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Solving the 'aguna' problem
Reuven Hammer
12/19/2007
The problem of divorce has been one of the most perplexing issues in Jewish law in modern times.
Divorce is not usually a time of rejoicing. Yet when a woman obtains one after more than a decade of trying to obtain freedom, it can turn into a celebration. I attended such a joyous occasion at a synagogue Shabbat service at which representatives of organizations that are active in the struggle to free agunot - chained women - participated. Without going into the particulars, the story here was the same as that of myriads of other cases - a husband who wanted to extort money and rights from the wife, a rabbinical court that was reluctant to use its powers against the husband and preferred to have the wife acquiesce in these demands, etc. Indeed the sorry state of agunot here has been rehashed so often as to need no further elucidation. The problem of divorce has been one of the most perplexing issues in Jewish law in modern times. When the Jewish community was tight knit, living in ghettos, social pressure and the almost universal recognition of rabbinic authority generally took care of the situation. In modern emancipated life that is no longer the case. The most difficult problem has been the husband who refuses a divorce even as he lives his life freely, frequently marrying - within or outside the bounds of Jewish law - while the woman languishes. He may do this out of spite or to receive financial or other advantages. The difficulty stems from the fact that the Torah grants the man - and him alone - the right to divorce. The Torah defines marriage as a state in which "a man acquires a wife" and defines divorce as "he writes her a bill of divorcement" (Deuteronomy 24:1). As interpreted by the sages, this means that he must grant the woman a divorce of his free will. Nevertheless in the Talmud it was clearly recognized that all marriage was done through the authorization of the rabbinical court which could then annul betrothals (Ketubot 3a). The Mishna (Ketubot 7) also discusses instances in which the husband must grant a divorce. And in Arakin 5:6, the Mishna states: "We force him until he says, 'I am willing!'" There are, therefore, many possibilities of solving this problem if there is a will to solve it. Many solutions have been proposed by halachic authorities within the Masorti and Orthodox movements. More than 50 years ago the renowned and highly respected halachic authority Saul Lieberman proposed the adding of a clause to the ketuba in which both husband and wife agreed to abide by the rulings of a rabbinical court in case of marital dispute. Although this was intended to be adopted by both the Conservative and Orthodox groups in America, in the end only the Conservative Rabbinical Assembly adopted it. This clause or some similar version in pre-nuptial agreements has been the norm in Conservative marriages in America and elsewhere and has proven successful in solving this problem. Of late some Orthodox authorities in America have adopted similar measures and some in Israel have advocated doing so. The Rabbinical Council of America, the organization of modern Orthodox rabbis, proposed such a prenuptial agreement as early as 1994. Unfortunately none of this has met with the approval of the rabbinic establishment. A brief ray of hope emerged last year when the Chief Rabbinate invited rabbis from throughout the world to come to Jerusalem and attempt to find solutions that would be acceptable in Israel and elsewhere. At the very last moment, after participants had already arrived, the conference was canceled because of the objections of some well known halachic authorities. One wonders if part of the reason for the unpopularity of marriage today and the growing number of those who do not form halachic unions is not the fear that in the future the woman will face this problem. Whatever the halachic problems may be, it is incumbent upon us to realize that this is a moral problem that cannot be ignored. To quote the late Louis Jacobs, "On any reading justice is a basic imperative of Jewish life. How, then, can one countenance Jewish laws which themselves promote injustice?... The main instance of this kind of injustice is the case of the aguna..." It is simply unacceptable to say that Judaism dooms women to perpetual servitude to recalcitrant husbands. If the Torah is a Torah of truth and if its ways are ways of pleasantness and peace, a Torah which is intended for life - v'hai bahem - and not for death, then it is imperative that a way be found which will acknowledge women's rights and prevent the terrible suffering that comes upon them as a result of the reluctance of halachic authorities to take the bold steps needed to solve it. The establishment of a Jewish state has presented Jewish law with many challenges (shmita is only one of them). Perhaps divorce is the most pressing because of the suffering and the injustice it causes. We must strive for the time when injustice and Jewish law will be an oxymoron because we will have found the way within halachic bounds to completely eliminate the problem of agunot. The writer is an author and lecturer who serves as the head of the Rabbinical Court of the Masorti Movement.
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