Agunot - Abandoned Wives
by Rabbi Mayer E. Rabinowitz
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:
- 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)
- 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
- In cooperation with the Executive Council of the Rabbinical Assembly, we have centralized all
matters of divorce and annulment in the Bet Din
- 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:
- We are bound by halakhah, therefore all solutions must be halakhic.
- 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
- 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.
- 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
- 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:
- 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.
- 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
- 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
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:
- A file is presented to the Joint Bet Din by one of our Mesadderei Gittin.
- The file is reviewed to see that it contains documents or testimony corroborating the
- After discussing the file, the Joint Bet Din decides on the annulment.
- We first try to get the husband to authorize the giving of a get.
- When we are convinced that he will not cooperate, we will annul the marriage for the
- Recalcitrance on the part of the husband, after the civil divorce, for no reason other
- Blackmail on the part of the husband, usually to try to overturn the property settlement.
- Disappearance of a husband fleeing from the authorities or from debts, and all efforts to
locate him are to no avail.
- Physical abuse by the husband even after the civil divorce.
- 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
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
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.
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.
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.
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
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.
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.
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
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.
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.