Agunah Part One : Kia ora Torah Michelle Gezentsvey Lamy March 2012

The Ketubah is the most important halakhic contract that a man and woman will ever sign. The woman is consecrated to the man who in turn has duties to perform, ensuring that she is looked after. Over two thousand years of life in the diaspora, Jews have observed this contract all over the world. Before emancipation, Jews were governed by Jewish courts and living in separated communities. The Beit Din could use its authority and influence to persuade individual members who were reluctant to fulfill various obligations. One such obligation is to provide his wife with a get in order to terminate the marital relationship. Following emancipation, outside and even within religious circles, the Beit Din has difficulties imposing its authority and exerting influence. Furthermore, the Beit Din lacks certainty in how to apply the law to ensure the husband gives his wife the get. This paper will explore some halakhic sources on divorce, the giving of the get, and my personal journey in the months before my marriage to find out (a) how civil legal documents are fulfulling a void in halakha today that of preventing a woman from becoming an agunah and (b) whether or not my fianc Benot and I should sign such a document. Traditionally, the term agunah was used to refer to women whose husbands disappeared or died without evidence. Without witnesses proving that he is dead, she remains a married woman (In Part Two, we will discuss rulings of the American Beit Din and their handling of Agunot from the World Trade Centre Attacks). Cases also occurred when the husband could not consciously write the get due to severe physical or mental illness. Today, an agunah mostly refers to a woman who has proven grounds for divorce; whose husband is not fulfulling his religious marital obligations; but at the same time refuses to provide her with the get to end the marriage, even though the Rabbinical Court has issued an order that he must. Thus, she is a husbandless wife. In order to terminate the marriage: A When a man takes a wife and possesses her, (if) she fails to please him because he finds something unseemly about her, he writes her a bill of divorcement, hands it to her, and sends her away from his house... (Deuteronomy, Ch 24, V1) If the husband refuses to give his wife the get, she cannot remarry according to Jewish law (although she may be divorced according to civil law). Should she have children during this period, their halakhic status is problematic as they bear the title of mamzer a child born from an adulterous/illegitimate relationship. However, should the husband have children with a Jewish woman, their children are not deemed mamzerim.

