The Travesty of Agunot: How a Good Law Was Hijacked and Turned into an Instrument of Oppression Parashat Ki Teitzei 5781

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Parashat Ki Teitzei contains 74 commandments out of the traditional 613 in the Torah.1 These include: the requirement to build a parapet on your roof so no one can fall off2; to give asylum and not return a fugitive slave to his master; not to take interest on a (non-business) loan being used for food or personal maintenance; not to oppress a poor worker but to pay his wages immediately because he needs the money; to return a cloak being held as collateral every night lest the borrower be cold (and unable to sleep)3; not to judge wrongfully or unfairly in the case of outsiders or orphans (i.e. the weak and vulnerable); to leave over crops—such as grain, olives, and grapes—for the poor to collect; and to use honest weights and measures. I regret not expounding on these uplifting ethical mitzvot and instead focusing on a law which is being exploited to abuse countless women. However, it is urgent that this evil be stopped now.

The Torah portion instructs the husband to write a bill of divorce (called in Mishnaic Hebrew: a get)4 to end a failed marriage. Initially a form of protection for the wife, in the past century, this commandment has been turned into a source of abuse of women in failed marriages.

The typical agunah (chained wife) over most of Jewish history was the result of the rare case of husbands who disappeared. In the 20th century, recalcitrant husbands have used their exclusive halakhic power to issue the get to withhold it, thereby turning the document into a lever for extortion and entrapping countless wives in broken marriages. What is worse, these husbands have been aided and abetted in this crime by rabbinic courts.

This law is part of Deuteronomy’s emphasis on human rights, and was intended to upgrade women’s rights. In many traditional cultures, the husband had the absolute right to banish his wife irrevocably by calling her to the door and orally declaring the mantra, “I divorce you, I divorce you, I divorce you.” The wife would have to depart immediately, leaving children behind, and herself without support for the future. By requiring a legal process, the Torah filtered out impulsive and thoughtless actions of rejection, and assured that a woman could prepare for divorce. Furthermore, the Rabbis later established the ketubah (marriage contract) which guaranteed that, in case of a divorce, the husband must provide the wife with a minimum settlement of 200 zuzim (silver coins).5 This placed her above the poverty line, allowing her to pursue some dignified life.

How did a commandment with noble intentions go wrong? First, the Rabbis interpreted the Torah’s direction “he shall write to her a bill of divorce” (Deuteronomy 24:1) to mean that only he can write a get, and that he must do so of his own free will. In the 20th century, unscrupulous husbands (or their lawyers) decided to refuse the get so that the woman would be chained, unable to go free from her husband. The husband then would demand either financial payoffs, less than equal divisions of property, or concessions on custody and control of the children.

In talmudic times, the Rabbis would not tolerate such abuse. If a husband was recalcitrant, the Rabbis ruled that he should be forced to issue the get. The husband would receive makkat mardut, the beating given to those who rebel and disobey Rabbinic law, until he said publicly, “I want [you to issue the get]” (Babylonian Talmud Yevamot 106a:12-14).

Maimonides offers a justification of this process (Mishneh Torah, Laws of Divorce 2:20). We assume, he says, that the husband wishes to do the right thing for his wife and children, in accordance with the Torah. If so, why is he refusing the get? Because the evil urge has seized control of him, like what later Jews would call a dybbuk. Instead of letting her go, he is holding her up for money or custody or plain spite. Therefore, says Maimonides, we beat him until the pain neutralizes the baleful influence of this evil urge. After this, he speaks what a good-hearted husband should say: I really want to free her and end the misery between us.

In the 20th century, the divorce rate rose. Divorced women had more options of employment and self-support, so wives were less willing to stay in bad marriages and suffer. Moreover, when unscrupulous husbands grasped the opportunity to extort their wives, the judges of the rabbinic courts went along with this demand. They claimed that the husband’s absolute right was granted by the Torah (i.e. God) and that they could do nothing about it. They typically advised the wives to grant the husband’s demands, or face years of suffering in limbo. Thus twisting a noble law launched thousands of extortions, and the extortionists got their way.

Thousands of women paid up to get their gets. Tens of thousands of children received less or limited financial support and often suffered from poverty and deprivation. Thousands more women were put in limbo, their lives constrained or ruined. Since in Israel, the rabbinic courts were given monopoly control of personal status, tens of thousands of secular, non-observant wives were thrust into this unjust situation. Many secular women gave up on getting a get. Many ended up with a second family or husband whom they would live with or marry civilly—although children of such marriages would be considered mamzerim (illegitimate) and would be non-marriageable by Orthodox law. Observant women trapped in this tortuous situation suffered the most. They could not move on. They could not start new lives. Many made the financial and custodial pay-offs and accepted deprivation as the price of freedom. Still others were held up by husbands out of spite and were anchored for many years in ruined marriages.

