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Issues in Jewish Ethics:
Agunot - Abandoned Wives

by Rabbi Mayer E. Rabinowitz


Jewish Ethics: Table of Contents | Divorce | "Kosher Sex"


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Introduction

I chair the Joint Bet Din of the Conservative Movement. The institutions that are part of our Bet Din are the Jewish Theological Seminary, the Rabbinical Assembly, and the United Synagogue for Conservative Judaism.

There are nine rabbis who serve on the Bet Din. All are members of the Rabbinical Assembly. About half are either professors of Talmud and Rabbinics or have doctorates in the field. Some are Mesadderei Gittin (Rabbis trained to write and deliver a Get). The chair of the Committee on Jewish Law and Standards of the Conservative Movement is also a member of the Bet Din.

During the last nine years the Bet Din has functioned in a number of areas:

  1. We have established and maintain a database of all gittin written by our Mesadderei Gittin. This enables us to verify the facts in all cases (for example, if the P'tur is lost, we can certify that the woman may remarry)
  2. We ran a course to certify Mesadderei Gittin. Today there are about fifteen rabbis who completed the course and act as Mesadderei Gittin in North and South America
  3. In cooperation with the Executive Council of the Rabbinical Assembly, we have centralized all matters of divorce and annulment in the Bet Din
  4. The Rabbinical Assembly adopted a Standard of Rabbinic Practice that states that a Conservative rabbi may not marry a previously married and divorced male or female if a get has not been received by the woman, or if the man has not given a get.

Many a time when a couple has a premarital interview with the rabbi, the rabbi discovers that one or both has been previously married and divorced. When the rabbi asks if the woman has received a get or if the man has given a get, the frequent answer is "What is a get?" . This requires immediate action - ideally, arranging for one or two gittin very quickly, so that the couple can marry.

The Bet Din meets four times a year. But thanks to modern technology, we communicate frequently and discuss cases that cannot wait for the next meeting. In reality, we function throughout the year.

Our problem, as described by Rabbi Rackman, differs from the problem in Israel. In American civil marriage and divorce is available. It is also possible to be married by some rabbis or cantors without having obtained a get, because some clergy recognize the civil divorce as terminating the religious marriage. [We, of course, do not.] Of course the couple also has the option of being married in a civil ceremony. Today approximately 50% of the marriages in the United States end in divorce. This leads to many second or third marriages. If we want these couples to marry in accordance with halakhah, one must find halakhic solutions.

Our bet Din takes action only after the couple has received a civil divorce. We have seen that the civil courts protect the woman's right in property issues as well as in child custody issues. In addition, if the couple were to reconcile before the civil decree but after the delivery of the get, new problems would arise.

The Conservative approach to halakhah is based on certain principles:

  1. We are bound by halakhah, therefore all solutions must be halakhic.
  2. We believe in the historical development of halakhah. That is to say, halakhah developed differently in different places and under different circumstances. That is why we see different solutions. Note Rabbi Sirat's comments about one solution developed in Algiers in trying to solve the issue of a recalcitrant husband who refused to give a get. Once we understand the historical development of halakhah, we can utilize not only identical precedents, but similar approaches applied to new cases and conditions which require new solutions.
  3. We understand the terms peshat and drash in a different way. Peshat means, what did the author have in mind when he wrote it for the audience at that time. Drash means, what has it meant to the Jewish people over the course of the years. The two are different.

    Sometimes we use the peshat in order to find a new solution and sometimes we use the drash. The mitzvot were given to purify the people. That means that the mitzvot are not an end unto themselves, but rather a means towards an end. Therefore, if there is a difference between the mitzvah itself and the ideal behind the mitzvah, we are willing to act according to the ideal and not only according to the mitzvah itself.

