Agunah
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Aguna (Hebrew: עגונה, plural: agunot; literally 'anchored or chained') is a halachic term for a Jewish woman who is chained to her marriage because her husband's whereabouts are unknown. It is also used sometimes nowadays for a woman whose husband refuses or is unable to grant her an official bill of divorce, known as a get.
In order for a Jewish woman to be freed from her marriage during her husband's lifetime, Jewish law requires that a man grant his wife a get of his own free will. Since without a get or a heter aguna (permission by a halachic authority based on a decision that her husband is presumed dead), no new marriage will be recognized (and any children she might have would be considered bastards), such a woman finds herself in limbo.
Because of the agonizing situation these women are in, the aguna problem has been a major concern to every generation of poskim (authorities of Jewish law), who have tried to find any and every acceptable means within the confines of Jewish law to free these unfortunate women from their legal shackles. In the past it was somewhat commonplace, due to the danger of travel, for people leaving home never to be heard of again, so the rabbis had to deal with this issue on a constant basis. Thousands of responsa have been written in the last few centuries to deal with the plight of the aguna.
In the past, most aguna cases were due to a husband dying without leaving clear evidence of his demise, or becoming mentally ill (insane). Nowadays almost all aguna cases arise as a result of a husband withholding a get, possibly in order to extort money or extract a more favorable divorce settlement. In response, aguna groups have organized to support these women and try to find a solution to this problem. Various remedies have been proposed, but as yet, no one solution has common acceptance.
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[edit] Causes
Circumstances leading to a woman being declared an aguna are:
- The disappearance of the husband without any witnesses declaring that he is dead;
- The husband succumbing to a physical or mental disease that leaves him in a coma or insane and unable to actively grant a divorce;
- The husband refusing maliciously to grant his wife a get. A woman denied a get by her husband is technically called a mesurevet get, although the term aguna is more commonly used.
A woman who demands a divorce from her husband is not yet considered an aguna until a Beth Din finds merit in her request and orders her husband to give her a get and he refuses.
What constitutes a legitimate request for a divorce is based on halachic considerations and the particular case of the couple. See Mesurevet get below.
[edit] Background
Because of the serious nature of adultery in Jewish law, an aguna is forbidden to marry another man, regardless of the circumstances, whether accidental or malicious, that left her an aguna in the first place, or the amount of time that has passed since she first became an aguna. A child born to an aguna from another man is considered a mamzer (halachically illegitimate), and may not marry a Jew.
Because of the dire situation of the agunah, every effort is made to release her from her marriage. This can be done in three ways:
- Locating the husband and convincing him to give his wife a get;
- Providing evidence that the husband is dead;
- Finding a flaw in the original marriage ceremony, thereby retroactively annulling the marriage.
According to most rabbis, reasonable circumstantial evidence is sufficient to prove the death of the husband, and no direct testimony is required. This is based, among other things, on the talmudic assertion: "The Rabbis taught: 'If he fell into a lion's den, there is no need to [bring witnesses to] testify [that he is dead]'" (Babylonian Talmud, Yevamot 121a). In other words, if it is known that the man fell into a lion's den and did not come out, it can be assumed that he is dead, and there is no need for further evidence. If, however, it is later discovered that the husband is not dead, the woman will find herself in particularly bad circumstances: her children from her second marriage will be considered mamzerim (plural of mamzer), and she will be forced to divorce both her first and second husbands, subject to the halachic ruling that an adulterous woman "is forbidden to her husband and the man with whom she fornicated". While such situations are extremely rare under normal circumstances, they did occur in the aftermath of the Holocaust and have occurred frequently in the wake of pogroms and other forms of persecution.
Finding a flaw in the marriage ceremony is considered to be a last resort in releasing an agunah. It is rarely used as it is typically difficult in finding actual cause in most marriages to retroactively invalidate it. In Jewish law, a marriage must be performed in front of two witnesses. In order to release the agunah, efforts are made to identify reasons why one of the witnesses was ineligible. This is typically unachievable as strong efforts are made at the time of marriage to insure the validity of the witnesses and the marriage ceremony. Another possibility is to prove that the woman did not consent to the marriage clearly and of her own free will, so that the marriage ceremony is declared invalid. This too is not generally accepted amongst the Halakhic authorities as there is generally no method to disprove intent. It is felt that the purpose of this endeavor is solely or primarily to retroactively delegitimize a marriage that was performed and accepted often many years previously. Annulling the marriage has no impact on the status of the woman's children. However, since it is not a generally accepted mechanism, it may leave the wife susceptible to a halakhic ruling that she was still married, and any subsequent relations with another man to be adultery. And it may lead to other halachic problems, so it is only used as a last resort by the authorities that do accept its use.
Only a woman can be declared an agunah. None of the prohibitions listed above goes into effect for a man whose wife has disappeared. This is because there is no prohibition in the Torah for a man to have two wives, and a child born to a married man with a single woman is not considered to be a mamzer. In medieval times, Rabbenu Gershom issued an edict prohibiting Jewish men from practising bigamy (though this was not accepted by certain remote Jewish communities such as the Yemenite Jews). To prevent this edict from causing flippant divorces previously unnecessary, Rabbenu Gershom also decreed that "a woman may not be divorced against her will." In certain extreme circumstances, however, such as the case of a man whose wife is missing, or who refused to accept a get for an extended period, a Heter meah Rabbonim (exemption by one hundred rabbis) may permit him to take a second wife; (in the latter case, after depositing a get with them). This exemption is applied nowadays, only in extremely rare circumstances. Thus, it is not uncommon for a woman to maliciously refuse acceptance of a get, in effect "chaining" her husband.
