AGUNAH (Heb. עֲגוּנָה; lit. "tied," cf. Ruth 1:13), married woman who for whatsoever reason is separated from her husband and cannot remarry, either because she cannot obtain a divorce from him (see *Divorce), or because it is unknown whether he is still alive. The term is also applied to a yevamah ("a levirate widow"; see *Levirate Marriage), if she cannot obtain ḥaliẓah from the levir or if it is unknown whether he is still alive (Git. 26b, 33a; Yev. 94a; and Posekim). The problem of the agunah is one of the most complex in halakhic discussions and is treated in great detail in halakhic literature (no less than six volumes of Oẓar ha-Posekim are devoted to it – see bibliography).
Essence of the Problem
The halakhah prescribes that a marriage can only be dissolved by divorce or the death of either spouse. According to Jewish law, divorce is effected not by decree of the court, but by the parties themselves, i.e., by the husband's delivery of a get ("bill of divorce") to his wife (see *Divorce). Hence the absence of the husband or his willful refusal to deliver the get precludes any possibility of a divorce. Similarly the mere disappearance of the husband, where there is no proof of his death, is not sufficient for a declaration by the court to the effect that a wife is a widow and her marriage thus dissolved. The husband, on the other hand, is unaffected by aginut, i.e., by his wife's refusal to accept the get or her disappearance without trace, since in such a case under certain conditions the law affords him the possibility of receiving hetter nissu'in ("permission to contract an additional marriage"; see *Bigamy). In most cases of agunot the question is whether or not the husband is still alive. Such cases result, for instance, from uncertainty about the husband's fate caused by conditions of war or persecution – particularly in recent times as a result of the Nazi Holocaust, but the problem can also arise, for example, if the husband suffers from chronic mental illness making him legally incapable of giving a get or simply if he willfully refuses to do so.
Rabbinical scholars have permitted many relaxations in the general laws of evidence in order to relieve the hardships suffered by the agunah. On the other hand great care was always taken to avoid the risk that permission may inadvertently be given for a married woman to contract a second marriage that would be adulterous and result in any children from such a second marriage being mamzerim (see *Mamzer). Achieving both these ends, i.e., to enable the agunah to remarry while ensuring that an adulterous union does not result, is the object of intensive discussion in the laws of the agunah.
Mode of Proof (of the Husband's Death)
It is a basic rule of halakhah that facts are to be determined on the testimony of two witnesses (see *Evidence). However, the Mishnah already attributes to R. Gamaliel the Elder the takkanah that when a husband is missing because of war, and his fate is unknown, the wife may be permitted to remarry on the testimony of only one witness to his death (Yev. 16:7). Although somewhat later R. Eliezer and R. Joshua disagreed with this ruling, at the time of R. Gamaliel of Jabneh it was again determined (ibid.) not only that one witness was sufficient but also that hearsay evidence might be admitted, as well as the evidence of a woman, a slave, a handmaiden, or a relative (which classes were otherwise legally incompetent as witnesses). The legal explanation given for these far-reaching rules is that it is to be presumed that a person will not give false testimony on a matter which is likely to come to light, since the husband, if still alive, will undoubtedly reappear sooner or later (Yev. 93b; Maim., Yad, Gerushin 12:15). Moreover, it may be assumed that the wife herself will endeavor to make sure of her husband's death before remarrying, since she will become prohibited to both men if it later transpires that her first husband is still alive, and her other rights, especially pecuniary ones, will be affected too (v. infra; Yev. 87b; Sh. Ar., eh 17:3, 56). Another reason given is that a relaxation of the law is appropriate in times of danger, the possibility that a woman may remain an agunah being deemed to be such a time of danger (Yev. 88a, 122a and Rashi ibid.; see also *Takkanot).
An agunah may also be permitted to remarry on the strength of her testimony alone as to her husband's death, when she is known to have lived in harmony with her first husband and his absence is not due to war conditions, for the reason, already mentioned, that certainly she has made careful inquiries herself before seeking to contract another marriage (Yev. 93b, 114b–116, and Posekim). On the other hand, five categories of women are incompetent to testify as to the husband's death, including his mother and his daughter by another marriage, since it is feared, in view of their customary hatred of the wife, that they are likely to deliver false evidence, so that she should remarry and thus become prohibited to her first husband if it should later transpire that he is still alive (Yev. 117a and Posekim).
Similarly, an agunah may be relieved of her disability on the unsolicited statement of an apostate Jew (see *Apostasy) or a non-Jew, as to her husband's death; for instance, if during a casual conversation they happened to say, "it is a pity that so and so is dead, he was a fine man," or, "as we were walking together, he suddenly dropped dead," or the like (Yev. 121b–122a; Maim.; ibid. 13:11; Sh. Ar., eh 17:14). For the purpose of permitting an agunah to remarry it is sufficient if written documents exist that testify to the husband's death (Sh. Ar., eh 17:11). The halakhah originally considered documents emanating from non-Jewish authorities as insufficient to permit an agunah to remarry (Maim., Yad, Gerushin 13:28; Sh. Ar., eh 17:14), but according to the opinion of most posekim, this halakhah does not apply to present-day non-Jewish authorities, whose documents, such as death certificates, etc., may be relied on (see, e.g., Ḥatam Sofer, responsa eh 1:43).
Subject-Matter of the Proof
The halakhah, while striving to be lenient as possible in the method of proving the husband's death, imposes strict requirements concerning the nature of the evidence with regard to the husband's death, lest a woman still married may thus be permitted to marry another man (Maim. ibid. 15: Sh. Ar., eh 17:29). The identity must be established of the person whose death it is sought to determine and there exist most detailed rules in order to establish it with the maximum amount of certainty under the circumstances. Thus evidence as to circumstances from which death would be likely to result in a majority of cases is not considered as sufficient proof of death itself since it may be merely the opinion of the witness that the husband is dead, but not testimony as to the fact of death. Hence, the wife will not be permitted to remarry on the strength of evidence to the effect that her husband was seen to fall into the sea and drown in "water having no end" (i.e., where one can see only the sea but not its surroundings) when his death was not actually seen to have taken place, since he may have been rescued. If, however, the witness testifies that he was later present at the funeral of the husband or some other clear evidence of death, for example, that an identifiable limb was found at the place of drowning, it is accepted as evidence of death. On the other hand the death of the husband will be accepted as having been sufficiently proved and the agunah will be permitted to remarry on the strength thereof if there is evidence that he drowned in water "having an end" (i.e., that one can see its surroundings); and the witness stayed long enough at the scene "for the victim's life to depart," without seeing him rise to the surface (Yev. 120–121; Maim. ibid. 15–27; Sh. Ar., eh 17–42, esp. 32).
