In recent years, some activists on behalf of agunot – women chained in marriages they can’t escape because their husbands can’t or more commonly won’t give them a get (rabbinic divorce) – have established International Aguna Day. They set the day to fall on the Fast of Esther, since, in the words of a leader of this effort, on this day: “We identify with all chained women who, like Queen Esther, are trapped in a marriage they do not desire. Like Esther, many of them live in fear, stripped of freedom and bereft of independence.”
I will return to this analogy. But first, to a different understanding of the problem, and its solution.
For those who, with the best of intentions, observe International Aguna Day, doing this “highlights the injustice, the lack of fairness, the cynical use of Jewish law, and the unfathomable price women must pay simply because they are Jewish women.” Right now, there are hearings in the Knesset in which the egregious abuses of the system are being aired. One is the case of a woman, now 21 years old, who was married for two days and has been an aguna
for two years.
Another is that of Tzvia Gorodetsky, who waged a hunger strike in front of the Knesset last summer to push for legislation to end her plight. Gorodetsky has been an aguna for 20 years. Her husband is in jail for defying a rabbinic court’s order to give her a divorce and he intends to stay there rather than free her, which is his legal right: It his male will vs that of the rabbinic court in an epic contest to the death. The woman in question is left to starve herself on the Knesset sidewalk.
Recently, Gorodetsky was billed for his debts since, after all, they are married. Action by the Center for Women’s Justice got that outrage annulled, but Gorodetsky remains chained.
THE PROBLEM is not lack of outrage, sympathy or eloquent denunciations but of diagnosis and prescription.
The aguna problem is a direct outgrowth of the way that rabbinic marriage is contracted, via kinyan (acquisition) and kiddushin (sanctification). These acts are done by the husband alone.
He “sanctifies” a woman, laying exclusive claim to her sexuality and reproductivity. All the woman does is wordlessly consent to this transfer of the rights over her body from her father (or another male guardian), to her new male guardian, her husband, via acceptance of a ring of minimal value. There are other halachic methods of effecting this transfer, but a ring is all but universal.
There is no mutuality; he does not pledge exclusive rights to his sexuality or reproductivity to her.
Indeed, his crime, should he sleep with someone other than his wife, would only be severe if the woman in question were another man’s wife, the offense consisting in violation of that man’s rights.
Because the man contracts the marriage, it is his exclusive prerogative to end it. Which is how we get the aguna
One might call get-refusal a “cynical use of Jewish law,” and there is no intent here to say otherwise.
But this “cynical use” has been rampant for hundreds of years and has only worsened in modernity. Some 3,000 women a year become agunot. Many have written heart-rending critiques of it, have “cried to high heaven” about it. Clearly, more of this is not the solution.
Neither are prenuptial agreements.
Good ones are better than nothing and should be a required part of any marriage contracted via kinyan and kiddushin.
But they do nothing for women already married who lack one.
Those which state high monetary exactions as the price for get refusal are useless if the man lacks assets (think of Tzvia Gorodetsky and most other women). They are also useless if the man has tremendous assets and refuses to honor the prenup, litigating a wife without similar assets into submission to extortive terms common in get refusal. Doing kinyan with a prenup is like taking poison and then an antidote. Why is kinyan treated as sacrosanct in halachic Judaism? It is high time for Jewish women to cease being objects of pity and hoped-for protection, just as it was high time for Jews altogether to cease being objects of pity and hoped-for protection. Jewish women must refuse to be married as sexual chattel in a unilateral ceremony which, however prettified, has horrendous legal implications and consequences in real life. Yes, there are good marriages and men who do not relate to their wives as chattel. But this is a legal system, with consequences.
Just ask the unlucky ones. Every woman who marries through kinyan
is a potential aguna
, hoping she stays lucky.
ENOUGH. It is time to rewrite Jewish marriage – this time with women at the table, quills in hand. There are various proposals for replacement of kinyan/kiddushin with other Jewish methods. Rabbi Rachel Adler has proposed using halachic
partnership law – shutafut
– as one egalitarian model. There are others.
The point is that it is well past the time to cease wailing about the abuses of rabbinic marriage law and to fix it, fundamentally, so that the act of marriage no longer demeans and degrades the humanity and Jewish personhood of women but is a reflection of the Divine Image of both partners equally.
Queen Esther of the Purim story may have been “trapped” in a marriage she could not escape, but think about what put her there. And the fact that she never got out; at least, we know of no such happy ending for her, as there was for the Jewish people as a whole. This is no model for now.
Jewish women are not sacrificial objects on the altar of Halacha. At least, they must cease to be. As difficult as it may be for those raised to revere rabbis and Halacha, and for the many more who have no idea what they are enacting when they stand there and accept that ring but just accept that this is how one marries, freedom and dignity – “relief and deliverance,” to quote the Megila – will not come from “any other place” but only from women ourselves, taking it.
There is no “unfathomable price” that Jewish women “must” pay until rabbis free them, and taking this position is part of the problem, not its solution.
So, no more Aguna Day. Instead, let there be a mass divorce, initiated and enacted by agunot
themselves and witnessed by all Jewish women – agunot
divorcing their husbands and this system. Not in order to walk away from Jewish law but, on the contrary, in order to make it for the first time, truly “Jewish” – reflective of Jewish women as well as men, and of both aspects of the Divine Image, which Genesis speaks of so movingly, and which the Seven Blessings of the marriage ceremony reference repeatedly, crying out not just to be sung but to be enacted in law.The author is Professor Emerita of Jewish Studies and History at Oberlin College in Ohio.