  4. There are different approaches and interpretations to texts and decisions. Even though I disagree with Professor Schochetman's approach, I recognize the fact that he has a halakhic basis for his approach and he has the right to act in accordance with his approach. But while his interpretation is possible, it is certainly not the only reasonable one. We too have a halakhically based approach and we have the same right to apply our approach. As you know, there have always been differences of opinion and disagreements within halakhah, and several approaches are possible. Each one accepts what he regards as correct, in a particular case.
  5. When the issue is authority versus argument, we follow the arguments or proofs that seem strongest, and we are not bound by a particular decision or authority. In this we disagree with what Rabbi Ben-Dahan said earlier concerning the solutions offered by various people "that there is not one serious rabbi who accepts these solutions." We do not require an authority, we base ourselves on the arguments and proofs.

For example: There was a discussion held under the auspices of CLAL in New York. The topic was, is it permissible to study Torah with Conservative and Reform rabbis. Of course two Orthodox rabbis were the speakers. The first one based himself on a number of poskim who prohibited study with non-Orthodox rabbis. The second speaker stated that he read the responsa of these poskim but did not see any halakhic arguments. The responsa contained psychological and political arguments. But, he continued, since these poskim were not experts in these fields, and since they did not present halakhic arguments, he was obligated to find a halakhic answer rather than relying on "authorities."

We are bound by arguments and not by authorities. If the arguments justify an approach we will use it even if other "authorities" disagree.

For well over fifty years the Conservative Movement has been dealing with the agunahproblem and with recalcitrance to give a get. Our halakhic solutions can be divided into two categories: preventative measures taken before the marriage, and curative measures to apply when preventative measures were not taken.

A. The Lieberman Clause

Professor Lieberman, of blessed memory, added a clause in the ketubbah. It states that if a get has not been given after the civil divorce, the couple accept upon themselves to appear before the Bet Din of JTS and the RA, and to obey the dictates of the Bet Din so that both can live full Jewish lives. This means that the husband will give a get so that both can remarry according to halakhah.

There are a number of problems with this clause:

  1. In order to force the recalcitrant partner to appear and follow the directives of the Bet Din, one must get an American court to enforce the clause. From our point of view this is degrading to halakhah because, in effect, it says halakhah cannot solves its own problems, and must rely on the civil courts.
  2. It also does not completely solve the problem of obtaining the get. In America there are a lot of fathers who do not pay child support or alimony. If they are taken to the civil courts to force them to pay, they can still refuse to pay. In some cases they "disappear" or are imprisoned. This has happened here in Israel as well, when the rabbinic courts have tried to force a husband to give a get. We've heard about these types of cases from Rabbi Ben-Dahan. The end result is that this preventative measure does not necessarily solve the problem.
  3. In the United States many State Supreme Courts will not accept the Lieberman clause because, according to them, it violates the principle of separation of church and state. There was one case in New York, Avizur vs. Avizur, that was appealed to the Supreme Court of the United States. Mr. Avizur claimed that the clause was never explained to him, and he was just told to accept the ketubbah as written. Eventually Ms. Avizur abandoned her case due to lack of funds.

Based on this case, the Joint Bet Din created a Letter of Intent that is signed by both husband and wife. In this letter, which is separate from the ketubbah, the couple testifies to the fact that they met with Rabbi So-and-So who explained to them what is in the ketubbah, including the Lieberman clause, which obligates them to appear before the Joint Bet Din, and to obey its decision. The couple signs the letter indicating their acceptance of the ketubbah and the Lieberman clause. They are informed that this letter is binding in a civil court. In most cases this letter will suffice. But if the husband wishes to go to court, the chances are good that a civil court will throw out the Letter of Intent because of principle of separation of church and state. Once again we are relying on a civil court and are not finding a total solution within the framework of halakhah.

A historical note: In the 1950s, when Professor Lieberman suggested the clause, the head of the Rabbinical Council of America (Orthodox) and the Rabbinical Assembly met to discuss this clause. Participating in these discussions were Rabbi Soloveichick and Professor Lieberman. All agreed that from a halakhic point of view the clause could be added to the ketubbah, and was usable. However, the Orthodox rabbis decided not to cooperate in this manner, and the Lieberman clause appears only in Conservative ketubbot.