Agunah in the Case of a Civil Marriage
A deserted wife who, practically speaking, has no prospects of obtaining a get from her husband, but was married in a civil ceremony only (see Civil *Marriage), may in certain circumstances be declared by the court to have never entered a marriage and thus be permitted to marry another man without need of a get from her first husband. The court will reach this conclusion particularly if the wife is able to prove that her first husband expressly refused to marry her in a religious ceremony, declaring thus by implication that he did not wish to create the status of a marriage according to Jewish law (Resp. Melammed Leho'il, eh 20).
Mitzvah to Permit Agunot to Remarry
Finding a way for permitting an agunah to remarry is deemed a great mitzvah (Responsa Asheri, 51:2). Indeed, an onerous application of the law, without justification, and in cases where there is no suspicion of deception, is regarded not only as a failure to perform a mitzvah, but even as a transgression (Responsa Maimonides, ed. Freiman, 159; Sh. Ar., eh 17:21, Isserles). However, in view of the danger of legalizing a possibly adulterous union, it is customary for an agunah to be permitted to remarry only after consultation with, and consent having been obtained from, other leading scholars (Sh. Ar. ibid. 34; Isserles and other commentators).
Consequences of Remarriage
An agunah who remarries, after permission is granted by the court, is generally entitled to the payment of her *ketubbah (Yev. 116b; 117a; Maim., Yad, Ishut 16:31; Sh. Ar., ibid. 43, 44). If an agunah remarries after permission has been given, and then her first husband reappears, her legal position is that of an eshet ish "a married woman" who has married another man, thus becoming prohibited to both men (see *Adultery). Accordingly, she requires a get from both, and any children born to her of her second husband will be mamzerim according to biblical law. Any children born to her from a union with her first husband, after he takes her back but prior to her having received a get from her second husband, will also be mamzerim, but only according to rabbinical law. In such event she is not entitled to her ketubbah from either husband (Yev. 87b; Maim., Yad, Gerushin 10:5, 7; Sh. Ar., eh 17:56).
Proposals for Precautions to Avoid a Woman's Becoming an Agunah
In view of the unhappy straits in which an agunah is likely to find herself, ways were sought already in early times of taking precautions against such an eventuality. Thus it was customary for anyone "going to wars of the House of David, to write a bill of divorce for his wife" (Ket. 9b and Rashi and Tos. ibid.). This get was a conditional one, i.e., becoming effective only should the husband not return from war until a specified date, whereupon the wife would become a divorcee and be entitled to marry another man without having to undergo a levirate marriage or Ḥaliẓah (Sh. Ar., eh 143). In certain countries this practice is adopted even in present times by those going to war, but complications may ensue; since the rules and the consequences of a get of this nature are beset with halakhic problems (Sh. Ar., ibid.), particularly when the husband is a kohen, since his wife will be a divorcee if he fails to return by the specified date, and by law he must not thereafter remarry her (See *Marriages, Prohibited). One of the solutions suggested was for the husband to grant his wife an unconditional divorce, save that each promises to remarry the other upon the husband's return from war. This, however, would not avail a kohen for the reasons mentioned. Furthermore, in the event of the wife's refusal to keep her promise upon her husband's return, the question may arise whether on the strength of the get she is free to marry another man, because of the reasonable possibility that the husband intended that the get be conditional, i.e., to be of effect only in the event of his failure to return from the war (see above). On this question there is a wide difference of opinion on the part of the authorities without any unanimity being reached (see S.J. Zevin, in bibliography). Another solution proposed, has been the stipulation of a condition at the time of the marriage to the effect that in certain circumstances the marriage should be considered retroactively void, for instance if the husband should fail, without his wife's permission, to return to her after a long absence of specified duration and should refuse, despite her demand, to grant her a get; or if he should die childless, leaving a brother who refuses to fulfill the obligations of a levir, etc. (see, for instance, Ḥatam Sofer, eh 1:111). This approach also presents formidable halakhic difficulties and was not generally accepted by the majority of the posekim (see Freimann, Kahana, and Berkovits, in bibliography). A wife who is on bad terms with her husband and can prove the likelihood of her becoming an agunah, may possibly obtain an injunction from the court restraining her husband from traveling abroad without granting her a conditional get, as mentioned above.
It was also sought to avoid the disability of an agunah by the enactment of a takkanah by halakhic scholars to the effect that the kiddushin should be deemed annulled retroactively upon the happening or non-fulfillment of certain specified conditions, such as the husband being missing or his willful refusal to grant a get. But this takkanah, based on the rule that "a man takes a woman under the conditions laid down by the rabbis… and the rabbis may annul his marriage" (Git. 33a), has rarely been employed since the 14th century. In recent times it has been suggested that halakhic scholars should adopt one or other of these procedures in order to solve certain problems relating to agunah (see Freimann, Silberg (in the court decision cited in bibliography), and Elon, in bibliography).
In the State of Israel
The question of permitting an agunah to remarry, being a matter of marriage and divorce, falls under the exclusive jurisdiction of the rabbinical courts with regard to Jews who are nationals or residents of the State, in terms of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713/1953 (sec. 1), which courts deal with the matter in accordance with the halakhah. The provisions of the Declaration of Death Law, 5712/1952 (enacted to meet consequences of the Nazi Holocaust), empowering the Jerusalem District Court under certain conditions to make a declaration as to a person's death, has no bearing on the problem of an agunah, since "a declaration of death constituting evidence by virtue of this Law, shall not affect the provisions of law as to the dissolution of marriage" (see ibid., 17).
