Agunah
An aguna or agunah is a Jewish woman who is stuck in her marriage as determined by traditional halakha. The classic case is a man who has left on a journey and has not returned or has gone into battle and is missing in action. It is used as a borrowed term to refer to a woman whose husband refuses or is unable to grant her a divorce.
For a divorce to be effective, halakha requires a man to grant his wife a get of his own free will. Without a get, no new marriage will be recognized, and any child she might have with another man would be considered a mamzer. It is sometimes possible for a woman to receive special dispensation from a posek, called a heter agunah, based on a complex decision supported by substantial evidence that her husband is presumed dead, but this cannot be applied if the husband is alive.
Because of the difficulty for women in such situations, it has been a task for every generation of halakhic authorities to try to find halakhically acceptable means to permit such women to remarry. In the past, it was not uncommon, due to the danger of travel and primitive means of communication, for people to leave home and never be heard from again; consequently, rabbis often had to deal with this issue. Over the past few centuries, thousands of responsa have been written to deal with cases of agunot.
In the past, most aguna cases were due to a husband dying without leaving evidence of his demise or becoming mentally ill. Many aguna cases arise from a husband withholding a get, perhaps seeking a more favorable divorce settlement or out of vindictiveness. 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 no one solution has common acceptance. Nevertheless, the Jewish prenuptial agreement is one remedy in use in Modern Orthodox Judaism and is accepted by moderate halakhic authorities.
Jewish law
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 actively to grant a divorce;
- The husband refusing to grant his wife a get when she is deemed entitled to one under Jewish law. A woman denied a get by her husband is technically called a mesorevet get, although the term aguna is more commonly used.
What constitutes a legitimate request for a divorce is based on halakhic considerations and the particular case of the couple. See Mesorevet get below.
In modern and ancient times, warfare has been a major cause of women being declared agunot, as soldiers are often killed with no one knowing. Many efforts have been made to resolve this problem following halakhic principles, including issuing a provisional get that only goes into effect if the husband does not return by a specified date. 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 aguna. This practice is based on the Talmudic declaration that King David did not commit adultery when lying with Bathsheba, since all of his soldiers gave a "provisional get" to their wives before leaving for battle. This practice can raise halakhic issues, especially for Kohanim. Since they are forbidden from marrying divorcees, were they to end up returning safely after the date the provisional get went into effect they would be unable to remarry their wives.
Ways to resolve an agunah case
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 safek mamzer, and may only marry a convert.Because of the dire situation of the aguna, every effort is made to release her from her marriage. This can be done in three ways:
- Locating the husband and persuading 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.
Finding a flaw in the marriage ceremony is considered to be a last resort in releasing an aguna. It is rarely used as it is typically difficult to find actual cause in most marriages sufficient to invalidate them retroactively. In Jewish law, a marriage must be performed in front of two witnesses. In order to release the aguna, 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 ensure 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 halakhic problems, so it is only used as a last resort by the authorities that do accept its use.
Conservative Judaism
At the 1998 Jerusalem "Agunot Conference", Mayer Rabinowitz, the Chairman of the Joint Bet Din of the Conservative Movement, explained the four approaches taken by leaders of Conservative Judaism to find remedies for the problem of the aguna.The first, beginning in the 1950s, was the inclusion of the Lieberman clause in the ketubah. Named for Talmudic scholar and Jewish Theological Seminary professor Saul Lieberman, the clause requires that a get be granted if a civil divorce is ever issued. While most Orthodox rabbis have rejected the Lieberman clause, leaders of the Conservative movement claim that the original intent was to find a solution that could be used by Orthodox and Conservative rabbis alike, and that leaders of Orthodox Judaism's Rabbinical Council of America, and respected Orthodox rabbis, including Joseph B. Soloveitchik, supposedly recognized the clause as valid. Later, because some civil courts viewed the enforcement of a religious document as a violation of the constitutional principle of the separation of church and state, Conservative rabbis began to require couples to sign a separate letter, stating that the clause had been explained to them as part of pre-marital counseling, and that both parties understood and agreed to its conditions, recognizing that this letter would constitute a separate civil document, enforceable in a civil court. However, many Conservative rabbis, including some on the movement's own law committee, had growing misgivings about the clause for religious reasons.
The second approach fell into the category of conditional marriages, t'nai b'kiddushin, and was based in part on past approaches used by both the French and Turkish rabbinates—but, according to Rabinowitz—had improvements gleaned from lessons learned from those past experiences. The ketubah was not changed, but a separate pre-marital agreement was signed, and in the presence of the rabbinical court, the prospective groom read it, and the prospective bride stated that she agreed to it. The agreement was that the parties understood that if a civil divorce were ever granted, then a get must be delivered within six months of that date. A refusal to abide by that agreement would give the court no choice but to consider the original marriage, and the original declaration of the groom, so flawed that it would be as if that marriage never occurred.
The third approach, using contacts both within Judaism and external to it, was to coerce the recalcitrant husband to grant a get. One example cited at the conference was a case where the civilly-divorced husband planned to remarry, this time to a Catholic woman in a Catholic religious ceremony. The Conservative movement's Bet Din contacted the Catholic Church, which agreed to refuse to have the marriage performed until the previous marriage was religiously dissolved, resulting in the almost immediate granting of the get by the husband.
Finally, in 1968, by a unanimous vote of the law committee, the final approach was initiated, when it was decided that the Joint Bet Din of the Conservative Movement could annul marriages as a last resort, based on the Talmudic principle of hafka'at kiddushin. According to Rabinowitz, just the threat of this action was sometimes enough to compel the former husband to grant a get.