HONORING INTERNATIONAL WOMEN'S DAY – 8.03.14: A PROPOSAL FOR A SYSTEMIC SOLUTION TO THE PROBLEM OF AGUNOT
Issue No. 6,
It is inexcusable that many women who want to get divorced are faced with their spouses' recalcitrance and must sometimes wait for years until they obtain a get (Jewish writ of divorce). The reason for this is that many rabbinical courts are still not willing to use all the methods they have at their disposal to free them from their chains.[i]
As a result, women's organizations and lately also certain organizations that include rabbis and academics, are making efforts to find a systemic solution that could solve most of the problems, instead of relying time and time again on case by case solutions that are effective in resolving only a certain woman's situation. One possible solution is to have conditional marriages; if the condition is redacted appropriately, it can free almost every woman who is an agunah.
Three conferences (in Israel and the U.S.) , took place over the last year, focusing on the search for a systemic solution.[ii] Most participants were Orthodox men and women, including a large number of rabbis, who suggested various solutions including conditional marriages. I.C.A.R. (The International Coalition for Agunah Rights), that includes a wide range of organizations (27 organizations, from secular to national religious ones, including the Schechter Institute), decided to advance this solution in the coming year, since an absolute majority of member organizations agree that it could be the ultimate systemic solution. One of the organizations, the "Center for Women's Justice", has been getting couples to sign this kind of document for several years.
The Core of a Conditional Marriage
Couples would have to willingly sign a prenuptial agreement in the presence of witnesses (in order for it to have stronger validity it should preferably include the signatures of a rabbinical court), that determines that under certain conditions the marriage is considered retroactively invalid and the couple is seen as two single people who cohabitated.[iii] In such a case, the children would be considered children of single parents and not bastards.[iv] Such conditions exist since the fifteenth century, although they were originally suggested as a way to annul marriages when the husband died and the couple had no children. In ancient times, levirate marriages were mandated (i.e., the husband's brother (levir) would marry the widow in order to continue the family line). In time, ḥalitzah (releasing the widow so that she could marry somebody else) was preferred. However, in certain cases the husband's brother would not or could not do so (for example if he was an apostate, had disappeared, lost his memory, etc.). In cases in which there was a concern that the brother would not fulfill his duty if necessary, the condition would include a clause determining that if the husband died before the couple had children, the betrothal would be retroactively annulled; it would be as though they were never married and hence ḥalitzah would be unnecessary.
Some rabbis proposed, beginning in the early twentieth century, that couples should sign a prenuptial conditional marriage agreement to prevent cases in which the wife might become an agunah.[v]
This solution does not require active intervention on the part of rabbinic courts. At most, they will have to ensure that the condition was fulfilled and confirm that the marriage is to be annulled. It is possible that many rabbis oppose this solution precisely for that reason, since their authority would be diminished.[vi]
The Committee on Jewish Law and Standards of the Conservative Movement redacted a condition that would retroactively annul a marriage already in 1968. According to that condition, if the husband did not give his wife a get six months after a civil divorce, the Jewish marriage would be annulled. This clause is irrelevant to couples who get married in the State of Israel, therefore the condition in this country should determine that if a couple is separated for a certain period of time (suggestions range between 12 and 18 months), the marriage is annulled.[vii] Such a condition would even cover cases in which the husband cannot give a get for reasons beyond his control, such as being in a vegetative state, and thus living in a hospital or hospice and not under the same roof as his wife.
In my opinion every couple should sign such a prenuptial conditional agreement, to ensure that women do not find themselves in the agunah predicament. Thus, should they decide to start a new chapter in their lives after a failed marriage, they would not be considered adulterers and their children would not be bastards according to Jewish law.[viii]
This is even more necessary in the State of Israel in two specific circumstances: 1) When a couple gets married according to Jewish law but does not register it in the Ministry of Interior and the wedding was valid according to Jewish law (a private, non-official, Orthodox ceremony or a wedding performed by a rabbi committed to Jewish law, such as a Masorti rabbi). In such a case, if the marriage should fail there would be no way to enforce a divorce. 2) When one of the spouses is a convert and the rabbinate does not recognize the conversion (it may be an Orthodox conversion by a rabbi whose authority is not accepted by the Rabbinate or a non-Orthodox conversion). In such cases the Rabbinate may decide that the marriage is invalid since the converted spouse is not considered Jewish in their opinion. Hence, they may allow a woman who married according to Jewish law to remarry without a get.