[Ben-Zion (Benno) Schereschewsky]
A New Approach
Numerous approaches have been suggested in an effort to find a suitable solution to the problem of the agunah, based on the enormous range of materials and sources in which even the experienced scholar may find it difficult to orient himself.
Discussion of the issue of agunot first appears during the tannaitic period, but has continued until today. This issue is a classic example of how the world of halakhah operates: an interplay of innovation and tradition in legal decisions, the existence of truths that in one sense are absolute, and in another sense contingent upon exigencies of time and place, and the fine balance between the law and the judge. Hence, it is highly instructive as an indicator of the way in which social and historical realities integrate in the formulation of halakhah, underscoring the reflections, doubts, and debates, the application of far-reaching and far-sighted solutions on the one hand and the search for direction toward such solutions on the other.
According to Jewish law, just as the marital bond is created by the actions of the two individuals involved, so too divorce can only be effected by their complementary and reciprocal actions, namely by the husband giving, and the wife accepting, the get (bill of divorce). And just as kiddushin is a voluntary act performed by the two spouses, so too the act of divorce (at least since the ḥerem issued by Rabbenu Gershom at the end of the tenth century) must be performed voluntarily by both spouses. Thus, according to halakhah, a couple is not actually divorced by virtue of the decision of a court that decides on their divorce. When the court (bet din), in response to irrevocable discord between the couple, rules that they must divorce, it merely declares that the couple must carry out the act of divorce, by giving and receiving a get; the decision of the court itself does not effect the divorce. In other words, the decision is not constitutive, as it is in most contemporary legal systems, but rather declarative, informing the couple of their obligation to divorce.
This fundamental difference between divorce in Jewish law and in other legal systems has certain advantages. For example, in Jewish law the divorce can be the product of a mutual agreement, with neither of the spouses being required to show any grounds for divorce, as was the case in most legal systems, and as is still the case in some until today. However, this difference also creates difficulties, as when one of the couple is not able, in the sense of legal capacity, or not willing, to take part in the giving and receiving of the get: not able – when one of the spouses suffers from a mental illness that renders him legally incompetent, or when the husband is absent (whether voluntarily or not); not willing – when he (or she) is capable of giving or receiving the get, yet refuses to do so, whether in order to extort money from the spouse, or to otherwise abuse her or to take revenge upon her. In all these instances it is the wife who is worse off, since she becomes an agunah (a chained woman), unable to remarry so long as the death of her husband has not been proven (should he have disappeared), or until he gives her a get (where he is alive, but is either mentally incapacitated or has refused to give the get). Should she marry or have sexual relations, any children born to her will be mamzerim (misbegotten), who are unable to marry other Jews. These severe consequences do not ensue in the case of a husband whose wife is unable or unwilling to accept the get, neither in terms of the status of his children (born to him from another woman while he is still married) nor in terms of his potential marriage to another woman. Indeed, permission may be granted for him to remarry, should his wife unlawfully refuse to accept the get.
In terms of solutions to the problem of agunot, a distinction must be drawn between the various circumstances that can lead to the woman's becoming an agunah. The cases in which the husband is missing as a result of war, natural disaster, or other similar circumstances, are usually solved by halakhic authorities and scholars within a reasonable amount of time. Their solutions are based on the principle that "in the case of agunot [i.e., in order to prevent a woman from becoming or remaining an agunah] the Sages were lenient." In accordance with this principle, for example, the Sages significantly relaxed the level of proof required to ascertain the husband's death. Testimony that would otherwise be unacceptable – whether emanating from a heavenly voice, hearsay, or the like – could be utilized by the court to free a woman from the shackles of being an agunah. Relying upon this principle, all the agunot from Israel's wars in recent decades were permitted to remarry, as were the wives of the sailors who disappeared when the Israeli submarine Dakar sank without a trace in 1967, in accordance with a halakhic decision of late Chief Rabbi Shelomo *Goren. In this latter case, there was almost no evidence available to indicate the fate of the crew; nonetheless, within a very short time none of these women was left an agunah.
issues that are difficult to resolve
Difficulties arise in regard to those cases where there is no doubt that the husband is alive, but in which he is incapable or refuses to give the get. Cases in which the husband refuses to give the get, in order to extort money or take revenge, etc., are both the most difficult and the most numerous. These problems are particularly widespread and serious in countries outside Israel, where there is a legal option for civil marriage and divorce. A civil court may rule that the couple is divorced, but from the halakhic perspective, the woman may not remarry unless her husband gives her a get, and husbands often exploit this situation in order to extort money or other concessions from their wives. Again, from the halakhic perspective, there is no parallel limitation on the husband who wishes to remarry. In an attempt to solve this problem, a number of solutions have been proposed. In the United States, for example, proposals were made for the addition of an appropriate clause in the standard ketubbah (marriage settlement document), or the introduction of state legislation which prevents the husband from marrying another woman so long as he has not removed any obstacle to the remarriage of his wife, from who he is already civilly divorced.
The principal method proposed by halakhic authorities to relieve the problem of agunot was that of annulment of the marriage. This approach was first discussed at the time of the tannaim, on the basis of the principle that "anyone who betroths [a woman] does so subject to the conditions laid down by the rabbis, and the rabbis have the power to annul the betrothal," if it "was effected improperly" or "in deviation from the conditions laid down by the rabbis." This approach was initially widely used, but later its use decreased significantly, particularly as a result of historical changes in Jewish life – the dispersion of Jews throughout the Diaspora and, in certain countries, among various Jewish centers, as well as the ideological and cultural schisms that arose with the onset of the Emancipation.