B. T'nai B'kiddushin

This is a separate document and is not part of the ketubbah. The principle involved is that the husband betroths the woman kedat moshe v'yisrael with the following condition: If we should be divorced civilly, and within a period of six months after the civil divorce I give you a get, then the kiddushin are valid. But if we should be divorced civilly, and within a period of six months after the civil divorce I do not grant you a get, then the marriage was not a valid one. The groom reads the T'nai in the presence of a Bet Din and the bride says that she agrees. The bride and groom sign the document and the members of the Bet Din sign it as well. Under the huppah, before the groom betroths the bride, the rabbi asks them if they agree to be betrothed in accordance with the laws of Moses and Israel and the conditions they agreed to beforehand. If they agree at the time of kiddushin, then the wedding ceremony continues with the betrothal formula.

When the T'nai is used and the couple gets a civil divorce, the wife can appear before a Bet Din because her husband refuses to give a get. The Bet Din then verifies the fact that the condition was agreed to but not fulfilled. Then the kiddushin is rendered invalid and the woman can remarry, based on the P'tur the Bet Din issues. There are no arguments or problems.

This T'nai is based upon the ideas of the French and Turkish rabbinate and can be found in Eliezer Berkowitz's book, Tenai be-nisuin uve-get. Since everything is dependent on the will of the husband, and is not dependent on the civil court's decision, we have solved the problem that faced the French rabbinate.

Our experience in America is that even though the T'nai is perfectly halakhic, there is an uncomfortable feeling about raising the issue of divorce to a couple that is about to be married. We have embarked on a campaign to convince our rabbis to use the T'nai. With the divorce rate so high in America, the issue of divorce is often mentioned by the rabbi when he or she explains the ketubbah to the couple. This is an appropriate time to talk about the T'nai, and to point out its positive and protective elements. For those rabbis who are not willing to use the Lieberman clause because it is dependent on the civil courts, T'nai B'kiddushin answers their needs.

These are the preventative measures. Our rabbis use both methods. In general, these measures have helped solve the agunah problem from a halakhic point of view.

But there are cases where, for a variety of reasons, these measures were not used. In those cases a different curative solution had to be found.

C. Annulment (Hafka'at Kiddushin)

The Talmud states: Kol demekadesh adaata derabbanan mekadesh veafkainhu rabbanan lekiddushin minay. This is a juridical principle that states that all betrothals received the approbation or approval of the rabbis. The rabbis have the power to rescind their approval. Then the kiddushin are annulled. This is similar to a marriage license issued by the state which is the law in the United States.

There are many approaches to this issue. The approaches of Berkowitz, Falk, Frieman, the French rabbinate, the Turkish rabbinate, and the Joint Bet Din are all acceptable and halakhic. We adhere to a principle of "Yesh Hadesh Batorah," that is to say, one can use "Hadash" when the "Hadash" is permissible according to the Torah.

The juridical principle is that the rabbis can annul marriages. The only question confronting us is, whether we are restricted in using the principle only for those cases and situations mentioned in the Talmud, or whether we can we extend the use of the principle to those cases where we deem it necessary to do so? We feel compelled to extend its use. it should be noted that, the first time this principle was used in the Talmud, in Naresh, there was no precedent! The rabbis used it to solve a problem. We see this as a precedent to use it to solve the problems of today. The precedent is the method and not the actual case. Basically the principle states that the rabbis give a license to marry. In the United States if one receives a license from the state to marry and the state rescinds the license, then the marriage is annulled. On this basis we can annul a marriage in cases where we consider it advisable to do so. Then the woman can remarry without any problem, and the children are not tainted. Even though the children were born "out of wedlock," there is no problem or hint of mamzerut,since the woman was free and unattached at the time of their birth.

Some couples have a psychological problem with the idea of our annulling the marriage, because they know that they have lived together as a married couple. When we say that this is the only alternative to getting a get, the husband often agrees to give a get.