Why did the rabbis go along with this injustice? Many of the judges believed that God had given the husband this power over his wife, since women were subordinate to men. Still others rationalized that they were delaying the issuance of a get and thus protecting the institution of marriage against rising divorce rates (never mind that the marriage was hopelessly fractured). Overall, rabbinic culture fell behind the general culture which had by this time concluded that women should have the right to end a marriage just as much as men.

In America, the rabbis of Yeshiva University and centrist Orthodoxy came up with the idea of a prenuptial agreement, in which the husband agreed to pay a daily amount of “wife support” if the get was delayed. These rabbis also sponsored an organization, the Organization for the Release of Agunot, which organizes public demonstrations to shame the recalcitrant husbands into issuing a get. Sometimes this pressure works, sometimes not. This halakhic prenup seems to have significantly reduced get abuse, but did nothing for the thousands of women who are already chained in failed marriages. In Israel, the use of prenuptial agreements is far behind the United States. The result is an unfair get process.

A survey done by the Rackman Center for Women’s Rights of Bar Ilan University showed that one third of all women who went through the divorce process in Israel were threatened at one point or another with withholding their get. Among Orthodox women, 50 percent were threatened with get-withholding. Thus, the vast majority of women who get their get negotiate the terms under threat of the husband’s absolute right—so their settlements are not truly an equal division, arrived at fairly. All this adds up to widespread mistreatment of women and deprivation of their rights in the name of religion.

In the last generation, Rabbi Elieser Berkovits wrote a halakhic treatise pointing out the surge in iggun (anchoring by recalcitrance). He urged rabbis to invoke the power to nullify marriages when the husband arbitrarily refuses to issue the get. Hafka’ah (nullification) is affirmed in the Talmud (e.g. Gittin 33a:8-10, Yevamot 110a:6). All valid halakhic marriages are embedded in rabbinic law and the rabbis’ consent.In a failed marriage where the husband is refusing a get, the rabbis can withdraw their consent, thereby invalidating the marriage.6

In 2013, New York University Law School and the Jewish Orthodox Feminist Alliance (JOFA) convened a conference on the problem of iggun. In the main scholarly presentation, Rabbi Dr. Gerald Blidstein, z”l7, showed that, historically, there were several methods of ending a marriage without a get. These powers, if exercised, could end the problem of iggun. One of these powers is hafka’ah, as discussed. A second is kiddushei ta’ut (mistaken betrothal), where the husband has some serious flaw, which, if the wife had known in advance, she would not have married him.8 This technique is in limited use by courts today, but mostly under the radar to avoid criticism from more hardline rabbis. A third is get zikkui (a get through agency), where the court acts on behalf of the husband to write the get when he is physically indisposed. Where he is wrongfully withholding the get, the court could act on his behalf to end his status as a wicked person abusing his wife.

This conference resulted in the formation of the International Beit Din for Agunot (IBD), promising to apply some of these alternative methods to free women and end the blight of iggun throughout the Jewish world. Despite the deep historical roots of these methods of marriage dissolution—and the IBD being run by well-respected talmidei hakhamim (traditional rabbinic scholars)9—the political opposition to this organization was so fierce that they could only ever use one of the methods, kiddushei ta’ut. Although the IBD continues to free significantly more women from iggun than a typical rabbinic court, the general run of Orthodox courts continue to allow get-refusal to go on.10 The Orthodox establishment largely opposes the IBD and treats the would-be liberators of chained wives as the enemy, instead of the recalcitrant husbands.

The Orthodox public continues to stand by as the blood and lives of innocent women are spilled. Modern Orthodox Jews push prenuptial agreements, but fail to challenge our rabbis to end the injustice of iggun. Out of ignorance and “go-along” psychology, they mostly accept the repeated—but false—claim that nothing can be done to end the problem systemically. The non-Orthodox public and philanthropists have also been guilty of bystanding—out of unfamiliarity with the issue or because they dismiss this as a problem limited to the Orthodox world. They would not ignore systematic abuse of women in other countries and religions on the grounds that this is the other’s problem. They fail to take responsibility to act and/or support ameliorating initiatives, as if iggun is not a moral stain on Judaism as a world religion.

