Thursday, October 24, 2013

Chain of Fools: Finding Better Solutions to the Agunah Crisis Than Violence

I was shocked when an Orthodox friend of mine informed me of how the FBI recently raided a Monsey yeshiva in a divorce-gang probe. Under Jewish divorce law, men are required to provide the wife with an official writ of divorce known as a get (גט) as a prerequisite to process a divorce (Deuteronomy 24:1-2). If a wife wants a divorce and the husband refuses to present the wife with the get on his own free will (Yevamot 14:1), the wife is considered עגונה (agunah; literally meaning "chained" or "anchored"), and cannot get divorced. In the aforementioned raid, the two rabbis that were arrested orchestrated the kidnapping and torture of husbands that refused to provide their wives with a get. The rabbis also charged the wives exorbitant fees for the services rendered. Extorting vulnerable women and torturing recalcitrant husbands is at the very least a violation of the spirit of halacha, if not a downright violation of the letter of the law. Both as a libertarian and as a Jew, I condemn such unethical behavior. Even if I decidedly disapprove of the methods involved, I have to recognize that Jewish divorce law could use some reform.

Some additional background before continuing: Although the agunah status applies to a wife whose husband refuses to provide a get, there are also other instances in which this status is applied, including when a husband left on a journey and did not return or when a husband goes to battle and is missing in action. In days of yore, it was common for a husband to get lost on a journey or to become MIA. Nowadays, the most common occurrence of agunah is when a husband refuses to provide the wife with a get

What was supposed to protect women is now being used to subject women to humiliation and debasement. The laws behind agunah put women at a distinct disadvantage, especially since only the woman can be declared an agunah. If a woman does not obtain a get and has sexual relations with another man, she is labeled as an adulteress (Exodus 20:13, Deuteronomy 5:17), and the children from that consummation are labeled as ממזרים (commonly translated as "bastards"). If the husband wants a divorce but the wife refuses, the husband can take a second wife (היתר מאה רבנים). The wife does not have the luxury of taking on a second husband in the interim as a form of recourse. Additionally, the husband can delay the divorce proceedings out of spite or for reasons of extortion for as long as he wants. The wife has no way to protest. Not even the beit din can really interfere. The power to grant a divorce is, by and large, at the husband's discretion. 

Something needs to be done to remedy this imbalance of power and injustice. Under the current halacha, the wife has limited contexts in which she can initiate the divorce, such as the refusal of financially supporting one's wife (Ketubot 47b-48a), a husband refusing to have sexual relations with one's wife (Ketubot 63a), the fact that the marriage was done under duress (Kiddushin 2b; Bava Batra 48b), annulment based on technical, legal defects of the marriage itself (which is rare), or the case of the "repulsive husband" (Mishneh Torah, Hilchot Ishut 14:8), but even then, the halachic applications are very limited, not to mention that the high burden of proof in those scenarios is squarely on the wife. Instances of domestic abuse or the husband committing adultery are not even automatic grounds for a divorce in Jewish law! For a religion whose claim is that we are all created in His image, regardless of gender, this level of disenfranchisement needs to stop. What can be done to stop it?   

Looking at the options, the best option lies within the universal dissemination of adding a prenup within the marriage license, or at least having a separate document with a prenuptial agreement. The thing that annoys me here about this recommendation is that I am hardly being original. The Conservative movement beat Orthodoxy to the punch back in the 1950s with the Lieberman clause, which is a legal fiction within the ketubah (כתובה) that gives the beit din permission to adjudicate in the divorce proceedings in the event they arise. The Lieberman clause was accepted by R. Joseph Soloveitchik. However, the ultra-Orthodox played politics and quashed any attempts of cooperation between the Conservative and Orthodox movements. 40 years later, R. Mordechai Willig was the first rabbi to draft what is known as the "Halachic Prenup." It has been nearly 20 years since R. Willig drafted that prenup, and yet, agunah is still a major issue.

Agunah is a case study that reminds me what can be infuriating about Orthodox Judaism. Here you have a clearly identifiable problem that you have had at least for decades. You then decide to play interdenominational politics for forty years before coming up with a decision that is virtually identical to that of the Conservative moment (except for the fact that in the Orthodox version of the prenup, the prenup is its own document, and the document signing is monitored under Orthodox auspices). Even after the creation of the "Halachic Prenup" back in 1994, this perfectly halachic solution has yet to be implemented on a large enough scale. Why? The Orthodox establishment prefers the status quo for its own sake over helping to engender legitimate divorce law reform because "G-d forbid if the system is flawed and needs some repair." The Orthodox movement moves so slowly on such issues that snails and sloths could a thing or two from Orthodox Judaism.

The rabbis can implement the takkanah (rabbinic enactment) of a prenuptial agreement to overcome the flaw. Hillel did something similar when he created the prozbul to bypass the laws of loan forgiveness. Looking at the issue, the opposition is not based on halacha, in spite of whatever façade to the contrary is put up; it's about a socio-religious ploy and a general inability of Orthodoxy to deal with their aversion to legitimate change. Halacha is supposed to be a modus operandi in which Jewish values are supposed to be epitomized. The only value being illustrated by maintaining the status quo and preserving this antiquated law is that it is acceptable for women to become collateral damage.       

The mere creation of a halachic prenuptial agreement is insufficient because it needs to be implemented. Both congregants and rabbis need to put pressure on others to make sure every married couple has a prenuptial agreement, which is not easy to enact because, as the counterargument goes, the parties involved should be more focused on lifelong commitment and less on divorce. Even if every subsequent marriage agreement were accompanied by a prenup, it still does not solve the issue of current marriages that lack such an arrangement. It's important to provide women with counseling to get through the ordeal. There are also the possibilities of a conditional marriage, which would be a stipulation within the marriage ceremony that states that in the event of divorce, no get is required. There is also the idea of a provisional get, even post facto, in which a certain set of circumstances would trigger the husband presenting the get to his wife.  I would suggest that the wife be allowed to present a get or the beit din (or even secular authorities) be permitted to intervene to compel the divorce in the event that the married couple did not make the arrangement ab initio, but I know that will not happen because those solutions would be labeled as "halachically unacceptable."

One thing for sure here is that the agunah problem has been all too prolonged. The status quo is unacceptable, and using unsavory methods to coerce divorces also shows how broken Jewish divorce law is. Jews need to be appropriately educated on the issue, and also need to be willing to do whatever is in one's sphere of influence to remedy the situation. Otherwise, it reaffirms the misconceived notion that Judaism does not grant women the dignity and respect they deserve.

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