What halahic solutions are available for 'agunot'?
By GAIL LICHTMANaguna 88(photo credit: )"Who stops his ears at the cry of the wretched, he too will call and not be answered." (Proverbs 21:13)
Maybe Lily was expecting a miracle when she came all the way from Haifa to Jerusalem for the conference. After all, the topic would be a new book on halachic solutions to the problem of modern agunot, literally "chained women" whose husbands refuse to give them a get, a Jewish bill of divorce.
Lily filed for divorce in 1968 and is still waiting for her get. Over the years, she has come to accept the futility of the process, has changed her name and has started a new life.
But still, Lily incredulously asked one of the book's authors, "How is it that you have all these solutions? How is it that you found solutions when the dayanim [rabbinical court judges] cannot? The situation is barbaric. Because I never received a divorce, today I am 70 years old, alone, with no children or grandchildren."
Lily is one of thousands of Israeli women whose cases continue to languish in the rabbinical courts, caught in the twilight zone between marriage and divorce. According to Justice Minister Haim Ramon, there are currently 23,522 pending divorce cases in the rabbinical courts, of which 20 percent were opened before 2003 and 25 have been pending since before 1991.
And it was these women's suffering, combined with the frustrations and anger of those trying to help them, that emerged during the Annual Sarah Becker Frank Academic Conference, held at the end of May at the Van Leer Jerusalem Institute, to discuss the newly published Zaakat Dalot (The Cry of the Wretched: Halakhic Solutions for the Agunot in Our Time).
The book, published by the Schechter Institute of Jewish Studies and its Center for Women in Jewish Law, is a comprehensive halachic anthology written by rabbis Monique Susskind Goldberg and Diana Villa, and edited by Rabbi Prof. David Golinkin, Prof. Moshe Benowitz and Rabbi Richard Lewis.
It grew out of the Schechter Institute's Center for Women in Jewish Law, founded in 1999, to study the status of women in Jewish law and find halachic solutions for agunot, along with its journal Jewish Law Watch, which examines actual aguna cases that have been pending in the rabbinic courts for years without resolution.
This pioneering work, based upon Talmudic and other rabbinic sources, utilizes the same halachic tools as the rabbinical courts and provides nine different halachic solutions for releasing agunot.
"What this book clearly shows is that the problem is not one of Halacha. There are solutions. The problem is the dayanim in the rabbinical courts. They simply do not use the solutions they have," stated advocate Sharon Shenhav, director of the International Jewish Women's Rights Project and one of the founders of the Center for Women in Jewish Law. Shenhav is also the only female member of the Justice Ministry's dayanim appointment committee.
Traditionally, an aguna is a Jewish woman whose husband has disappeared and whose whereabouts are unknown. But today, the term is used for "mesuravot get" - women whose husbands refuse to give them a get.
Under Jewish law, only the husband can grant the get.
A husband cannot be forced to divorce his wife, and a get not given of a husband's free will is void. The wife can refuse to accept the get, but her power is far more limited.
A woman whose husband refuses to give her a get lives in a world of legal, physical, psychological and emotional limbo. She is neither married nor divorced. She cannot remarry. Any children she has with another man are considered bastards (mamzerim) and are outcasts from Jewish society.
A man who does not or cannot divorce, does not face the same restrictions. He can father children with another woman and these children will not bear the stigma of mamzerim. In some cases, he can even receive rabbinical permission to take a second wife.
A 1995 law gives the rabbinical courts the power to impose sanctions on recalcitrant husbands - including revoking their driving licenses and/or professional licenses, freezing their bank accounts, confiscating their passports and even sending them to jail.
But aguna advocate groups claim these sanctions are used in far too few cases, and then used only after years of refusal.
Because of this, many women are forced to give up their property and financial rights in order to receive their get.
The book is divided into two sections. The first deals with ways to prevent the problem before marriage - prenuptial agreements where there are heavy penalties for not granting or accepting the get, use of the ketuba (marriage contract) as a kind of prenuptial agreement, conditional marriage where under certain conditions the marriage becomes null and void, appointing an emissary at the time of marriage to write a get, concubinage and a situation in which there is "a manner of betrothal" instead of marriage.