In modern and ancient times, warfare has been a major cause of women being declared agunot (plural of agunah), as (especially in ancient times) soldiers are often killed with no one knowing. Many efforts have been made to resolve this problem in accordance with halachic principles. During World War II, some American Jewish and other chaplains provided combat soldiers with a "provisional get", which only goes into effect if the husband is missing in action, leaving his wife an agunah. This is based on a talmudic explanation of the incident of King David and Bathsheba (see II Samuel 11). According to one interpretation, David did not sin by lying with a married woman, since all of his soldiers gave a "provisional get" to their wives before leaving for battle. "Rabbi Shmuel bar Nachmani said in the name of Rabbi Yochanan: 'Everyone who went to war on behalf of David, left a provisional get for his wife'" (Talmud Bavli, Tractate Shabbat 56a). In the modern state of Israel, the Chief Rabbinate has rejected this proposal, not in the least, because of the impact it would have on the morale of the troops.
[edit] Mesurevet get
According to halakha, under certain circumstances pressure may be applied on a husband to force him to grant a divorce to his wife. Circumstances where this pressure may be applied are in situations where a wife is entitled to a divorce. Some examples may be abuse or neglect. Not in all circumstances is a wife entitled to demand a divorce, according to halakha. If a wife who is not halakhakly entitled to a divorce nevertheless demands one, she is not considered to be a Mesurevet get. "It is said: In cases of granting a get to a woman, the man is forced until he says, 'I wish to do so'" (Babylonian Talmud, Arachin 21a). Nevertheless, it is still required to leave the man some say in the matter, lest the get be considered a "fabricated divorce", which is halachically invalid. Pressures that can be exerted against the man include shunning, denying him communal benefits and honors, and in extreme cases, even imprisonment. As a last resort where all else has failed, a tactic has been sparingly used in the past, to let him spend a night near a nameless grave, or to frighten him in some other way. In Israel, rabbinical courts are allowed by law to implement various measures to coerce a man to grant his wife a get. Practically, one of the most effective of these has turned out to be revoking his driver's license.
[edit] Activism
Many women's groups feel that rabbinical courts fail to use all the measures at their disposal to force men to grant their wives a get, thereby allowing a vengeful husband to blackmail his wife for years. Public criticism of the courts, as well as demonstrations, have been attempted to influence particularly notorious cases.
Several solutions have been proposed to help women who are denied a get:
- Increasing the means available to the rabbinic courts to force husbands to grant their wives a get. In Israel, rabbinic courts can even imprison a husband until he acquiesces and grants a get to his wife. This is not, however, an option for rabbinic courts elsewhere, since they do not have the support of the state;
- Having couples sign a prenuptial agreement, including a "provisional get," which will only go into effect under certain predefined circumstances, or requiring the husband to pay especially high support to his wife if he denies her a get, so as to provide incentive to the couple not to delay the divorce. Many halakhic authorities question the legal validity of a prenuptial agreement.[citation needed]
In 2004, Justice Menachem HaCohen of the Jerusalem Family Court offered new hope to agunot when he ruled that a man refusing his wife a get must pay her NIS 425,000 in punitive damages, because "[R]efusal to grant a get constitutes a severe infringement on her ability to lead a reasonable, normal life, and can be considered emotional abuse lasting several years." He noted that "[T]his is not another sanction against someone refusing to give a get, intended to speed up the process of granting a get, and this court is not involving itself in any future arrangements for the granting of a get, but rather, it is a direct response to the consequences that stem from not granting a get, and the right of the woman to receive punitive damages."
Outside Israel, an agunah could obtain a civil marriage, as legal systems generally do not recognise the agunah status. Nevertheless, as she would be in violation of halakha by doing so, most religiously committed women are reluctant to take this step. Moreover, her children from the second would be considered mamzerim and be unable to marry Jews according to halakha.
[edit] Conservative Judaism and the agunah
Conservative Judaism has sought to remedy such cases by attaching a clause to the kettuba, known as the Lieberman clause, in which the parties agree that if there are civil divorce proceedings, then both must appear before a beit din of the Rabbinical Assembly and of the Jewish Theological Seminary of America. Rabbi Saul Lieberman, a professor at the Jewish Theological Seminary, proposed that the clause be added to kettubot to create a legal remedy through civil courts in case one party fails to cooperate in Jewish divorce proceedings.
Orthodox Judaism has rejected the Lieberman clause as a violation of Jewish law. The Orthodox rabbinate argued that an agreement to pay a non-specified amount of money is an asmachta, and not halakhically valid.
In practice, women who have been unable to obtain a get have not always been successful in enforcing the Lieberman clause in U.S. state courts, which have jurisdiction in divorce cases. Several state courts have refused to accept cases based on the Lieberman clause because, according to them, it violates the constitutional principle of separation of church and state.
[edit] Zaka le-Yibbum
A somewhat related case is a woman whose husband has died childless. In such a situation, the husband's brother is required by Jewish law to perform a levirate marriage (yibbum) with his deceased brother's widow with the express purpose of having children with her in the name of the deceased. The brother can refuse to do yibum, and perform a special divorce ceremony known as chalitzah, which is performed exclusively nowadays. If the brother is missing, or if he is still a child, the woman is required to wait until he is either located or has reached adolescence, so that he can perform the chalitzah ceremony. There have been recorded cases of the husband's brother trying to blackmail the widow by delaying the chalitzah ceremony, thereby effectively leaving her as an agunah.
A child born to a woman who was denied chalitzah may have the status of a mamzer.
[edit] Links
- Mavoi Satum organisation for agunot
- ORA Organization for the Resolution of Agunot
- Agunot (Abandoned Wives), Jewish Virtual Library
- Consideration of agunos arising from the attack on the Twin Towers
