The Agunah Crisis and the Courts: New Attempt to Solve an Old Problem

The complicated details of Jewish divorce are based on only two verses in the Torah (Deut. 24:1-2 – They are in this week’s Torah reading, Parashat Ki Teitzei). Clearly the legal, economic, familial and psychological aspects of divorce are more complicated than the information written in two verses.  This is evident to those of us who have recently completed Masechet Gittin as part of the Daf Yomi cycle and, all the more so to our Jewish sisters and brothers who have experienced divorce first hand.  The weighty Talmudic volume of Masechet Gittin is only the beginning of the following 1500 years of rabbinic commentary and responsa about this complex and important topic.

In Judaism, divorce is never a first or easy choice.  This is made clear as early as our biblical prophets who used failed marriage as a metaphor for times when the relationship between Israel and God was not good.  However, divorce has also always been permitted – and has always been heavily regulated by the halakha and the rabbis who enforce it.  A key aspect of divorce that is often criticized today is that its enactment is controlled by the men involved – the soon to be ex-husband who is the one who must give the get (the divorce document) and the male rabbinic court oversees the whole process. (1)

As is true in secular divorce, the process is not always smooth.  One issue, that has existed since the time of the Talmud, is when the husband is not able to, or chooses not to, give the get, the required divorce document.  This halts the completion of the divorce and leaves the wife an agunah; a woman legally chained to a dead marriage, unable to move on with her life.

Over the centuries, compassionate rabbis and rabbinic courts have devised complicated but successful legal ways of freeing these agunot.  It involves not only compassion, but deep knowledge of all of the applicable halakhot.  It also involves the personal strength and courage to make difficult halakhic decisions.  These rabbis are often seen in two opposing ways.  One, as rabbinic leaders who are inappropriately radical in that they bring forward opinions that, though valid, are not popular or commonly used.  Two, as rabbinic leaders who are doing exactly what rabbis should be doing – applying Jewish law with precision, compassion and integrity.

There is a current ongoing case of an agunah, Nechamah Wasserman, who while unfortunate in that she is still an agunah (for more than 8 years), she is fortunate in that a reputable rabbinic court used Jewish law in this precise yet compassionate way to try to help her.  These rabbis have permitted her to involve the secular courts to help in her fight for her freedom.  This is contrary to rabbinic opinions in the foundational Talmudic text on this issue,(2) though some halakhically precise and compassionate rabbis have interpreted this differently in different eras to help agunot in need of their support.  In the case of Nechamah Wasserman, she was given permission by well known and respected Ultra Orthodox rabbis “to sue in secular court, … for whatever is coming to her and to the children according to Halachah, and should the husband give a Get so as to  exempt himself from these just claims and their consequences, such Get will be clearly and unequivocally valid.”(3)  The complex court case resulted in the incarceration of her husband in jail in New York State as of July 3rd, 2023.  He was officially sentenced to six months in prison due to outstanding child support.  However, there is a formal agreement in place that enables him to forgo any owed child support payments in exchange for the requested get.(4)

The involvement of the secular courts is highly unusual, uncomfortable and so far in this case, not yet successful.  Yes, the get-withholding husband is currently being punished with jail time, but the agunah is still suffering, stuck in a dead marriage and waiting for her get.  The involvement of the secular courts may eventually help this case, but only time will tell.  However, it should be noted that precedent has now been set.  Other agunot, now or in the future, could potentially rely upon the strength of the secular courts as a (new) tool to help end their agunah status.  The agunah crisis is complex and until it is completely solved by radical and compassionate rabbinic leadership, as many tools as possible should be utilized to bring comfort and freedom to those affected by it.(5)

 Notes:

1. This is even more complex in the State of Israel when the government is involved as well.  However, the influence of politics is not only felt in Israel – there are many examples of internal communal politics (including the ‘politics’ of money and wealthy donors who control it) that affect the workings of rabbis and rabbinic courts in Jewish communities all over the world.
2. See Babylonian Talmud Gittin 88b
3. This is from the text of the rabbinic ruling in her case.  The full text of the rabbinic ruling, in the original Hebrew with English translation, can be found at https://b.link/wasserman.
4. https://sign.moveon.org/petitions/you-can-free-an-agunah This website hosts a petition in support of Nechamah Wasserman, explains her situation and posts occasional updates.
5. Special thanks to Adina Sash, AKA Flatbush Girl of Instagram fame, whose posts brought this case to my attention.