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.
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
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
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
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.
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
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
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.
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
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
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
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.
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
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.
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.”