The God Who, in the words of Psalms (146:7), “does justice for the oppressed,” weeps while His Torah—originally intended for the improvement of women’s lives!—is hijacked by recalcitrant husbands, enabled by important rabbis, and turned into an instrument of oppression and impoverishment of women and children who deserve better. The law of divorce with dignity will be restored when we end human-inflicted iggun. It is time for the whole Jewish community to wake up, wise up, and end this shameful injustice.11

1 Roughly twelve percent of the total!

2 This is generalized in halakhah to protect against any life endangering features in a home, such as today’s unsealed live electrical outlets.

3 The equivalent today would be not to evict people too impoverished to pay the rent or mortgage.

4 In the Torah: sefer keritut, literally “a scroll of severance” (Deuteronomy 24:1).

5 This sum is for a woman’s first marriage. The minimum settlement for other women was 100 zuzim; it might be expected that a divorcée from her second marriage would have some assets of her own left over from her first ketubah.

6 Berkovits’ treatise is called Tenai be-Nissuin ve-Get (Jerusalem: Mossad HaRav Kook, 1966). Despite its vast learning and just proposals, it was blocked by political opposition from ultra-Orthodox Jews. Rabbi Shlomo Riskin, in our generation, proposed hafka’ah as the solution to the spread of deliberate infliction of iggun on women in his PhD thesis. His proposal has also been stymied by opposition.

7 A leading rabbinic scholar and ordained by Rabbi Joseph B. Soloveitchik.

8 The husband’s recalcitrance in giving a get is often connected to other serious flaws in his character or emotional disturbances. Another example of kiddushei ta’ut would be if there was some fatal impropriety in the performance of the marriage ceremony, e.g. if one or more of the witnesses were invalid.

9 Notably, Rabbi Simcha Kraus, a student of Rabbi Isaac Hutner and Rabbi Joseph B. Soloveitchik, became Av Beit Din. He was recognized in the establishment as an eminent Rosh Yeshiva and past president of the Religious Zionists of America, and still was unable to resolve the issue—due to politics—before his retirement. Rabbi Y. Aryeh Warburg still serves as menahel (director) of IBD, and Rabbi David Bigman is the current Av Beit Din.

10 This is an informed estimate. Most rabbinic court proceedings are not transparent and there is no centralized repository of reliable statistics in this area.

11 Full disclosure notice: my wife, Blu Greenberg, is active in the International Beit Din for Agunot (whose operations I strongly support). However, all statements in this dvar Torah are strictly the personal views of the author—not of the IBD, nor Hadar, nor any other institution.

Texts Cited

(א) כִּֽי־יִקַּ֥ח אִ֛ישׁ אִשָּׁ֖ה וּבְעָלָ֑הּ וְהָיָ֞ה אִם־לֹ֧א תִמְצָא־חֵ֣ן בְּעֵינָ֗יו כִּי־מָ֤צָא בָהּ֙ עֶרְוַ֣ת דָּבָ֔ר וְכָ֨תַב לָ֜הּ סֵ֤פֶר כְּרִיתֻת֙ וְנָתַ֣ן בְּיָדָ֔הּ וְשִׁלְּחָ֖הּ מִבֵּיתֽוֹ׃
(1) A man takes a wife and possesses her. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house;

