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Encyclopedia Judaica: Agunah

AGUNAH (Heb. עֲגוּנָה; lit. "tied," cf. Ruth 1:13), married woman who for whatsoever reason is separated from her husband and cannot remarry, either because she cannot obtain a divorce from him (see Divorce), or because it is unknown whether he is still alive. The term is also applied to a yevamah ("a levirate widow"; see Levirate Marriage ), if she cannot obtain ḥaliẓah from the levir or if it is unknown whether he is still alive (Git. 26b, 33a; Yev. 94a; and Posekim). The problem of the agunah is one of the most complex in halakhic discussions and is treated in great detail in halakhic literature (no less than six volumes of Oẓar ha-Posekim are devoted to it – see bibliography).

Essence of the Problem

The halakhah prescribes that a marriage can only be dissolved by divorce or the death of either spouse. According to Jewish law, divorce is effected not by decree of the court, but by the parties themselves, i.e., by the husband's delivery of a get ("bill of divorce") to his wife (see Divorce). Hence the absence of the husband or his willful refusal to deliver the get precludes any possibility of a divorce. Similarly the mere disappearance of the husband, where there is no proof of his death, is not sufficient for a declaration by the court to the effect that a wife is a widow and her marriage thus dissolved. The husband, on the other hand, is unaffected by aginut, i.e., by his wife's refusal to accept the get or her disappearance without trace, since in such a case under certain conditions the law affords him the possibility of receiving hetter nissu'in ("permission to contract an additional marriage"; see Bigamy). In most cases of agunot the question is whether or not the husband is still alive. Such cases result, for instance, from uncertainty about the husband's fate caused by conditions of war or persecution – particularly in recent times as a result of the Nazi Holocaust, but the problem can also arise, for example, if the husband suffers from chronic mental illness making him legally incapable of giving a get or simply if he willfully refuses to do so.

Rabbinical scholars have permitted many relaxations in the general laws of evidence in order to relieve the hardships suffered by the agunah. On the other hand great care was always taken to avoid the risk that permission may inadvertently be given for a married woman to contract a second marriage that would be adulterous and result in any children from such a second marriage being mamzerim (see Mamzer ). Achieving both these ends, i.e., to enable the agunah to remarry while ensuring that an adulterous union does not result, is the object of intensive discussion in the laws of the agunah.

Mode of Proof (of the Husband's Death)

It is a basic rule of halakhah that facts are to be determined on the testimony of two witnesses (see Evidence). However, the Mishnah already attributes to R. Gamaliel the Elder the takkanah that when a husband is missing because of war, and his fate is unknown, the wife may be permitted to remarry on the testimony of only one witness to his death (Yev. 16:7). Although somewhat later R. Eliezer and R. Joshua disagreed with this ruling, at the time of R. Gamaliel of Jabneh it was again determined (ibid.) not only that one witness was sufficient but also that hearsay evidence might be admitted, as well as the evidence of a woman, a slave, a handmaiden, or a relative (which classes were otherwise legally incompetent as witnesses). The legal explanation given for these far-reaching rules is that it is to be presumed that a person will not give false testimony on a matter which is likely to come to light, since the husband, if still alive, will undoubtedly reappear sooner or later (Yev. 93b; Maim., Yad, Gerushin 12:15). Moreover, it may be assumed that the wife herself will endeavor to make sure of her husband's death before remarrying, since she will become prohibited to both men if it later transpires that her first husband is still alive, and her other rights, especially pecuniary ones, will be affected too (v. infra; Yev. 87b; Sh. Ar., EH 17:3, 56). Another reason given is that a relaxation of the law is appropriate in times of danger, the possibility that a woman may remain an agunah being deemed to be such a time of danger (Yev. 88a, 122a and Rashi ibid.; see also *Takkanot ).

An agunah may also be permitted to remarry on the strength of her testimony alone as to her husband's death, when she is known to have lived in harmony with her first husband and his absence is not due to war conditions, for the reason, already mentioned, that certainly she has made careful inquiries herself before seeking to contract another marriage (Yev. 93b, 114b–116, and Posekim). On the other hand, five categories of women are incompetent to testify as to the husband's death, including his mother and his daughter by another marriage, since it is feared, in view of their customary hatred of the wife, that they are likely to deliver false evidence, so that she should remarry and thus become prohibited to her first husband if it should later transpire that he is still alive (Yev. 117a and Posekim).

