Solving the Agunah Problem

Over my vacation, I had the opportunity to read through R. Michael J. Broyde's not-so-recent book Marriage, Divorce, and the Abandoned Wife in Jewish Law. He calls this book a conceptual analysis, and it is. He makes a number of excellent and insightful points by distinguishing between the concepts underlying different views of divorce.

I. Concepts of Marriage

The first insight of his that I found extremely helpful was in differentiating between divorce in Jewish law and in most other modern systems of law. In American law, for example, divorce is a part of public law in that the government creates and dissolves marriages. The government declares when two people are married and when they are not, e.g. "By the power vested in me by the state of Nevada I now pronounce you husband and wife." Therefore, the government can dissolve marriages at will, whether it be in the interest of one or both spouses or not. This adds convenience to those who wish to dissolve problematic marriages but has wide-reaching consequences that could potentially prove perilous. Imagine if the government decided that all marriages between people of different races would be dissolved. If marriage is entirely a matter of public law then this is a possibility, as are many other scary scenarios that the reader can imagine.

In contrast, marriage in Jewish law is a matter of private law. The two spouses agree to marry each other and two witnesses are needed to effectuate and prove the agreement. A rabbi is only needed to ensure that everything is done properly, not as an agent of the state. Because marriage is an agreement between two private parties, the state or community cannot simply dissolve the bond at will.

II. Definitions of Agunah

The second major insight I found in this book is the statement that the "Agunah Problem" will never be solved until we define what an agunah is. The classical case of agunah is of a woman whose husband has disappeared and it is unknown whether he is still alive. However, that is not the problem facing the Jewish community today. Nowadays, an agunah is a woman whose husband will not give her a Jewish divorce. Since their marriage was entered mutually and must be exited mutually, if he refuses to divorce her then she is chained to that marriage (as is he, if she refuses to accept the divorce; but more on that later). However, this definition is overly simplistic. We need to better define the term or, more fundamentally, the desired concept of divorce.

Do we desire a no-fault divorce system in which either spouse, upon requesting a divorce, will automatically be entitled to one? Until fifty years ago, that was not the case in the US and is still not the case in many states. R. Broyde is of the opinion that the social consequences of no-fault divorce is extremely negative while the benefits are small. If we desire a fault divorce system, we must define the severity of the faults that would require a divorce. Spouse abuse? Infidelity? Mental incapacity? Weight gain? Perhaps a religious divorce should automatically follow a secular divorce. If all we desire is equality in divorce, we can empower the woman or remove power from the man. Either will result in equality but will have very different practical consequences.

Depending on the type of divorce one believes should be standard, one's definition of an agunah will change as well. Is a woman whose husband will not give her a get until they finish litigating the terms of their secular divorce an agunah? Some would say yes; some no; and some (like me) would say that it depends. The husband might be using the get as leverage for better terms. But what about an amicable divorce (and I am told that most divorces are amicable but they don't make the news or the rumor mills) in which the husband wishes to wait until the divorce is final before giving a get (you never know, she might change her mind and come back to him)? Is the woman in such a case an agunah? And what about when the husband is using the get to level a field that is otherwise biased in favor of the wife, as American law tends to be?

Different communities, R. Broyde is quick to point out, have different standards and different views on marriage. Being perhaps overly tactful, he fails to give examples of different communities. But I imagine that the Yuppy Modern Orthodox community would prefer a no-fault divorce system while more hassidic elements would prefer a severe fault divorce system, with a broad spectrum in between.

III. One Solution, Different Agreements

R. Broyde's solution is that prenuptial agreements based on the different concepts of marriage and divorce can be written (and he gives examples in an appendix) and that before couples wed they must choose which concept to accept by signing the appropriate agreement. It sounds a bit tedious and unrealistic to me, unless communities choose a standard agreement and have all couples sign them before marrying. Thus, the Satmar beis din will have its own prenuptial agreement and insist that all Satmar marriages include the document. Similarly, the rabbis in the Upper West Side will have their own prenuptial agreement, as will the Torah Vodaas crowd, the Chaim Berlin alumni, etc. While there will still be people chained to marriages in communities that lack no-fault provisions, this will be considered a necessary by-product of marriage as conceived by that community.

IV. Miscellany

Important in this book is a review of different historical attitudes towards divorce in rabbinic literature and R. Broyde offers charts to illustrate these different concepts. The author shows the historical progression as well as the alternatives that have been firmly rejected by authorities.

One critique I have of R. Broyde's book is the short shrift he gave to unscrupulous batei din that offer illegitimate heterei me'ah rabbanim, permissions for a husband to remarry without technically divorcing his wife. This provision was intended for the most extremely unfortunate of cases but has recently been taken advantage of by some dishonest rabbis. R. Broyde devotes a small passsage, I think one paragraph, to this phenomenon and only gives a vague hint as to the leader of these offenders. These men are destroying what little respect was left for the beis din system and deserve public declaim. They are also effectively removing protections that were instituted into Jewish law over a thousand years ago to give women the ability to refuse a divorce. By allowing just about any man to remarry without divorcing his first wife, these contemporary rabbis are removing this important protection of women.