Agunah literally translated as anchored is a halachic term referring to a woman who is chained to a marriage due to the disappearance of her husband or his unconfirmed demise. In modern times the meaning has been broadened to include the woman who is unable to procure her freedom from a recalcitrant husband who refuses to grant a Get.
In Jewish law, for the woman to be granted official freedom to remarry, certain requirements must be met. In the case of widowhood, the husband’s demise must be verifiable. Assumption of death is not sufficient. While in the case of divorce, it must be granted by the husband of his own free will. Absent these requirements a new marriage by the wife would be considered adulterous under Jewish law, and any children born of that marriage would be deemed “mamzerim” or illegitimate.
In the past the primary reason a woman was chained to her marriage, unable to remarry was the disappearance or unconfirmed demise of her husband. In addition, if the husband became comatose or insane he could not actively give a Get deeming his wife an agunah. Currently, though there are women that are agunot (plural of agunah) due to their husband missing in action or falling ill, the majority of the women chained to their marriage are those that are refused a Get.
Under Jewish law a man must give his wife a Get of his own free will. Only in very specific situations may a Jewish court coerce a husband to grant a Get. Under normal circumstances a Get that is given under duress is considered a “Get Meuseh” which is a forced Get and is not valid. The circumstances which a bet din (Jewish Court) will order a man to give his wife a Get are specific and outlined in the code of Jewish Law and include abuse, abandonment, refusal to engage in sexual relations, and failure to support. A wife must petition the Bet Din to order her husband to grant her a Get. The court then confers and decides if the wife has justifiable grounds for divorce.
The jurisdiction of the Bet Din is quite different in the Diaspora from what it is in Israel. In Israel all matters of marriage and divorce are exclusively handled by the Bet Din. If the petitioner includes a related claim not previously submitted to civil court the Bet Din has the exclusive authority to rule on that matter. Thus rabbinic courts in Israel have the legal power to enforce their rulings related to marriage and divorce including ordering a husband to grant a Get. In the Diaspora the situation is quite different. The batei din outside of Israel, for example the United States, are not able to legally enforce their decisions, due to civil law which is governed by division of church and state.
Therefore if a wife petitions the beit din to compel her husband to grant her a Get and they agree that she has justifiable grounds, there is no legal recourse for the Beit Din to enforce their ruling.
In some North American jurisdictions such as New York and Montreal, as well as in Australia and the United Kingdom there are Get Laws enacted that aim to help agunot.
In 1992 in New York Amendments were enacted to Section 236B of the Domestic Relations Law, and it became known as the "Get Law". The 1992 law amends the Equitable Distribution Law of 1980. It permits the court ruling on the disposition of marital property and establishing alimony and child support, to take into account any "barrier to remarriage." Since the husband’s refusal to grant his wife a Get poses a barrier to her remarriage, the judge can compel him to give the Get by imposing financial penalties. This has caused much controversy among rabbis some of which believe that this law is a form of coercion; therefore if applied will cause a coerced Get to be given which is not valid halachically. Others, most notably Harav Moshe Feinstein zt'l, focused on whether a Get is considered coerced if it is due to compelled payment of the wife’s maintenance imposed by a secular court. Harav Feinstein determines that since under Jewish Law it is the obligation of a husband to provide for all his wife’s needs as long as he is married to her, she is allowed to petition the secular courts to compel him to do so. Therefore, if the husband divorces the wife in order to rid himself of that responsibility, such a Get is valid and not considered coerced. Iggerot Moshe, Even Haezer Vol.4, 106. See also Vol.3, 44.
Amendment of the Divorce Act of 1985 in Canada gave the courts the power to reject any application and remove any pleadings filed by a spouse who neglected to remove any religious barriers to the remarriage of the other spouse. The goal of this legislation was to make sure that the refusal to give or accept a religious divorce was not used as an instrument of barter to gain unfair compromises on financial support or child custody and support.
In Australia the decisions of the civil court in matrimonial cases is governed by the Family Law Act of 1975. With regards to dissolution of a marriage, this law provides that it can only be done by the decree of the family court. Marriages are governed by the Marriage Act of 1961 which determined that marriages are only valid if done in the presence of an authorized person. Different views have arisen in relation to religious marriages and divorces. One position holds that since marriages are only valid if done in the presence of a state authorized person and divorces can only be finalized by the family court, people who opt to marry or divorce in religious law should be of no concern to Australia. However, another view maintains that one of the main purposes of the Family Law Act in its decision to dissolve a marriage is to free the participants both in fact and in law. If one of the parties is still bound because of an inability to obtain a religious divorce, than the freedom afforded by the court would be a matter of law but not of fact.
In one notable case, a husband who was an Australian resident and citizen applied for a civil divorce in Australia but refused to give a Get to his wife, who lived and was a citizen of Israel. The Family Court in Australia realized that by granting the civil divorce to the husband while allowing him to refuse to grant a Get to his wife, it would be in essence affording him the freedom from any obligations of a marriage, while the wife would continue to be bound to that marriage. In Australia, the husband would be free to remarry, while in Israel the wife would not be able to enjoy the same freedom. The court resolved that it would be unjust to allow the husband to receive a civil divorce while he was refusing to release his wife from the Jewish marriage.
