In the search for universal solutions to the agunah problem, one must keep in mind that although there may be various halakhic solutions, because the problem arises under varying conditions, the approaches and application of solutions differ vastly from locale to locale. Therefore, it is instructive to understand the similarities and differences between the conditions, most importantly, in the United States and in Israel.
Similarities
The bottom line in Jewish divorce is that the writ of divorce, the get, must be given by the husband to the wife by his own free will. That is d’oraita—biblical law.1 On the level of a rabbinical ordinance, the wife must also agree to the divorce.2 However, it is the d’oraita absolute need for agreement by the husband that has given rise to extortion or stubborn get-refusal on the part of husbands and has created victims of get-refusal, agunot. The fear of pressuring a husband to the point that the get will be considered forced (me’useh), which may cause it to be invalid, with terrible consequences,3 has led to rabbinic hesitancy and, at times, even paralysis.
Moreover, even if a rabbinical court (a beit din) today—anywhere in the world—were to rule for coercion of a get against a recalcitrant husband, it could not use physical coercion for fear of being charged with assault and battery. Although the halakha may allow the rabbis to beat or whip a disobedient person, human rights, societal norms, and, most importantly, civil law do not allow anything of the sort. On this point, civil law ties the hands of rabbinic judges.
For Orthodox Jewry the world over, it is crucial that any divorce that takes place includes the arrangement of a get under the auspices of a recognized Orthodox rabbinical court. To maintain the minimal unity between communities around the world so that members may unhesitatingly marry one another, these courts (batei din) must be able to rely on one another, whether they are located in Israel or the Diaspora.
Differences
In Israel there is no separation of religion and state. In fact, by law, it is the State of Israel that pays most rabbis’ salaries and appoints them to their positions, including both community rabbis and the dayanim (judges) in the official batei din. Whereas rabbis in the United States are private employees of their communities, and thus must be sensitive to the needs of the people who pay their salaries, in Israel the rabbis are public employees, part of the establishment, while not serving as community rabbis.4
There are advantages and disadvantages to the rabbinical courts being part of the Israeli legal establishment. By law, the beit din has sole jurisdiction over divorce. Thus, any Jewish person must arrange for a get if he wants to be recognized as divorced by the state. Under civil law, the beit din has the power to haul a litigant into court or to levy sanctions against a husband who does not obey its order to divorce his wife. These powers include, among others, invalidating the man’s driver’s license or professional permit and closing bank accounts. The rabbis of the beit din may even incarcerate a man for refusing to give his wife a get.
However, these rulings are not as common as one would think. In fact, when comparing the rabbinical courts in North America to those in Israel, it can be observed that the severity of the rulings of the Israeli batei din is inversely proportional to their actual power. Even though a rabbinical court in the Diaspora has no legal power over a given individual,5 rabbinical courts do regularly obligate husbands to divorce their wives. Not so in Israel, where the beit din can actually summon a litigant with a police escort. In Israel it can take years, if at all, to reach a ruling of “obligation” to give a get.
Furthermore, in Israel, not only Orthodox women can become agunot. Because the state-administered marriages and divorces are conducted in accordance with halakha, every Jewish citizen—whether religious, traditional, secular or atheist—who divorces under the auspices of the State of Israel must arrange a kosher get. Thus, secular women are in need of protection from iggun as well.
The absence of civil divorce in Israel necessitates a different approach to divorce and to the agunah problem. While in the United States a divorcing woman must contend with both the state court and the rabbinic court when it comes to the actual dissolution of her marriage, in Israel they are one and the same.6 Moreover, when comparing divorce proceedings in the U.S. family courts to the beit din in Israel, there are two major inherent differences between civil law and halakha.
The first difference is the option in the United States of a no-fault divorce.7 In no-fault divorce proceedings, the spouse who has initiated the divorce proceedings is not required to prove fault or blame or mention the other’s negative traits or acts. However, when suing unilaterally for a divorce in the Israeli beit din, the suing party must convince the dayanim that a divorce is necessary by proving fault on the part of the spouse. Fault must be proven to the degree that will cause the rabbinical judges to issue a ruling that the spouse must give or receive a get.
The second inherent difference between the two systems lies in the power, or lack thereof, of the judge in his respective legal system to change the individual’s personal status. Whereas a U.S. family court judge has the authority to rule that the parties in question must divorce, he or she also has the power to issue a decree that transforms both individuals’ personal status from married to divorced (or “remarriageable”). The judge may do so even against one of the spouses’ wishes. However, although a dayan has the authority to rule that the parties in question must divorce, he does not have the power to change the individual’s personal status through the vehicle of divorce. That power lies solely in the hands of the two parties themselves. A rabbinic judge cannot rule that a wife is divorced in the absence of action by the husband.
