This week’s Torah reading includes verses that have had a signal and devastating effect on the lives of Jewish women. Deuteronomy 24: 1-4 is almost entirely descriptive, laying out a case in which a man has taken a woman (sexually; in marriage); finds something offensive in her (the Hebrew implies a sexual offense); gives her a bill of divorce (get), and sends her out of his house. The woman, the case continues, then marries another man, who also divorces her. Finally, we get the one prescriptive statement, the upshot, of the case: husband number one may not remarry the woman.
However, these few words – a mere 60 until the prescriptive statement – is the basis of much of rabbinic marriage law – the requirement of a ketubah (marriage contract) came much later – and all of rabbinic divorce law. The rabbis halakhized every word of the Biblical text, turning description into legal prescription. Rabbinic marriage is unilateral, enacted by the man, the ba’al (master, owner), who takes a woman in marriage, meaning, his exclusive sexual and reproductive access to her; the woman gets no similar exclusive rights to his sexuality or reproductivity. Marriage being the unilateral action of the husband, so is divorce; and with this, we have the origin of agunah, Jewish marital captivity, and the creation of agunot, women held in marriage against their will.
Although for most of Jewish history, agunot were women whose husbands disappeared, whether through illness, accident, criminal incident, war or desertion (a scholar of medieval Middle Eastern Jewry writes that mention of deserted wives in the treasure trove of documents from that Jewry of the Cairo Genizah would fill its own book), vindictive behavior by husbands using their privilege to withhold a get is now the main cause of iggun (in fact, such behavior is nothing new and is documented in medieval, early modern, and modern Jewish history across the map of Jewish existence).
Full statistics are impossible to come by, since today, no rabbinic court in the United States or elsewhere in the Diaspora or in Israel, makes its records available to outside eyes. Moreover, there is a cynical industry of mind-gaming the phenomenon of iggun, of granting and withholding this utterly undesired title. Rabbinic courts label a woman an agunah not when she seeks a get and the ba’al refuses, but only in the rare instances that a court determines that the husband should give a get and he refuses. The difference is years of a woman’s life, while she is forced to engage in repeat, often formulaic, useless rabbinic court hearings, for each of which fees are charged to participate in forced reconciliation efforts, even in cases of physical and emotional abuse; and to keep defending her desire to be free of the marriage. Many indices, however, point to thousands of agunot across the contemporary Jewish world. And any woman married under rabbinic law can become an agunah in an instant.
Do halachic prenups work?
All this is well documented; visit the websites of the Center for Women’s Justice, of Mavoy Satum, and innumerable media reports available with the flick of a search click. In recent years, there has been a growing effort to encourage the use of prenuptial agreements, with the promise that these will give women protection from becoming agunot. Such promises do not distinguish among prenups and some are worse than none. They also do not state that prenups, even the best, are contracts and, like any contract, can be and are violated, attempted enforcement of which, as with any contract, requires expensive, traumatic litigation, the threat of which can be used in get extortion, no different from primary get extortion, which has become an egregious plague.
The focus on prenups also deflects from the origin iggun in rabbinic marriage, enacted through kinyan and kiddushin, which is the new ba’al’s acquisition and sanctification of exclusive rights of access to his wife’s sexuality and reproductivity. Iggun is not caused by bad husbands or bad rabbis, though both abound, but by this manner of enacting marriage. Bad men are not the cause of this problem but the end result of this system of marriage. Using prenups and hoping they work is like taking poison and hoping an antidote works. Better not to take poison in the first place.
How to end iggun and free agunot
THE FIRST step to ending iggun is alternative Jewish methods of enacting marriage, in which the partners, as in one suggestion, adapt rabbinic partnership law, developed by the rabbis with the expectation that both parties to the partnership were men, both, therefore, afforded equal protection. Another suggestion is to use nedarim (vows) to effect marriage and hatarat nedarim (annulment of vows) at the volition of either party to end it.
Even when kinyan and kiddushin do not result in agunah, they are fundamentally and profoundly offensive to the dignity and humanity of Jewish women and should be abolished on this ground alone. Read, or rather re-read, “Birkat Erusin,” the second blessing of the traditional rabbinic marriage ceremony, which speaks of “those forbidden and permitted us” – the “us” being men, as clear an androcentric statement of the othering of women (treating women as commodified sex objects) as imaginable.
Anyone truly interested in ending agunah must start with this, and draw and apply the necessary lessons.
Numerous scholarly publications thoroughly lay out halachic options to free an agunah. The problem is not a lack of halachic options but that rabbis and rabbinic courts do not apply them, with a resolve to end, not keep managing, agunah. This, too, is amply documented: see The Wed-Locked Agunot, by S. Aranoff and R. Haut, about rabbinic courts in the US; and Marriage and Divorce in the Jewish State, by S. Weiss and N. Gross-Horowitz, for what goes on in Israeli rabbinic courts, and the podcasts of Nitzan Caspi-Shiloni and Rivka Lubitch of the Center for Women’s Justice.
Pretending that prenups, never mind postnups, will prevent agunah, much less extricate women from marital captivity, is unconscionably misleading. The monetary fines that prenups state are useless in both the cases of men of means, to whom they are no deterrent, and to men without means. Any attempt at enforcement, moreover, requires litigation, a pitfall already addressed.
All these measures and deceptions are what I term the management of iggun, rather than any plan to end it. Management of iggun assumes that agunah is a necessary, inevitable, unending fact of life–which in fact, it is, so long as marriage is enacted by kinyan and kiddushin. But iggun is not a law of math or terrestrial physics. It is literally, man-made and can and must be unmade.
Ending it, however, will require women to decide that if they are not freed swiftly from marriages, without a whiff of extortion or any rabbinic court participation in demands for payoffs in money, assets, or child custody, they will end their marriages themselves and get on with their lives. This means, necessarily, understanding that the threat of labeling them adulteresses and any children born of new unions, mamzerot/im, is also a man-made, mafia-like tactic; abusive resort to a category that many rabbinic authorities long ago decreed non-functional but which is used to intimidate agunot and keep them captive and the business of iggun—and it is that- alive. All this is not Torah; it is misogyny, corruption, and rank defilement of Torah.
Women cannot act, literally in God’s name – see Genesis 1:27 – on their own to end agunah, free all agunot, and halakhize this other Biblical text–which declares women and men created in the Image of God. Halakhize these verses would make treating women as sex objects in halachic marriage – defined by Rabbi J. David Bleich, as an exclusive conjugal servitude of the bride to the groom – inconceivable. They need the concerted support, emotional and financial, of families, friends and community, a change of consciousness and a commitment to act.
I have just completed a book about all this in which I have documented overwhelming evidence that Jewish women across the map of Jewish life, in all eras of Jewish history, acted creatively, assertively, aggressively and transgressively, e.g., making use of non-Jewish courts, both Christian (secular), and Muslim (religious and secular; as did men, including great rabbis), to prevent their falling into agunah and to extricate themselves from it. This included women acting to escape from yibbum, halitsa and being extorted for it (the requirement of a childless widow to marry her husband’s brother). All this was well before the dawn of modernity, within entirely traditional Jewish communities, and there was nothing else.
There is an established tradition of reading the k’lalot (the biblical curses for unacceptable behavior) in a hushed voice. It is time to do the same with Deuteronomy 24:1-4, as part of a move to recognize the origin of agunah and address it, once and for all, in order to cease managing Jewish marital captivity and end it.
The writer is professor emerita of Jewish studies and history at Oberlin College, author of four books, and winner of a National Jewish Book Award. Her new book is titled, Thinking Outside the Chains to Free Agunot and End Iggun: History, Present Reality, Policy.