Revisiting the Agunah Problem

There has been a great deal of discussion in recent years over the agunot / recalcitrant husbands ands wives issue. A number of solutions have been offered of late such as Rabbi Riskin’s hafka’at kiddushin, Rabbi Aviad Hacohen’s kiddushei ta’ut, the prenuptial agreement, etc. These have elicited vigorous opposition from a number of different quarters. Some of the arguments against the suggested solutions are of a primarily halakhic–technical nature, whereas others are of a more ideological meta–halakhic nature. One of the more putative arguments is that the use of these techniques will make the dissolution of marriage much easier, and may be used in an indiscriminate manner increasing the incidence of divorce, thus undermining the very institution of marriage, which constitutes the foundation and bedrock of the Jewish family unit. 

It would, however, seem to me that the reverse is the case. More young couples are steering clear of rabbinic marriage, to avoid what an English writer a generation ago called “unholy wedlock”. Alternatively, rabbis are resorting to unpalatable techniques, such as the use of disqualified witnesses. Hence the rejection of plausible solutions, far from protecting the institution of marriage, is eroding and undermining it. Throughout the generations, when the rabbis sensed that the halakha seemed to be working against itself, they most creatively found ways to rectify the situation.

This, for example, is precisely what happened in the time of Hillel (late first century B.C.E.). Biblical (and Rabbinic) laws determined that unpaid debts were to be cancelled at the end of the sabbatical year. Clearly, this was intended to help the impoverished from sinking into ever-deepening debt, from which they saw no escape. The sabbatical year was for them their only hope of recovery. But when Hillel saw that people were no longer giving out loans to the poor, precisely because the sabbatical year’s cancellation-law obviated the creditor’s chance of retrieving his money, he instituted the prosbul, a legal means by which this law was circumvented, thus allowing creditors to claim back their loans even after the sabbatical year.

Similarly, in the case of the medieval heter iska, a means which permitted money-lenders to receive interest on loans granted to fellow Jews (usury). Here again, without such incentive people would desist from gratuitously lending out their money. So the biblical law forbidding usury was, in point of fact, waived aside for the sake of the poor who desperately needed to borrow for their livelihood. 

And perhaps the most remarkable example of this phenomenon is that of the heter mekhirah, the permission to sell the (arable) land of Eretz Yisrael to avoid the strictures of the sabbatical year. For clearly the sabbatical year was originally instituted to strengthen the Jewish settlement of the land (yishuv Eretz Yisrael), socially, economically and agriculturally. However, when it became apparent that the Jewish settlement in Israel could not survive if the sabbatical year was kept with all its biblical and rabbinic restrictions and that, in point of fact, it would most likely bring about the economic collapse of the yishuv rather than strengthening it, a means was sought out to avoid such a situation, and the heter mekhirah was developed. Thus, paradoxically, by selling the land to a non-Jew, one was strengthening the Jewish settlement of the land. 

We see then that whenever it became preeminently clear that a specific halakhic situation was threatening and endangering its own survival, the rabbis found an acceptable solution within the structure of Jewish law.

Let it not be thought that I am unaware of the difficulties in many details of the proposed suggestions to the agunah problem. I am fully aware of them, but equally I believe that a concerted effort on the part of rabbinic leadership can pave the way to ironing out these difficulties.

On the other hand, the outright rejection of legitimated and long attested and proven solutions to (some of) the agunah problems, is not bolstering the bastion of marriage, but undermining and eroding it in ever-widening circles. Let us then act with the same judicious understanding as did our rabbinic masters of old. Let us dignify Jewish law rather than abasing it in the eyes of many. Let us draw in our fellow Jews rather than drive them away. And in this way we will be able to show the beauty, humanity and compassion of the halakha.