Similarly, an agunah may be relieved of her disability on the unsolicited statement of an apostate Jew (see Apostasy) or a non-Jew, as to her husband's death; for instance, if during a casual conversation they happened to say, "it is a pity that so and so is dead, he was a fine man," or, "as we were walking together, he suddenly dropped dead," or the like (Yev. 121b–122a; Maim.; ibid. 13:11; Sh. Ar., EH 17:14). For the purpose of permitting an agunah to remarry it is sufficient if written documents exist that testify to the husband's death (Sh. Ar., EH 17:11). The halakhah originally considered documents emanating from non-Jewish authorities as insufficient to permit an agunah to remarry (Maim., Yad, Gerushin 13:28; Sh. Ar., EH 17:14), but according to the opinion of most posekim, this halakhah does not apply to present-day non-Jewish authorities, whose documents, such as death certificates, etc., may be relied on (see, e.g., Ḥatam Sofer, responsa EH 1:43).

Subject-Matter of the Proof

The halakhah, while striving to be lenient as possible in the method of proving the husband's death, imposes strict requirements concerning the nature of the evidence with regard to the husband's death, lest a woman still married may thus be permitted to marry another man (Maim. ibid. 15: Sh. Ar., EH 17:29). The identity must be established of the person whose death it is sought to determine and there exist most detailed rules in order to establish it with the maximum amount of certainty under the circumstances. Thus evidence as to circumstances from which death would be likely to result in a majority of cases is not considered as sufficient proof of death itself since it may be merely the opinion of the witness that the husband is dead, but not testimony as to the fact of death. Hence, the wife will not be permitted to remarry on the strength of evidence to the effect that her husband was seen to fall into the sea and drown in "water having no end" (i.e., where one can see only the sea but not its surroundings) when his death was not actually seen to have taken place, since he may have been rescued. If, however, the witness testifies that he was later present at the funeral of the husband or some other clear evidence of death, for example, that an identifiable limb was found at the place of drowning, it is accepted as evidence of death. On the other hand the death of the husband will be accepted as having been sufficiently proved and the agunah will be permitted to remarry on the strength thereof if there is evidence that he drowned in water "having an end" (i.e., that one can see its surroundings); and the witness stayed long enough at the scene "for the victim's life to depart," without seeing him rise to the surface (Yev. 120–121; Maim. ibid. 15–27; Sh. Ar., EH 17–42, esp. 32).

Agunah in the Case of a Civil Marriage

A deserted wife who, practically speaking, has no prospects of obtaining a get from her husband, but was married in a civil ceremony only (see Civil *Marriage ), may in certain circumstances be declared by the court to have never entered a marriage and thus be permitted to marry another man without need of a get from her first husband. The court will reach this conclusion particularly if the wife is able to prove that her first husband expressly refused to marry her in a religious ceremony, declaring thus by implication that he did not wish to create the status of a marriage according to Jewish law (Resp. Melammed Leho'il, EH 20).

Mitzvah to Permit Agunot to Remarry

Finding a way for permitting an agunah to remarry is deemed a great mitzvah (Responsa Asheri, 51:2). Indeed, an onerous application of the law, without justification, and in cases where there is no suspicion of deception, is regarded not only as a failure to perform a mitzvah, but even as a transgression (Responsa Maimonides, ed. Freiman, 159; Sh. Ar., EH 17:21, Isserles). However, in view of the danger of legalizing a possibly adulterous union, it is customary for an agunah to be permitted to remarry only after consultation with, and consent having been obtained from, other leading scholars (Sh. Ar. ibid. 34; Isserles and other commentators).

