The Agunah: A Modern-Day Nightmare


 

A couple of years ago I received two back-to-back phone calls in my office: The first, from a 21-year-old ultra-Orthodox woman who had escaped her physically abusive 6-month long marriage, only to find herself trapped two years later because her husband refuses to give her a Jewish divorce (a get). She can never remarry or have children as long as her husband remains recalcitrant.

The second call was from a Modern Orthodox young woman who was ready to marry the man of her dreams — only to discover a few weeks before the marriage that her rabbi refused to conduct the ceremony after he learned that the groom was a mamzer (illegitimate child of an incestuous relationship), because his mother had failed to obtain a get before marrying the groom’s father.

These two cases vividly illustrate the current problems of the modern day agunah (a woman chained to an unwanted marriage), because halacha (Jewish law) gives the husband the sole, unfettered power of divorce. While under Ashkenazic tradition a woman can withhold her “consent” to such a divorce, the remedies available to the victim of a recalcitrant husband or wife differ substantially. A woman whose husband refuses to grant her a get can never remarry and have children from another man because if she does so, her children and all their progeny are considered mamzerim, who are forbidden to marry any Jew other than other mamzerim. In contrast, a man whose wife refuses to “consent” to the get, has options: he can obtain the consent of 100 rabbis (a heter) to remarry without the wife’s consent, or if he does remarry without a heter, his children from the subsequent marriage do not bear the stigma of being mamzerim. (In Sephardic tradition, a husband may even divorce his wife without her consent, eliminating his need for a heter.)

These disparate consequences, coupled with the husband’s exclusive power to terminate the marriage, have resulted in a modern-day nightmare to Orthodox women. The power to condemn their wives to remain chained in marriage, to a man who often remarries without granting his wife a get, has spawned an entire marketplace for extortions. Men have demanded hundreds of thousands of dollars, waiver of the wife’s rights to spousal support and even custody of children they have abused, in exchange for the wife’s right to remarry. This bartering for the wife’s freedom has become so universal that, unbidden, some rabbis even begin a get process by asking the wife what she is willing to give her husband in exchange for the get.

While remedies have been suggested and some implemented, none have cured the basic ill resulting from this gross imbalance of power. In Israel, laws have been enacted allowing incarceration and forfeiture of driver and professional licenses of recalcitrant husbands. Most recently, an Israeli court awarded a woman monetary damages for her husband’s refusal to give her a get for more than 12 years. But these laws fall pitifully short of a final solution. First, these laws are unavailable to women outside of Israel. Second, some men have opted to remain jailed or do without their licenses rather than give their wives a get. Even the judgment of monetary damages was a mere Pyrrhic victory — while she has a judicial decree for money (which she may never be able to collect), the courts could not force her husband to give her the get, and thus she remains an agunah.

Other suggested solutions have met with only limited success. Many conscientious rabbis now refuse to perform a marriage ceremony unless the couple first signs a prenuptial agreement authorizing the beit din (Jewish court) to award daily monetary support (or damages) for each day the husband refuses to give a get or the wife refuses her consent. Such prenuptial agreements, however, must meet the civil requirements of the state where it’s executed — a condition of which rabbis are often unaware. Additionally, such prenuptial agreements have the same flaw as any of the Israeli laws. No prenuptial agreement can force a recalcitrant husband to give a get — it can only award monetary sums to the wife, but it can still leave her trapped. A very poor or a very rich man can afford to disregard the monetary damages he would suffer under the agreement, and the opportunity for extortion or revenge inherent in the husband’s unfettered power to withhold the get cannot be eliminated. Finally, there are many rabbis who refuse to mandate the signing of such a prenuptial agreement, and an Israeli rabbi recently even decreed such prenuptial agreements invalid. Clearly, the prenuptial agreement is not universally accepted nor does it result in a global solution.

More recently, some have advocated “annulment” of the marriage as a way to eliminate the agunah problem. But this solution has been met with tremendous opposition in the Orthodox rabbinical community. Some rabbis who have granted or advocated annulments in such cases have been marginalized and their status in the Orthodox community threatened. In one recent case, a rabbi who granted annulment to a woman who had been an Agunah for more than 10 years was publicly condemned and his rulings in other cases delegitimized by another rabbi.

The lack of consensus among Orthodox rabbis on a permanent global end to such unfettered misuse of the husband’s power has led to homespun solutions. Some have advocated the use of nonobservant witnesses at Orthodox weddings to assure that an Orthodox get would not be necessary in the event the marriage fails. Others have simply ignored the law and remarried without the get, leaving it to the next generations to untangle the mamzer problems thereby created.

