Agunah


Agunah

Aguna (Hebrew: עגונה, plural: "agunot"; literally 'anchored or chained') is a halachic term for a Jewish woman who is "chained" to her marriage because her husband's whereabouts are unknown. It is also often used nowadays for a woman whose husband refuses or is unable to grant her an official bill of divorce, known as a "get".

For a divorce to be effective, Jewish law requires that a man grant his wife a "get" of his own free will. Since without a "get" or a "heter aguna" (permission by a "halachic authority" based on a decision that her husband is presumed dead), no new marriage will be recognized (and any children she might have would be considered Mamzer (bastard)), such a woman finds herself in limbo.

Because of the situation these women are in, the "aguna" problem has been a concern to every generation of poskim (authorities of Jewish law), who have tried to find any acceptable means within the confines of Jewish law to free these women from their legal shackles. In the past it was somewhat commonplace, due to the danger of travel, for people leaving home never to be heard of again, so the rabbis had to deal with this issue on a constant basis. Over the past few centuries, thousands of responsa have been written to deal with the "plight of the aguna".

In the past, most "aguna" cases were due to a husband dying without leaving clear evidence of his demise, or becoming mentally ill (insane). Nowadays many "aguna" cases arise as a result of a husband withholding a "get" in order to extort money or extract a more favorable divorce settlement or to get even with his wife. In response, "aguna" groups have organized to support these women and try to find a solution to this problem. Various remedies have been proposed, but as yet, no one solution has common acceptance. Nevertheless, the Prenuptial Agreement for the Prevention of Get-Refusal is one remedy which is in use in Jewish communities worldwide and is accepted by halachic authorities.

While it is widely assumed that the problem lies primarily in men refusing to grant their wives a "get", and that it is a widespread issue; in Israel, figures released from the chief rabbinate show that men are equally victimized and that the numbers are actually a couple of hundred on each side. [cite web
url = http://www.israelnationalnews.com/News/News.aspx/123472
title = Rabbinate Stats: 180 Women, 185 Men 'Chained' by Spouses
accessdate = 2007-08-26
last =
first =
date = 2007-08-23
publisher = Israelnationalnews
]

Causes

Circumstances leading to a woman being declared an "aguna" are:
* The disappearance of the husband without any witnesses declaring that he is dead;
* The husband succumbing to a physical or mental disease that leaves him in a coma or insane and unable to actively grant a divorce;
* The husband refusing to grant his wife a "get". A woman denied a "get" by her husband is technically called a "mesurevet get", although the term "aguna" is more commonly used.

A woman who is denied a divorce from her husband is not yet considered an "aguna" until a Beth Din finds merit in her request and orders her husband to give her a "get" and he refuses.

What constitutes a legitimate request for a divorce is based on halachic considerations and the particular case of the couple. See "Mesurevet get" below.

Background

Because of the serious nature of adultery in Jewish law, an "aguna" is forbidden to marry another man, regardless of the circumstances, whether accidental or malicious, that left her an "aguna" in the first place, or the amount of time that has passed since she first became an "aguna". A child born from another man to an "aguna" is considered a "mamzer" (halachically illegitimate), and may only marry another mamzer or a convert.

Because of the dire situation of the "agunah", every effort is made to release her from her marriage. This can be done in three ways:
* Locating the husband and convincing him to give his wife a "get";
* Providing evidence that the husband is dead;
* Finding a flaw in the original marriage ceremony, thereby retroactively annulling the marriage.

According to most rabbis, reasonable circumstantial evidence is sufficient to prove the death of the husband, and no direct testimony is required. This is based, among other things, on the talmudic assertion: "The Rabbis taught: 'If he fell into a lion's den, [bring witnesses to] testify [that he is dead] , if he fell into a ditch of snakes and scorpions - [there is] no [need] to testify [that he is dead] '" (Babylonian Talmud, Yevamot 121a). In other words, if it is known that the man fell into a ditch of snakes and scorpions and did not come out, it can be assumed that he is dead, and there is no need for further evidence (unlike falling into a lion's den where there is still a slight chance of survival). If, however, it is later discovered that the husband is not dead, the woman will find herself in particularly bad circumstances: her children from her second marriage will be considered "mamzerim" (bastards), and she will be forced to divorce both her first and second husbands, subject to the halachic ruling that an adulterous woman "is forbidden to her husband and the man with whom she fornicated". While such situations are extremely rare under normal circumstances, they did occur in the aftermath of the Holocaust and also occurred frequently in the wake of pogroms and other forms of persecution.

