Agunah – Why Require a Man to Give a Get for a Jewish Divorce?
Okay, short answer: Because our Maker said so. Shorter answer: I don’t know. We can pretty much answer that for any commandment in the Torah, but that doesn’t really help a woman who is stuck married to a man she doesn’t want to be married to. Such has become an issue in Jewish blogs and the newspapers these days thanks to a high profile case. I very purposely choose not to link to such articles which mention the case simply because I don’t know what’s true and what’s not true in the case, nor do I think it’s any help to be a public judge of it. Instead, in this article, I’ll try to go more broad and give some proposals for answers as to why the Jewish marriage system is the way it is, from different perspectives.
Everything is a gift from our Creator and we are supposed to treat it that way. Thus, in Jewish law it follows that you are required to take care of other people and things. Going from least sophisticated to most, Yaakov [isaac], the midrash tells us, went back to pickup ‘pachad ketanim’ little jugs which were left, because to a tzaddik his possessions are valuable. Moving along to living beings, if you own animals, you are required to feed them before yourself. If you have a servant, you must give your pillow to the servant before yourself. If you could have prayed for someone’s recovery from sickness and refrained, then you are at fault. If you have a wife, so too you must take care of her before yourself. Further rabbinic laws have long been enacted which take the concept of “this is the right thing to do” and place them into Jewish law. If there’s not enough food, the man is required to leave the home to find it. The woman has complete conjugal rights and say over such issues. A man must feed and provide clothes and shelter for his wife, including new clothes before every holiday. In short, the woman is to be taken care of while the man worries about where to find the food.
However, the Talmud bring a ruling from Rav Huna (Talmud Bavli, Bava Kamma, page 8b) telling us that if you don’t want to avail yourself of a (rabbinic) enactment made for your benefit, you don’t have to. Thus, a woman can choose to be master of her own finances and so forth (though I would argue that the more the marriage is a partnership with respect for the decisions of the other, the better). Support of a woman goes so far that Devarim [Deuteronomy] 22:28 tells us that if a man rapes a woman, he now has to marry her. That sounds pretty terrible at first glance, but this means that one of his punishments is that he now has to “pay her alimony” (support her) for life. Remember … she has control over the bedroom (and I suppose, could choose to live apart from him to avoid further abuse). Again, however, it’s her choice and she can choose not to do so … which, certainly today, any woman would do. The Torah is a document for all times and in other times and places there might be a rationale for choosing to live with this man. Even in our times, I know of a personal story where a female study partner in college told me that her friend’s older brother abused her, and then became her boyfriend. Under such a scenario in Jewish law, she’d actually now be able to prevent him from no longer supporting her. (See this article for a further discussion on the issue.)
Both the man has to give it and the woman has to agree to receive it. Usually, both parties will eventually go out of it so they can move on with their lives and remarry. Either party can play games, especially now where polygamy is, practically speaking, prohibited among Ashkenazi Jews as well as according to Israeli law. Whenever you make a system or a rule, there will be those that abuse it. If we make a case where either party can leave at any time, you might have, for example, a woman who marries a man for a short while, leaves, and takes half his wealth. Or even in the Jewish system, I know of a woman refused to receive the Get, having no desire to remarry, leaving the man in a predicament. Such cases of abuse aren’t unheard of.
There is a case in the Talmud (I believe it is in Gittin, if a reader can avail me of exactly where), where a man B gives false reasons why man A should divorce his wife. Man A agrees that he should get divorced but he can’t afford the price of the kesubah. This is a required payment (something akin to, “lump sum alimony” paid in one shot) given by the man to a woman upon the divorce. So man B says he’ll lend the money to man A, but man A will have to work off his debt. Turns out that man B wanted to marry the woman, and he did … so man A is left waiting on man B who is busy jesting with his own former wife! This is a story told about why the Temple was destroyed!
In Israel, courts have the power to take away a driver’s license, jail, or fine a person who does not give a Get. One man still refused, and he’s serving a life sentence or until he gives it. In the United States, sometimes cattle prods are helpful.
When dealing with people who are imperfect, they will imperfectly do what they are supposed to do. When developing a system which lasts for all time, the system does work pretty well. Divorce is available and a woman is generally very protected with laws to her benefit. Today, however, though the Torah observant Jewish divorce rate is much less than the general public, in a world of high divorce rate and limited power of beis din’s (especially outside of Israel), the issue is acute.
Every mitzvah and everything we do in life is supposed to bring us closer to the Creator. We want to understand the infinite, and though we never can, we approach it further and further. Imagine a world with no pain and suffering. It’s possible, but the greatest growth comes through overcoming adversity. The Why Don’t Bad Things Happen to Bad People article which I previously wrote, discusses this in greater detail, complete with excerpts from the Maharal’s commentary on Iyov [Job].
We have parents because of the mitzvah of honoring them. We have children so we can give to them. We have friends so we can be loyal. Each relationship teaches us a different aspect of our understanding of the infinite Creator. Each has the potential for pitfalls, but few of us become hermits in a mountain to avoid all this or wish for heat death when there is no more world to worry about. The greater the possible pleasure, the greater the chance of possible suffering. They go hand and hand and keep us far away from heat death, et al.
A husband-wife relationship gives us the greatest pleasure that we don’t want to miss out on. “To love another person is to see the face of G_d” Andrew Lloyd Weber tells us in the last line of Les Miserables. G_d gives us a a world and a guidebook (the Torah) to go along with it. G_d could take this away from us (though we trust the promises of the future in the Torah), but we cannot choose to exit from it. G_d provides the support and sustenance and gives us everything we need (even if we disagree or do not understand what that is). At Mount Sinai, the midrash compares G_d to the “chosson” (husband) and the Jews to the “kallah” (wife). And so our marriages are a reflection of that (follow the link above for more on this topic). It’s often a rather large shock when one gets married … suddenly we realize how different the other sex is wired, but it also opens up our growth of ourselves and a much greater understanding of how to see the world.
Right … so certainly we should help. Imagine the universe at the moment of creation … if we take the Big Bang theory, we’re looking at everything condensed into one, simple … something. It’s all uniform with no growth and no … well, not much…. or maybe rather, everything. It’s kind of boringly simple. Now explode the world over billions of years and create love, hate, adversity and triumph and now you’ve got something. Just as there are always poor people in the world and the rich are supposed to give to them, we’re supposed to be the heroes and help fix situations where people are getting hurt. These are the exceptions … not the norm!
Solution 1 is to empower bais din’s (Jewish courts) which have jurisdiction of religious matters such as religious divorces. This is done simply by signing an arbitration agreement which is enforceable in secular courts. They’re also called prenuptial and postnuptial agreements. One is available here. Not legal advice… for information only. They can impose fines and make other judgments against either party who refuses to cooperate. It’s not a perfect way to help, but nothing we can do will be in any system (see first section).
Solution 2: When it’s too late for solution 1, and a party isn’t cooperating, you’re in a bind. The best we can do is social pressure or … cattle prods. In some cases, it’s because of the social pressure and vindictiveness of one side. If you’re not ready for cattle prods, laying off and being a mensch about it might also work. I know of a case that dragged on for a long time with Rabbi A instigating the woman to do this and that to the man until he gave the Get … Rabbi B met with them and just talked out a dispute they were still having worth less than $10,000. In another case of Rabbi A’s heavy handed approach, it went to court and only after the woman ran out of avenues, taking it all the way to the appellate court which ruled against forcing the man to give the Get … did he give the Get. I don’t know the case and do not mean to make a comment on how it was handled … I am just reporting on the result.
Conclusion: If I have any say over it, my children will be signing pre-nuptial agreements!