The combination of these two circumstances in the Israeli beit din—the necessity to prove fault before the court and the inherent inability of the beit din to effectuate a ruling of divorce—gives rise to a Catch-22 situation for women suing for divorce. Providing evidence of fault leads to angering the husband, whereas lack of evidence leads to the refusal of the rabbinical court to arrange the divorce. The plaintiff is forced to act against her own interests. The husband against whom negative claims have been made feels either that lies about him were told to the rabbis or his secrets were exposed. As an angry husband, he may be more likely retaliate with the ultimate tool he holds—a tool more powerful than the rabbinical court itself—refusal to grant the get to the wife who has dared to mention his faults before the court.
Solutions
Attempts to deal with the agunah problem in Israel take place on various levels, including counseling of individuals, education, dialogue with various sectors of society, representation in court, trying to persuade government ministries and functionaries, lobbying in the Knesset, proposing bills, and influencing rabbis and rabbinic establishments. As described, the Israeli rabbinical establishment is less diffuse than in the United States. On the one hand, there are clear addresses to engage. On the other, a negative reaction on the part of the rabbinate can be all-pervasive and very difficult to overcome. Similarly, actions can and must be taken on a governmental level, but political dealings are extremely difficult. As compared with community members generally in the United States, certain sectors of the Israeli public are more educated in Jewish law, which may make change easier or prove to be a stumbling block.
A wide variety of Israeli organizations—social-change groups, academic, rabbinic and women’s organizations— have been active for more than a decade. Among these, the International Coalition for Agunah Rights (ICAR) has seen success in influencing the selection of dayanim (until recently),8 passing a property-relations law, and other campaigns; the Agunah Prevention Project of the Council of Young Israel Rabbis (CYIR) is active in the dissemination of the prenuptial Agreement for Mutual Respect, which has reached hundreds, perhaps thousands, of marrying couples, and the CYIR has influenced rabbinic leaders and academics through scholarly discourse and writings; Yad La-Isha’s representation of agunot in the batei din has freed hundreds of women; and Bar-Ilan University’s Rackman Center for the Advancement of the Status of Women has produced innovative academic conferences, reports, and watchdog publications on Israeli family law and rabbinic court rulings. All these organizations and others combine forces within ICAR, influencing political movers and shakers while also promoting preventive solutions to the agunah problem for individuals.
Educating about the Use of Prenuptial Agreements
One major push has been toward educating the Israeli public about the use of prenuptial agreements for the prevention of get-refusal. It is recognized that the prenuptial agreement is a first necessity, after which it is possible to proceed further. Among the Israeli public in general, and within the rabbinic community specifically, the attitude toward prenuptial agreements is one of naiveté. Even the concept of a purely financial prenuptial agreement was virtually unknown only a decade ago. Add to that the reactionary instinct of Israeli rabbis, and the ongoing educational challenge becomes clearer.
Innovative halakhic solutions have originated in the United States, from within the rabbinic establishment itself. In the United States the development of prenuptial agreements began in the 1950s, and Rabbi Michael Broyde recently proposed the Tripartite Agreement.9 Meanwhile, Israeli scholars and activists follow these trends from outside the official rabbinic establishment.
Over a decade ago, a prenuptial agreement was developed in Israel by individuals well-versed in halakha. “The Agreement for Mutual Respect”10 is in widespread use in Israel and proving to be successful in preventing get-refusal.11 As one young woman said, “The Agreement for Mutual Respect saved me.” In her case, as in others, the signed agreement was enough to propel the initially stubborn husband to enter into divorce negotiations that brought him to the beit din to give the get in a cooperative manner within a few months, avoiding long litigation and the Catch-22 situation described earlier. A variety of Israeli religious organizations and many individual rabbis12 recommend the agreement for use by marrying couples, although, to date, no establishment rabbinical organization has made a policy statement recommending the use of prenuptial agreements for the prevention of get-refusal.
Ongoing efforts are being made to educate not only the public in get-refusal prevention, but also rabbis, the government, rabbinical courts, and civil family courts. Indeed, initial inroads have been made in preventing the agunah situation from arising, while actual cases get resolved piecemeal through the court system. Undeniably, the agunah problem in Israel is multifaceted, as is the campaign for its solutions.