(כ) מִי שֶׁהַדִּין נוֹתֵן שֶׁכּוֹפִין אוֹתוֹ לְגָרֵשׁ אֶת אִשְׁתּוֹ וְלֹא רָצָה לְגָרֵשׁ. בֵּית דִּין שֶׁל יִשְׂרָאֵל בְּכָל מָקוֹם וּבְכָל זְמַן מַכִּין אוֹתוֹ עַד שֶׁיֹּאמַר רוֹצֶה אֲנִי וְיִכְתֹּב הַגֵּט וְהוּא גֵּט כָּשֵׁר. וְכֵן אִם הִכּוּהוּ עַכּוּ''ם וְאָמְרוּ לוֹ עֲשֵׂה מַה שֶּׁיִּשְׂרָאֵל אוֹמְרִין לְךָ וְלָחֲצוּ אוֹתוֹ יִשְׂרָאֵל בְּיַד הָעַכּוּ''ם עַד שֶׁיְּגָרֵשׁ הֲרֵי זֶה כָּשֵׁר. וְאִם הָעַכּוּ''ם מֵעַצְמָן אֲנָסוּהוּ עַד שֶׁכָּתַב הוֹאִיל וְהַדִּין נוֹתֵן שֶׁיִּכְתֹּב הֲרֵי זֶה גֵּט פָּסוּל. וְלָמָּה לֹא בִּטֵּל גֵּט זֶה שֶׁהֲרֵי הוּא אָנוּס בֵּין בְּיַד עַכּוּ''ם בֵּין בְּיַד יִשְׂרָאֵל. שֶׁאֵין אוֹמְרִין אָנוּס אֶלָּא לְמִי שֶׁנִּלְחַץ וְנִדְחַק לַעֲשׂוֹת דָּבָר שֶׁאֵינוֹ מְחֻיָּב בּוֹ מִן הַתּוֹרָה לַעֲשׂוֹתוֹ כְּגוֹן מִי שֶׁהֻכָּה עַד שֶׁמָּכַר אוֹ עַד שֶׁנָּתַן. אֲבָל מִי שֶׁתְּקָפוֹ יִצְרוֹ הָרַע לְבַטֵּל מִצְוָה אוֹ לַעֲשׂוֹת עֲבֵרָה וְהֻכָּה עַד שֶׁעָשָׂה דָּבָר שֶׁחַיָּב לַעֲשׂוֹתוֹ אוֹ עַד שֶׁנִּתְרַחֵק מִדָּבָר הָאָסוּר לַעֲשׂוֹתוֹ אֵין זֶה אָנוּס מִמֶּנּוּ אֶלָּא הוּא אָנַס עַצְמוֹ בְּדַעְתּוֹ הָרָעָה. לְפִיכָךְ זֶה שֶׁאֵינוֹ רוֹצֶה לְגָרֵשׁ מֵאַחַר שֶׁהוּא רוֹצֶה לִהְיוֹת מִיִּשְׂרָאֵל וְרוֹצֶה הוּא לַעֲשׂוֹת כָּל הַמִּצְוֹת וּלְהִתְרַחֵק מִן הָעֲבֵרוֹת וְיִצְרוֹ הוּא שֶׁתְּקָפוֹ וְכֵיוָן שֶׁהֻכָּה עַד שֶׁתָּשַׁשׁ יִצְרוֹ וְאָמַר רוֹצֶה אֲנִי כְּבָר גֵּרֵשׁ לִרְצוֹנוֹ. לֹא הָיָה הַדִּין נוֹתֵן שֶׁכּוֹפִין אוֹתוֹ לְגָרֵשׁ וְטָעוּ בֵּית דִּין שֶׁל יִשְׂרָאֵל אוֹ שֶׁהָיוּ הֶדְיוֹטוֹת וַאֲנָסוּהוּ עַד שֶׁגֵּרֵשׁ הֲרֵי זֶה גֵּט פָּסוּל הוֹאִיל וְיִשְׂרָאֵל אֲנָסוּהוּ יִגְמֹר וִיגָרֵשׁ. וְאִם הָעַכּוּ''ם, אֲנָסוּהוּ לְגָרֵשׁ שֶׁלֹּא כַּדִּין אֵינוֹ גֵּט. אַף עַל פִּי שֶׁאָמַר בְּעַכּוּ''ם רוֹצֶה אֲנִי וְאָמַר לְיִשְׂרָאֵל כִּתְבוּ וְחִתְמוּ הוֹאִיל וְאֵין הַדִּין מְחַיְּבוֹ לְהוֹצִיא וְהָעַכּוּ''ם אֲנָסוּהוּ אֵינוֹ גֵּט:

(20) If the law requires that a man should be compelled to divorce his wife and he refuses to do so, the Jewish court anywhere, at any time, should lash him until he says I am willing; then he should write the get, and it will be valid.— — So too, if non-Jews flogged him, saying to him: "Do what the Jews are telling you," and if pressure is exerted on him by Jews through non-Jews until he gives his divorce, it is a valid get.— — Why is this get not nullified, seeing that he is compelled by non-Jews or by Jews? The rule concerning a person who has committed a misdeed under compulsion applies only to one who has been pressured to do a thing to which he is not biblically bound.— —

