‘Imprisoned in marriage against her will’

By PNINA OMER

JANUARY 23, 2017 21:20

MARRIAGE SHOULD not be a prison (photo credit: REUTERS) — MARRIAGE SHOULD not be a prison

(photo credit: REUTERS)

The first is the “aguna from Safed,” a case which is unquestionably an anomaly in that a get (a Jewish writ of divorce) was awarded to a woman whose husband was incapacitated by a car accident.

Two agunot (“chained women”) made headlines this week, and I would like to offer insight as to the halachic (Jewish legal) thought process that led to these brave decisions and roused the attention of the general public.

The first is the “aguna from Safed,” a case which is unquestionably an anomaly in that a get (a Jewish writ of divorce) was awarded to a woman whose husband was incapacitated by a car accident, leaving her chained indefinitely in marriage. The rabbinical court, in a brave and unprecedented manner, put themselves in the husband’s shoes, took full responsibility, and gave a get in the husband’s name – releasing her to continue her life as a free woman.

The other case which resurfaced this week is known in the press as “the case of the tycoon’s recalcitrant son,” regarding a young woman whose husband abandoned her after a stroke and has refused to give her a get for the past 10 years with the support of none other than his father, a wealthy and influential figure. In an unprecedented ruling, the rabbinical court utilized its authority by means of instituting sanctions on the father, after it was proven that he is responsible for his son’s obstinacy. Unfortunately, until either the tycoon or his son is willing to grant the get, the woman in this case nonetheless remains an aguna, waiting with the bitter anticipation of a person who knows not when her salvation may come.

In both of these cases, the rabbinical court acted with creativity and decisiveness, without compromise, and did everything in its power to free the women from their chains.

Yet, the question remains: why does the rabbinical court not act equally in every case of an aguna or get-refusal? If it is possible for the court to give a get in the name of an individual, why do they not do so in every case? Judaism relates to the concept of marriage as a mutual contract that the partners enter into of their own free will and, as such, permits the nullification of the marriage only when it is desired freely by both sides. A marriage which was forced on one of the partners is not valid according to Jewish law; accordingly, a divorce that is forced upon one of the sides is invalid as well. This is a moral and principled statement, defining marriage as a relationship which is solely dependent upon the spouses as a cohesive unit and does not allow for outsiders to come between them.

This concept, however, is laced with an intrinsic impediment. If we cannot force the recalcitrant spouse to leave the marriage, we are – for all intents and purposes – forcing the other spouse to remain in the marriage unwillingly.

The rabbinical court is aware of this “catch 22,” and therefore makes efforts to encourage a recalcitrant spouse to “want” to give a get. The religious law, and even the civil law, encourages the implementation of sanctions in cases of recalcitrant husbands to urge them to grant a get and act in accordance with the Talmudic directive, which maintains that “we force him until he says ‘I want to [give the get].’” Rabbi Haim Palagi (Turkey, 1788- 1869) emphasized that if the rabbinical court sees that there is no hope of making peace between the spouses, “We force him to grant a get until he says ‘I want to.”

How is it possible that we force him, and even more so, that we that utilize sanctions? Does this not breach the aforementioned principle of free will inherent in a valid marriage and divorce? The Rambam explains the Talmudic statement as follows: by forcing him, we reveal the individual’s true will to fulfill the words of the Sages.

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What is the connection between the ruling that awarded a get to the aguna from Safed and the sanctions that were imposed in the case of the tycoon? Both decisions were based on the Jewish principle that “the inclination of man’s heart is toward good”; that his inner inclination always desires to choose good.

Without delving into the great many details of this complex case, when a man cannot give a get due to his medical condition, it is clear that we allot him the benefit of the doubt and assume that he would have wanted to free his wife in order to ameliorate her situation, in accordance with the Talmudic precept that “one may obtain a privilege for a person in his absence,” if the act is to his advantage.

Even when a man adamantly refuses to give his wife a get, the rabbinical court continues to adhere to this principle, giving him the benefit of the doubt that something is obscuring his true inner will and causing him to harden his heart. The rabbinical court thus attempts to help him discover his positive inner will so that he may, in turn, become aware of his innate desire to free his wife.

Both of this week’s rulings reflect this principle; in the first ruling, it rescued her from her chained status; in the second, it left her with nothing but deep sorrow and piercing shackles.

I do not wish to undermine the beauty of the sanctity of marriage in Judaism, and the greatness of the free will between two partners – a concept that should be a cornerstone in every home. However, the question that we must ask is: how long must a woman wait until her husband “discovers his inner will”? Can the rabbinical court slate a timetable wherein a woman’s freedom precedes the will of her recalcitrant husband? I suggest that we revive the Talmudic solution of “hafka’at kidushin” – the ability of the court to annul a marriage – to the modern halachic dialogue. This halachic rule determines that the sages have the right to expropriate the money used to marry a woman and in such a way nullify the validity of the marriage between the couple, as if it had never existed in the first place. A solution such as this – despite not being simple and not commonly utilized – enables the rabbinical court to set boundaries for recalcitrant husbands, and offer their wives a better future.

The author is the director of Yad L’isha: the Monica Dennis Goldberg Legal Aid Center for Agunot and Mesuravot Get, a division of Ohr Torah Stone.