Before discussing the particulars of this subject, mention should be made of an additional approach, which has not been given sufficient consideration: namely, kiddushei ta'ut ("erroneous betrothal"). There is a difference between solving the problem of agunot by annulling the marriage – that is, in which the marriage is itself binding, but the bet din annuls it and permits the couple to marry – and solving the problem of agunot by utilizing the principle of "kiddushei ta'ut," meaning that the marriage itself was never in effect, thereby obviating the need for its annulment. This distinction may be of value in the search for a speedier solution for the distress of contemporary agunot. Examples of use of the principle of kiddushei ta'ut to permit agunot to remarry can be found in the responsa of R. Simḥah of Speyer, one of the outstanding sages of Ashkenazi Jewry at the end of 12th century; of R. Simeon b. Ẓemaḥ *Duran (Algiers, 14th century); in the reasoning of R. Joseph Dov *Soloveichik, one of the leading scholars of 19th century Lithuanian Jewry; and in the responsa of R. Moses *Feinstein, a leading halakhic authority of our own generation. (For research regarding this approach see Hacohen, The Tears of the Oppressed, in the bibliography. This approach may provide a partial solution to the problem of agunot.)
As stated above, the main overall solution to the problem of agunot, particularly in view of contemporary needs, is that of annulment of marriage. Of particular importance in this context are the reasons that led to the almost total rejection of this solution; on the basis of a close analysis of these reasons, and in light of the establishment of the State of Israel, it may now be possible to return to this solution.
annulment of marriage – problems and analysis
From the 12th century we have the report of R. Eliezer b. Nathan of Mainz concerning an incident involving a fraudulent marriage. No explicit enactment regulating the manner of effecting a marriage was applicable to the case and the halakhic authorities disagreed as to whether it was possible to invalidate the marriage (Rabban, eh 3, fol. 47b). The authorities of Worms and Speyer sought to annul the marriage of the first husband in reliance on the talmudic statement "that it was effected improperly." However, this was not the view of the halakhic authorities of Mainz, who argued that since the completion of the Talmud, the post-talmudic authorities do not have a power to annul such a marriage. This was also the view of one of their contemporaries – Rabbenu Tam – who argued that even the geonim lacked the authority to annul such marriages (Sefer ha-Yashar, R. Tam, Responsa Section, Rosenthal ed., §24).
In the 13th century, Asheri and Rashba made an important distinction in regard to annulment of marriages (Rosh, 35.1; 35.2; Rashba, 1 §§1026, 1162, 1185). Under this distinction, the post-talmudic halakhic authorities do not have the general power to annul a marriage on the grounds that "it was effected improperly" or that it was entered into "subject to the conditions laid down by the rabbis"; but if an enactment explicitly states that a marriage in violation of its provisions will be annulled, then the marriage is invalid.
If the communities, or each individual community, should wish to erect a legislative safeguard against these unfortunate occurrences, let them all jointly adopt an enactment fully confiscating, whether permanently or for a fixed period, any money given [to effect a marriage] to any woman of their community(ies), unless the woman willingly accepts it with the consent of her father or in the presence of whomever they wish.
Every enactment – whether by a particular community or a group of communities – that expropriates the money given to effect a marriage is thus fully valid; and consequently a marriage that does not fulfill the conditions set forth in the enactment is void.
Rabbenu Jeroham (14th century, France) also held this view:
Every community has the power to adopt an enactment and to agree that any marriage effected in the presence of fewer than ten persons is invalid; and it may also establish other similar conditions that all who marry do so subject to the conditions established by the residents of the community" (Toledot Adam ve-Ḥavvah, Sec. Ḥavvah, xxii, 4).
In the 14th century, a substantial change occurred in the attitude adopted by the halakhic authorities regarding the actual exercise of legislative power to annul a marriage. We have already noted a certain reluctance on the part of Rashba, who initially ruled that the matter required further consideration but subsequently gave a definitive ruling permitting an enactment for the annulment of marriages. Some time later, even graver doubts were raised by R. *Isaac b. Sheshet Perfet (Ribash), who made his consent to validate such an enactment conditional upon "the approbation of all the halakhic authorities of the region," as a means of dividing the responsibility for the decision among as many halakhic authorities as possible (Ribash §399).
Furthermore, according to Ribash the principle that "all who marry do so subject to the conditions laid down by the rabbis" can be broadened and applied to conditions laid down by the community:
In addition, even if we had to resort to the rationale that "all who marry do so subject to the conditions laid down by the rabbis" to justify every annulment of marriage, we may also state that all who marry do so subject to the conditions laid down by the community in its enactments, given that we have already accepted that all those who marry without any express stipulations as to the terms of marriage do so in accordance with the customs of the town…. Thus, we reach the conclusion that the community may adopt such an enactment, and a marriage that contravenes a communal enactment is invalid, and no divorce is necessary."
This was Ribash's rendition of the law in theory. "However, as to its practical application, I tend to view the matter strictly; and I would not rely on my own opinion (i.e., in view of the gravity of the matter) to declare that she needs no divorce to be free [to remarry], unless all the halakhic authorities of the region concurred, so that only a 'chip of the beam' should reach me [i.e., that I do not take upon myself the full responsibility, but only part of it]."
Ribash did not yet make an absolute distinction between the theoretical authority to adopt an enactment annulling a marriage, and the practical exercise of that authority. The qualification introduced by Ribash was only that such legislation requires the approval of all the halakhic authorities of the region. However, the position expressed by his younger contemporary, Rashbaz (Simeon b. Ẓemaḥ Duran), was far more adamant – namely, that an enactment nullifying a marriage should never be applied in practice. His ultimate justification for the strict ruling was "the gravity of sexual matters" (Tashbez, 2 §5).
Rashbaz states unequivocally that in terms of the "essence" of the halakhah, the existing authority to annul a marriage derives from the principle of hefker bet din hefker [the bet din's authority to expropriate money] and he emphasizes that the authority to annul a marriage rests in every competent court and in every generation. But this is only on a theoretical level. On a practical level a strict approach should be adopted regarding marriage because of the gravity of improper sexual unions, and hence this authority should not be exercised (see also Tashbez, 1, §133).
This same view and rationale are echoed in a responsum by Rashbaz's grandson, the second Rashbash (R. Simeon b. Solomon *Duran), at the end of the 15th and the beginning of the 16th centuries (Yakhin u-Bo'az 2, §20).
