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5 misconceptions about Jewish law’s chained women

To begin with, get-refusal is not just the fault of few bad men
A private rabbinical court dissolves the marriage of Tzviya Gorodetsky in June 2018. (courtesy, Center for Women's Justice/Rachel Stomel)
A private rabbinical court dissolves the marriage of Tzviya Gorodetsky in June 2018. (courtesy, Center for Women's Justice/Rachel Stomel)

Under Jewish and Israeli law, a Jewish husband can hold his wife hostage to their dead marriage until he agrees to divorce her of his own free will, and on his own terms. The Fast of Esther, falling this year on March 16th, is the day set aside by the Jewish community as “Agunah Day,” when we stand in solidarity with agunot (pl. for agunah) — women held in marital captivity by recalcitrant husbands who take advantage of this patriarchal privilege. 

In honor of Agunah Day, here are five widespread myths about the agunah problem.

1. Misconception: The agunah problem is limited to a few bad Jewish men.

Truth: The agunah problem is pervasive and affects all Jewish women who marry in traditional religious ceremonies.

All Jewish women who marry in a traditional religious ceremony are technically agunot — bound to their husbands until the men free them from the bonds of holy matrimony (via divorce or death). The relatively few agunot you hear about are those who want their husbands to release them, and whose husbands refuse or are unable to do so. The rest of us Jewish women/agunot remain in our gilded cages, unaware of the bars surrounding us and the fact that our husbands who hold the only keys to our freedom.

What’s more, the agunah problem is not limited to Jewish women. Though the term “agunah” is a Hebrew one reserved for Jewish women, women of other ethnicities who marry in accordance with their religious customary laws can also be held in marital captivity. Muslim, Catholic, and Hindu women, for example, can also find themselves trapped (see Femmes for Freedom, which advocates for women in marital captivity throughout Europe). 

2. Misconception: The agunah problem is a divorce problem.

Truth: The agunah problem is a marriage problem. 

Under Jewish law, Jewish women enter into marriages in which husbands “purchase” an exclusive lien on their wives’ sexuality (kinyan). Jewish women do not “acquire” their husbands. All the laws of Jewish divorce follow from that original and underlying unilateral construction. Wives are censured by Jewish law for any extramarital adventure or flirtation; men are not. Children born to wives outside of their marriage are stigmatized (mamzerim); the children born of husbands’ extramarital affairs are not. If a woman is pressured to agree to divorce, the divorce is valid. If a man is pressured, the divorce is void. 

3. Misconception: There is a systemic Orthodox halakhic solution for the agunah problem.

Truth: To date, no systemic Orthodox halakhic solution has been implemented. Ironically, it has been secular legal systems all over the world that have better, and more forcefully, responded to the problem.

Outside Israel, secular jurisdictions have understood that husbands who refuse religious divorce are abusing religious privileges in ways that harm women. Some secular jurisdictions have limited the legal options of recalcitrant spouses who act “without clean hands” — i.e., who come to divorce court while withholding a get from their spouse. Examples are the New York Get Law, under which recalcitrant spouses cannot obtain a formal civil divorce until they have removed all barriers to remarriage, as well as Canadian legislation that allows divorce courts to dismiss applications or to strike any of the pleadings of a recalcitrant spouse. Others have taken spouses’ recalcitrance into account when dividing up marital property. Still others void contracts, or parts thereof, when they were entered into under pressure to agree to religious divorce. And, most recently, British courts have declared withholding a religious divorce to be a crime.

The Israeli family courts have determined that recalcitrant spouses who refuse to agree to religious divorce are liable for damages, turning a husband’s religious privilege into a “civil wrong.”

Some private Orthodox rabbinic courts have exercised the authority to declare a Jewish marriage over, despite a husband’s refusal to agree to do so, or in his absence. Notable examples are the Rackman Beit Din and the International Beit Din headed by the (late) Rabbi Simcha Krauss, both in the United States, and Rabbi Daniel Sperber’s Beit Din in Israel, set up by the Center for Women’s Justice. Once or twice, even an Israeli state rabbinic court has similarly declared a marriage over (more accurately, “void ab-initio”). But all such decisions are few and far between; they are always decided on a case-by-case basis; and most sadly and all too infrequently, they are condemned and rejected by the Orthodox establishment. Adding salt to an already festering wound, that establishment threatens to stigmatize any child born to women released from the chains of their unwanted marriages by those rogue and creative rabbinic tribunals. 

4. Misconception: Prenuptial agreements solve the agunah problem.

Truth: At best, prenups ameliorate the problem; and even then, most do not address what happens if a husband is missing or incapacitated.  

Most prenups provide incentives for a recalcitrant husband to agree to divorce. In particular, they provide for increased spousal support in the event that a religious divorce is withheld. This does not help, however, when a husband is missing or incapacitated. Sometimes the incentives provided are tentative and subject to the discretion of a rabbinic court. 

If you decide to get married in accordance with Jewish law, make sure to sign a prenup (or postnup, for those already married) that has a strong arsenal of steadfast incentives and makes it very clear that all matters ancillary to the Jewish divorce — division of marital property, child custody, and support — will be decided by a secular, family court. See, for example, the Lookstein Prenup in the United States and the CWJ Prenup in Israel. And, for good measure, sign a document appointing an agent to deliver a Jewish divorce in the event that the husband is missing or incapacitated, like the CWJ Pledge of Compassion and Dignity. In the unfortunate event that a husband is missing or incapacitated, this halakhic bill appoints a rabbinic court as a proxy to grant the divorce in his stead.  

5. Misconception: The agunah problem is more acute in the Diaspora than in Israel.

Truth: The agunah problem is exacerbated in Israel, where all Jews are legally required to marry and divorce in accordance with Orthodox religious laws. 

Run the numbers. More Orthodox weddings means more agunot. Here in Israel, Jewish law is imposed on secular people who would otherwise marry and divorce in accordance with civil, secular rules. 

It is true that rabbinic courts backed by state power in Israel can exercise legitimated violence over husbands should they refuse to obey a court order to divorce their wives. Those state rabbinic courts can restrain the travel of husbands or put them in jail. But it is not true that those state rabbinic courts impose such sanctions willingly and readily. State rabbinic courts hesitate to apply any pressure on Israeli husbands, preferring to cajole and entice them into agreeing to divorce. Interestingly, those same state courts do not hesitate to apply extreme measures, swiftly imposed, against non-Israeli citizens who visit Israel. Without conducting a full and fair trial, rabbinic courts detain the travel of foreign husbands who arrive, for example, for a family wedding. Thus, they preserve their international superman image of “saving” agunot, while at the same time creating them domestically.

Most significantly, we must stop claiming to “solve” the problem of agunot by violating civil liberties of bad husbands. Instead of putting such men in jail, restraining their right to travel, taking away their professional licenses, or refusing to bury their mothers (among other creative measures), let’s implement Jewish marriage that is no longer based on patriarchal privilege, but instead on equality and mutual respect, allowing courts to declare such marriages over when they have broken down. 

And most importantly for us Israelis, let’s end the patriarchal privilege imposed on all citizens as a result of the state rabbinate’s monopoly on personal status. We Israeli women — of all denominations and all religions — deserve better. We must insist on substantive change that will release women from the bonds of holy matrimony held tightly by a state-operated rabbinic bureaucracy, bad husbands, and rules that empower and embolden them.

About the Author
Dr. Susan Weiss is the founder and director of the Center for Women's Justice, an NGO leading the battle to advance the civil and religious liberties of Israeli women when compromised by state institutions..
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