We have decided to annul marriages on the basis of "mishum egunah akilu bah abbanan." And in the words of Rabbi Yehiel Weinberg in his book Seridei Aish (page 6), in discussing the question of stunning an animal before shehitah, "Indeed, I have shown reasons to permit, but I know from the beginning that the sages of Lita, Poland and the great sages of the haredi community would never agree to permit something that introduces any change in the method of slaughter that has been the rule among Jews for generations." There will always be those who will be opposed. But nevertheless he was willing to do that which he considered necessary in those days. And as Rabbi Lasmanan wrote (ibid., page 226) "that all decisors are required, if a question is posed, to initially try hard to find a way to permit. The decisor is not permitted to impose stringencies on others for the sake of piety or to separate oneself . . . perhaps due to the merit that you will enable the hungry to eat and that you are sparing the funds of our brethren the children of Israel, God will spare us."

All decisors approach a decision tendentiously. That is to say, the decisor leans toward a certain conclusion and looks for ways to support it. Not always is the decisor successful in finding the answer he wants. But if we approach this issue looking for a way to solve it in a lenient way, perhaps we will find a solution. If we approach it from a stringent point of view to prohibit it, then no solution will be found and the problem will remain and intensify. There are many precedents to permit agunot to remarry. For example, the acceptance of the testimony of one woman concerning the death of a husband. Even in the Orthodox movement, Rabbi Moshe Feinstein permitted a married woman, an agunah, to remarry, when he ruled in a general way, that all marriages in which Conservative and Reform rabbis participated were invalid, and therefore, the woman did not need a get. Even though the chances are great that in a number of such marriages there were kosher witnesses, and therefore halakhically the marriage was valid, Feinstein sought a way to permit rather than prohibit a remarriage.

The conclusion is that he wanted to solve the agunah problemwhen the husband refused to give a get. That is to say he was ready to permit a "married woman" to remarry so that she would not remain an agunah. There are many precedents like this, and we are ready to use them and to continue to free agunot.

Our procedures in annulment are:

  1. A file is presented to the Joint Bet Din by one of our Mesadderei Gittin.
  2. The file is reviewed to see that it contains documents or testimony corroborating the woman's claims.
  3. After discussing the file, the Joint Bet Din decides on the annulment.
  4. We first try to get the husband to authorize the giving of a get.
  5. When we are convinced that he will not cooperate, we will annul the marriage for the following reasons:
    1. Recalcitrance on the part of the husband, after the civil divorce, for no reason other than spite.
    2. Blackmail on the part of the husband, usually to try to overturn the property settlement.
    3. Disappearance of a husband fleeing from the authorities or from debts, and all efforts to locate him are to no avail.
    4. Physical abuse by the husband even after the civil divorce.
    5. Inability to locate a former husband after many years of divorce. For example, the couple was divorced some twenty years ago and there has been no contact for years. There is also no reason to believe the husband died.

Here are some examples of cases brought to the Joint Bet Din. These cases will help clarify our procedures.

Case 1:

Mrs. G. was notified a few moments after her wedding that her life was going to change radically. Since her husband did not like her friends, he prohibited her from seeing them. In addition, he prohibited her from pursuing a career and from higher education. He proclaimed that he wanted children immediately.

All of this was an unpleasant surprise for her. Once she realized her husband was serious, her life turned bitter. For the first six months of married life she virtually had no contact with her friends, she lost weight and lived in fear. When the physical abuse began she realized that she had to sever the relationship. They separated for a number of years and she sued for a civil divorce. Today, twenty years later, her ex-husband lives with a non-Jewish woman and has a son. He refuses to give her a get.

When the Mesadder Get contacted the ex-husband to try to have him authorize a get, the ex-husband refused and threatened the rabbi if the rabbi tried to contact him again. The only way to contact him was through a cellular telephone number.

Mrs. G. is not remarrying, but she has a need to rectify the situation. She needs closure in order to continue with her life. From a psychological point of view she must close this painful episode and move on.

We annulled the marriage.

Case 2

A woman from a very Orthodox community in New York turned to us to help her free herself from her recalcitrant husband. She had seventeen decisions from Orthodox Batei Din ordering her husband to give her a get. He refused to abide by these decisions.

When I explained to her that our Bet Din was part of the Conservative Movement, and our annulment would probably not be recognized in her community, she answered that she was aware of the facts. She realized that if she remained in her community, she would never be able to remarry. Nevertheless she wanted closure. Psychologically it was necessary for her to know that she was finally free of him, and therefore she turned to us.

