Za’akat Dalot: Halakhic Solutions for the Agunot of Our Time

In 1999, The Schechter Institute of Jewish Studies founded the Center for Women in Jewish Law in order to study the status of women in Jewish law in general and in order to find halakhic solutions for the agunot of our time in particular. In a few weeks, the Center will publish its long-awaited volume Za’akat Dalot: Halakhic Solutions for the Agunot of Our Time, the result of six years of intensive research. What follows is Prof. Golinkin’s English Introduction to that volume.

“Every generation and its expositors, every generation and its Sages, every generation and its leaders” (Avodah Zarah 5a and parallels) and we might add: “every generation and its halakhic challenges”. There is no doubt that the problem of agunot , “chained women”, whose husbands refuse to give them a get , is one of the most serious halakhic problems of our time. From the talmudic period until the nineteenth century, Jewish communities were autonomous with authoritative Batey Din (rabbinic courts) which were not afraid to wield their authority. When a woman requested a divorce and the husband refused for the sake of revenge or extortion, the Batey Din and the Jewish community knew how to make the husband cooperate.

In modern times, a new problem arose of agunot who waited years for their husbands to give them a get . Paradoxically, this crisis arose for opposite reasons in Israel and the Diaspora. In the Diaspora, a husband gives a civil divorce to his wife and sees no need to give her a get according to Jewish law. After the civil divorce is granted, he leaves the city or ignores his wife and she waits years for a get to no avail. In Israel , on the other hand, the sole authority regarding marriage and divorce was granted to the rabbinic courts by law in 1953. In time, husbands began to extort large sums of money from their wives in order to give them a get . The monopoly of rabbinic courts on the one hand and the yirat hora’ah (the fear of rendering a decision; see below, pp. 394 ff.) of the judges on the other, gives the husbands tremendous power to extort their wives. The judges drag a case out for years for lack of ability to find a halakhic solution to the problem or counsel the wife to pay off the husband or to give him the apartment or custody of the children in order to release herself from her chains. As a result of all of the above, thousands of Jewish women in Israel and the Diaspora wait years for a get .

In other words, paradoxically, the agunah problem exists in the Diaspora precisely because there is civil divorce while it exists in Israel precisely because there is not .

Indeed, for over 100 years, prominent rabbis have bemoaned this terrible situation, which harms thousands of agunot as well as the halakhah itself and its ability to function in the modern world.

Here is a sampling of their words. Rabbi Eliyahu Hazzan (1847-1908), who served as rabbi and dayan in Jerusalem , Tripoli and Alexandria , wrote the following in 1873 in connection with a takkanah (rabbinic enactment) of hafka’at kiddushin (annulment of the betrothal) which was enacted in the city of Constantin , Algeria (below, p. 369):

And I was surprised to see [those] who due to their great holiness do not want to listen to what the times demand. And they say that if the Ribash z”l (1326-1408) “whose little finger is thicker than our loins” was strict [about hafka’at kiddushin ], what can we answer after him? And they do not want to know that not all cases and times are equal, and if the Ribash z”l were standing here alive with us at this evil time, he would have been the first to agree and assist in this matter.

 And so wrote Rabbi Louis Epstein (1887-1949), a leading halakhic authority of the Conservative movement, in his “Proposal to Help the Agunot ” (New York, 1930, p. 5; cf. below, Chapter Four):

The voice of forlorn agunot is heard from far and near and their number reaches the thousands and tens of thousands and some of them who are still young remain “living widows” their entire lives. Many of them rebel against the Torah.and remarry without a get .”and the land is filled with depravity” (Leviticus 19:29 ) and mamzerim multiply. Who will stand in the breach? Who will clear the stumbling blocks from the path of life and pave a straight and clean path, which is the way of our holy Torah.if not the Rabbis .the teachers of the people and its leaders? For these women.are justified in shedding all Jewish feeling and marrying and divorcing according to civil law. For many already do this and we are silent!.This confusion stems from the fact that the Bet Din in our time does not have the power to force the husband to divorce.If so, what remedy is there? Shall we, God forbid, exchange our Torah for another?

And so wrote Rabbi Eliezer Berkowitz (1908-1992), a leading Orthodox rabbi and scholar, in his book Conditional Marriage and Divorce (Hebrew) in 1966 (below, p. 385):

We have already noted in this book that almost no agunah problems remain. The problems are those of married Jewish women ( eshet ish ) who remarry every day without a get and the problem of mamzerut [the illegitimate children who result from those forbidden marriages]. The truth is that .a person who is strict in our day regarding hafka’at kiddushin [annulment of the betrothal] increases the number of mamzerim .

