Today, the problem of the agunah (the “chained woman”) who cannot remarry is a problem largely due to rabbinical leadership and misinterpretation of traditional texts.
Perhaps one of the best biblical personalities describing the plight of the agunah is Jephtah’s daughter (cf. Judges 11-12). In the tragic biblical story, the community leaders ask Jepthah to lead their community in battle against the mighty Ammonites. Before undertaking the mission, Jepthah makes a vow and offers God the first thing that comes out of his house as a burnt sacrifice. But to his surprise, his daughter comes out to greet him! The fate of his Jepthah’s daughter remains somewhat of a mystery. Commentators—ancient and modern alike—wonder what became of this nameless young woman, who never lived to realize her life’s potential. Rabbinical tradition offers an intriguing deconstruction of the story.
Rabbinic tradition makes an important observation about Jephtah’s character: Although Jepthah acts like a pious man, he is really foolish and quite ignorant. Jepthah’s vow could have been annulled had he visited Phineas (Pinchas), who acted as the High Priest in his community.
Phineas or Jephtah refused to solve the dilemma; each one demanded the other person come to him first. Pinchas said, “Shall I, high priest son of a high priest, demean myself by calling on an ignoramus?” Jepthah’s reaction was just as stubborn. Jephthah said, “Shall I, chief of the tribes of Israel, foremost of its leaders, demean myself by calling on a commoner?” As a result of their disagreement, the hapless maiden perished from the world, and both men were held liable for her blood. Interestingly, both Phineas and Jepthah meet a terrible fate. Phineas loses his ability to discern God’s will, while Jepthah meets a violent death; his body is cut to pieces by his foes.[1]
The above Midrashic text captures the dilemma existing today with the agunah, as well. Despite the numerous solutions that exist, the stodginess and reluctance of today’s Halachic authorities make this an insolvable problem. Given the magnitude of the problem we see today, responsible rabbinical leaders must act in the name of fairness and moral decency. Failure to end the deadlock scandalizes the religious community, which is perceived as enabling criminal and heinous behavior. At worse, some of the rabbinical leaders in Israel have been known to have received bribes from an estranged husband. Rabbis must choose to either solve the problem, or compound it. This is an ethical decision that must be made.
Historically, the rabbis did everything in their power to make it easier to terminate the agunah’s status as a married woman. If she claimed that her husband had disappeared and died—even on the basis of her own testimony, she does not require any other witnesses to substantiate her claim. This, of course, assumes each party had an amicable relationship.[2]
The history of annulment goes back to the early rabbinic period. The rabbis plainly state, anyone who marries a woman, must do so in accordance with the rules defined by the Sages, “a man takes a woman under the conditions laid down by the rabbis… and the rabbis may annul his marriage” (BT Gittin 33a), has rarely been employed since the 14th century. The fact the rabbis felt empowered to utilize annulment (hafka’at kiddushin) is sufficient reason to use it especially when husbands resort to blackmail and extortion. According to the Talmud, if a man forces a woman to marry him—even if she should later acquiesce to marrying the man, Jewish law rules that the marriage is nevertheless void. [3]
One of the methods to annul a marriage is an idea that was once proposed by R. Yerucham (14th century France), who argued: Any marriage that takes place with fewer than ten people may be considered invalid. More importantly, every community has the right to determine conditions for invalidating a marriage if individuals go against the standards that are defined by a given community.[4]
Some solutions stipulate at the time of marriage, certain conditions be made, which could retroactively annul a marriage, such as in the case of abandonment. Conditions may also be made at the time of marriage, to bypass the requirement to enact a levirate marriage in the event her husband dies childless.[5]
Annulment is by far the most straight-forward way of cutting the halachic Gordian knot. One of our past generation’s greatest Halachic minds, Rabbi Moshe Feinstein, often annulled marriages in cases involving fraud. According to him, a woman would never have knowingly entered into a marriage had she been informed about certain facts, e.g., male impotence, spousal abuse, mental illness, and so on. The fact the husband refused to disclose this history prior to their marriage constitutes serious grounds for annulment. Rabbi Feinstein referred to these marriages as kiddushe ta’ut — marriages that were due to mistaken circumstances.[6]
In 1997, the State of New York State ruled that no court can enter a judgment of annulment or divorce unless any barriers to religious remarriage by a spouse, the removal of which are within the control of the other spouse, have been removed.[7]
In the Conservative Movement, in 1968, the Rabbinical Assembly Law Committee unanimously empowered the Joint Bet Din of the Conservative Movement to annul marriages, as a matter of last resort.[8]
Among the Orthodox, a number of rabbis are now using prenuptial agreements, not incorporated into the ketubah. Some mention words to these effect by the groom during the ceremony, through which the husband and wife agree to abide by orders of a designated Beth Din, regarding the potential possibility of giving, or accepting a get. Some scholars report that Rabbi Moshe Feinstein, looked upon this idea with favor.[9]
The late Rabbi Emanual Rackman, chancellor of the celebrated Bar-Ilan University in Israel, convened his own rabbinical court and implemented hafka’at kiddushin today. Rabbi Rackman notes that “There are three factors that play a part in all legal development: One is a sense of logic, the second is the sense of justice, and the third concerns the needs of society. All three elements play a part in Jewish law that there’s no escaping. This is true of all legal systems and of the halacha as well.”[10] In this seminal article, Rabbi Rackman calls for a demythologization (i.e., removing the incorrect misconceptions people have regarding the nature of Halacha) “By demythologizing, what do we mean? Some Orthodox rabbis say that Jewish law never changes; that it is fixed, immutable. They know this isn’t true, but perhaps they say it because they feel that this in itself creates a value that people should not get used to the idea that Jewish law can be changed. Changes are often requested by people whose motivation is simply selfish. They want to justify what they want to do . . .” [11]
Rabbi Rackman was not only a brilliant scholar, he also possessed an honesty rarely seen among religious scholars today. There is no reason why we cannot solve the agunah issue in our time. The destruction of human happiness thousands of woman are experiencing and the fear of stigmatization must take greater consideration than some mistaken notion that Jewish law is monolithic and unchanging.
Where there is a Halachic will, there will always be a Halachic way . . .
Notes:
[1] Midrash Tanhuma, Be-hukkotai, 5.
[2] JT Yevamot 15:1, 77a (15:1, 14d
[3] BT Bava Bathra 48b.
[4] Responsa, Toledot Adam ve-Ḥavvah, Sec. Ḥavvah, xxii, 4.
[5] Responsa, Ḥatam Sofer, EH 1:111.
[6] Cf. Iggeret Moshe, Even HaEzer Vol I Responsa #79, 80.
[7] NY State Section 253 of the Domestic Relations Law.
[8] Irwin H. Haut, Divorce in Jewish Law and Life, (New York: Sepher-Hermon Press, 1983), 99.
[9] Meyer E. Rabinowitz (Chairman, Joint Bet Din of the Conservative Movement), Agunot (Abandoned Wives), 1998, adapted from his comments at the 1998 Agunot Conference, in Jerusalem.
[10] Rabbi Levi Meir ed.. Jewish Values in Bioethics, (NY: Human Sciences Press, 1986), 150-159.
[11] Ibid., 152.
Answered by: Rabbi Dr. Michael Leo Samuel