(ז) עֹשֶׂ֤ה מִשְׁפָּ֨ט ׀ לָעֲשׁוּקִ֗ים נֹתֵ֣ן לֶ֭חֶם לָרְעֵבִ֑ים יְ֝הֹוָ֗ה מַתִּ֥יר אֲסוּרִֽים׃
(7) who secures justice for those who are wronged, gives food to the hungry. The LORD sets prisoners free;
ת"ר חליצה מוטעת כשרה גט מוטעה פסול חליצה מעושית פסולה גט מעושה כשר היכי דמי אי דאמר רוצה אני אפי' חליצה נמי ואי לא אמר רוצה אני גט נמי לא הכי קאמר חליצה מוטעת לעולם כשר וגט מוטעה לעולם פסול חליצה מעושית וגט מעושה זימנין כשר וזימנין פסול הא דאמר רוצה אני הא דלא אמר רוצה אני דתניא (ויקרא כב, יח) יקריב אותו מלמד שכופין אותו יכול בעל כרחו ת"ל לרצונו הא כיצד כופין אותו עד שיאמר רוצה אני וכן אתה מוצא בגיטי נשים כופין אותו עד שיאמר רוצה אני
§ The Sages taught: A mistaken ḥalitza is valid, while a mistaken bill of divorce is invalid. A coerced ḥalitza is invalid, while a coerced bill of divorce is valid. The Gemara clarifies: What are the circumstances of a coerced bill of divorce? If they force him until he says: I want to give the bill of divorce, then even this type of ḥalitza also should be valid, as although he was initially coerced, he acquiesced. And if he did not say by the end of the giving of the bill of divorce: I want to divorce her, then even this type of coerced bill of divorce should also not be acceptable. The Gemara answers that this is what the Sage said: A mistaken ḥalitza is always valid, while a mistaken bill of divorce is always invalid. A coerced ḥalitza and a coerced bill of divorce are sometimes valid and sometimes invalid. How so? With regard to the one who says after being coerced: I want to give the bill of divorce, it is effective, although he says this as a result of being under compulsion. With regard to the one who does not say: I want to give the bill of divorce, the divorce is invalid. As it is taught in a baraita: It is said with regard to some offerings: “He shall offer it” (Leviticus 1:3). This teaches that they may coerce him to bring the offering he owes. I might have thought this means that he brings the offering totally against his will. Therefore, the continuation of that verse states: “In accordance with his will” (Leviticus 1:3). How can these two contradictory expositions be reconciled? They coerce him by imposing fines or penalties until he says: I want to. And similarly, you find the same principle with respect to bills of divorce for women, as it is prohibited for anyone other than the husband to write the bill of divorce, but they coerce him until he says: I want to divorce her, and then write the bill of divorce on his behalf.
ת"ר בטלו מבוטל דברי רבי רשב"ג אומר אינו יכול לא לבטלו ולא להוסיף על תנאו שא"כ מה כח ב"ד יפה ומי איכא מידי דמדאורייתא בטל גיטא ומשום מה כח ב"ד יפה שרינן אשת איש לעלמא אין כל דמקדש אדעתא דרבנן מקדש ואפקעינהו רבנן לקידושין מיניה אמר ליה רבינא לרב אשי תינח דקדיש בכספא קדיש בביאה מאי איכא למימר שויוה רבנן לבעילתו בעילת זנות:
§ The Sages taught: Even after Rabban Gamliel the Elder instituted that a husband cannot render void a bill of divorce when not in the presence of the wife or the agent, if he nevertheless rendered it void, the bill of divorce is rendered void; this is the statement of Rabbi Yehuda HaNasi. Rabban Shimon ben Gamliel says: He is unable to render it void, and he also cannot add on to his condition if the bill of divorce contained some condition, as if so, i.e., if he can render it void, what advantage does the court have, if an ordinance of the court of Rabban Gamliel can be ignored? The Gemara asks: And is there anything that by Torah law renders the bill of divorce void and the wife remains married, and due to the reasoning of: What advantage does the court have, we do not recognize that the bill of divorce is void and permit a married woman to marry anyone? The Gemara answers: Yes, anyone who betroths a woman betroths her contingent upon the will of the Sages, and when one fails to conform to their will in matters of marriage and divorce the Sages expropriated his betrothal from him retroactively. Ravina said to Rav Ashi: This works out well in a case where he betrothed his wife with money, as it is possible to say that the Sages expropriated the money used for the betrothal from the possession of its owner, resulting in a retroactive cancellation of the betrothal. But if he betrothed her by means of sexual intercourse then what is there to say? The Gemara answers: The Sages declared his sexual intercourse to be licentious sexual intercourse, which does not create a bond of betrothal.
אמר רב פפא בנרש מינסב נסיבי והדר מותבי אבי כורסייא רב אשי אמר הוא עשה שלא כהוגן לפיכך עשו בו שלא כהוגן ואפקעינהו רבנן לקידושי מיניה
Rav Pappa said: There is a difference, because in Neresh their practice is to first marry a woman and have intercourse with her, and afterward they seat her in the bridal chair. In this incident, the husband had already had intercourse with her once she was an adult, and that is why Rav’s students did not require a bill of divorce from the second man. Rav Ashi says: There was a different reason, even if the practice was not as Rav Pappa describes. This bride snatcher acted improperly. Consequently, they treated him improperly by annulling the legal validity of his actions, and the Sages abrogated his betrothal.