 And so says a to’enet rabbanit , a woman who is a “rabbinic court pleader”, who fights on behalf of agunot in Israel today: “It is important to understand that the struggle is for the image of Jewish law. This is not a women’s struggle, but a struggle for the character of the State of Israel ” ( De’ot 23 [September 2005], pp. 13-14).

Indeed, the Center for Women in Jewish Law at the Schechter Institute of Jewish Studies was founded in Jerusalem in 1999 in order to study the status of women in Jewish law in general, and in order to find halakhic solutions for the agunot of our time in particular.

As our Sages have taught: “the rabbis were lenient in order to prevent agunot ” ( Yevamot 88a). Maimonides ruled (Laws of Divorce 13:28 ) that “one does not examine the witnesses thoroughly in agunah cases because the Sages said to be lenient in order to release agunot “. Rabbeinu Asher, the Rosh, stated that “it is worthy for every halakhic authority to examine all sides [of the case] in order to allow [an agunah to remarry]” ( Responsa of the Rosh 51:2). Finally, Rabbi Menahem Mendel Shtangi-Margaliot coined the phrase “he who releases one agunah, it is as if he had built one of the ruins of upper Jerusalem ” ( She’elot Uteshuvot Habah Hahadashot , No. 64 at the end; Dinei Yisrael 23 [5765], pp. 163-197). These sources dealt with a husband who disappeared, but in our day there is a new type of agunah – women who are blackmailed by their husbands – and there is no doubt that the talmudic Sages and the medieval rabbis would have examined all sides of each case in order to allow them to remarry.

Therefore, the time has come, after over 100 years of proposals for solving the agunah dilemma of our time, to summarize the different solutions and to examine each of them according to the Talmud and the Codes and according to the “fifth Tur “, that of common sense. Indeed, this is the first book which systematically and thoroughly surveys all of the solutions which have been suggested.

Furthermore, I have proven elsewhere (in my book The Status of Women in Jewish Law: Responsa [in Hebrew], Jerusalem , 2000, pp. 163-178) that it is permissible for women to decide matters of Jewish law and that women actually decided matters of Jewish law throughout the generations. Nonetheless, this is perhaps the first time in history when two women rabbis wrote an extensive monograph on a halakhic topic.

Before concluding, I would like to mention all those who worked hard in order to make sure that this essential book saw the light of day:
Rabbi Monique Susskind Goldberg and Rabbi Diana Villa wrote the book with the assistance of Rabbi Richard Lewis.
Rabbi Menahem Pitkowsky wrote the first draft of Chapter Six.
Mr. Yisrael Hazzani edited the book from a linguistic point of view.
Prof. Moshe Benovitz edited the contents of the book.
I provided the structure of the book and most of the bibliography and I edited the final version of the book.
Mr. Donny Finkel and his staff at Leshon Limmudim laid the book out and saw it through the press.
Adv. Dr. Sharon Shenhav and Prof. Alice Shalvi initiated the creation of the Center for Women in Jewish Law and also obtained a generous grant from the Ford Foundation for that purpose.

The Center in general, and this book in particular, have been funded by the Ford Foundation, The Jewish Agency for Israel, Women to Women, The San Francisco Federation, Metrowest Federation, The Dorot Foundation and the Jack and Helen Nash Foundation.

This volume was a group effort. Therefore, it should be noted that the practical conclusions and personal opinions expressed in each of the chapters reflect the opinion of the author/s of that chapter, but not necessarily the unanimous opinion of all the editors and contributors.

It is our hope and prayer that this book, like the periodical Za’akat Dalot which preceded it, will publicize the anguish of the agunot of our time and will spur the rabbinic courts in Israel and the Diaspora to release them from their suffering. Freeing the agunot will not only release thousands of women from their chains; it will prove that God’s Torah is a Torah of life which is capable of dealing with new halakhic challenges which arise in every generation.

All four volumes of Rabbi Prof. David Golinkin’s Responsa In A Moment – Halakhic Responses to Contemporary Issues as well as other books by the author are available for purchase from the Schocken-JTS Press Bookstore.

Prof. David Golinkin is the President of the Schechter Institute of Jewish Studies in Jerusalem. Feel free to reprint this article in its entirety. If you wish to abbreviate the article, please contact Rabbi Golinkin at: mailto:golinkin@schechter.ac.il.

The opinions expressed here are the author’s and in no way reflect an official policy of the Schechter Institute.