We annulled the marriage.

Case 3

A woman turned to us when her husband refused to cooperate. We sent him a registered, return- receipt- requested letter. The letter was returned and stamped "Refused delivery." Obviously, when the husband saw the return address, he decided that he did not want to deal with us.

We sent him another letter by regular mail. A few months later he contacted us, saying that he understood his wife was requesting a get. He refused because he wanted to reconcile with his wife. A few weeks later we found out that he was about to marry another woman. When we confronted him and asked him how he could claim he wanted a reconciliation, he still refused to give a get. It was clear to us that he was acting out of spite.

We annulled the marriage.

Case 4

Some Iranian women have turned to us after having endured physical abuse in their marriages. Most of their marriages took place when the women were very young. In one particular case the wife was faced with a recalcitrant husband. We were able to leave him a telephone message since we did not have an address for him. He contacted us and said that he was in the midst of a civil suit concerning financial matters and child custody against his wife, and if he won, he would grant a get.

At his court case he claimed that he had no income and no domicile. The judge asked him how could he ask for custody if he has no domicile, and how did he expect to provide for the children if he had no income. It was clear to the court, and to us as well, that the husband was planning to take the children and disappear. Naturally he lost the civil suit, and he still refused to grant a get.

We annulled the marriage.

Case 5

A husband refused to give a get claiming that he wanted a reconciliation. It came to our attention that he was about to convert to Catholicism and to marry in the Church. We contacted the Archbishop and asked him to refuse to allow the marriage to take place in the Church until a get was authorized. The prelate agreed, and within two hours the husband agreed to give a get.

Case 6

A recalcitrant husband stated that as far as he was concerned, his ex-wife "could rot in hell." We contacted him and informed him that we would annul the marriage, and his children would therefore be born out of wedlock. In error, he thought that this procedure would taint his children from a Jewish point of view. Since he was close to his children, he decided to grant a get.

We have used the methods I described above to solve some of the classic problems of the agunah and recalcitrant husbands. In America, a woman can marry civilly, without a get, and this would in fact cause new cases of mamzerut. Out of concern for both the agunah and the JewishCommunity, we refuse to accept the approach that "there is nothing we can do." We have found halakhic solutions and we have implemented them.

Throughout our history, in situations where religion had to persuade its adherents rather than impose its point of view, the rabbis found solutions for the halakhic problems of their time. The solutions of Rabbi Rackman are halakhically sound. Although we do not use them, and have been using other solutions for over fifty years, we recognize their legitimacy and their value.

Will our solutions and the solutions of Rabbi Rackman cause a split, as suggested earlier by Judge Elon? Professor Schiffman answered that earlier. Today, there is no unity or unanimity here in Israel nor in the Diaspora. The argument of "splitting the unity" is used by groups at the extremes, as an excuse to maintain the status quo and do nothing to solve this serious and heartbreaking problem.

Outside of Israel, a Jew chooses the rabbi and community in which he will marry. There is precedent for this from the schools of Bet Hillel and Bet Shammai. Our solutions and those of Rabbis Rackman and Morgenstern will not cause a split - splits exist already. Would a Satmar marry into a family affiliated with the National Religious Party?

It is possible to coexist. When someone from another movement wants to join one of our synagogues, we require that the person live up to our standards. If there is agreement, the person becomes part of our community. That is our process outside of Israel, and yet we are one people. This is possible in Israel as well. The extreme right might argue otherwise, but in reality they have read themselves out of Klal Yisrael.

It is our prayer that just as our predecessors, with the help of the Almighty, found solutions to the halakhic problems of their times, so we too, with God's help, will be able to find solutions to the contemporary halakhic problems. Thus the links of the generations will not be broken. It is the responsibility of the rabbis of today to find answers to today's problems, just as rabbis in the past dealt with the problems of their day.


Sources: Jewish Theological Seminary. This article was adapted from Rabbi Rabinowitz's comments to the Agunot Conference in Jerusalem in July 1998. Rabbi Rabinowitz is an associate professor of Talmud at JTS and the librarian of the JTS Library. Reprinted by permission.

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