The tragic problem of the agunah— a woman “chained” to an impossible marital situation—is rooted in the biblical command that it is the husband who “writes (for his wife) a statement of divorce and gives it into her hand” (Deut. 24:1). And despite the fact that eminent and even “strict constructionist” halakhic authorities such as the Hatam Sofer insist that the marital relationship at its core is a relationship of mutuality (see Hidushei HaHatam Sofer to B.T. Baba Batra 47b), despite the enactments of Rabbenu Gershon (c.1000 CE) forbidding a husband from giving a “statement of divorce” against his wife’s will, despite the pre-nuptial contract which provides for the husband’s commitment to give his wife a large sum of money each day he delays in giving her a get after an authorized religious court has ordered him to do so, and even despite the ability of the religious court in Israel to have a recalcitrant husband’s professional and driver’s licenses removed and to have him imprisoned, as long as the woman is ultimately dependent upon her husband to give her the get, she remains at a severe disadvantage. After all, there are always venal and/or vindictive husbands willing to patiently wait for exorbitant monetary payments in exchange for the get, who prefer languishing in jail to giving their wives a get, or who simply flee the country in order to escape the jurisdiction of the religious court.
I maintain that a halakhic solution based on talmudic texts and rabbinic precedents does exist and only needs to be activated and put into practice. There are five different talmudic passages which invoke the ability of a religious court (rather than the husband) to annul a marriage retroactively in the event that the husband acts improperly, or in order to protect the woman from living alone: in three of them, the husband gave a get, but the get was invalid (B.T. Gittin 33a, B.T.Gittin 73a, and B.T. Ketubot 3a), and in the other two, since the husband acted improperly by taking unfair advantage of his bride, the betrothal was annulled without any kind of get whatsoever (B.T. Baba Batra 48b, and B.T. Yebamot 110a). The talmudic justification for such an annulment (hafka’at kiddushim) stems from the presumption that “whoever betroths a woman, betroths her with the understanding that his act has rabbinic approval. (Indeed, the groom stipulates this in the formula ‘in accordance with the laws of Moses and Israel.’) Hence, the rabbis have the power to cancel his betrothal” (B.T. Gittin 73a). According to this opinion, even with respect to the three talmudic cases which involved a get, it was not the get that brought about the cancellation of the marriage, for in each instance the betrothal was rendered invalid by Torah law. Hence, there is a basis to allow annulment many years after the betrothal, even without a get.
Throughout the ages, during the periods of the Geonim, the Rishonim (early rabbinic authorities), and the Aharonim (later rabbinic authorities), the sages of every generation used their authority to cancel marriages. Over time, the rabbinic authorities increasingly hesitated to invoke that authority, but they never relinquished it altogether or doubted the possibility of executing it with a specific enactment (takanah) of a regional council elected by majority vote. When no other halakhic solution was available to them, the rabbis continued to invoke their authority to cancel marriages even without a get. In a period of little more than 100 years (1804-1921), for example, no fewer than seven enactments were instituted for the cancellation of marriages in four different countries: Italy, France, Algeria and Egypt (A.H. Freiman, Seder Kiddushin Ve-nissuim, Jerusalem 1945, p. 345).
“..a halakhic solution…does exist and only needs to be activated and put into practice.”
According to no less an authority than Rav Moshe Isserles, for example, the lenient ruling allowing women of Austria to return to their husbands after having been taken captive by gentile marauders is based on the assumption that even later rabbis have the authority to cancel a marriage without a get, even when the couple had been living together as man and wife for many years. The rabbinic authorities ruled leniently, explains Rav Moshe Isserles, because they were concerned that a more stringent approach would lead to sinful behavior in the future. These considerations are no less valid today than they were centuries ago (see Darkei Moshe 7, 13).
In a theoretical discussion relating to present-day enactments concerning marriage, Chief Rabbi Yitzhak Halevi Herzog (1888-1959) wrote as follows:
And this (precedent of the Austrian women) might have halakhic ramifications even in our day. Indeed it could be applied where the husband is obligated by Torah law to grant his wife a divorce, but he refuses to comply with the law, and the woman may have received a civil divorce in a non-Jewish court, but that does not help according to Torah law, and she remains an agunah forever. In such a case the court has the authority to uproot the betrothal, and to rule according to the principle that a man betroths a woman with the understanding that he has rabbinic approval. Even though Hazal (rabbinic sages) did not cancel the marriage in such cases in the past, this was because they were authorized to use physical force, or at least to impose a ban or excommunication, which is not the case in our day when these are forbidden (Tehukah LeYisrael al pi Hatorah, vol. 1, p.78).
We are now faced with a world-wide problem of women unable to attain their freedom from recalcitrant husbands who unfairly utilize halakha to hold up their wives for ransom and prevent them from marrying. The Chief Rabbinate in Jerusalem should adopt an enactment stipulating that, if a religious court orders a husband to divorce his wife, and he refuses to do so even after sanctions have been imposed upon him, then a special court will be established with the authority to cancel the marriage and free his wife to remarry.
Indeed, even as this article is being written, MK Orit Noked of the Labor Party is preparing a special law before the Israeli Knesset calling for the nullification of the worth of the betrothal ring—and therefore the annulment of the marriage—in any instance in which the husband still refuses to give his wife a get after a recognized religious court has ordered him to do so. A respected Israeli jurist, Berakhiyahu Lifshutz, and I maintain that the Knesset today acts in place of the city councils of Jewish communities throughout the Middle Ages, whose enactments were considered to have the force of the enactments of the Great Sanhedrin! (Editor’s note: this proposed legislation has unfortunately since been defeated.)
There is little need to worry that allowing for the dissolution of a marriage without a get would lead to a devaluation of the sanctity of the institution of marriage. The proposed enactment would only apply in the most extreme cases of a recalcitrant husband. Moreover, it is likely that the actual implementation of hafka’at kiddushin will rarely be necessary. The mere threat of hafka’at kiddushin—and with it the release of the woman from her marital chains—would deprive the husband of the strangling hold that he has over his wife, and should suffice to convince him to free her from the marriage with a valid get.
Tractate Yebamot closes with a statement made by Rabbi Eleazar in the name of Rabbi Hanina: “Torah scholars increase peace in the world, as the verse states: ‘And all of your children shall be taught of the Lord, and great shall be the peace of your children’—read not banayikh [your children], but rather bonayikh [your builders—Torah scholars are the true builders of peace].” The famous commentator known as the Maharsha (1555-1631) explains that tractate Yebamot ends with this passage, because the tractate contains many strange laws that appear to contradict and uproot that which is stated explicitly in the Torah. Rabbi Eleazar teaches that these laws were not taught in order to uproot the Torah, but rather to increase peace in the world, the peace that is engendered by healthy family life, the peace that Torah law is supposed to provide, as the verse states: ‘Her ways are ways of pleasantness, and her pathways peace.’ Concludes the Maharsha: “The Talmudic passage (in its parallel text in Berakhot) ends with the citation, ‘The Lord will give strength to His people’ May God give the leaders of His people, the Torah scholars of every generation, the courage and strength to be lenient in these matters of agunah, and only then will the Lord bless His people with peace.” May this be God’s Will.