My first real awakening to the problem of the agunah was in 2009, during my studies at Pardes, an institute of Jewish studies in Jerusalem. We saw the documentary Mekudeshet (2004), telling the story of three women in Israel who are trapped in their marriage because their husbands, some of whom were already living with other women, refused to give their wife the get. B While a woman can be divorced with her consent as well as without it, a man divorces only with his full consent (Mishnah Yebamot, Ch 14, Mishnah 1) If she fails to please him implies that he may not give a divorce except of his own free will. If she is divorced against his will, she is not divorced. (Mishneh Torah, Laws of Divorce, Ch1, Halakhot 1-2). Note that the requirement of the mans free will to give the get is biblical, doraita, whilst the womans willing acceptance of the get is more recent, included by Rabbeinu Gershom in medieval times. It was very frightening to see in Mekudeshet that in spite of real testaments of physical abuse, the Beit Din did not insist that the man must provide the get. Rather, these women were encouraged to pay their husbands money in the hopes that he freely gives the get. A Ketubah is originally a document used to protect the woman in a marital relationship whereupon the man is obligated to support his wife for the duration of their marriage. However, the ketubah does not protect the wife should she want to leave the marriage without her husbands consent. As such, not only can the husband stop supporting her, but she can be subject to extortion in the process of the halakhic termination of the marriage. My own personal experience also pointed me to the importance of finding a way to protect women from becoming agunah. In my early twenties I became engaged to a Jewish man who lived in the United States. We arranged a simple civil wedding months before the chuppah to facilitate green card paperwork. When I realised our differences were too great, I had to go through divorce proceedings even though we had never lived together as husband and wife. My ex was so upset that he never consented to the divorce. Thankfully civil law in that particular state did not require both parties to sign the divorce paper. After watching Mekudeshet I realised just how lucky I was that we were never married according to halakha because he probably would not have freely given the get It is terrible to start a marriage thinking about the possibility of divorce, and the need to ensure that your partner is protected even from a future (and potentially spiteful) version of yourself. While I know that Benot and I will grow old together, I have nonetheless undertaken this research with both academic and practical interest, motivated by the very real injustice occurring today. Fellow Jewish women are bound because divorce halakha privileges the man, and because Rabbis applying the law are not sure about applying halakhah whose spirit was meant to protect women.
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C The rabbis were lenient in order to prevent agunot (Talmud Bavli, Yebamot, 88a) Today, there is no international halakhically acceptable way to prevent a woman from becoming agunah. ICAR is the International Coalition for Agunah Rights working to find a way to release Agunah women, a way that is valid for both religious and civil circles. Various civil documents empowering the local Beit Din authorities as arbitrators have been drafted. I have obtained documents prepared in Israel, the United States, The United Kingdom and Australia in order to help me decide if it is the right thing to do for Benot and I to sign such a document. D Mishnah: A get given under compulsion by an Israelite court is valid, but by a gentile court is invalid. A gentile court, however, may flog a man and say to him, do what the Israelite (authorities) commands you (and it is valid) The Gemara then adds that if this compulsion is based on insufficient legal ground it is invalid (Talmud Bavli, Gittin, 88b). If a man may be compelled by law to divorce his wife, yet he refuses to do so, an Israelite court of law of any time and place has the authority to lash him until he says I want to (divorce her). He may then write a writ of divorce and it is valid.... We do not say that someone was forced unless he was pressured and coerced to do something that he was not under any obligation to do according to the Torah; i.e. if someone was lashed until he sold or gave something away. However, if someone was overwhelmed by his evil inclination so that he did not observe a commandment or transgressed the law, and is lashed until he does what is he obligated to do or distances himself from what he is forbidden to do, he is not being forced... it is only his evil inclination which has overwhelmed him once he has been lashed until his evil inclination has been weakened, and he said I want to (divorce her), it is as if he had divorced his wife voluntarily (Mishneh Torah, Laws of Divorce, Ch2, Halakhah 20). As we can see, in the past, recalcitrant husbands could be compelled by the Beit Din to provide his wife with a get, and this was considered valid. However, French authorities have traditionally been against compelling a man to provide the get. E I teach that divorce should not be demanded in cases in which one is not allowed to compel divorce [conditions permitting a divorce include hidden or underestimated physical defects, or the husband does not support his wife, or beats his wife]. I am of the opinion that if a divorce is obtained (in such cases) by (threat of) excommunication (of the husband), or is ordered by a rabbinic court, it is based on insufficient legal grounds, is invalid and disqualifies (her from marrying a priest). (Sefer Hayashar, Responsa section, Ch77, Rabbeinu Tam).
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*No one can live with (a husband who is like) a serpent in the same basket (Rav Elazar, Talmud Bavli, Ketubot, 77a).

In the form of a prenuptial Binding Arbitration Agreement, documents available today stipulate that the husband and wife nominate a certain Beit Din to guide them in the halakhic termination of the marriage should one or both parties want a divorce. A minimal amount of marriage counselling may be determined. The heart of the document is that the husband agrees to continue to financially support his wife as long as they are halakhically married. A sum may range from 150 dollars a week, 1500 a month, to half of the husbands salary. It is this financial obligation that serves as the carrot so that the wife may speedily receive the get. Problems arise if the man does not have any income, or on the contrary has a lot of income, whereby the carrot loses its effectiveness. Further problems are found because the civil court in some countries may not accept this type of contract (United Kingdom); others may not accept a Beit Din as an arbitrator (France), or may accept a religious body as an arbitrator but not allow them to impose financial obligations on the husband (Australia). In some countries, a civil divorce cannot be dependent upon a religious divorce being effected (Australia). What holds is that under all circumstances, the civil courts cannot impose the husband to give the get. In some countries (France, Israel), there is a problem with the very thought of a prenuptial agreement. If the husband agrees to provide the get before they are even married, this may be seen as potentially invaliding the get. Most of the documents available today do not explicitly state that the man is obligated to provide his wife with the get, but rather stipulate a nominated arbitrator who will then rule that the husband is obligated to pay a sum of money in order to fulfil his marital obligations of supporting his wife until he provides the get. This research journey involves a lot of questions and not many clear answers. As our wedding is approaching, I see that outside of the United States and Israel, there are problems in religious and civil courts in dealing with this kind of text. Documents are still evolving. As our marriage is an international marriage, things become more complicated. The document has to consider the location of the civil and religious weddings, and nominate civil and religious authorities. As such, if we were to sign a prenuptial agreement it would be in accordance to French civil law, but nominating an international Beit Din. Rachel Levmore, an active Rabbinical court advocate and member of the Agunot Unit" in the Directorate of the Israeli Rabbinical Courts, recommended us the Beit Din of America as a competent arbitrator, even though the Beit Din who would be our relevant authority would be the Sydney or London Beit Din (New Zealand is a part of the Commonwealth).