Finding a flaw in the marriage ceremony is considered to be a last resort in releasing an "agunah". It is rarely used as it is typically difficult in finding actual cause in most marriages to retroactively invalidate it. In Jewish law, a marriage must be performed in front of two witnesses. In order to release the "agunah", efforts are made to identify reasons why one of the witnesses was ineligible. This is typically unachievable as strong efforts are made at the time of marriage to insure the validity of the witnesses and the marriage ceremony. Another possibility is to prove that the woman did not consent to the marriage clearly and of her own free will, so that the marriage ceremony is declared invalid. This too is not generally accepted amongst the Halakhic authorities as there is generally no method to disprove intent. It is felt that the purpose of this endeavor is solely or primarily to retroactively delegitimize a marriage that was performed and accepted often many years previously. Annulling the marriage has no impact on the status of the woman's children. However, since it is not a generally accepted mechanism, it may leave the wife susceptible to a halakhic ruling that she was still married, and any subsequent relations with another man to be adultery. And it may lead to other halachic problems, so it is only used as a last resort by the authorities that do accept its use.

Only a woman can be declared an "agunah". None of the prohibitions listed above goes into effect for a man whose wife has disappeared. This is because there is no prohibition in the Torah for a man to have two wives, and a child born to a married man with a single woman is not considered to be a "mamzer". In the beginning of the 11th century, Rabbenu Gershom issued a decree prohibiting Jewish men from practising bigamy (though this was not accepted by certain remote Jewish communities such as the Yemenite Jews). To prevent this decree from causing flippant divorces previously unnecessary, Rabbenu Gershom also decreed that "a woman may not be divorced against her will." In certain extreme circumstances, however, such as the case of a man whose wife is missing, or who refused to accept a "get" for an extended period, a "heter meah rabbanim" (exemption by one hundred rabbis) may permit him to take a second wife (in the latter case, after depositing a "get" with them).Fact|date=July 2007 This exemption is applied nowadays, only in extremely rare circumstances. Thus, it is not uncommon for a woman to maliciously refuse acceptance of a "get", in effect "chaining" her husband.

In modern and ancient times, warfare has been a major cause of women being declared "agunot" (plural of "agunah"), as (especially in ancient times) soldiers are often killed with no one knowing. Many efforts have been made to resolve this problem in accordance with halachic principles. During World War II, some American Jewish and other chaplains provided combat soldiers with a "provisional "get", which only goes into effect if the husband is missing in action, leaving his wife an "agunah". This is based on a talmudic explanation of the incident of King David and Bathsheba (see II Samuel 11). According to one interpretation, David did not sin by lying with a married woman, since all of his soldiers gave a "provisional "get" to their wives before leaving for battle. "Rabbi Shmuel bar Nachmani said in the name of Rabbi Yochanan: 'Everyone who went to war on behalf of David, left a provisional "get" for his wife'" (Talmud Bavli, Tractate Shabbat 56a). In the modern state of Israel, the Chief Rabbinate has rejected this proposal, not in the least because of the impact it would have on the morale of the troops.

"Mesurevet get / "Get" refusal"

"Mesurevet get" is a term for a Jewish woman who is chained to her marriage because of her husband's refusal to give her a "get". A "mesurevet get" is a "victim of "get" refusal," otherwise known as a "modern-day "aguna"."