Consequences of Remarriage

An agunah who remarries, after permission is granted by the court, is generally entitled to the payment of her *ketubbah (Yev. 116b; 117a; Maim., Yad, Ishut 16:31; Sh. Ar., ibid. 43, 44). If an agunah remarries after permission has been given, and then her first husband reappears, her legal position is that of an eshet ish "a married woman" who has married another man, thus becoming prohibited to both men (see Adultery). Accordingly, she requires a get from both, and any children born to her of her second husband will be mamzerim according to biblical law. Any children born to her from a union with her first husband, after he takes her back but prior to her having received a get from her second husband, will also be mamzerim, but only according to rabbinical law. In such event she is not entitled to her ketubbah from either husband (Yev. 87b; Maim., Yad, Gerushin 10:5, 7; Sh. Ar., EH 17:56).

Proposals for Precautions to Avoid a Woman's Becoming an Agunah

In view of the unhappy straits in which an agunah is likely to find herself, ways were sought already in early times of taking precautions against such an eventuality. Thus it was customary for anyone "going to wars of the House of David, to write a bill of divorce for his wife" (Ket. 9b and Rashi and Tos. ibid.). This get was a conditional one, i.e., becoming effective only should the husband not return from war until a specified date, whereupon the wife would become a divorcee and be entitled to marry another man without having to undergo a levirate marriage or Ḥaliẓah (Sh. Ar., EH 143). In certain countries this practice is adopted even in present times by those going to war, but complications may ensue; since the rules and the consequences of a get of this nature are beset with halakhic problems (Sh. Ar., ibid.), particularly when the husband is a kohen, since his wife will be a divorcee if he fails to return by the specified date, and by law he must not thereafter remarry her (See *Marriages , Prohibited). One of the solutions suggested was for the husband to grant his wife an unconditional divorce, save that each promises to remarry the other upon the husband's return from war. This, however, would not avail a kohen for the reasons mentioned. Furthermore, in the event of the wife's refusal to keep her promise upon her husband's return, the question may arise whether on the strength of the get she is free to marry another man, because of the reasonable possibility that the husband intended that the get be conditional, i.e., to be of effect only in the event of his failure to return from the war (see above). On this question there is a wide difference of opinion on the part of the authorities without any unanimity being reached (see S.J. Zevin , in bibliography). Another solution proposed, has been the stipulation of a condition at the time of the marriage to the effect that in certain circumstances the marriage should be considered retroactively void, for instance if the husband should fail, without his wife's permission, to return to her after a long absence of specified duration and should refuse, despite her demand, to grant her a get; or if he should die childless, leaving a brother who refuses to fulfill the obligations of a levir, etc. (see, for instance, Ḥatam Sofer, EH 1:111). This approach also presents formidable halakhic difficulties and was not generally accepted by the majority of the posekim (see Freimann , Kahana , and Berkovits, in bibliography). A wife who is on bad terms with her husband and can prove the likelihood of her becoming an agunah, may possibly obtain an injunction from the court restraining her husband from traveling abroad without granting her a conditional get, as mentioned above.

It was also sought to avoid the disability of an agunah by the enactment of a takkanah by halakhic scholars to the effect that the kiddushin should be deemed annulled retroactively upon the happening or non-fulfillment of certain specified conditions, such as the husband being missing or his willful refusal to grant a get. But this takkanah, based on the rule that "a man takes a woman under the conditions laid down by the rabbis… and the rabbis may annul his marriage" (Git. 33a), has rarely been employed since the 14th century. In recent times it has been suggested that halakhic scholars should adopt one or other of these procedures in order to solve certain problems relating to agunah (see Freimann , Silberg (in the court decision cited in bibliography), and Elon, in bibliography).

In the State of Israel

The question of permitting an agunah to remarry, being a matter of marriage and divorce, falls under the exclusive jurisdiction of the rabbinical courts with regard to Jews who are nationals or residents of the State, in terms of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713/1953 (sec. 1), which courts deal with the matter in accordance with the halakhah. The provisions of the Declaration of Death Law, 5712/1952 (enacted to meet consequences of the Nazi Holocaust), empowering the Jerusalem District Court under certain conditions to make a declaration as to a person's death, has no bearing on the problem of an agunah, since "a declaration of death constituting evidence by virtue of this Law, shall not affect the provisions of law as to the dissolution of marriage" (see ibid., 17).

