{Originally posted on the author’s website,
There are some problems that cry out for a solution – that tug at the heart of any decent person who cares about justice and compassion for victims of abuse – that have defied resolution and thus cause much frustration and heartache. Well-meaning people long for a magic wand that will finally solve the problem, restore justice, peace and sanity and end the power of the abusers, and thus understandably continue to try to find novel solutions. A solution, however, that causes even worse problems than the one it comes to solve, is worse than no solution at all. Unfortunately, it appears that the new “International Bet Din for Agunot” that has been publicized recently is just such a non-“solution”.
The distressing problem of Agunot – commonly referred to as “Chained Women” – is one of the most vexing in the observant Jewish world. It is much publicized, and – contrary to those who consider it a “women’s issue” – it is a problem that inflicts suffering on both men and women throughout the entire Jewish community, from very Modern Orthodox through very Chareidi, who are deeply pained and saddened by the spectacle of evil, uncaring people using Halacha as a weapon to either extort money or inflict emotional distress on their estranged spouses. It is painful, first of all, for the women who are trapped in an untenable situation, unable to go with their lives for wont of a “get” (Jewish legal divorce). It is painful, as well, for the families, friends, and most of all for the children of the Agunah, who see her seemingly endless plight and are unable to do anything about it. And though it is often distorted as being otherwise, it is deeply painful for the Rabbis and Poskim (Halachic Decisors) who – besides being in general acutely sensitive to the plight of another Jew’s pain – often find themselves in the unenviable position of being pressured to “do something” to solve the problem, and then blamed for their inability to do so, by those who ignorantly say that “if there would only be a Halachic will, there would be a Halachic way”.
Very briefly, (see a detailed explanation here) the problem is caused by an abuse of Jewish Law, from which we suffer from today בעוונותינו הרבים.
Classically, the term Agunah referred to the sad case of a woman whose husband has disappeared, and thus cannot remarry absent a Get or proof of his demise. This would happen in the rare individual case, or in times of disaster – such as during wars, or the Holocaust, or in the World Trade Center collapse – when there was no direct evidence of what happened to the missing husband. In these cases, Great Rabbis labored mightily to find ways to be lenient and allow the wives to remarry if at all possible.
The contemporary Agunah cases that are in the headlines, however, are created not of sadness, but of abuse.
The abuse consists of a spouse using an Halachic anomaly to unduly cause stress to their estranged spouse. It is understandable that when spouse A wishes to end a marriage and spouse B does not, there may be some time needed for spouse B to accept the devastating decision of spouse A. It is also understandable that there may be some reasonable time needed to negotiate the terms of the separation and difficult matters of spousal and child support and custody before the divorce can be finalized. But when it goes beyond reasonableness, and spouse B begins using the process itself as a weapon against spouse A, the abuse begins. It is abuse when spouse B takes advantage of the Halachic requirement that they cannot be coerced to accept the desire of spouse A to divorce, in an unfair manner never intended by the Halachah.
To dissolve a marriage according to Torah Law, a Get must be given by the Husband willfully and without any coercion, and accepted by the Wife willfully and without any coercion. If the Husband is coerced into giving the Get, in most cases, the Get is completely invalid. If the Wife than re-marries on the basis of having received an invalid Get and has children, she will be guilty of the capital crime of adultery, and her children would be, Heaven forfend, mamzerim (legal bastards), unable to marry virtually any other Jewish person.
Note that I intentionally said previously “in most cases”. There are a minority of cases in which a woman may petition a Court to order the Husband to give a Get, usually in the presence of serious abuse. If the Husband ignores the court order, he would then be in “contempt of Court” (Siruv). In times past Bet Din had various means, including corporal punishment, available to enforce their orders. Although compelling the Husband would seem to violate the requirement that the Husband give the Get of his own free will, Maimonides is often cited as teaching that when the Court compels the man to do what he is required to do, there is at least a part of his soul, deep down, that really wants to do the right thing and comply with Halacha, and thus there is at least a part of him that is giving the Get willingly.
Unfortunately, today, Bet Din does not have enforcement power, as it is not part of the official legal system. (Even the Rabbinical Courts in Israel, who do have some enforcement powers, have limits on what they can do under Israeli Law, as compared with the Torah mandated Court powers).
The crux of the problem today thus appears when, on the one hand, a Husband unduly refuses to grant a Get, and, on the other hand, Bet Din is powerless to compel him to do so. Unfortunately this leaves the Husband in a position of power to withhold the Get until his extortionist demands are met, as he cannot be “coerced” to give the Get.