The second section deals with solutions to get around recalcitrant husbands. This includes coercion on the recalcitrant party, mistaken transaction in which one party claims there was unknown defect that renders the marriage contract void, and annulment.
The conference's speakers included the two authors, editors Rabbi Golinkin and Rabbi Lewis, Shenhav, Dr. Ruth Halperin Kadari of Bar-Ilan University's Faculty of Law; Dr. Aviad Hacohen, dean of Shaarei Mishpat College; and rabbinic advocate Rachel Levmore. Each one related to a different solution, outlined it and cited rabbinical sources for and against.
But beyond the halachic discussion, the conference was a scathing attack on the rabbinical courts and the Orthodox establishment.
"How can there be a responsible system where the norm is that women have to pay for their freedom by giving up their rights?" Shenhav asked. "Unfortunately, the rabbinical courts are a job placement service for those near and dear to gedolei hador (rabbinic leaders) and not for the most qualified."
Shenhav went on to note that since January 2003 not a single dayan has been appointed by the dayanim appointment committee as part of efforts to force the rabbinical establishment to propose more qualified candidates.
"It is vital that new appointments will be those who will free agunot," she explained.
The most impassioned criticism came from Prof. Alice Shalvi, one of the founders of the Israel Women's Network and the Center for Women in Jewish Law.
"Salvation will not come from the rabbinical courts as they are today," Shalvi noted with great despair. "The courts are made up of those who are corrupt. There is no likeness between them and Jewish justice. The dayanim have eyes that do not see and ears that do not hear. Only cancellation of the exclusive authority of the rabbinate will lead to real reform. There will be no change until the rabbinate has real competition - through civil and non-Orthodox marriages."
"I am not sure that all the dayanim are ayatollahs and corrupt," responded Hacohen. "But we cannot expect someone from Bnei Brak who has spent his entire life in a yeshiva to understand a post-modern couple from Ramat Hasharon. The book is an important contribution [to solving the problem of agunot] but it is not enough. The struggle to appoint dayanim is also important. We need to apply more pressure here."
In response to the criticism voiced at the conference, the rabbinical courts spokesperson, Efrat Orbach, stated: "The rabbinical courts are working hard in order to assist in freeing agunot and mesuravot get. For example, in 2005, the rabbinical court's special unit was able to attain gets for 24 women whose husbands had disappeared. Moreover, in 2005 alone, 43 rabbinical court rulings were handed down for sanctions against husbands refusing to give a get.
"The rabbinical courts use a variety of means in Israel and abroad for releasing agunot and aiding mesuravot get, among them: mediating between husband and wife and helping them to reach a compromise; locating individual husbands in Israel and abroad; issuing writs of habeas corpus for recalcitrant husbands that are enforced by private detectives paid for by the rabbinical courts in coordination with the police; sending rabbinical court emissaries all over the world in order to locate recalcitrant husbands and receive from them an appointment for executing the get; and, on occasion, sending specially-composed rabbinical courts to the far-flung corners of the world to write a get and free an aguna." Rabbi Eli Ben Dahan, director general of the rabbinical courts, expressed his hope that all cases of agunot or mesuravot get would be speedily resolved.
But the question remains - how much influence will a book written by two Conservative women rabbis have on the Orthodox establishment? Will it remain only an academic exercise? An Orthodox rabbi invited to the conference cancelled at the last minute supposedly because of pressure brought on him. One of the speakers, who is connected with the rabbinical courts, asked <IJ not to be identified as such, giving another title.
"There may not have been any Orthodox rabbis speaking but in the audience there were a lot of Orthodox, especially women and rabbinical court pleaders (to'enot)," Susskind Goldberg told IJ after the conference. "We don't have to be restricted to the Orthodox establishment. Orthodox women are very involved with this issue. Many have received our book and welcomed it. We may not be allowed to enter [the Orthodox world] by the front door but we can get in through the kitchen door and have an impact." "The current dayanim are impossible to convince," Villa stated. "They don't even accept solutions proposed by Orthodox rabbis. But we can work on prevention methods. The prenuptials give the least power possible to the rabbinical courts and recalcitrant husbands. No one should get married today without a prenuptial. These agreements are not 100% effective but they offer the best kind of protection at present. And if enough couples sign these, this might bring about a change."
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