Historically, rabbinic authorities have worked to minimize the hardships created by the agunah problem because it has consequences for the entire Jewish community. For women who cannot remarry because they are technically “chained” to a marriage that, in effect doesn’t exist, it is a personal tragedy. But to the community there is a larger concern. Should an agunah choose to remarry under civil law or even with the approval of legitimate rabbis who feel she is being done some injustice, any child born to such a marriage is by definition a “mamzer” and that will have a ripple effect. Mamzerim cannot marry anyone other than other mamzerim or converts to Judaism. Some will not discover this fact until it is time to secure a rabbi to officiate at the wedding causing all kinds of grief. Rabbis conforming to tradition will also be compelled to investigate the status of any couple to be sure that each party is marriageable. And for those agunot who found relief through the creative efforts of certain non-Orthodox rabbis, it is not always the case that any such resolution will satisfy all segments in the Jewish community. That means that subsequent children may be categorized as mamzerim by a significant part of the Jewish community. Since we never know who our children will want to marry, they remain at risk of discovering that their marital ambitions might be thwarted. All this means that the agunah problem is more than just a localized problem related to the unwillingness of the religious authorities of one branch of Judaism to use the strategies available to them to solve it.
The agunah issue is both an “Orthodox” and a “Jewish” problem.
First, a word about definitions. In traditional Jewish law, the term “agunah” (literally, a wife who is “anchored” or “chained” to her husband) originally referred to a woman whose husband has disappeared. In the absence of proof of the husband’s death or of a divorce document (get) issued by him to her, the wife is unable to remarry. Today, the word more frequently designates the m’surevet get, the wife whose husband refuses to issue her a get even when it is clear that the marriage for all practical purposes has come to an end. Until she receives that document of divorce, she is unable under traditional Jewish law to marry anyone else. This is the case even if the couple have been divorced in the civil courts, since traditional Jewish law does not accept the validity of divorce actions processed by non-Jewish legal systems. For purposes of this discussion, the word agunah refers to a wife in this second category.
The agunah issue is a “problem,” first of all, because of the very fact that according to biblical law (see Deuteronomy 24:1), divorce must be granted by the husband to the wife. The wife cannot divorce her husband, nor can the community or the court issue a decree of divorce. Today, virtually all liberal Jews and not a few Orthodox Jews would agree that this unequal distribution of legal power is itself an example of unfairness and inequity. At the very least, the law as it stands enables an unscrupulous husband to oppress his wife, to refuse to issue a divorce unless she meets his outrageous and extortionate demands.
The agunah is an “Orthodox” problem because the category no longer exists in other denominations. Liberal rabbis have adopted a variety of remedies (too technical to spell out here) that enable a woman to bring her marriage to an end even when her husband refuses to cooperate in the Jewish divorce procedure. Orthodox rabbis have generally rejected these remedies on the basis of Jewish legal arguments that liberal rabbis find unpersuasive. Thus, the problem continues to plague Orthodox Jewish women in the Diaspora and all Jewish women in Israel, where the laws of marriage and divorce for all Jews are administered by the Orthodox rabbinate. This does not mean that Orthodox rabbis are indifferent to the plight of the agunah. Indeed, they have instituted a number of remedies of their own, but these measures, while perhaps reducing the number of women who suffer such a fate, have not solved the problem. Although precise statistics are hard to come by, there are still far too many agunot, Jewish women whose lives are chained to the will of men who cruelly refuse to live up to the standards of simple justice and decency.
The agunah is a “Jewish” problem because the very existence of this legal category is a reproach to Jewish law and a stain on the moral reputation of the Jewish people as a whole. We all suffer as long as the agunah continues to suffer. We should all, therefore, do what we can to support organizations within the Orthodox community, such as the Jewish Orthodox Feminist Alliance (http://www.jofa.org/), that offer support to agunot and bring pressure upon recalcitrant husbands to live up to their moral duty.
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