There is, however, concurrence on one thing — a permanent solution must be found to eliminate the agunah problem. The Jewish Orthodox Feminist Alliance (JOFA) has begun an agunah-awareness campaign this year, beginning with the Fast of Esther. JOFA hopes to generate education, discussion and resolution. While many might dismiss this issue as just the “women’s problem,” it should be an equal cause for concern for every Orthodox man who has a sister, a daughter or a mother. They are all potential targets for extortion or imprisonment in an insufferable marriage.

Alexandra Leichter is a Beverly Hills family law attorney, and is a member of the Westwood Village Synagogue.

 

A Look at Dean’s Jewish Problem


Question: What’s behind Howard Dean’s ongoing problems in
the Jewish community?

Answer: No-holds-barred partisanship, especially among the
anonymous attackers who are clogging the e-mail inboxes of Jewish leaders
around the country, warning — without much evidence — that Dean would somehow
be bad for Israel.

But the bitter attacks are having an impact; a frequently
heard comment, at least in Jewish activist circles, is that many Jews who have
voted Democratic all their lives will vote for Bush if Dean wins his party’s
nomination.

And Dean himself may be contributing to his Jewish problem
by publicly modeling himself after a former president once widely applauded by
the Jewish community, but who now is seen by many as a living symbol of their
disillusionment with a failed peace process.

But the fact that this is first and foremost an
ideology-driven, heavily partisan campaign is evident in the glaring double
standard: Dean is trashed for a handful of ill-chosen words, while President
Bush’s dramatic changes in Mideast policy — which have caused anxiety and anger
in official circles in Israel — have been mostly ignored.

Almost all of the anti-Dean campaign stems from his
off-the-cuff remark at a New Mexico barbecue that the United States shouldn’t
“take sides” in the Arab-Israeli dispute.

Dean was rightly skewered for that comment, and not just by
the far right. The alliance with Israel is a cornerstone of U.S. policy in the
region and a vital element in Israel’s security.

But the candidate quickly retreated. He pledged fealty to
that special relationship, and explained that his comments were the result of
an insufficient understanding of some of the code words attached to the Middle
East controversy.

In communities across the country, his “take no sides”
remark continues to generate anger, despite his persistent clarifications, but
there is resounding silence about his rivals. More revealing is the silence
about Bush, who in 2002 became the first president to openly advocate creation
of a Palestinian state.

Bush demanded quick action on the international “road map”
to Palestinian statehood, against the wishes of the Sharon government; he has
applied strong pressure on Israel because of its security fence, and his
administration punished Israel by cutting desperately needed loan guarantees.
Just this week, his State Department angrily criticized Israel for not doing
enough to resume negotiations.

This week, Dean was being criticized for embracing the
unofficial Geneva accord. Somehow lost was the fact that the Bush
administration has shown a strong interest in the plan, even meeting with its
authors, despite angry protests by the Sharon government.

Still, there is an emerging conventional wisdom in Jewish
leadership circles that Bush is somehow good for Israel, Dean is bad.

That glaring double standard is no accident. The attacks on
Dean — mostly anonymous — come from ideologues who wouldn’t vote for any
Democratic candidate, no matter how pro-Israel.

These Jewish conservatives will forgive any sin by the
Republican president, even something that violates their creed like the demand
for quick action on Palestinian statehood — but the slightest rhetorical slip
by a Democrat will be taken as irrefutable proof of unfitness for leadership in
this volatile area.

But the anti-Dean mud seems to be sticking, worrying Dean
strategists. One reason is simply that for many Jewish voters, their first
exposure to the former Vermont governor was his September blunder, when he
spoke of more balance in U.S. Mideast policy.

In politics, first impressions are vital; Dean came across
as Jimmy Carter-ish, and that won’t be easily overcome.

The Dean reaction is also related to the angry
disillusionment many in Israel — and many pro-Israel activists here — feel with
the Oslo peace process.

Three years ago, former President Bill Clinton was widely
described as the most pro-Israel president ever, despite the bitter criticisms
of extreme anti-Oslo activists.

But with the breakdown of that peace process and relentless
violence, more mainstream Jews are willing to accept the view that Clinton was
too willing to negotiate away Israel’s security to win an agreement.

Dean has deliberately patterned himself after Clinton on
Mideast matters — something that might have helped four years ago, but which
could be hurting with Jewish leaders and activists in the harsher, post-Oslo
environment of 2004.