As International Agunah Day is marked on Wednesday, February 28, the day of the Fast of Esther, it is natural to take a reckoning of what has changed in the world of Jewish divorce in the past decades. In the Orthodox Jewish world in the Diaspora, as well as within all cases of divorce between Jews in Israel, the background music of get-refusal continues to play until the moment when the Jewish writ of divorce, the get, passes from the hand of the husband to the hands of the wife. For a woman who is a victim of get-refusal, whether the husband is resorting to extortion or retribution, the pain is an existential one, as her biological clock is ticking away, her financial resources are drained due to infinitely-long legal battles in and out of rabbinical courts, and there is no rational end in sight. Likewise, for the classic agunah — one whose husband has disappeared or is lying in a permanent vegetative state. Both these women are “husbandless wives.” Although specific panels within the Israeli rabbinical courts have, with heightened sensitivity, extricated individual women from the clutches of the get-refuser, the code of Jewish law — the halakha — has yet to be applied by the rabbinical establishment in a systemic manner, for the purpose of eradicating the agunah problem in its entirety.
Nevertheless, since the present millennium began, awareness of the agunah problem has spread. The fact that it is well known that one spouse can hold another “captive” in an Orthodox marriage, is both a bad sign and a good one. This amplified awareness is a negative sign since it demonstrates knowledge gained as a result of outrageous cases of get-refusal repeatedly displayed on the pages of widely-read newspapers serving the general public, both in print and digital; in the Diaspora and in Israel. Conversely, it is a positive sign, since it demonstrates that the activism and educational processes undertaken by organizations for societal change, are achieving the goal of raising consciousness.
Moreover, the mindfulness of the possibility of women becoming agunot, has given rise to a phenomenon worthy of examination. Deep-thinking men and women, experts in rabbinic law, have been at work, outside of the state rabbinic establishment. Cognizant of the halakhic-societal problem which threatens the very basis of a healthy Jewish society — the loving family unit — while witnessing the laissez-faire approach of the state rabbinical courts, these individuals voluntarily set out to develop preventative solutions within the halakha to be used in a global manner by all marrying couples.
The first standardized Israeli halakhic prenuptial agreement, the Agreement for Mutual Respect (Heskem l’Kavod Hadadi) was made available to the public about two decades ago. Authored by three experts in halakha — Rabbis Elyashiv Knohl and David Ben Zazon as well as this writer — in consultation with rabbinical judges, jurists, academics, attorneys, psychologists and women’s and social-change organizations — this prenuptial agreement provides a monetary disincentive to get-refusal. Organizations for social change immediately began to recommend it. Young people, as well as their parents, heard lectures and read articles explaining the problem together with its possible solution. Marrying couples came to their rabbis, demanding to sign prior to the marriage ceremony. After a few years, community rabbis and educators began to get the idea and joined forces. To date, thousands of couples have protected themselves by signing it. A significant number of women have said “this agreement saved my life.” Although a few negative individual voices were raised from within the Israeli rabbinical establishment, when a husband appears in the rabbinical court and clearly states that he is giving a get as a result of his having signed the Agreement for Mutual Respect, the rabbinical judges immediately arrange the get.
As the efficacy of this extra-establishment tool became clear, independent organizations, including rabbinic ones, developed their own prenuptial agreements based on the Agreement for Mutual Respect. The concept of prophylactic action taken within the halakha on a global scale, which was originally completely foreign to the Israeli rabbinic mind, has become a familiar one. Additionally, the development of a prenuptial document has gone a giant step further. Recently, the leading Israeli journal of Jewish law and thought, Techumin, published an article presenting the Tripartite Agreement (Heskem Hachut Hameshulash), composed by Rabbi Michael Broyde, which is a preventative solution to the classic agunah. This is of crucial importance to the Israeli populace, which very unfortunately includes young men taken in captivity or critically injured to the point of a permanent vegetative state.
In the past two decades, autonomy has burst forth in prevention of the agunah problem within Jewish law on two levels: individual rabbinic autonomy striving to protect their constituents and communities without resorting to the Israeli rabbinical courts for approval; and the autonomy of the marrying couples to protect themselves within halakha, but without the state rabbinic institutions. As the establishment has left a void, wise men and women have risen to fill it.