During the same period (towards the turn of the 16th century) we also hear of the first detailed explanation for the phenomenon of the growing inclination to abstain from exercising regulative power to annul marriages that are halakhically valid. This trend was explained by R. Moses *Alashkar, who was active at that time in Spain, in Egypt, and later on in the Land of Israel. First, he made it quite clear that the halakhic authorities and the community have the power to adopt an enactment by which a marriage entered into in violation of their regulations is void. However, he further ruled that, as opposed to enactments in other areas of Jewish Law, where there is nothing to prevent each community from fully exercising the legislative authority vested in them, the adoption of far-reaching enactments with regard to the annulment of marriage are not permitted – mainly for reasons of general legal policy – unless the enactments are adopted by all or at least most of the communities in a particular country. Maharam Alashkar pointed out that in this ruling he was following in the footsteps of Ribash, who also required that the enactment be adopted by all of the communities in the region. However, Maharam Alashkar explained this requirement within the particular context of marriage and divorce law (Maharam Alashkar, §48).
The fact that an enactment was only adopted by a particular community and not by all the communities – or at least a majority of them – prevented Maharam Alashkar from approving the enactment and declaring it valid. While Jewish Law confers legislative authority to a local community, and even to a tradesmen's association, it is not proper to "take a lenient approach" to marriages "valid according to the Torah" purely on the basis of one community's enactment. This is so, because local legislation in matters of marriage and divorce creates a serious danger of degeneracy and of making a mockery of the entire institution of marriage. An enactment of one community clearly does not bind a member of any other community. Consequently, if a member of another community marries a woman in violation of the enactment, the marriage will be valid (since we apply the law of the husband's community), while if a member of the community that adopted the enactment marries a woman in violation of the enactment, the woman will not be married, and is permitted to marry someone else without a divorce. This kind of situation is intolerable in terms of the integrity and stability of the institutions of marriage and family!
An interesting example of this significant change in the legislative trend regarding enactments dealing with annulment of marriages is the difference between two enactments, adopted approximately 100 years apart in the very same location – the community of the Castilian exiles in *Fez. The first enactment, adopted in 1494, reads as follows (Kerem Ḥemer, 2, Takkanah §1; for the Fez enactments, see Ha-Mishpat ha-Ivri, p. 652):
No Jewish man shall betroth any Jewish woman other than in the presence of ten persons among whom there is either a scholar of the community (who receives his wages from the community treasury) or a local judge; the same applies to their entering under the ḥuppah. If it is done in any other manner, the marriage is void ab initio.
One hundred years later, a new enactment was adopted in Fez, similarly requiring that a betrothal take place in the presence of ten persons. However, this enactment contained a substantial change in the sanction imposed on the violator of the enactment; while he is subject to punishment and fines, the marriage itself is considered valid and is not annulled. Instead, the husband is compelled to give a divorce (Kerememer, Takkanah §34; the latter enactment was adopted in 1592).
In reality, in the 16th and even in the 17th century enactments were still being adopted in various communities in Italy and elsewhere prohibiting the celebration of marriages in the presence of fewer than ten persons and explicitly stating that a marriage in violation of the enactment is void ab initio (see for example the Casalli enactment of 1571; a similar enactment was adopted in Corfu in 1652). However, the overwhelming majority of halakhic authorities refused to endorse the practice of annulment of marriages and it appears that these particular enactments were never actually applied (Naḥalat Ya'akov§57; the responsum was written in 1615).
It is highly noteworthy that as late as the 18th and 19th centuries, legislation was enacted in the Jewish centers of the Eastern countries, requiring marriages to be celebrated in the presence of ten persons and a rabbi, and providing for annulment as a sanction for violation.
In the middle of the 18th century in Damascus, Syria, an enactment of this kind was adopted by the halakhic authorities together with the communal leaders, led by R. Mordecai Galante. The full text of the takkanah was preserved (Berekh Moshe by Moses Galante, the son of Mordecai Galante, §33). It states that "in order to remove the stumbling blocks placed by deceivers" they enacted that:
No Jewish man marry any woman, except in the presence of ten Jewish persons, including the rabbi who is the teacher of Torah and who the community recognize as judges … and two individuals from among the communal leaders and officials are also to be included among these ten persons. This, our enactment and decree, shall be in effect from this day forward until the day of the coming of the Righteous Teacher, the Messiah of the God of Jacob … and if any man shall intentionally marry in secret in the presence of two witnesses and not in the presence of ten Jewish persons, as mentioned above … his marriage will have no effect and we annul his marriage by way of absolute expropriation like the court of Ravina and R. Ashi, which had the power to expropriate a person's property.
In the middle of the 19th century this enactment was reaffirmed and fortified by the scholars and leaders of the Damascus community, led by Isaac *Abulafia (in his Penei Yiẓḥak, eh, §16; p. 94d).
In our community there is an earlier enactment … that no man marry in the presence of two witnesses, unless the rabbi or his representative consents and ten persons are present, two of whom must be communal leaders … and that if any man shall intentionally marry in secret in the presence of two witnesses … not only shall he be labeled a transgressor, but his marriage is annulled by the rabbis and the money given to effect the Kiddushin is completely expropriated under principle of hefker bet din hefker like the court of Ravina and R. Ashi, which had the power to expropriate property … In as much as an incident occurred within the past three years, we have reenacted this legislation and proclaimed it publicly with full force and effect, with all transgressors being made subject to excommunication and ban as is known.
There were disputes among the halakhic authorities regarding the interpretation, validity, and applicability of this enactment (see Freimann, Seder Kiddushin ve-Nissu'in, 286 ff.). As a fundamental ruling regarding the manner of establishing the halakhah and adopting enactments, it was sharply criticized by R. Shalom Moses Hai Gagin, of Jerusalem:
This is an astounding opinion in which the author states that he saw in the code books that it is permissible to adopt an enactment at variance with the rulings of R. Joseph Caro, even to the point of leniency concerning a prohibition contained in the Torah; to date he has not revealed the identity of this authority to us. This is nothing more than his own view, and his own unsupported opinion. It cannot possibly be contended that the world's great scholars ever gathered together and agreed to rule contrary to R. Joseph Caro, the author of the Shulḥan Arukh, even in a single particular (Yismaḥ Lev, eh, §15).
