April 19, 2024
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April 19, 2024
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Constructing a Solution To the Agunah Crisis

“The agunah crisis” is an anachronism that should have disappeared from Jewish life a long time ago.

Basically the halacha states that a Jewish woman who was divorced in a civil court cannot remarry until she receives a religious document from her husband, known as a get. The husband, however, still does retain a pathway toward remarriage, if he so chooses.

A woman who finds herself in this unfortunate position is known as an agunah, translated to “chained wife”—chained to the arbitrary whims of her husband. She has no choice other than to wait—often for years—and hope that her ex-husband comes to his senses.

This circumstance originates from Torah laws of divorce, which mandate that “the husband must write her a written bill of divorce [the get] and put it in her hand” (Devorim 24:1). Although this was ostensibly written for a laudable aim of fostering reconciliation between the parties (by prolonging the process), in practice the pasuk has caused immeasurable travail to many women even today, who undeservingly find themselves dependent on an ex-husband before they can halachically remarry.

That this agunah status is one that still plagues many women to this day is an issue that has bothered me for quite a while.

Drawing on my experience as a practicing divorce attorney as well as a student of our holy texts, I hope to proffer a plausible solution that is both fair to the parties, as well as remaining respectful to our holy traditions.

Questions of Jewish law are of course decided by a Jewish court, or beit din; and in general, the beit din is largely in accord with ancient Torah law.

But adherence too strictly to the letter of the Torah law raises a question in itself. Must our beit dinim be also “chained”—in this case, chained too literally to the proscriptions outlined by religious law? My view is that no, that does not have to be the case! Ancient Torah dictates have been and should be reformed when its legal pronouncements are so patently extreme and harsh that chaotic, unworkable and unwarranted results are unintentionally generated in the contemporary Jewish lifestyle.

And there are plenty of examples of such lightening of Torah codes by our esteemed sages. For example, procedures have been generated for annulment of vows. These procedures evolved to counter the harsh results of an ill-conceived vow such as the one described in the story of Jephthah (Shoftim, Chapter 11), whose rushed and ill-conceived vow became a vehicle for his unwanted sacrifice of his own daughter.

Another example can be gleaned by the evolution of the mitigation of the capital judgment enunciated in the Torah (beginning at Divorim 21:18), applicable to the unrepentant ben sorer v’moreh (“stubborn and rebellious son”). When was the last time you heard about the stoning of this unfortunate son? That’s right: likely never. There are many other examples where chazal, our sages of blessed memory, have wisely and compassionately softened the severity of the biblical source material.

There is a practical solution to be applied to the agunah crisis. Current attempts at resolving the problem within the community, which range from shaming recalcitrant ex-husbands (e.g., banning them from being counted in a minyan) to harsh physical assaults perpetrated on a former husband (with the goal of intimidating and thereby coercing the reluctant spouse to immediately deliver a get). However, these misguided remedies have proven to be widely ineffective. Further, such extraordinary remedies may be of dubious halachic and legal authority as well.

In my opinion, the answer lies in significantly reducing the power of the ex-husband to exert control over his ex-wife’s life. It is absurd, when you think about it, that he should have the final say in the outcome of a judicial matter where he is personally involved.

So—what to do?

A practical and quite workable solution (given that the beit din is the recognized authority and lawful agent for both parties) is to allow the court to use its jurisdiction to impose a form of “constructive get,” which possesses equivalent full force and legal effect of a biblical get, as if it were physically handed over and signed by the ex-husband.

Here is how it would work: The court holds a merits hearing at the outset, hearing from both parties, and considers the testimony and all the supporting evidence, witnesses, etc. Following the merits hearing, if the court finds, on the merits, that (1) there is no prospect of a reconciliation of the marriage, and (2) the facts weigh strongly in favor of the wife (i.e., there are no factors such as vindictiveness, ulterior motive, etc. on her part), and (3) the husband has no reason beyond pure spite to withhold delivery of a get, then the court can and should rule that the husband’s arbitrary refusal to deliver the get is contrary to the will and true essence of the Torah. Further, and subject to a finding that the wife is found to be deserving and herself innocent of overt vindictive behavior toward the husband, then a constructive get should be issued to her. The need for the husband’s actual signature would be bypassed, no longer required where these conditions are met.

For practical reasons, the beit din should allow a 30-day period for the constructive get to be issued, and also impose a financial penalty against the husband for any recalcitrance and/or bad faith that the court finds. However, the penalty against the husband could be waived in whole or in part if he sends the court a halachic good-faith and no-strings-attached get himself (to be approved by the beit din) within a period of 10 days. The beit din would then accept on behalf of the wife, or she could personally appear.

The advantage here is that this final part of the order (waiving the financial penalty in whole or in part) would allow the husband some measure of control over the situation (and thus satisfy any urge to control the spouse, a trait that too often drives him down the road of get-refusal in the first place).

Our Western system of jurisprudence already is known for a certain symmetry with religious Jewish law (e.g., equal protection clauses of the U.S. Constitution guaranteeing equal application of the law). The notion of a constructive get borrows from Western legal concepts such as, a “court-imposed constructive trust,” which fashions or crafts a trust as an appropriate and necessary remedy where the court finds moral and legally valid imperatives to construct the document.

There is also a direct parallel civil law remedy, where the court orders and issues a “constructive deed”—which basically allows the court to impose a judicial deed where either spouse without just cause or legal right stubbornly refuses to sign over a property deed, such as a deed granting the marital home (which had been awarded to the other spouse). The constructive deed, once recorded, has the equivalent legal effect as if the non-cooperative spouse had signed and properly delivered the document. These kinds of “constructive” judicial remedies are enforced in cases where the courts find that their intervention is required to remedy what would be an otherwise unjust, unfair and morally undesirable situation.

In summary, the current agunah situation is an anachronism that is intolerable, largely due to the inherent inequity in permitting one party—the former husband—to have an inordinate amount of power and control, leading to undeserved misery and sorrow toward the other.

When used wisely, and only when a beit din decides it is correct and necessary to do so following a fair merits hearing, the opportunity to issue a constructive get could be a path toward finally breaking the chains of the agunot.

Wishing the entire community, a happy and healthy Chanukah.

Sam Z. Mallin, Esq.
Chatham, New Jersey
(Formerly of Teaneck)
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