Shabbat Shalom: Parshat Ki Tetze Deuteronomy 21:10-25:19
by Shlomo Riskin
Efrat, Israel --
"And he shall write her a book of divorcement and give it in her hand." (Deuteronomy 24:1)One of the most vexing and tragic problems facing Jewish law and society today is that of the agunah (literally chained woman) - a hapless wife forced into an impossible marital situation because her husband refuses to grant her a divorce.
What gave rise to this situation and what can we do about it? The first thing we must understand are the two functional models for the certification of a marriage: the "State" Model, whereby the government or ecclesiastical order (church) is the agency of legal affirmation, such as the City Clerk or the Catholic Church, and the "Personal Relationship" model, whereby the bride and groom effectuate the marriage as the result of a mutually agreed upon contract, verbal formula or act of cohabitation for an agreed upon duration. The United States adopts the former model, and so it is the State which has the ultimate authority to validate - and therefore abrogate - a marital relationship. Judaism, viewing marriage as fundamentally a covenant between two individuals, generally insists that it must be the two partners to the relationship who have the power to both validate and abrogate that very personal status. Hence, whereas the State can decree a divorce in the United States and the Church can dissolve a marital union even within Catholicism, the Bible insists, in this week's Torah reading, that "he - the husband - shall write her - the wife - a book of divorcement and place it in her hand." (Deuteronomy 24:1) Just as the couple effectuated the relationship in the first place - through a verbal formula accompanying the gift of a ring, the signing of a contract or an act of cohabitation (Mishnah Kidushin 1:1) - so it is the couple themselves who must sever the relationship by the husband handing the wife a bill of divorcement ('get' in Hebrew).
In Biblical times, the husband could present his wife with a "get" even against her will. Due to the virtual impossibility of an unmarried woman establishing herself economically or socially in the society of 4000 years ago, it was inconceivable that any woman would be desirous of ever initiating a divorce herself. The Oral Law, however, was zealous in its constant and consistent concern for women's rights. First of all, the Bible itself provided for a Mohar or Ketubah, which was a generous alimony payment (sufficient to support a family for at least eight years) which the husband had to give his wife upon divorcing her; obviously, this served as a major deterrent, preventing the husband from capriciously severing a marital relationship.
The Midrash (formulated in 200 C.E.) provides a number of objective situations when a Jewish Court may coerce the husband to give his wife a divorce, such as impotence, or even a disagreeable body odor due to occupational change (Ketubot 7:10, last Mishna Nedarim). The Gemara (edited between 500 and 700 C.E.) even rules that the husband is to be ordered to give a divorce if his wife finds him "disgusting" - for whatever her subjective reason may be (B.T. Ketubot 63, 64 - ma'us alay). The Geonim even insisted that women with such a claim must receive their alimony payment - "so that they not go off to a foreign and evil culture" due to economic hardship (circa 1000 C.E). Maimonides justifies the principle of coercing the husband to give a divorce to a subjectively unhappy wife because "our wives dare not be held captive at the hands of their husbands." And, in order to establish greater equity between husband and wife, Rabbenu Gershom decreed that under ordinary circumstances no husband could present a divorce unless his wife wished to accept it (circa 1000 CE). The march of halakha certainly defended women's rights, culminating in the courageous declaration made by our Talmudic Sages, "the rabbis must find leniencies in order to prevent agunot, chained wives." (B.T. Gittin 3a)
The fly in the ointment reared its ugly presence in the beginning of the twentieth century with the prevalence of civil divorces granted by the "State." Despite all of the aforementioned rulings, the rabbinical courts were loathe to use their power to coerce a husband to give a divorce without objective reason. Even more to the point, as society became "secularized" recalcitrant husbands could simply refuse to heed the admonitions of a religious court. And, because of the initial Biblical law, the husband enjoys an "advantage of the last resort" over his wife: even if she refuses to receive a divorce, he can still marry again (with the permission of one-hundred rabbis) since he is Biblically permitted more than one wife. If, however, the husband refuses to give the divorce, the wife has no recourse but than to remain a hapless agunah (chained woman).
The rabbinical authorities of the last century have wrestled with this problem - especially in the wake of the increasingly prevalent phenomenon whereby unscrupulous husbands extort large sums of money - and/or insist on custody of the children - in exchange for their granting of the ''get". One of the more effective solutions calls for a pre-nuptial contract in which the husband obligates himself to pay his wife a significant sum of money each day they live apart and he refuses to abide by the ruling of a Religious Court (see my book Women and Jewish Divorce, Ktav 1983). In Israel, our Ohr Torah Stone Institutions have initiated the profession of women advocates on behalf of women's rights in the Divorce Courts, and - in addition to the establishment of a special court dealing with agunot - recalcitrant husbands can be heavily fined, removed of their professional and driving licences, and even thrown into prison. However, these punitive measures cannot be administered in the diaspora, and even in Israel - in the final analysis - if a pathologically stubborn husband is willing to suffer penury and imprisonment rather than give his wife a divorce, the wife seems to have no recourse but than to remain "chained". How can the children of a G-d of "compassion and beneficence" justify such a situation in light of our Biblical mandate to legislate "just laws" and our rabbinic precedent to find leniencies on behalf of the agunah?
The truth is that despite the fact that the Torah views marriage as a personal relationship between two individuals - which might be abrogated by these two individuals - there are five instances in the Talmud where "the rabbis have cancelled the marriage "even retrospectively. The considerations which caused them to do so were in order to prevent agunot, to strengthen rabbinic authority and to punish a husband "who acted improperly" (B.T Gitin 33, Ketubot 3, Bava Batra 48, Yevamot 110, Gitin 73).
On what basis was the Jewish Court empowered to sever a relationship of personal status? Many of the commentaries argue that the marriage formula expressed by the groom, "behold you are consecrated unto me with this ring in accordance with the laws of Moses and Israel," makes the keepers of the laws of Moses and Israel, that is the rabbis, silent partners to every marriage. Although usual halakhic practice could demand the dissolution of the marriage bonds by the two marriage partners, in extreme cases the Religious Court has the authority to step in and grant the divorce.
To be sure, it must be an authoritative and (as much as possible) universally accepted Religious Court; there is precedence for such a court decree in Egypt in the beginning of the twentieth Century. I would argue that in the event that a recalcitrant husband acts improperly by not heeding the mandate of a Rabbinical Court to divorce his wife and is, in effect, holding the get for ransom, the agunah might have recourse against a husband "who is acting improperly" by means of a special Jerusalem Court empowered by the Chief Rabbinate to abrogate the marriage unilaterally. It is only when we demonstrate our consideration for the plight of the agunah and our mandate to walk in G-d's ways of compassion and justice that we shall truly deserve to be upheld as a "beacon for the nations of the world."