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It isn't over until the husband says 'I do'

This week's international Agunah Day highlights the plight of chained women.

Protests in Washington for Tamar Epstein
Photo by: Noah Zwillinger
With over 30,000 views on YouTube and hundreds of people taking to the streets in New York and Washington in protest, Tamar Epstein, a 28-year-old Orthodox woman from Silver Spring, Maryland, has become the reluctant subject of a cause célèbre that has been unfolding in the US for the past four years.

The reason behind all the attention Epstein has been receiving has less to do with what she did and more to do with what her former husband, Aharon Friedman, didn’t do: Namely, grant Epstein a get – a Jewish writ of divorce.

Epstein first asked Friedman for a get in August 2009, 18 months after the couple had separated following a tumultuous twoyear marriage in which they had a daughter, now four. Despite a civil divorce, Epstein’s get is still pending, and in June 2010 Rabbi Shmuel Kamentsky signed a letter stating that Epstein had the status of an aguna – or “chained woman.”

The issue of agunot is a complicated one in Jewish law and prevents the woman from remarrying until she has received a get from her husband. Any subsequent children that the woman has with another partner during the time that she is still “chained” to her husband are considered mamzerim, who will themselves be very restricted as to whom they can marry.

What makes Epstein’s story more high profile than other cases surrounding agunot is the fact that Friedman, an attorney by profession, is the aide to the chairman of the Ways and Means committee, Congressman Dave Camp. So how did a public figure on Capitol Hill, ostensibly with a desire to maintain a certain reputation and level of respect, turn into a get-refuser? Epstein believes that part of the reason is due to the attitude of the Orthodox community – and included within that are the beth dins of America – of being “too soft” on the subject of get-refusal. Initially, friends of Friedman, as well as rabbis and dayanim (religious-court judges), fully legitimated and supported his decision to hold off on giving his wife a get. Epstein avers that had the rabbis taken a hard-line approach from the beginning, the entire affair may well have been resolved years ago.

One by one, the rabbis dropped their support of Friedman, and in September 2011 the Union of Orthodox Rabbis of the United States and Canada took the very rare step of issuing a declaration of contempt which demanded that Friedman give his wife a get.

In accordance with the Jewish laws relating to gittin (divorce) rabbinical authorities can coerce the husband into granting his wife a get by imposing sanctions which include excommunicating him from his community and synagogue. But it seems that by the time the beit din (rabbinical court) had decreed that sanctions were to be imposed on Friedman, it was too late. In Epstein’s own words, Friedman had “become comfortable” with his status as a get-refuser and had turned into what she calls “a formidable opponent.”

Epstein further decries the recommendations given to her at the beginning of her ordeal when she was told to try to understand “where [her husband’s] coming from” and to “give him time to come to terms with it.” She was further advised to “be nice to him and gain his trust before asking for a get.” But perhaps the attitude that proved to be the most detrimental was to allow Friedman to think that all of the other issues surrounding divorce, including custody of children and division of property, should first be resolved before agreeing to grant a get.

THIS PARTICULAR point has been raised by many organizations advocating the rights of Jewish women. Rachel Levmore received her doctorate in Talmud and Jewish Law and is the coordinator for the Agunot and Get-Refusal Prevention Project of the Council of Young Israel Rabbis and the Jewish Agency. With an indefatigable passion, Levmore has been active in trying to find solutions to the aguna problem for more than 15 years. Levmore says: “We’ve reached a point that the linkage of giving a get and all the issues inherent to giving divorce [including child custody and division of property] must be severed because the second issue is obfuscating first.

These are two separate areas of Halacha and there is no connection between them, even in the Shulhan Aruch. Mixing them is giving rise to get-refusal and justification for getrefusal in people’s minds.”

Levmore believes that there should be two different courts handling each issue: one beit din should be dedicated to supervising issues such as child support, while another should be devoted solely to the handling of the get. The fact that one has become contingent on the other and has no basis in Jewish law.