Rachel suggested that we find an English-speaking French lawyer to help us sign the Binding Arbitration Agreement nominating the Beit Din of America. We would cross out clause IV relating to the division of assets, which would be done according to French civil law. What would happen in the case that this document needed to be enforced? First, the Beit Din of America would rule that the husband is obligated to pay the sum stipulated in the contract until he provides the get. Second, this ruling would be taken to the US civil court in the State of New York. Third, French courts should be able to enforce a foreign ruling. However, this process has not yet been fully tested. Many questions arise, such as: Does French law recognise a Binding Arbitration Agreement? Does French law recognise a foreign arbitrator? Can the arbitrator be the Beit Din of America? Or can it be an individual in the United States? [If so, Rachel recommended nominating a New York State Lawyer who also happens to sit on the Beit Din of America] Would this document have to be translated into French before being signed? Are both parties bound to have separate legal counsel with notaries before signing the document for it to be valid? Is it worth it for Benot and I to pay for the counsel of lawyers in France and the United States, trying to get this innovative document signed, without any precedent that should it need to be enforced, it can be? Under current French Law, a woman can sue her husband for damages resulting from get recalcitrance. Dsormais, depuis deux arrts de principe de la Cour de Cassation en date des 5 juin 1985 et 15 juin 1988, la jurisprudence franaise reconnat lex pouse, qui na pas reu le guet, la possibilit dobtenir des dommages intrts sur le fondement de la faute civile savoir lintention de nuire ou labus de lex-conjoint en application de larticle 1382 du code civil (Sagand-Nahum, Avocat au Barreau de Paris).

However, proving intention to harm can be problematic. Thus, it is recommended to include in the civil divorce proceedings the obligation for the husband to provide the wife with a get. The point here is not for civil courts to impose the deliverance of the get (it would be invalid by religious courts) but to be able to impose the husband to pay the wife damages without needing to make any reference to his intentions.

F Ainsi, il pourra par exemple tre insr une clause dans une convention de divorce par consentement mutuel ou pour dautres types de divorce une mention dans le jugement de divorce selon laquelle lpoux sengage aprs le prononc du divorce civil dlivrer sa femme le guet. Si, lissue du divorce civil, lex mari ne respecte pas ses engagements, il sera plus ais pour la femme de faire constater judiciairement linexcution dune obligation de faire pour obtenir des dommages intrts sans quil soit ncessaire de dmontrer lintention de nuire ou labus de lpoux (Sagand-Nahum, Avocat au Barreau de Paris). A judgement in the tribunal de Grande Instance de Creteil (6 March 2007) ruled that the husband had to pay damages to his civil ex-wife because he knew the religious feelings of his wife and was not unaware of the damage caused by preventing her (through his refusal to give the get) from entering a new religious marriage. Overall, Ilana Sagand-Nahum encourages women not to separate religious divorce from civil law proceedings. She was also able to answer my previous question regarding the recognition of an arbitrator in a prenuptial agreement. In France, such agreements can only refer to assets; so the nomination of an arbitrator in case of divorce is not accepted. Taking a step back, to integrate the information I have so far, it seems that civil courts in the United States and in France can impose the husband to pay a sum of money to his wife whether it be under the title of support or under the title of damages. Neither court can impose the man to give the get. It seems that the whole process Rachel Levmore advised me, shares the same outcome as the process of inserting a clause in the divorce contract in France. In both cases, by penalising the husband, he will be moved to deliver the get of his own free will. Ilana feels that the current measures in France do help to release the woman from a recalcitrant husband. However, doubt still remains on whether the Beit Din will accept the validity of the Get if a civil document stipulates that the husband must provide his wife the Get upon completion of the civil divorce. In summary, the current state of prenuptial documents in Australia and the United Kingdom is not very reassuring. In France, such a prenuptial agreement is not recognised by civil courts, and the religious court is concerned that a prenuptial agreement would invalidate the get. However, I feel that the Binding Aribration Agreement is an excellent option for American Jews, whether they live in the United States or in Israel, who can designate the Beit Din of America as arbitrator. Benot and I did not feel confident to sign a civil contract with such a complicated provedure and unknown halachic consequences.