According to halakha, a "get" is valid when it is given by a husband to his wife out of his own free will ("Yebamot," 14:1). However, under certain circumstances pressure may be applied on a husband to force him to grant a divorce to his wife. Where a woman has proven one or more of a list of particular grounds for divorce, the rabbinical court (beth din) may apply pressure on the husband in those situations ("Ketubot," 7:10; "Gittin", 9:8). There are some halakhic decisors who would act accordingly in the cases of abuse or neglect ("Shulchan Aruch, Even HaEzer," 154:3). Nevertheless, not under all circumstances is a wife entitled to demand a divorce according to halakha. If a wife who is not halakhically entitled to a divorce does demand one, she may not be considered as a "mesurevet get" by a Rabbinical Court. However, not any woman who wants to leave an unwanted marriage but is refused by her husband, is considered to be a victim of "get" refusal. There are opinions that deem a woman's repugnance for her husband as acceptable halakhic grounds for coercion ("Rambam, Mishna Torah, Hilchot Ishut", 14:8). "It is said: In cases of granting a "get" to a woman, the man is forced until he says, 'I wish to do so'" (Babylonian Talmud, "Arachin" 21a; "Rambam, Mishna Torah, Hilchot Gerushin," 2:2). Nevertheless, in almost all cases, it is required to leave the man some say in the matter, lest the "get" be considered a "coerced divorce", which is halachically invalid. As ruled by "Rabbeinu Tam" ("Sefer HaYashar", Response 24; "Rema, Even HaEzer" 154:21), pressures that can be exerted against the man include shunning, denying him communal benefits and honors, and in extreme cases even imprisonment. Legend has it that as a last resort where all else has failed, a tactic has been sparingly used in the past, to let him spend a night near a nameless grave, or to frighten him in some other way. In Israel, rabbinical courts are allowed by law to implement various measures to persuade a man to grant his wife a "get" (Rabbinical Courts Law [Enforcement of Divorce Rulings] 5755-1995) [ [http://www.hamishpat.com/Courses/99408/408-01-hok%20kium%20gerushin-1995.doc "Chok Batei Din Rabbaniim" 1995] ] . These sanctions are a modern day version of the aforementioned, "Harchakot D'Rabeinu Tam," which include: revoking of a driver's license, closing of bank accounts, revoking professional licenses such as medical and legal, cancellation of a passport, and incarceration. Practically, one of the most effective of these has turned out to be revoking a recalcitrant husband's driver's license. Even so, neither the laws nor the Israeli Rabbinical Courts' enforcement, or lack thereof, have succeeded in erasing the blight of "get" refusal within Israeli society. In the Diaspora, the Rabbinical Courts have no such powers. Any practical power that they may wield would be the product of a binding arbitration agreement (Prenuptial Agreement for the Prevention of Get-Refusal), if signed previously by the combating couple. Within the past decade, both Orthodox rabbinical groups [ Orthodox Rabbinical Groups [http://www.ocweb.org/index.php/pre_nuptial/article/prenuptual_agreement_graphic Orthodox Caucus] ] and women's organizations [ Women's Organizations [http://www.jofa.org/about.php/advocacy Jewish Orthodox Feminist Alliance] ] have decried the increasing number of cases of "get" refusal, as well as establishing task forces to deal with the issue and to help individual victims of "get" refusal [ Help Individual Victims [http://www.youngisraelrabbis.org.il/divorce.htm Council of Young Israel Rabbis] ] .

Activism

Many women's groups feel that rabbinical courts fail to use all the measures at their disposal to force men to grant their wives a "get", thereby allowing a vengeful husband to blackmail his wife for years. Public criticism of the courts, as well as demonstrations, have been attempted to influence particularly notorious cases.

Several solutions have been proposed to help women who are denied a "get":
* Increasing the means available to the rabbinic courts to force husbands to grant their wives a "get". In Israel, rabbinic courts can even imprison a husband until he acquiesces and grants a "get" to his wife. This is not, however, an option for rabbinic courts elsewhere, since they do not have the support of the state.
* Having couples sign a Prenuptial Agreement for the Prevention of Get-Refusal, which requires the husband to pay high spousal support to his wife if he denies her a "get", so as to provide incentive to the couple not to delay the divorce. Halakhic authorities in the United States have validated particular prenuptial agreements for the prevention of get-refusal. [http://www.ocweb.org/index.php/pre_nuptial]
*Having couples prepare a "provisional "get"," which will only go into effect under certain predefined circumstances.
*Having couples agree to a "conditional marriage," which includes a stipulation in the marriage ceremony citing that under certain conditions (such as living apart for an extended period of time), the marriage itself would be nulified with no need for a "get".

