Thursday, December 12, 2013

New Hope for the Agunah

Rabbi Simcha Kraus
It seems like there may be some light at the end of the tunnel. It is rather well known that one of the biggest problems facing Jewry today is what is commonly called the plight of the Agunah. 

Briefly an Agunah (as commonly defined) is a woman that no longer wants to remain married to her husband but whose husband has refused to give her a Get (religious divorce.) Often this happens long after a legal divorce. Such woman may not marry and if they do and children result – they are Mamzerim who are themselves forbidden marry. There have been some very public cases of woman whose husbands have refused to give them a Get – using it as leverage in custody issues or to extort huge sums of money; or sometimes as unadulterated revenge against a woman who left him.

Men do not have this degree of problem if they do not give a Get. Even though there are rabbinic prohibitions for a man to marry another woman before he gives his wife a Get, children of such a marriage are not Mamzerim and fully accepted into Jewish society.

I’ve discussed this issue before. There are always 2 sides to every dispute, but the bottom line for me is that there is absolutely no excuse in not giving a Get. What ever issues there may be between husband and wife during a divorce, a Get ought not be part of the equation.  It should be given and all other issues settled afterwards.

My position is a simple matter of fairness. Unfortunately in seeking fairness, there have been many terrible abuses by those who seek to free these ‘chained’ women. Some of it misguided by a legitimate desire by well meaning people to help. And some of it based on simple greed by unscrupulous religious courts.

Rabbi Emanuel Rackman  (1910-2008)
One such individual is Rabbi Emanuel Rackman. His motivations were pure. He used a Halachic legal loophole discussed the Talmud called Kedushei Taus. In such cases a Get is not needed since the marriage is simply annulled. The Talmud tells us that rabbis can declare a marriage null and void based on the fact that a husband hid a personal defect where had she known about it, she would never have married him.

Rabbi Rackman extended this loophole to abusive husbands declaring that had the women known he was abusive, she would have never married him. Though well intended, this loophole was rejected by every major Posek. Including Rav Soloveitchik who famously declared the the Talmudic Dictum of Tav L’Mesiv Tandu MiShenisarmelu –  a woman would rather be in a bad marriage than to live alone - still applied in our day. Rabbi Rackman said that surely it no longer applies and therefore no woman would marry an abuser had they known – thus we can apply Kedushei Taus and annul the marriage.

Unfortunately the Rackman Beis Din was created that applied this principle. There were Agunos who came to this Beis Din with claims of abuse and they received an annulment… which as I said was not recognized by any serious Posek of any stature. These women remarried and their children are Mamzerim. (Sometimes what looks like a Kula (Halachic leniency) can have disastrous results.)

Another more recent abuse in an attempt to help Agunos was where an Orthodox Rabbi decided to force recalcitrant husbands to give their wives a Get via torture. He charged rahter hefty fees for this service. He and his cohorts were discovered in a government sting and have been arrested. Not only was that an affront to human decency and major Chilul HaShem, such a Get is of questionable validity since a Get must be given willingly by a husband and not because he was forced to do so via torture.

This rabbi felt it was a legitimate option to relieve the plight of Agunos based on a Rambam that declares that Halacha permits a Beis Din to beat a recalcitrant husband until he says “Rotzeh Ani” - I want to give a Get of my own free will and not because I was beaten (since all men want to eventually do the right thing which the beating accomplishes). If he gives a get only because he is forced and in reality he really does not want to – it is a Get Meusah (forced Get) and not valid and any future children of a remarriage are Mamzerim.

The Rambam’s rationale for that is that every Jew wants to do the right thing and this Jew just neded a little persuasion to do so. Such procedures work under the conditions described by the Rambam. But in most cases a recalcitrant husband that is tortured will say yes to anything to stop the torture. Such a get s invalid and the children are Mamzerim.

There was a case in the Chasidic world recently where a woman was allowed to marry after such a Get was given even thought the husband clearly declared that the Get he agreed to give was only to relieve the pain of the beating he was getting at the time and that he in no way did he want to give his wife a Get. Interestingly the marriage proceeded anyway under the imprimatur of their Chasidic Rebbe.

Then there are those corrupt Batei Din (religious courts) that take bribes to favor one side over another.

The RCA has actually done something to change the paradigm which will heavily reduce if not entirely eliminate the Agunah problem. They require a pre-nuptial agreement whereby the husband agrees to pay living expenses (like $1000/week) to his wife in the event that she at any point wants a divorce and he doesn’t give her a Get. This is not a Get Meusah because it does not force the husband to give it. He can choose to pay the weekly fine instead. The idea is to make it too expensive for the husband to withhold the Get.

Rav Zalman Nechmia Goldberg
Unfortunately there are some Poskim that do not accept this pre-nup and consider this too - a Get Meusah. But that is not universal. Many do including one very famous Charedi Posek in Israel. His name is Rav Zalman Nechemia Goldberg, the son in law of Rav Shlomo Zalman Auerbach, ZTL.

Those who did not sign this prenuptial agreement to do have this option later. Many rabbis still perform marriages without it. Those women are at risk of becoming an Agunah if their marriage doesn’t work out.

Jewish Orthodox Feminst Alliance (JOFA) founder Blu Greenberg has been in the forefront of trying to do something about this outrageous situation. And it seems that the strangest of bedfellows has now resulted. It was motivated by the same desire to end the plight oif Agunos. Both she and Rav Zalmen Nechemia Goldberg support the formation of a new and innovative Beis Din that will hopefully go a long way to accomplish that. (Talk about Achdus at opposite sides of the Orthodox spectrum. I cannot imagine more opposite Hashkafos joining forces.)

Blu Greenberg
This Beis Din is the brainchild of Rabbi Simcha Kraus the retired former rabbi of the Young Israel of Hillcrest – now living in Israel. He promises to seek new solutions to these old problems utilizing Halachic devices that should have wide acceptance…  since they will only be utilized if they have the approval of the widely respected Rav Goldberg.

The court will consist of respected rabbis as Dayanim (judges) such as Rabbi Yosef Blau, Mashgiach Ruchani of Yeshivas Rabbenu Yitzchak Elchanan (YU). Interestingly the RCA has only expressed cautious support for this Beis Din since they don’t know any details yet.  But in my view this is a major step in the right direction. I know Rabbi Blau and he would never sign on to a sham Agunah court that would not be widely accepted.

I applaud Rabbi Kraus for initiating this project as I do both Blu Greenberg  and Rav Zalman Nechemia Goldberg. Maybe now, finally once and for all, we can end the terrible situation of the modern day Agunah.