According to R. Gagin, the enactment was only intended to annul a marriage in rare and exceptional cases (e.g., in which there were additional defects, or in special cases in which there was a problem of iggun).
In his responsum relating this matter, R. Isaac Abulafia strongly defended his position regarding the power to adopt such an enactment:
What should I say in response to that author who is wise in his own eyes… who compares those who have studied and gained wisdom to ignorant reed cutters? [i.e., who compare people who have studied extensively to ignorant reed cutters; see Sanh. 33a] For the fundamental question, namely, whether a court and a community may enact legislation to annul a marriage that is valid according to the Torah, has been extensively discussed by the rishonim, i.e., Ribash and Rashbez, and by other leading authorities, who proved directly on the basis of several talmudic passages that enactments annulling a marriage regarded by the Torah as valid can be adopted on the basis of two sound and fully articulated reasons: (1) that all who marry do so subject to the conditions laid down by the rabbis, and the rabbis annul this marriage; and (2) that pursuant to the principle of hefker bet din hefker, the court has sufficient authority to exercise the power of expropriation….
This being so, there is here an a fortiori inference: since they have the power to annul a marriage that is completely and clearly valid under the law of the Torah, as stated above, then a fortiori, in order to erect a safeguard, they may also adopt an enactment that is contrary to R. Joseph Caro on this particular point, and may instead follow the authorities who disagree with him. If they possess the power to annul and dissolve a marriage that is valid according to the Torah, they must certainly have the authority to adopt an enactment that contravenes the strict view of R. Joseph Caro, for otherwise, what have the halakhic authorities accomplished with their enactment? The matter is simple and clear and beyond all doubt (Lev Nishbar §3, 15a).
It should be emphasized that many of the leading halakhic scholars in the Eastern countries shared this view and ruled accordingly, that the halakhic authorities have the power to annul marriages by way of an enactment (in another context, see Elon, "The Uniqueness of Halakhah," in the bibliography):
The question arose again in its full gravity, during the second half of the 19th century, when it was determined in Algerian law that it was obligatory to conduct a civil marriage ceremony prior to conducting ḥuppah and kiddushin, and that in the absence of the civil ceremony the couple would not be considered married in accordance with the laws of the State. This change carried tremendous potential for abuse by which the husband could cause his wife to become an agunah; for if they had been married under religious law without the marriage having been preceded by a civil ceremony, then he could then legally marry another woman. Alternatively, if the woman who had the status of a married woman, went and married another person, she would thereby blemish the status of her children from the second husband. In order to prevent mishaps of this nature and the like, the Algerian rabbis turned to one of the great halakhic authorities of Turkey, R. Chaim Palagi, from Ismir, who proposed, in view of the increasing numbers of cases in which woman were chained to the marital bond and the attendant danger of mamzerut, that they adopt a enactment for the annulment of marriages effected without there having been a prior civil marriage ceremony. Some time later, a similar enactment for the annulment of marriages was adopted in Algeria by R. Elijah Ḥazan, and he was supported by the halakhic authorities of Tunis and Constantine and others too. There were other authorities who did not approve of the annulment of marriages, and refused to adopt this kind of enactment in their own locations. Among these was R. David Moeati, one of the Algerian rabbis. The dispute continued between other halakhic authorities as well. R. Ḥayyim Bleich, an eminent rabbi from Tlemecen, Algeria, wrote a special treatise supporting the idea of annulment of marriages under these circumstances, even after the consummation of marriage (see Freimann, Seder Kiddushin ve-Nissu'in, 334–37). It would appear that the majority of the halakhic authorities supported the adoption of this enactment and ruled accordingly, and it served as the basis for annulment of marriages in the Egyptian communities (Freimann, 337–44; see further in Elon, ibid., 34–35, infra).
Our discussion shows that in Ashkenazi Jewry, following the period of R. Moses *Isserles, one of the leading halakhic authorities of the 16th century, enactments were no longer made for the annulment of marriages as a solution for the problem of agunot. The position accepted by the Ashkenazi authorities was that they did not have the power to adopt enactments for the annulment of marriages, in view of the considerations dealt with above. Among Oriental Jewry, on the other hand, this practice continued, alongside intensified discussion of the need and the possibility of annulling marriages by appropriate enactments. In a number of locations in the Oriental Diaspora these enactments were actually put into practice, surviving until this very day. The phenomenon has invariably been the subject of incisive and often stormy discussions, and has remained on the public agenda, and some of the halakhic authorities did not recoil from adopting the enactments which in their view were both necessary and appropriate.
the centrality of the land of israel and the state of israel – the key to the solution of the problem of agunot
It would appear that the great historic transformation of the condition of the Jewish people wrought by the restoration of Jewish sovereignty (a transformation unparalleled in its magnitude in the entire course of Jewish history) could and should lead to a change in the trend of refraining from the exercise of halakhic legislative authority. The reasons for this were the fragmentation and dispersal of local communal legislation, and the absence of a central authority for the Jewish people in its entirety. Accordingly, the new reality of ingathering and unification should serve as an impetus for the renewed resumption and exercise of legislative authority and for the emergence of a central authority, which can adopt legislation applicable to the Jewish people in its entirety. The halakhic center in the State of Israel should be the main Jewish center, exercising halakhic hegemony over the entire Jewish dispersion. In that capacity, it is authorized to reassume the authority to adopt enactments which, from the time of their adoption or over time, would become the legacy of the Jewish people wherever it be. The new historical reality ought to give rise to a new halakhic reality, the central innovation of which will lie in the restoration of the "crown" to its ancient glory. This new situation both warrants and demands the renewal of the full scope of creative legislative activity in all branches of Jewish law, including marital law, in order to strive to perfect the world of halakhah and the world of the Jewish people. (A proposal in this spirit for a solution of the problem of agunot was made by Prof. Abraham Chaim Freimann, Seder Kiddushin ve-Nissu'in, 397).
