The Agunah Problem, Part 1; Incarceration and Free Speech

The Agunah Problem, Part 1; Incarceration and Free Speech The Agunah Problem, Part 1; Incarceration and Free Speech Marc B. Shapiro 1. There has been a lot of discussion recently about the International Beit Din and its rulings allowing certain marriages to be voided, thus freeing women from being agunot. As is to be expected, this beit din has been subject to strong attacks, even of a personal nature, despite the fact that the members of the beit din are recognized talmidei hakhamim. These dayanim are intent on keeping everything above board and have published the reasoning behind their rulings, thus giving opponents the opportunity to engage in halakhic argumentation. From what I have read, the International Beit Din has three approaches to freeing agunot. One is annul the marriage based on mekah taut, i.e., there was some problem with the husband that would have prevented the wife from marrying him had she known of it. This is a perfectly valid mechanism that has been used by many poskim, such as R. Zvi Pesah Frank, R. Moshe Feinstein, and R. Avraham Shapiro. Although one can, of course, criticize the application ofmekah taut to a particular case, the mechanism itself is part of standard halakhic operating procedure and the International Beit Din is well within its rights to use mekah taut when possible. The second approach is to find a problem in the marriage ceremony itself, meaning that the marriage never took place. For example, one can show that there were no proper witnesses to the marriage. Here again, one can disagree with particular rulings, but not with the basic approach. The third approach is that of get zikui, which in the current context means that the beit din issues a divorce to the woman on behalf of the man, even if the man has not approved of this and even if is against his will.[1] While there has been a good deal of discussion of this approach, I can’t find on the International Beit Din’s website that any marriage has actually been dissolved by using this mechanism. Unlike the other two approaches, there is little precedent for use of a get zikui, which means that its chances of being generally accepted are nil. The use of a get zikui is actually suggested by R. Jehiel Jacob Weinberg, Seridei Esh, vol. 3, no. 25. In fact, R. Weinberg’s responsum is the most detailed discussion of get zikui but surprisingly it is not included on the International Beit Din’s website. It must be noted, however, that R. Weinberg is only prepared to suggest aget zikui if the husband would want the get to be given. However, in the contemporary agunah situation the problem is that the husbands do not want to give the wives a get, and concerning these ’נפל היסוד של כתיבת גט מטעם זכי :cases R. Weinberg writes Is there another possible approach? How about a heter meah rabbanim for a married woman if she can’t get a get? I know you are thinking that this is crazy, but look at the following page, which comes from the medieval work Etz Hayyim by R. Jacob Hazan.[2] As you can see from the very end of the page, it states that the rabbis required a man to give a get if he contracted a which in this case means he was already ,באיסור marriage committed to marry someone else. Then it says that if this man disappeared the woman can be freed with aheter meah rabbanim (actually, it says ish, not rabbanim, but I don’t want to get into that now). This is a very radical position, that a woman can be freed by a heter meah rabbanim, and it is attested to nowhere else. Not surprisingly, R. Israel Brodie, the editor of Etz Hayyim,[3] calls attention to this unusual halakhic position. R. Shlomo Yosef Zevin also refers to this novel idea.[4] But are Rabbis Brodie and Zevin correct? Israel Moshe Ta-Shma and Shlomo Zalman Havlin say no, and see this as a serious mistake. According to them, the last case discussed inEtz but באיסור Hayyim has nothing to do with the man who married refers back to a case mentioned earlier on the page of a man who was only committed to marry a woman. If this man then In other words, the woman .מתירין הבחורה במאה איש ,disappears is released from any obligation to marry the missing man, but this has nothing to do with a woman already married. I will let the readers decide for themselves who is correct.[5] As for the problem of women not being able to get a divorce because the man refuses, there are some important points that must be made which I don’t think everyone is aware of. Today, many people assume that a woman who wants out of a marriage, for whatever reason, has that right. After all, a woman is not a prisoner and a husband should not force her to be married to him if she doesn’t want to. However, this viewpoint is very much a modern approach.[6] If you look at the standard halakhic sources you will find that there is no obligation for a man to give his wife a divorce just because she wants it. Ever since R. Gershom, the same situation is also found in reverse, namely, a husband is not allowed to divorce his wife against her will just because he no longer wishes to be married to her. This approach to ending marriage is very much in line with how secular society use to operate before the introduction of no fault divorce. Significantly, Maimonides does require the husband to give his wife a divorce if she says she no longer wishes to live with him.[7] R. Kafih elaborates on the wisdom of Maimonides’ position, and here are some of his important words[8]: ברוך ה’ א-להי ישראל אשר הזריח לנו את המאור הגדול הזה אשר במבטו החודר פלש למעמקי הדורות וצפה גם את דורנו הפרוץ לבשתינו ולמגנת לבבנו, אוי לעינים שכך רואות ואוי לאזנים שכך שומעות, ואלו ראו שאר חכמי הדורות את דורנו היו חותמים על פסקו של רבנו בשתי ידים. כי המציאות הוכיחה צדקת רבנו, שכל התובעת ג”פ בימינו וטוענת מאיס עלאי, לא רק עיניה נתנה באחר אלא היא כבר בחיק האחר או האחרים וחביטא קמייהו כמברכתא, ולפיכך מצוה לכוף את הבעל המתעקש בכל כפיה אפשרית כדי להפריד בין הדבקים ויפה שעה אחת קודם. However, it is the view in opposition to Maimonides that became the standard position, and it is this view that is recorded in the Shulhan Arukh[9] and followed by batei din. According to this approach, even if a woman says she can no longer live with her husband, he is not obligated to give her a get. What this can lead to is most vividly illustrated by the movie Gett, available here to watch for free for Amazon Prime members. I have been told that the Beth Din of America operates on the principle that if one of the parties wants a divorce, for whatever reason, and there is no chance for reconciliation, then the Beit Din will instruct the other spouse to comply. But this is not how many other batei din operate. We have to be honest and acknowledge that the problem many women face is not because the dayanim are cruel or anti-women, but that it is Jewish law itself, or rather an interpretation of Jewish law, that is preventing them from receiving their divorces. I feel it is necessary to stress this since we can now better appreciate why certain rabbis have attempted to find solutions within Jewish law to the contemporary agunah problem. Many on the right don’t see why this is necessary and why batei din cannot just follow Jewish law as it has operated until now instead of looking for “solutions”. These people might not realize the difficult situation this puts women in, a situation that might have been tolerable years ago but for more and more Orthodox Jews that is no longer the case. On the other hand, many on the left think that it is a simple matter to solve the agunah problem, and that it is just cruel and insensitive rabbis preventing this. This too is a distortion as the rabbis’ hands are often tied by halakhah, and this remains the case no matter how much of a “rabbinic will” they have. Let me illustrate what I am talking about. As an example of how sentiments have changed over the centuries, here is a passage from R. Hayyim Benveniste that I have cited in two previous posts. InKeneset ha-Gedolah, Even ha- Ezer 154, Hagahot Beit Yosef no. 59, in discussing when we can force a husband to give a divorce, R. Benveniste writes: ובעל משפט צדק ח”א סי’ נ”ט כתב דאפי’ רודף אחריה בסכין להכותה אין כופין אותו לגרש ואפי’ לו’ לו שחייב להוציא Can anyone imagine a posek, from even the most right-wing community, advocating such a viewpoint today? The logic behind this position, as can be seen by examining the original responsum in Mishpat Tzedek, is that even if the man is running after her with the knife, we don’t assume that he will actually kill her. He must be doing it just to scare her, and that is not enough of a reason to force him to divorce her, or even to tell him that he is obligated to do so.

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