Rabbi Asher Ehrentrau is the assistant director for Agunot Affairs in the Israeli rabbinical courts. Ehrentrau admitted that when a couple appears before the beit din following the wife’s request for a get, many times the husband will say, “I’m prepared to give a get. These are my terms.” Ehrentrau explains that the husband will not grant a get until all the other issues have been resolved – in other words, until his terms have been met. The thing is, says Ehrentrau, he can’t do anything to force or coerce the husband into giving a get because he had already expressed that he is fully prepared to do so.

But according to Atara Kenigsberg, executive director of the Ruth and Emanuel Rackman Center for the Advancement of the Status of Women at Bar-Ilan University, a research institute that deals with women’s rights in Jewish family law, this is precisely the problem. The recalcitrant husband will find favor in the eyes of the beit din by stating unequivocally that he will grant his wife a get. Yet of course, this is invariably followed by what he wants in return.

Kenigsberg believes that from the very first hearing, the methodology that the rabbinical courts use is part of the reason so many cases drag on for years. The courts are often guilty of giving in to the prima donna attitude of the husband, who believes he has the right to get whatever he can out of his wife, including money and custody rights.

Rabbis have become accustomed to posing the following question to the husband once a divorce file has been opened: “Your wife is asking for a get. What do you want in return?” Not only has this question no halachic justification, it is also dangerous. It empowers the husband and makes him feel like he’s the one holding all the cards. Which, sadly, might just be the case. In civil society – and indeed, in most areas of Jewish law – anyone who does not adhere to the legal system in place will run the risk of appearing before a court and will be forced to rectify any wrongdoings, or made to pay the price. The system – represented by lawenforcement agencies, judges, courts and so on – is ultimately the one with the power to deal with the misdemeanor as it sees fit.

However, this is not the case with getrefusers.

When all is said and done, recalcitrant husbands will always be the ones in power; so much so that even if the beit din decides to incarcerate the husband for life, it doesn’t resolve the matter and he can still refuse to give his wife a get from within the prison walls.

In his book The Shame Borne in Silence, Rabbi Dr. Abraham J. Twersky posits that get-refusing is the climax of abusive behavior that happened during the course of the marriage. Epstein agrees, and even though she no longer shares a home with Friedman, by refusing to grant her a get he is now exercising the ultimate weapon in domestic abuse. Not to mention a major abuse of human rights.

So just how many agunot are there in Israel today? Well, that’s the million-dollar question. According to the director of Agunot Affairs, Rabbi Eliahu Maimon, the number does not exceed 200. Maimon asserts that last year 98 cases were “solved,” whereby women who were deemed as having the status of aguna finally received a get.

According to Maimon, an aguna is any woman whose husband does not show up for a hearing once a request for a get has been made by the wife.

THERE ARE four halachic terms that the Beth Din has at its disposal to coax a get out of the husband: Recommendation; commandment; obligation; and coercion – with the latter being the strongest term used.

Maimon’s office deals with the later stages of get-refusal, i.e. those cases where the beit din has used one or more of those terms on the husband and he still refuses.

According to the Rackman Institute, the number of agunot in Israel far exceeds the statistics of the rabbinical courts and is well into the thousands. This discrepancy is due to a myriad of reasons, primarily relating to a difference in the definitions of an aguna: Firstly, each year many cases are closed by the courts due to “inactivity,” i.e. when there was no progress and no hearings over a long period of time following the initial divorce claim. But these stalemate cases are often due to one or the other partner simply giving up on the hope of ever receiving a get.

Alternatively, in some cases, the husband might be the one to make the initial divorce claim once he learns from his wife that she wants a divorce. In these cases, the issue becomes much harder for the wife and gaining the status of aguna is near impossible since she was not the one to initially file the divorce claim. Sadly, this is nothing more than a ploy by the husband to ensure that he is the one in control. He can file the initial claim and in subsequent hearings he can request from his wife that they preserve shlom bayit – marital harmony – at the courts’ behest.

Ultimately, if the husband files the claim first, he is the one holding the cards and his wife will not be regarded as an aguna by the courts. Additionally, since the husband was the one to file for divorce, even in cases where he might disappear and not show up to any of the hearings his wife will in all likelihood not be considered an aguna.