I stress that while this problem more often concerns a chained woman, there is a lesser known parallel problem of the plight of Agunim: i.e. husbands who are unable to move on from a broken marriage due to the refusal of their wife to accept a Get. The great Rabbeinu Gershom Meor HaGolah (Light of the Diaspora) and his court of the Tenth Century CE issued many important Takkanot (rulings for the betterment of society) that were accepted throughout the Ashkenazic world with the power of Cherem, and have been a great force for the good. (See Teshuvot Maharam M’Rottenberg §1022, for the extensive list). Among these Takkanot was an absolute prohibition against giving a wife a Get against her will, giving her similar power to that of the husband in being able to make reasonable demands in a divorce settlement, which is sometimes abused. This phenomenon is very real – I have a close family friend who was an Agun for over twenty years while his wife refused to accept a Get. It is not as much in the headlines as it does not happen as often (there are other differences as well) but it is important to note it here to counter the impression that this is solely a “woman’s issue”.
Given the enormous problem, many efforts to solve it have been offered over the years. Unfortunately, until such time as Jewish Law courts are properly restored to their authority, and have the power to compel scofflaws to comply with their obligations, the problem has not been amenable to resolution.
One famous attempt was made by the late Rabbi Emanuel Rackman, former Chancellor of Bar Ilan University, through the use of the Talmudic device of הפקעת קידושין to retroactively annul a broken marriage, obviating the need for a Get. This proposal was rejected virtually unanimously by all the great Poskim of the time, very much including Rav Joseph B Soloveichik. Nevertheless, various Rabbis advertised that they were able to solve all of the Agunah problems based on this novel approach, and traveled throughout the world giving false hope to tragic victims of this abuse. During my tenure in Portland, OR, Rabbi Moshe Morgenstern, an associate of Rabbi Rackman, came into town for a day or two, and magically issued long-awaited-for divorces based on this theory. While initially his “clients” were thrilled that the “problem was solved”, they soon discovered that there was no acceptance of this divorce by any Halachic authorities, and the exercise they had gone through was less than worthless. As noted above, a bad solution clearly was, in fact, worse than no solution.
It is with this background that I read of the effort to establish a new “Bet Din for International Agunot”. As soon as I saw that the effort was presented at the annual conference of JOFA (Jewish Orthodox Feminist Alliance) by Blu Greenberg, a well known advocate of Open Orthodoxy, and was to be presided over by a member of the Rabbinic Advisory Board of Yeshivat Chovevei Torah, the flagship institution of Open Orthodoxy, I was immediately skeptical about whether it would achieve broad acceptance. As I have written previously, I and many others in the Modern Orthodox, let alone Chareidi Rabbinate, are deeply concerned that in their effort to “solve” Halachic problems, Open Orthodoxy has begun down a slippery slope that will inevitably lead them, and most unfortunately their followers, out of the Halachic tradition. (See here for a response to an unfortunately typical example of Open Orthodoxy that occurred just this week). I did not think that this effort would be taken seriously, despite the impressive credentials of the prime mover of this new Bet Din, until I saw the claim that the Bet Din had the endorsement of a crucial figure – Rabbi Zalman Nechemiah Goldberg שליט”א of Jerusalem.
I have had the great privilege of being a student of Rav Goldberg since I attended his regular shiur when I was an undergraduate student at the Jerusalem College of Technology (Machon Lev), majoring in Electronics, over thirty five years ago. Rav Goldberg, son-in-law of the sainted Rav Shlomo Zalman Auerbach זצ”ל , is a brilliant and extremely erudite Talmid Chacham, a former Dayan on the Bet Din HaGadol and widely respected as one of the foremost Halachic authorities alive today. We talmidim enjoyed challenging him; when he would often ask us – the most senior shiur at JCT – “What would you like to learn today?”, we would usually pick difficult subjects to see what he could do. He would then deliver a shiur of breathtaking scope, exhibiting vast scholarship with ease, with no preparation at all. Besides being known for his brilliance, he is also well known as a man who, like his father-in-law, is accepted by all sectors of the Orthodox community – in a typical shiur one sees Chassidic hats, black hats, and kipot serugot sitting side by side united in love for Torah – because of his love for all and absolute abhorrence at being drawn into politics or matters of controversy.