In the State of Israel, as the center of the Jewish world, marriages and divorces of all Jewish men and women are effected, pursuant to the State Law, in accordance with the conditions stipulated by its halakhic authorities and scholars.
Our discussion until now indicates that the dearth of practical application of enactments for agunot and for annulments of marriage in the larger portion of Jewish communities in the Jewish dispersion is rooted in the historical phenomenon of the fragmentation into numerous centers and different communities, a phenomenon that gave rise to a multiplicity of halakhic practices. We find more and more cases in which the enactment was accepted and practiced in one particular center, or even in one particular community. As the fragmentation increased, it increasingly precluded any possibility of annulment of marriages. The situation was one in which there could be two couples, one belonging to a community that had adopted an enactment for the annulment of marriage and the other to a community which had not adopted that enactment. As a result, one could no longer claim that marriage was effected in accordance with the conditions stipulated by the rabbis, because there was no single set of conditions of the rabbis: rather there were two different systems, which alternated from center to center and from community to community. This point was made and reiterated in the responsa of the halakhic authorities just examined.
Needless to say, these enactments ought to be made by the rabbis and scholars of the State of Israel, the center of the Jewish world. However, such enactments need to be adopted in consultation and coordination with Jewish scholars and halakhic authorities from the entire Jewish world. Consequently, anyone who marries would be doing so in accordance with the enactments made by the authorities of the Land of Israel, in the State of Israel. There would thus be one enactment for the entire Jewish people. The factor of centrality thus both accommodates and compels the renewed adoption of an enactment for agunot that would unshackle Jewish women both in the State of Israel and in all the centers the world over.
peace as a consideration in jewish law
In our discussion of an enactment for the annulment of marriages as a solution for the plight of agunot, the consideration of peace was one of the considerations that periodically arose, either as a compelling reason for finding a solution or as the means for finding such a solution. Indeed, it plays a unique function in the discussions of the halakhic authorities in the context of enactments for agunot.
Halakhic authorities derived this principle from the verse in Proverbs 3:17: "Her ways are ways of pleasantness and all her paths are peace." This verse describes the virtues of wisdom, and in the Jewish tradition it serves to extol the Torah and those who study it. It was further established as a general guideline for the manner of interpretation of the rules of Jewish Law in all its various fields, and as the purpose and goal of the entire world of Jewish Law. In the world of the halakhic authorities, "the ways of pleasantness" and the "paths of peace" were integrated into a single principle, each aspect complementing the other, with the emphasis alternately placed on either "pleasantness" or "peace." This integrated principle was the source of a variety of rulings in all areas of halakhah, chief among them being family law. (See Maharsha, end of Yeb. 122b; Maim., Yad, Megillah ve-Hannukah 4:12–14.)
a significant though partial solution: a modern application of rabbenu tam's harḤakot
We concluded our above discussion of the subject of agunot with the expectation that the resolution of this difficult and painful problem would be found by resorting to the creative utilization of the tool of annulment of marriage, which would be examined, discussed, and applied from the center of the Jewish people in the Land of Israel in the State of Israel. It is interesting to note that the first steps towards a solution to the problem of agunot have already been taken. We refer here to the efficient, variegated, and specific use of a special law, in a manner that induces the husband to immediately comply with the decisions and judgments that obligate him to release his wife from the chains of her agginut.
As we observed, the predominant view in the vast majority of Jewish centers was the proscription of physical coercion as a means of forcing the husband to give his wife a get, except for certain exceptional cases: "We should be strict in not using coercion by way of physical coercion, so that the get does not become a 'coerced get' [one given under physical compulsion, against the husband's will and thus invalid]" (Rama Sh. Ar., eh 154.21). On the topic of physical coercion as a means of forcing the husband to give a get, see the entry *Divorce and its conclusion: "Enforcement of Divorce in the State of Israel." This strict ruling frequently gave rise to problems of agginut and the halakhic authorities searched for halakhic and social remedies to this serious problem.
The method proposed by Rabbenu Tam (one of the leading 12th century Tosafists) was based on ostracizing the recalcitrant husband who refused to give the get to his wife, cutting him off from communal life and severing all contact with him. In other words: "they are not permitted to talk to him, do business with him, host him, feed him, provide him with drink, accompany him and visit him when he is ill … we will separate from him" (Sefer ha-Yashar §24). Physical coercion or other kinds of harm (such as imprisonment, etc.) are forbidden, because in those cases the husband's consent to give a get may stem from his inability to withstand the physical pressure and not because he has consented to give a get. The social sanctions, by prohibiting any contact with him, are insufficient as a means of forcing him to grant a get, for from a physical perspective he is capable of bearing the pressures of denial of contact with him. Accordingly, if he deigns to give his wife the get, it may be presumed that he does so willingly.
Notably, resort to this kind of sanction in the judgments of rabbinical courts in the State of Israel has been extremely rare. Two factors may explain this. Firstly, the "fear of instruction" of the halakhic authorities echoes the view of a number of posekim who ruled that these sanctions constitute coercion and are therefore only permitted in the rare cases in which coercion is permitted. The second factor is that the sanctions referred to in the aforementioned sources were utilized primarily in order to ostracize and exclude the husband from communal religious life, limiting its effectiveness to those cases in which the husband belonged to that particular community.
Moreover, the economic aspect of abstaining from any financial and commercial dealings with the husband would be unlikely to be particularly effective in the contemporary reality. It would therefore seem that the idea and the principle of the sanctions, as they should be applied in the current reality, require application and execution by the authorities of the State, exercising its legally conferred power over its entire citizenry.
Sanctions (Exclusionary Measures) in Legislation of the Knesset
This method has in fact been proposed by researchers and various judicial and governmental circles. A halakhic dialogue has begun regarding the possibility of utilizing tools wielded by the State authorities, and whether the use of such tools does not constitute "coercion," if only because the exclusion from participation in communal life and the possibility of coercion is only permitted in certain exceptional cases, as stated above. The proposals became memorandums, discussions, draft laws, and culminated in the formulation of a list of "exclusionary (shunning) measures" which received expression in the Knesset legislation under the Rabbinical Courts Law (Upholding Divorce Rulings), 5755–1995. Since its adoption a number of amendments have been introduced on an almost annual basis.