I strongly recommend that anyone who performs a marriage ceremony in Israel according to Jewish law, but not through the Rabbinate (and especially in the two situations described above), should require that the marriage include a conditional prenuptial agreement. If s/he doesn't do so, s/he may contribute to adultery and bastardy within the Jewish people.
For further reading:
1) Susskind Goldberg Monique and Villa Diana, To Learn and to Teach, Booklet Number 4, Prenuptial Agreements: A Solution for the Agunah Problem of Our Time, The Center for Women in Jewish Law, the Schechter Institute, Jerusalem, 2007. The first part of this booklet deals with the agunah problem and the situation in the State of Israel today.
2) Susskind Goldberg Monique and Villa Diana, Za'azat Dalot, Halakhic Solutions for the Agunot of Our Time, ed.David Golinkin, Richard Lewis andMoshe Benovitz, The Center for Women in Jewish Law, the Schechter Institute, Jerusalem, 2006
● English summaries of chapters on Conditional Marriage and Concubinage
3) From the I.C.A.R. (International Coalition for Agunah Rights) website:
● Conditional marriage
● Study booklet that includes sources on this subject
4) The Center for Women's Justice Agreement, which includes conditional marriage
[i] These women are known as agunot. According to Jewish law a man must give the get of his own free will. If he was pressured to divorce his wife (except in certain situation when he was pressured indirectly or had a choice to act otherwise), the get is considered coerced and is not valid.
[ii] They were organized by the Jewish Orthodox Feminine Alliance and the Tikvah Center at New York University.
[iii] The condition must be redacted as a double condition – i.e. it should explain what happens if the condition is or is not fulfilled. There are also several requirements for it to be valid according to Jewish law. Hence one should only use a condition redacted by someone with authority and no changes should be introduced without consulting with such a person.
[iv] A mamzer (bastard according to Jewish law) is a child born from a forbidden union considered incestuous. The best known example is that of a child born from a union between a Jewish man and a woman who was married according to Jewish law and separated without a get.
[v] A classic agunah – in Talmudic times – included cases in which the husband disappeared and it was not known if he was alive or dead. In our days, the situation is mainly due to the husband's recalcitrance (except in war time, when there is a terrorist attack or a natural disaster), in order to obtain financial benefits, better custody conditions or to be vindictive.
[vi] Some of the rabbinic caveats and reservations in the past include: 1) Marriages will retroactively be considered promiscuous relationships (this is not accurate since promiscuity is defined in Jewish law as intimacy between two people who are forbidden to marry according to Jewish law; a couple whose marriage has been annulled is retroactively considered to have been in concubinage). 2) The husband can annul the condition and in such a case it will become invalid (Jewish law determines that a condition that benefits the wife cannot be annulled). 3) Non-Jewish courts will decide whether the marriage was valid (this reservation was expressed when the condition determined that if no get was given after civil divorce the marriage would be considered null and void; in fact the civil court would not be dissolving the Jewish marriage, this would occur as a result of the couple's agreement to the condition). 4) A husband is not willing to have his wife marry another man, without a get, as long as he is alive (a Jewish man who is wary of such a situation can give the get – it is not acceptable that on the one hand he should object on moral grounds to have his marriage questioned, yet on the other hand he should be willing to have his wife remain an agunah for a long period of time with no moral qualms whatsoever).
[vii] The different formulations are based on Rabbi Michael Broyde's proposal - see his Tripartite Document (Shelo le-Halakhah), in the journal Edah, Kislev 5765.
[viii] A woman is considered married unless her husband died or gave her a get. She is biblically forbidden to be intimate with anyone but her husband. A man cannot remarry according to Jewish law unless his wife agrees to receive a get. However, since the prohibition is rabbinical, should he decide to live with another woman and have children with her, they will not be considered bastards according to Jewish law.
Rabbi Diana Villa, a graduate of the Schechter Rabbinical Seminary, directs the Mishlei Bet Midrash/academic program at the Bet Midrash and is senior researcher at Schechter’s Center for Women in Jewish Law. Rabbi Villa represents Schechter at I.C.A.R. (International Coalition for Agunah Rights) and is an active member of its steering committee.