Given whom he is, and his reluctance to get involved in controversial matters, I was quite skeptical as to how it came about that he would champion this innovative new Bet Din. Nevertheless, given the reputation of the prime mover of this Bet Din, I initially decided to adopt a wait and see approach, and not mix in. But that changed when I learned more about it.
The new Bet Din, according to the Jewish week article and other sources, was going to accomplish its goal based on three halachic “tools” that would give it such power that,
“while he could not guarantee, on principle, that every agunah who approaches the bet din would be freed, he believes that in practice, “99.9 percent” could be”.
This is no less than a Halachic bombshell. Given that these extremely urgent and painful questions have resisted resolution – despite the best efforts of all of the major poskim for many years – and that this new effort claims to be able to suddenly resolve “99.9 percent” of the problems, it is big news indeed!
It thus becomes enormously interesting to see what new Halachic “tools” this Bet Din has discovered that apparently have heretofore eluded all of the great poskim. According to the article, these three tools are :
- The aforementioned device championed by Rabbi Rackman, i.e. הפקעת קידושין
- A concept called קידושי טעות, mistaken marriage, which is basically a form of buyer’s remorse, i.e. had she known that the marriage would decompose so drastically, she would have never agreed to the marriage
- Zikui – In effect giving the unwilling husband the favor of gift of doing the right thing – granting the Get – because it is to his ultimate benefit, whether he agrees or not.
I have already mentioned that הפקעת קידושין has been soundly rejected by all major poskim.
The “mistaken marriage” concept, similarly, is a retroactive annulment. While it might possibly be used in a case where it becomes immediately apparent that some mistake had been made in the initial wedding, it obviously cannot apply to a fully formed marriage that has gone sour, for which the only remedy is a Get.
Disappointing so far.
The new idea, then, is the device called Zikui.
A full discussion of the Zikui concept is beyond the scope of this article. I recommend very highly that the interested reader listen to a debate on the topic, in which Rabbi Jeremy Wieder of RIETS/Yeshiva University explains in comprehensive and sensitive detail what the serious problems of this approach are.
Very briefly, the concept came out of a most unfortunate case last year in Tzfat, in which a husband was determined by his physicians to have entered a permanent vegetative state with no realistic hope of recovery, leaving his wife tragically bound to him as an Agunah, since he was still alive and obviously could not direct that a Get be written. The Bet Din used a zikui approach to approve a Get be given to the wife, arguing that certainly were the loving husband able to free his wife of being chained to him in this sorry state, he would have wanted to do so, and thus giving the Get was clearly a benefit to him.
The Chief Dayan, Rav Uriel Lavie wrote an extensive Court opinion for this case explaining the basis of this ruling. In that opinion, the Tzfat Beit Din itself took pains to declare that its ruling (which was based on other factors as well) could not in their minds be applied to a conscious husband.
The opinion contained the following purported statement of Rav Goldberg:
אחר שקראתי מה שכתב והאריך הגאון ר’ אוריאל לביא ודבריו נכונים מאוד ואני מצטרף לדעתו להתיר במקרה המיוחד שלפנינו. זלמן נחמיה גודלברג
After reading the extensive writing of R’ Uriel Lavie, and agreeing that his words are very correct,
I join him in my opinion to allow [this Get] in this unique case before us.
Zalman Nechemiah Goldberg
Even looked at most charitably, then, Rav Goldberg lent his agreement to this case, only in this unique and tragic situation, where the husband did not, could not, express his opinion.
When news of this unprecedented case came out in the Rabbinic world, there was a great deal of discussion about it. Questions were raised and whether, in fact, Rav Goldberg had ever officially agreed to it. Rav Goldberg issued a statement that his opinion had only been a theoretical one, and not one that was meant to be used practically. Here are his words:
משנתפרסם פסק הדין של בית הדין צפת בדבר ההיתר לזכות גט לבעל מחוסר הכרה ועשו מעשה וניתן הגט לאשה על ידי הבית דין, הנני להודיע שכל מה שדיברו עמי בעניין לא היה אלא פלפולא בעלמא ולא נאמרו הדברים למעשה. וגט זה אסור היה לעשותו כלל ואינני מסכים לזה ולא לכך שכתבו בשמי שהסכמתי לעניין
As the ruling of the Tzfat Bet Din was publicized regarding the permission to [use zikui] to give the Husband [the opportunity to give] the Get while unconscious, and then they did so and gave the wife a Get via the Bet Din, I hereby let it be known that whatever discussions they had with me were only theoretical in nature, and I did not give a ruling to be followed practically [למעשה]. It was forbidden to give this Get, and I do not agree to it, and it is not so what was written in my name [as if] I had agreed to it.