This subject is very sensitive, very political, very religious, very civil, very frustrating, and hopefully one day very liberating. I pray that all the Agunot women will soon see their freedom, and that Jewish religious authorities become more confident in applying halakha so that marriage becomes a union that binds husband and wife together only in love.

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Other methods to resolve the problem of the Agunah

Note that this research focuses on the Prenuptial Arbitration Agreement. A. Pressure from the Beit Din removing priviledges (Harhakot DRabbeinu Tam) & imposing sanctions e.g. 1995 Rabbinical Court Enforcement of Divorce Rulings (i) excommunication (ii) removal of licenses to practice, to drive (iii) removal of passport (iv) closure of bank accounts (v) imprisonment

B. Retrospective and Prospective Annulment of the marriage (hafkaat Kiddushin) (i) Finding fault with the original marriage/witnesses/intentions of either spouse

C. Provisional Get (times of combat, including WWII) (i) upon the presumed death (ii) after a certain period of time lapses since the wife requests the get

D. Conditional Marriage (tnai bkiddushin) (i) living apart for a certain period, lapse after initial request for the get, husband must provide the get (ii) continual support of the marriage from the Beit Din (Yaakov Moshe Toledano); Beit Din of Jerusalem (Mnachem Risikoff)

References
ICAR (2010). International Coalition for Agunah Rights, texts for Study Groups for International Agunah Day. www.icar.org.il

Lawrence, J. (2010). The Pre-Nuptial Agreement. The Great Synagogue, Sydney.

Court of the Chief Rabbi Pre-Nuptial Agreement. London.

Levmore, R. & Clarke, D. (2009) The Prenuptial Agreement of Mutual respect, Heskem LKavod Hadadi. www.youngisraelrabbis.org.il

Beth Din of America Binding Arbitration Agreement/Prenuptial Agreement http://www.bethdin.org/agreement.asp

ORA, Organization for the Resolution of Agunot www.getora.com/

Mavoi Satum www.mavoisatum.org

List of Prenuptual Agreements

1. The Pre-Nuptial Agreement. The Great Synagogue, Sydney. 2. Court of the Chief Rabbi Pre-Nuptial Agreement, London. Rabbi Jeremy Lawrence in Sydney advised me to contact Rabbi Shindler in London. He emailed me the document, but Rachel Levmore explained that it is not legally binding. I sent questions to David Frei, registrar of the London Beit Din. 3. Beth Din of America Binding Arbitration Agreement/Prenuptial Agreement 4. The Prenuptial Agreement of Mutual respect, Heskem LKavod Hadadi, written by Rachel Levmore and Daniel Clarke. Both spouses are obligated to pay a nominated sum the husband for the period of time he refuses to provide the get, and the wife for the period of time she refuses to accept the get. www.youngisraelrabbis.org.il for the English version. Margalith Kopeliankis provided me with the French translation.

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Rachel Levmore biography and four case summaries

1. Husband declared legally incompetent 2. An obstinate husband 3. A drifting husband 4. A mentally-ill husband

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Case study Documents: Epstein vs. Friedman

1. Epstein Friedman Fact Sheet (07.03.2012) 2. Aharon Friedman Seruv (September, 2011) 3. Letter to Aharon Friedman (September, 2011) 4. Jerusalem Post It isnt over until the husband says I do 5. Compelling Jewish men to grant a divorce through social media

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Vocabulary

Kiddushin Ketubah Agunah/Agunot Mesorevet get Get/Get mesusse Beit Din Toanot Nidui Seruv Heter Agunah Takkanah

Recalcitrant husband Arbitrator Prenuptial Binding Arbitration Agreement Provisional/delayed get Conditional marriage (tnai bkiddushin) Retrospective annulment (hafkaat Kiddushin) Prospective annulment Persona non grata Sanctions

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Questions for discussion

1. Case study of Epstein vs. Friedman: a) Jews: What could the Beit Din do? b) Non-Jews: What could Dave Camp do? c) Media: How useful is social media/potential impact? 2. What motivates a recalcitrant husband (i) before a civil divorce; and (ii) after a civil divorce? 3. Is a prenuptial binding arbitration agreement the universal answer to agunot? 4. Shall civil law be used to compensate for a weakness in religious law/ the application of religious law? 5. Observing Agunah Day on the Fast of Esther symbolic timing ?

NEXT TIME: The Manchester Proposal.

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