Tuesday, February 26, 2008

Leveling the Playing Field

One of the most serious issues confronting the Jewish people in modern times is that of recalcitrant husbands who refuse to grant their wives a Get, a Halachic divorce. Usually out of spite or to gain advantage in custody disputes or to extort an unfair financial gain.

According to Jewish law a woman has no legal recourse if a husband refuses to do that. The Torah tells us that in norder for a man and woman to be divorced a man must give his wife a bill of divorce. A woman must then physically accept it. The reverse is not considered a divorce. A woman who gives her husband such a document has not achieved anything.

However that doesn’t mean that some women can’t cause problems for their husbands in divorce situations. They can. If they refuse to accept the Get, they are still legally married. And since we no longer practice polygamy, a husband may not marry another woman since he is still considered married.

So why all this talk we often hear about the plight of Agunos? Well that’s because we do not have a level playing field. Part of the problem stems from the fact biblically - a man may have more than one wife. And even though Judaism no longer allows polygamy, in rare cases we make an exception.

When warranted we utilize something called the Heter Meah Rabbanim - the permit of 100 rabbis. This is a Halachic device in which a hundred rabbis are gathered, convinced, and sign on to the fact that a wife in refusing to accept a Get is unreasonable. The husband is then permitted to marry another woman while Halachicly still married to the first wife. Of course in practice the first relationship no longer exists. But Halachicly it does.

The reverse is not possible. A woman has no such recourse as a Heter Meah Rabbanim. If a husband refuses to grant his wife a Get, no matter how nefarious his motive, the woman stays married. Secular divorces are meaningless. Such women are popularly referred to as an Agunos - chained women. Although technically only woman whose husband has gone missing without a trace, are considered Agunos, the effect is the same. They are unable to marry. She is considered married and any sexual relationship with another man is considered adultery.

Most rabbis are not unsympathetic to such women. These are good people whose hands are tied. But there are some means at our disposal. Halacha tells us that in cases of husbands unwilling to grant Get, we are supposed to use even physical force until they say ‘I am willing’. But ultimately they have to actually be willing and not just say so. This method has proven to be very ineffective.

I know of one case where a local Posek had one such husband beaten into submission. And when another greater Posek heard about it, he nullified the Get. He feared that the husband was not really willing and was just afraid of further beatings.

There have been some well intentioned but unacceptable attempts to rectify this problem in recent times. The most famous (or infamous) of these attempts is the one by Rabbi Emanuel Rackman. He created a special Beis Din just for this purpose. As I understand it, they use a Halachic devise called Kedushei Taus. This is similar to the Catholic Church’s annulment. In short we say that the marriage never happened. This is a legitimate device in certain circumstances.

If a woman marries under false pretences then in fact she never accepted her Kiddushin (betrothel). The example used in the Gemarah if I recall correctly is in a case where the husbad hides some hideous physical defect about himself. If she discovers it after marriage and is repulsed by it… the assumption is that she would never have married him had she known that. The marriage is annulled as if it never happened.

The Rackman Beis Din claims that if the husband is an abuser, it is tantamount to the same thing. If abuse is the cause for the breakup then Rabbi Rackman feels that here too she would have never have acccpeted the marriage had she known that he was an abuser.

Unfortunately and for reasons that are not entirely clear to me, this reason is not accepted by any Poskim as Kidushei Taus.

One might ask, if we were truly caring about the plight of Agunos, why not rely on his reasoning? The problem is that since no one else accepts his reasoning, these women are still Halachicly married. Marriage is out of the question. Sexual relations with another man is still considered adultery. Children from such a relationship are deemed Mamzerim. This is a terrible condition for someone to be. Talk about Shiddach problems.

I would urge any woman in the dire straits of being an Agunah to refrain from using this Beis din. Because in doing so, according to the vast majority of Poskim on both the right and the left, they will violate one of the cardinal sins of Judaism: Adultry. And the children will be Mamzerim.

So the bottom line is that those who complain about the intolerable situation of Agunos are right. It is intolerable. Men have an out. Women don’t. Adding to this problem is the fact that there are unscrupulous Battei Din (religious courts) that collude with unscrupulous recalcitrant husbands. And the Heter Meah Rabbanim is abused and often granted frivolously.

To say these Batei Din are simply disgusting would be to compliment them. They are way beyond disgusting in my view. To quote Rabbi Elazar Teitz of Elizabeth New Jersey from an article in the New Jersey Jewish News:

“Just because the rabbonim have long beards equal to the length of a women’s skirt doesn’t mean they’re ethical...”

Teitz voiced sympathy for women who have sacrificed their financial independence to take care of their home and children and then are backed into a corner by greedy husbands and the courts.

“Many rabbonim are old school and have trouble with the fact there are two genders in the human race and one of them is female…” “This is the way they were brought up and the way in which they see the world.”

Teitz said he “insists” every couple he marries have a prenuptial agreement, which spells out the financial and legal obligations should the marriage be dissolved.

I think he's right.