The following is abridged from the concluding section of Michael Broyde’s review essay of The Tears of The Oppressed by Aviad Hacohen which was published in the Edah Journal Kislev 5765. We thank Michael Broyde and Edah for permission to present this in our Agunah issue. The reader is referred to the full review which can be found at www.edah.org
According to Jewish law, marriage is a private law matter subject to dissolution only with the consent of the parties. Because of this, the agunah problem is most likely insoluble in a global manner. Any attempt to craft a remedy must begin with a number of observations concerning potential solutions. First, solutions that incorporate secular law into the workings of Jewish law in a mandatory way should be sought only if they have the support of vast segments of the Orthodox community, since it is patently unethical (and a violation of halakha) to impose one’s understanding of a disputed Jewish law matter on another person or group through the use of secular law. Alternatively, such legislation must have an opt-out clause allowing those who disagree to decline to be governed by it.1
Second, given the vastly different conceptions of the right to divorce found within the Jewish tradition and the resulting disagreements on how to solve the agunah problem, it is likely that the only possible solution is one that recognizes the diversity of understandings found within Jewish law and allows each community to adopt whatever solution it deems religiously acceptable. To prevent the religious posturing by spouses that often accompanies acrimonious divorce, such solutions have to be spelled out prior to marriage and agreed upon by the parties. In the absence of such prior agreements as to what the base rules are, contemporary Jewish law will not be able to impose a solution.
It is important to understand the impact of these two observations: just as there is diversity in the understanding and application of the Sabbath laws, the family purity laws, the financial laws, and the marriage laws of Judaism, there is diversity in the understanding of its divorce laws. And just as disputes in these other matters are (almost) never resolved in a coercive manner (each community follows halakha as it understands it without any coercive direction from other communities), the same should hold true in the area of divorce law. But when the ground rules are not set at the outset, dispute resolution becomes much harder to accomplish in the area of divorce law.
The contest between the spouses in an acrimonious divorce matter causes many individuals to misunderstand the norms of their community, either unintentionally or otherwise, and to seek a rule of Jewish law which, while normative, does not reflect the understanding of the halakha found within his or her own community.
“….the only way to implement this type of a solution is through pre-nuptial agreements…”
Just as solutions to the problems of kosher food fraud cannot be predicated on the community’s agreeing on a single standard for keeping kosher, the same must be true for rules related to marriage and divorce. Individuals have the right and ability to discuss and agree in a halakhically binding way when and under what circumstances they, and not anyone else, determine that their marriage should end; they can then write a document directing their choice. There are a variety of models they can choose from, each grounded in the classical Jewish tradition and its sources, or common contemporary practice, or even simply mutual agreement of the parties. Once they reach such an agreement, it is binding on them and controls their end-of-marriage dispute should they have one.
In my own view, the only way to implement this type of a solution is through pre-nuptial agreements such as the kind endorsed by the Orthodox Caucus and the Beth Din of America sponsored by the R.C.A..2 My experience as a dayan in the rabbinical court in the United States that arranges the largest number of gittin of any rabbinical court in the Diaspora is that these pre-nuptial agreements are highly successful and effectively eliminate the agunah issue when they are properly used. They do, in fact, solve the problem, but they need to be formulated prior to marriage.
Yet some argue that this solution still has its limitations and failures, and are seeking a solution that works independently of the will of the husband upon separation. The search for such solutions has been widely written about,3 and I would like to present what such a proposal would have to look like in order to have a chance to be accepted. First, it would have to rely on opinions found in mainstream, classical halakhic sources that are inherently valid. In addition, such a proposal would require acknowledgement on the part of significant halakhic authorities that even if it is not ideal (le-khatehila), it is a halakhically satisfactory after-the-fact (be-di-avad) response to a situation. Were such a proposal to be crafted and accepted by mainstream halakhic authorities, it would likely be formulated, I think, to combine three different mechanisms into a single document, and in a way that if any of them were halakhically valid, then the resulting get would be valid. The three elements would be conditions applied to the marriage (tenai be-kiddushin),4 authorization (harsha’ah) to give a get,5 and broad communal ordinance to void a marriage (takanat hakahal).6 Each of these avenues has significant halakhic support of both classical and modern authorities; consequently, a real case could be made that a single document that successfully incorporates all three elements would survive any be-di-avad` criticism, and the get issued as a result of such a document would be valid according to most authorities. Appended to this article is a suggested form of such a tripartite document (shelo-lehalakha). In the twentieth century alone, one can cite a list of luminary rabbinic authorities who have validated such agreements in one form or another, including Rabbi Yosef Eliyahu Henkin, Rabbi Isaac Herzog, Rabbi Jechiel Jacob Weinberg, and Rabbi Ovadia Yosef, as well as many others.7 And no less an authority than the Rema approved of conditional marriages (although maybe only in yibbum situations).8
Even with this broad conceptual foundation, I would never actually use such a document unless and until a significant number of reputable halakhic decisors determine that (at least) this document is effective be-di-avad and that it would be respected as valid bedi-avad even by authorities who do not advocate its use. Maybe it would be halakhically better to rely on the array of leniencies advanced by various eminent authorities in support of such documents with our understanding that sha`at hadehak kemo be-di-avad (“a time of urgency is to be treated as if it is after-the fact”), rather than maintaining the none-too-pleasant or successful status quo, which also leads to mamzerut. That calculus would require the approval of the foremost halakhic authorities of our times.
In conclusion, pre-nuptial agreements of the kind endorsed by the Orthodox Caucus and the Beth Din of America of the R.C.A. represent the best theoretical and practical solution to the agunah problem in the United States (and Canada) and need to be implemented with greater vigor by our community. The tripartite solutions I have discussed above (based on conditions applied to the marriage (tenai bekiddushin), authorization (harsha’ah) to give a get, and broad communal ordinance to void a marriage (takanat hakahal)), even if theoretically advantageous, will require a great deal of further halakhic analysis.