As expected, there is a controversy as to which version is correct. Some claim that Rav Goldberg retracted under pressure. However, it is clear to me, and will be clear to the reader, that even if in fact Rav Goldberg had originally agreed to the Get, that permission was only:
- for the unique and tragic case of a vegetative husband who can receive no conceivable benefit at all from the continuation of a state of matrimony
- not for a husband who is loudly saying that he does not agree to the Get
- not for general application, but only specifically to that unique case
Given the controversy that had erupted, and knowing how much Rav Goldberg avoided controversy and hated to be used and misquoted by those with their own agendas, and seeing that the new Bet Din claimed that he was “on board” as supporting it, I resolved that on my next trip to Eretz Yisrael I would go to see him as usual and ask him whether he was in fact the Halachic authority behind this new Bet Din. I already knew from previous conversations that he was very against innovations that had come from Yeshivat Chovevei Torah, and was very disturbed when he had heard that one of their graduates had claimed that he had given him Semicha, which he took pains to specifically deny in writing. I wondered whether he was even aware that his name was being used in many places as being supportive of this effort, given that I knew that he (a) generally did not read the newspapers, and (b) certainly was unaware of what was being written about him in the English language press. I went to him as a disciple to his Rebbe, eager to hear his opinion, and being fully willing to accept his ruling, whatever it might be.
When I had the privilege to come to see him I asked him, very simply, to read several articles that were published regarding the International Bet Din. I showed him specifically where it was stated that:
“the key to the new court’s success may well rest on one of the two leading Israeli rabbis associated with the Hareidi community who have given their imprimatur to Rabbi K . . . Most significant is Zalman Nechemia Goldberg, a rosh yeshiva, posek, or religious decisor”. Furthermore, it stated that:
“As long as Rav Zalman Nechemiah is on board . . .,” the new venture is “untouchable,” noted an expert on the issue.” I mentioned, as well, that I had spoken with a very major Rosh Yeshiva from the Modern Orthodox world before my trip, who had urged me to speak with Rav Goldberg and let him know that reports of his association with the nascent Bet Din were very problematic, and that I should clarify what Rav Goldberg really believes on the matter.
His reaction was virtually instantaneous. He was visibly upset, and jumped out of his chair to start writing a protest letter; I asked that he please read some more to see the full extent of what was being reported in his name. He was grateful that I had given him the opportunity to let it be known that he wants nothing to do with this. He said that he had no recollection of ever having approved anything like this Bet Din, and is shocked that whatever discussions he may have had with an individual who may or may not have spoken with him, were so misused.
Here is the original letter that he wrote on this matter, followed by my translation:
[On his letterhead]
27 Kislev 5775
I hereby let it be publicly known that I have absolutely no connection with the International Bet Din for Agunot, and all mentions of my name as if I agree to them are a complete falsehood.
I have already written in [the journal] Techumim, which is published annually, that chas veshalom (G-d forbid) one should not use Hafka’at Kiddushin (retroactive annulment) to allow a married woman to remarry, as it will cause, chas veshalom, her [subsequent] children to be mamzerim. The same applies to the other methods which have been mentioned in regard to the new Bet Din.
One should be very cautious and stay far from this Bet Din, who [by their statements] are suspect in every way. It is incorrect to use them, and even a regular Get that they issue is suspect that it was done improperly.
Whosoever can protest [this Bet Din] and nullify their plans should do so, and may they be blessed for this.
Signing With Pain,
Zalman Nechemiah Goldberg
The letter speaks for itself.
In closing, I am truly saddened to be the bearer of this letter, but “the truth will out”.
I want to emphasize that I am passionately dedicated to trying to find any legitimate means to help solve the Agunah crisis. I hope that the reader will join in me in supporting ORA , (Organization for Resolution of Agunot) in their wonderful work – I am privileged to have attended their rallies and demonstrations and have helped them in their efforts on behalf of an Agunah to receive her Get.
I also echo Rav Wieder’s statement (in the aforementioned debate) that “we do not have a cure for the Agunah Crisis, but we do have a vaccine”. That vaccine is the Halachic prenuptial agreement, which has been 100% effective in avoiding Agunah situations when it has been in place.
May we look forward to a future of Truth and Peace, in our homes, marriages, and Klal Yisroel.