BIBLIOGRAPHY:

Bernstein, in: Festschrift… Schwarz (1917), 557–70; Blau, ibid., 193–209; Gulak, Yesodei, 3 (1922), 24; Zevin, in: Sinai, 10 (1942), 21–35; A. Ch. Freimann, Seder Kiddushin ve-Nissu'in (1945), 385–97; Uziel, in: Talpioth, 4 (1950), 692–711; ET, 3 (1951), 161; 6 (1954), 706 ff.; 9 (1959), 101–2; I.Z. Kahana, Sefer ha-Agunot (1954); Weinberg, in: No'am, 1 (1958), 1–51; Roth, in: Sefer Zikkaron Goldziher, 2 (1958), 59–82; Benedict, in: No'am, 3 (1960), 241–58; Goren, in: Mazkeret… Herzog (1962), 162–94; Unterman, ibid., 68–73; E. Berkovits, Tenai be-Nissu'in u-ve-Get (1967); B. Scheresehewsky, Dinei Mishpaḥah (19672), 64–65, 89, 93; PD, 22, pt. 1 (1968), 29–52 (Civil Appeals nos. 164–7 and 220–67); M. Elon, Ḥakikah Datit… (1968), 182–4; G. Horowitz, Spirit of Jewish Law… (1953), 95–96, 292–4; L.M. Epstein, Marriage Laws in the Bible and the Talmud (1942), index; Mishpetei Ouziel, She'elot u-Teshuvot be-Dinei Even ha-Ezer (1964), 33–49; Oẓar ha-Posekim, 3–8 (1954–63); S. Greenberg, in: Conservative Judaism, 24:3 (Spring, 1970), 73–141. ADD. BIBLIOGRAPHY: M. Elon, Jewish Law: History, Sources, Principles (1994) 402–3, 522–30, 803, 830–31, 834–35, 846–79, 1754–56; idem, "The Uniqueness of Halakhah and Society in North African Jewry, from the Expulsion of Spain to the Present," in: Halakhah u-Petiḥut: Hakhmei Maroko ke-Posekim le-Dorenu (1985), 15–38, Heb.; idem, Ma'amad ha-Ishah: Mishpat ve-Shipput, Masoret, u-Temurah; Arakheha shel Medinah Yehudit ve-Demokratit (2005), 297–372, 384–451; J.D. Bleich, "A Proposal for Solution to the Problem of the Husband who Refuses to Grant Get," in: Torah she-be-al Peh, 31 (1990), 124–39, Heb.; Z. Falk, "The Power of Permissiveness" (Heb.), in: Z. Falk, Halakhah u-Ma'aseh be-Medinat Yisrael (1962), 48–49; idem, Dinei Nissu'in (1983); idem, Takkanot be-Nissu'in ve-Gerushin (1993); A.H. Freimann, Seder Kiddushin ve-Nissu'in Aḥarei Ḥatimat ha-Talmud; Mehkar Histori–Dogmati be-Dinei Yisrael (1945); T. Gretner, "The Law of Mezonot for the Divorcée and the non-Divorcée – for the Benefit of Agunot," in: Moriah, 16:183–84 (1988), 66–81, Heb.; A. Hacohen, The Tears of the Oppressed (2004), foreword by M. Elon; Y.I. Herzog, Kitvei ha-Rav Herzog; A. Rosen-Zvi, Dinei ha-Mishpaḥah be-Yisrael – Bein Kodesh le-Ḥol (1990–91), 255–60; D. Novak, Halakhah in a Theological Dimension (1985); E. Shochetman, "Annulment of Marriage – A Possible Way of Solving the Problem of Refusal to Provide a Get" (Heb.), in: Shenaton ha-Mishpat ha-Ivri, 20 (1998), 349–97; M. Shawa, Ha-Din ha-Ishi be-Yisrael, (19923); P. Shifman, Safek Kiddushin be-Mishpat ha-Yisraeli (1975); idem, Mi Mefaḥed mi-Nissu'in Ezraḥi'im (1995); B. Teomim-Rabinovitz, "Coercion in Divorce," in: No'am, 1 (1950), 287–312, Heb.