In 2004, Justice Menachem HaCohen of the Jerusalem Family Court offered new hope to "agunot" when he ruled that a man refusing his wife a "get" must pay her NIS 425,000 in punitive damages, because " [R] efusal to grant a "get" constitutes a severe infringement on her ability to lead a reasonable, normal life, and can be considered emotional abuse lasting several years." He noted that " [T] his is not another sanction against someone refusing to give a "get", intended to speed up the process of granting a "get", and this court is not involving itself in any future arrangements for the granting of a "get", but rather, it is a direct response to the consequences that stem from not granting a "get", and the right of the woman to receive punitive damages."

In 2007, an Israeli survey revealed that there only 180 cases of refusing-get husbands including 69 documented agunah cases. In contrast, there are 190 cases in which the wife refuses to give the husband a divorce. ["Arutz Sheva" article 28 June 2007. [http://www.israelnationalnews.com/News/News.aspx/122884 Related news item] .]

Outside Israel, an "agunah" could obtain a civil marriage, as legal systems generally do not recognise the "agunah" status. Nevertheless, as she would be in violation of "halakha" by doing so, religiously committed women are reluctant to take this step. Moreover, her children from the second would be considered "mamzerim".

Conservative Judaism and the agunah

Conservative Judaism has sought to remedy such cases by attaching a clause to the "ketuba", known as the Lieberman clause, in which the parties agree that if there are civil divorce proceedings, then both must appear before a beit din of the Rabbinical Assembly and of the Jewish Theological Seminary of America. Rabbi Saul Lieberman, a professor at the Jewish Theological Seminary, proposed that the clause be added to ketubas to create a legal remedy through civil courts in case one party fails to cooperate in Jewish divorce proceedings.

Orthodox Judaism has rejected the Lieberman clause as a violation of Jewish law. The Orthodox rabbinate argued that an agreement to pay a non-specified amount of money is an asmachta, and not halakhically valid.

In practice, women who have been unable to obtain a get have not always been successful in enforcing the Lieberman clause in U.S. state courts, which have jurisdiction in divorce cases. Several state courts have refused to accept cases based on the Lieberman clause because, according to them, it violates the constitutional principle of separation of church and state.

"Zika le-Yibbum"

A somewhat related case is a woman whose husband has died childless. In such a situation, the husband's brother is required by Jewish law to perform a levirate marriage ("yibbum") with his deceased brother's widow with the express purpose of having children with her in the name of the deceased. The brother can refuse to do yibum, and perform a special divorce ceremony known as "chalitzah". (Nowadays, "chalitzah" is always performed instead of "yibbum".) If the brother is missing, or if he is still a child, the woman is required to wait until he is either located or has reached adolescence, so that he can perform the chalitza ceremony. There have been recorded cases of the husband's brother trying to blackmail the widow by delaying the "chalitza" ceremony, thereby effectively leaving her as an "agunah".

References

External links

* [http://www.getora.com ORA] Organization for the Resolution of Agunot
* [http://www.mavoisatum.org Mavoi Satum] organisation for "agunot"
* [http://www.icar.org.il/en/ The International Coalition for Agunah Rights]
* [http://www.youngisraelrabbis.org.il/index.html Council of Young Israel Rabbis] "Agunah" and "Get" Refusal Prevention and Intervention
* [http://www.jewishvirtuallibrary.org/jsource/Judaism/agunot.html Agunot (Abandoned Wives)] , Jewish Virtual Library
* [http://www.koltorah.org/ravj/Agunot%203.htm Consideration of "agunos" arising from the attack on the Twin Towers]
* [http://www.chabad.org/library/article_cdo/aid/613084/jewish/The-Agunah.htm The "Agunah Problem"] -- a historical overview, as well as its modern-day manifestations, repercussions and attempted solutions.


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