there is no chance that they can rehabilitate their shared life. The wife is left in an insufferable situation due to interminable and indecisive court proceedings.
Another problem is that in order to convince the husband to grant the divorce, Rabbinic Courts often demand that the wife give up her legal rights. in exchange for the get, even when the family court has already ruled in other related issues (like property and child custody). In most cases, one cannot rely on Rabbinic courts to urge the husband to divorce his wife within a reasonable amount of time.
Due to the increase in cases of recalcitrance, rabbis from different religious affiliations proposed a series of alternative solutions over the last hundred years (See Goldberg, Monique Susskind and Villa, Diana, Za’akat Dalot, Halakhic Solutions to the Agunah Problem of Our Times, ed. David Golinkin, Richie Lewis and Moshe Benovitz, Schechter Institute of Jewish Studies, Jerusalem, 2006, for a view of most of the solutions that have been proposed). In our opinion there is an efficient solution that can reduce the agunah problem significantly: the couple can sign a prenuptial agreement. This agreement, which is signed prior to the marriage, determines the couple’s behavior in case of separation, in order to ensure that each partner will give or receive the get honorably. The Center for Women in Jewish Law has contributed with a version of a prenuptial agreement, the Brit Shalom agreement, currently in use by Masorti rabbis in Israel.
Let us hope no more women will share the “sad story of Ariella”, waiting for years to be free to decide their own future because their husbands refuse to give them their get (In certain cases women refuse to accept a get, thus making it impossible for their husbands to leave an unwanted marriage. The agreement also helps prevent those situations).
Rabbis Monique Susskind Goldberg and Diana Villa are senior researchers at the Schechter Institute’s Center for Women in Jewish Law, which celebrates a decade of advocacy work this year. Rabbi Villa is a lecturer in Jewish Law at the Schechter Rabbinical Seminary. Ask the Rabbis, a compilation of 100 online questions on Judaism answered by Rabbis Susskind Goldberg and Villa from Schechter’s Ask the Rabbi web site and edited by Prof. David Golinkin, will soon be published.
Photo: To Learn and To Teach, Issue #4, presents a prenuptial agreement as a solution for the agunah problem
Diana Villa lectures at the Schechter Rabbinical School. A native of Argentina, she has degrees in Philosophy, Jewish Philosophy, Psychology and Talmud as well as rabbinic ordination. Rabbi Villa was a researcher at the Center for Women in Jewish Law, where she co-authored two books on halakhic solutions to the agunah problem and responsa on current issues. She represents The Schechter Institute at I.C.A.R. (International Coalition for Agunah Rights), and is a member of the steering committee and the Committee on Jewish Law of the Rabbinical Assembly in Israel. She is the proud mother of one daughter and twin granddaughters.