In the United Kingdom the present rules are based on Divorce Act of 2002 that was amended in 2003. It states that if a court grants a decree nisi in a divorce proceeding, it can order that the decree nisi would not be made absolute until both parties declare that they have taken the necessary steps to dissolve the marriage. A decree nisi is a ruling by the court that does not take force until a particular condition has been met In the case of dissolution of a marriage entered into in accordance with Jewish Law, the declaration would include the giving or acceptance of a Get.
In the past the Jewish community did not turn to secular courts to assist them with the issue of agunot. Instead rabbinic leaders enacted Takanot or ordinances that would entail conformity to certain requirements for a marriage to be considered valid under Jewish law. The purpose of these takanot was to give the rabbis the authority in certain circumstances to annul the marriage retroactively. These takanot were enacted by great rabbinic scholars in places like Morocco, Algeria and Syria. These rabbis were faced with circumstances in their communities that would engender agunot. Their reaction was to enact edicts that could stem the issue before it became an encompassing problem. In Morocco, the problem arose due to separation of families exiled from Spain as they wandered on their way to Morocco. In Algeria the issue of possible agunot and mamzerut developed due to the government of France granting French citizenship to all Algerian Jews. It was followed by new law requiring all Jews to have a civil marriage before they may have a Jewish one. However many Jews, despite the insistence of the rabbis, did not follow the new law and continued to marry religiously without first marrying civilly. This provoked a fear among rabbis that this practice would lead to agunot and mamzerut (illegitimacy) as a man would be able to marry religiously and then proceed to marry civilly leaving his first wife an agunah. An ordinance similar to the one in Algeria was also enacted in Syria regarding the requirements of marriage with the same purpose of authorizing rabbis to annul marriages retroactively.
Currently controversy swirls around the issues of remedies for the aguna problem. Unlike previous generations where the Jewish community was cohesive and lent itself to accepting the decrees of the great sages of the time, presently the Jewish community is divisive with different sects openly and vehemently opposing each other. Though most of the orthodox acknowledge the fact that the problem exists and is global in its scope, few solutions are being pursued, and those that are enjoy very little support; on the contrary they elicit great controversy and strong opposition. However, the strength and number of oppositions vary with some methods garnering voiced disagreement by certain groups while others eliciting antagonistic responses which in rare occasions have led to physical assaults.
One solution that has been accepted and put into effect in some religious circles is the prenuptial agreement. In the United States, the orthodox community has predominately utilized the Beth Din of America’s prenuptial agreement for prevention a Get-refusal. The Rabbinical Council of America approved the use of prenuptial agreements in 1993. If done correctly following the law of the state in which it is executed, this agreement is considered legally binding. The prenuptial agreement that is signed and agreed upon by both husband and wife imposes a monetary obligation on the husband to support the wife at a certain rate from the time the Bet Din determines that the husband is to grant a Get until such time that the husband gives the wife the Get she has requested. This type of obligation which is legally enforceable creates an incentive for the husband to grant the Get in order to relieve himself of the great financial burden this imposes. There are other prenuptial agreements that are used outside of Israel that add a stipulation that the couple agrees that all marital disputes would be adjudicated by the Bet Din and its rulings abided by both husband and wife.
Though a great number of rabbis across America and Israel encourage couples to sign a prenuptial agreement it still remains a controversial issue. There are rabbis who have expressed opposition to the use of most prenuptial agreements, arguing that these types of contracts facilitate termination of a marriage by one side. If allowed to become the norm, divorce would be made easier thus endangering the Jewish institute of marriage. In addition, they contend that the monetary obligations imposed on the husband as an incentive to giving a get is a form of coercion deeming the Get halachically invalid.
Unlike the prenuptial agreement which has stirred some controversy but has been accepted by a great number of orthodox rabbis as a viable tool for stemming the aguna issue, the solution of annulment has met with vehement opposition. Rabbi Emanuel Rackman ZT”L and other rabbis of the International Beit Din Leinyenei Agunot have utilized the halachic principle of “kidushei taut” to end a marriage and free the agunah. “Kidushei Taut” is a deceptive marriage where certain conditions or defects are hidden. Rabbi Moshe Feinstein maintained that in very specific circumstances where the wife was unaware of certain defects in the husband prior to marrying him, the marriage can be annulled. The issues that Rabbi Feinstein enumerated included impotency, concealment of homosexual activity, institutionalization for mental illness, and conversion to another religion. Presently most orthodox rabbis do not accept this line of reasoning and will not annul a marriage on this basis.
Other rabbis have proposed methods that would be preventative alike the prenuptial agreement.
Couples are encouraged to prepare a “provisional get,” which lists a predefined set of circumstances that will allow the get to go into effect.
Husband and wife can also sign an agreement to a “conditional marriage.” The agreement which is part of the marriage ceremony states that the marriage would be nullified under certain predefined conditions, such as an extended separation.
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