Under this law (§1) if a certain period of time has passed since the decision of the Rabbinical Court ruling that the husband must give a get to his wife, and the husband has not upheld the judgment:
The Rabbinical Court may, in a restrictive order, impinge on the rights enumerated below, in full or in part, for such period and under such conditions as it may prescribe:
(1) To leave the country;
(2) To receive an Israeli passport or laissez passer pursuant to the Passports Law, 5712–1952, to hold them or extend their validity, provided that they retain their validity for purposes of returning to Israel;
(3) To receive, hold or renew a driver's license;
(4) To be appointed, elected or to serve in a statutory position or a position in an inspected body within the meaning of the State Comptroller Law 5718–1958 [Consolidated Version];
(5) To deal in a profession the occupation in which is regulated by Law, or to operate an enterprise which requires a legal license or permit;
(6) To open, or hold a bank account or to draw checks on a bank account, by determining that he is a restricted customer within the meaning of the Checks Without Cover Law, 5741–1981.
While the historical source of these provisions lies in the "Sanctions (harḥakot) of Rabbeinu Tam," their ramifications extend far further afield. The order issued is a "restrictive order" affecting the possibility of leaving the country, receiving a passport, driver's license, appointment to official positions, occupation in a profession, opening and maintaining a bank account, and being imprisoned in solitary confinement for a prescribed number of days. Restrictions of this nature may for the most part be regarded as violations of the basic rights in accordance with the Basic Laws: Human Dignity and Freedom, and Freedom of Occupation (e.g., freedom of movement, freedom of occupation, right to property). At the same time, they are of tremendous importance in the promotion of a solution to the problem of agunot in the world of halakhah and as part of the world of halakhah. The restrictions imposed here by the legislator, whose values are those of a Jewish and democratic state, are a continuation of the exclusionary measures, established in the halakhah of the 12th century, and named after one of its most eminent leaders and authorities, the noted Tosafist, Rabbenu Tam. Mention should be made here of an interesting correspondence relating to the application of this Law, cited in the Report of the State Comptroller, Justice Eliezer Goldberg (Annual Report 54b, 2003, and accounts for fiscal year of 2002, pp. 515–23), under the heading "Rabbinical Courts." In the response submitted by the director of the Rabbinical Courts to the State Comptroller's Office, it states that "a mesurevet get (wife whose husband has refused to give a get) is defined by the Rabbinical Court as a wife whose husband was obligated to give her a get, and has still not given it to her after 30 days." In accordance with this definition, there are only 200 mesuravot get. This led to a proposal of the State Comptroller that the Rabbinical Court should initiate the issue of a restrictive order even if the judgment itself did not stipulate that the husband was obligated to give his wife a get, but only stipulated that the Rabbinical Court recommends or suggests that the husband give his wife a get. This is in accordance with the Law itself which states (section 1 (b)): "For purposes of this section, it is immaterial if the judgment used the wording of coercion, obligation, mitzvah (positive precept), suggestion, or any other wording"; and this would result in a decrease in the numbers of agunot. The president of the Rabbinical Court replied that "should it be necessary," the Rabbinical Court would adopt this kind of initiative (ibid., 521–23).
We are once again confronted by the social role filled by the State of Israel, as an esteemed, venerable, and sovereign legislative authority, in both the development of halakhah and the resolution of halakhic problems that arise in its framework.
This law contributed significantly to a solution of the agunot problem. For further details regarding its provisions, see the entry on Divorce, especially the concluding section, "Enforcement of Divorce in the State of Israel." Admittedly, the problem remains to be completely and satisfactorily resolved – for the Jews in the State of Israel, and certainly for Jews living in the countries of the Diaspora, to whom the provisions of the law dealing with compliance with judgments do not apply. Nonetheless, the partial promotion of a solution, as embodied in the provisions of the law, is still of great significance in the anchoring of the values of the State of Israel as a Jewish and democratic state, in accordance with the provisions of the purpose section of the Basic Laws.
As stated, the Law of the Knesset is just a beginning, albeit an important one, for the solution of the problem of agunot. The need exists, and it is incumbent upon us to aspire to a complete resolution of the agunot problem. Such a solution exists in the form of annulment of marriages, which could be effected by the adoption of an enactment in the center of the Jewish world in the Land of Israel, with the cooperation and assistance of halakhic authorities from Jewish communities all over the world. To be sure, the halakhic world is divided regarding the issue of the authority of the rabbis to annul marriages in this manner, but this has always been the case. Moreover, this was the situation in the period immediately preceding our period, in a location quite close to ours. I refer here to the dispute between the two great halakhic authorities, R.I. Abulafia and R.C. Ganin, during the 19th century in the Jewish center of Damascus, in Syria, the neighbor of Israel (see supra). Accordingly, if there was a dispute regarding the enactment that originated in Damascus in Syria, then an enactment issuing from Jerusalem, in the Land of Israel in the State of Israel, which constitute the center of the Jewish world, should certainly be proposed, accepted, and applied in practice in order to free Jewish women from the chains and suffering of being agunot.
In conclusion, it should be noted that the issue of a wife's agginut occasionally arises in judicial deliberations, not in relation to the agginut per se, but rather in the context of adjudication of other legal matters, such as the amount of damages owing to a widow whose husband died through his employer's negligence, the issue of an extradition order against a husband for a crime committed in another country, and the like. (See Elon, C.A. 110/80 Gabbai v. Willis, 36 (1) p.d. 449; c.a.Aloni v. Minister of Justice, 41 (2) p.d. 1; h.c. 644/79 Guttman v. Tel-Aviv Jaffa Regional Rabbinical Court, 34 (1) p.d. p. 443–50; h.c. 822/88 Rozensweig v. Attorney General, 42 (4) p.d. p. 761–59.)
[Menachem Elon (2nd ed.)]
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