The final reason behind the discrepancy in numbers is quite simply because the rabbinical courts will not consider a woman an aguna if the husband actually shows up to the hearings – regardless of whether he grants her a get, and this is most often the case and the reason that so many of these cases drag on for years.

The Rackman Institute reports that in 2006 some 3,402 get-refusers were deemed by the courts as being applicable to have sanctions imposed on them. These sanctions extend as far as sending the getrefuser to jail. In 1995, a new law came into effect which meant that the rabbinical courts were able to make an autonomous decision to send a get-refuser to jail without receiving an additional ruling from civil courts. However, the rabbinical courts ended up imposing sanctions on only 50 of those men – a mere 1.5 percent out of the 3,402.

So what is the solution to the modern agunot problem relating to recalcitrance? This is the second million-dollar question, but one that is far more critical to answer than the question of numbers.

Rabbi Emmanuel Rackman, after whom the eponymous institute at Bar-Ilan is named, adjudicated agunot cases before his death in 2008 by invoking halachic concepts such as error in the creation of marriage and marriage by coercion to dissolve or annul marriages without the need for a traditional writ of divorce. The problem is that most rabbinical authorities, including the Rabbinical Council of America in the US and the rabbinical courts here in Israel, do not accept Rackman’s beit din as being consistent with accepted principles and precedent within the confines of Jewish law.

Rabbi Michael Broyde, a professor of law at Emory University School of Law and former director of the Beth Din of America, devised an alternative document signed by the couple before they marry that would prevent agunot cases. The advantage of the document is that it doesn’t rely on external factors – such as money – to free a chained woman. It even excludes the husband from the picture, which means that in extreme cases where the woman is an aguna because her husband is unable to give a get (for example, if he’s in a coma or has absconded and his whereabouts are unknown), this document would be used as a last resort in procuring a get for the woman. It essentially takes the power out of the hands of the husband and puts it back in the rabbinical courts.

But by Broyde’s own admission, the tripartite agreement was not formulated to be the set standard. According to Broyde, the No. 1 form of prevention is the prenuptial agreement that couples are encouraged to sign before getting married. The prenup is a binding arbitration agreement which names the Beth Din of America as the arbiter. It uses monetary mechanisms to set up spousal support in cases where a get is not given. Still, not all Orthodox Union or RCA rabbis inform couples of the existence of the prenup, and they certainly do not make it prerequisite for couples seeking to get married.

HERE IN Israel, the agreement has been translated and altered slightly to fit the Israeli milieu. Called an agreement for mutual respect, the document is authored by Dr. Rachel Levmore, Rabbi Elyashiv Knohl, Rabbi David Ben-Zazzon and can be found in five languages on the Council for Young Israel Rabbis website. Unlike the American version, this agreement is signed by both the man and the woman before marriage and protects them equally; further requiring the couple to attend marital therapy if one demands it.

The Rackman Institute, along with various other organizations, has advocated that a prenup such as this actually be added into the rabbinate’s standard ketuba.

At the very least, signing it as a separate agreement must become standard practice if cases of agunot are to be avoided in the future. Levmore would like to see the concept of agunot become as obsolete as diseases like polio or smallpox. In her words, “you can fix diseases functionally so long as you have the vaccine. To date, the prenup is the most effective vaccine to prevent agunot.” And the reason for that? Quite simply, nothing talks like money.

A husband or even a wife is far less likely to deny a get if they have to dish out large sums of money (something along the lines of $200 a day) in spousal support.

“The beauty of the prenup,” says Levmore, “is that the husband is not going to give you an argument. He’s going to give you a get.”

As well as eliminating the possibility of mamzerim, not to mention eliminating the abuse of a woman’s basic human rights, as in the case of Tamar Epstein, preventing future agunot will mean that women will be free to remarry and free to continue procreating should they wish.

Ahead of International Agunah Day, which this year coincides with the Fast of Esther on March 7, Levmore’s message to the Jewish people as well as to rabbinical authorities is singular and unequivocal: “By encouraging the signing of a prenup as standard procedure among all couples wishing to get married, you’re seeing to the expansion of the Jewish nation.”


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