By Israel Drazin
Chaim Grade’s excellent, disturbing, and depressing 1974 novel The Agunah portrays the pitiful and disastrous impact of the Jewish agunah law upon a kindhearted woman. Orthodox Jewish law forbids women whose husbands refuse to give them a Jewish divorce, called get in Hebrew, or who disappear without proof that the husband died, from remarrying. These women are called “chained,” agunot in Hebrew, the singular is agunah. They are only freed when their husbands give them a get or die.
Merl Tswilling was married to a loving husband drafted into the army during the First World War. His entire company is killed, but no witnesses see his corpse. Sixteen years elapse and Merl wants to remarry; but, only one courageous rabbi among the many rabbis in her community permits it. Previously, when people in another community were starving, this rabbi, despite the scorn of all the other communal rabbis, told his congregation to collect and bring money to the synagogue on the sabbath so food could be purchased and distributed to the needy.
The other rabbis, all senior to him, couldn’t see beyond what appeared to them to be a violation of the sabbath laws. These rabbis refused to grant Merl permission to remarry and ridiculed the young rabbi again. They insisted that if she remarries she would be committing adultery (with severe consequences to any offspring). They said that Merl must remain an agunah, “chained” to her possibly dead husband because her husband gave her no get and there were no witnesses to his death. They ignored the rationale for permitting the marriage: her suffering, her husband would have returned if he was alive since the couple had a loving relationship, the passage of sixteen years, and while no one saw the husband die, people saw his unit decimated. Grade describes the pitiful and disastrous impact of the agunah law upon Merl, the man who wanted to marry her, religious and non-religious men and women in the community, the liberal rabbi, and the other rabbis who felt they were more pious. Merl’s treatment, inflicted by too-many rabbis on agunot today, is a repugnant inexcusable “sin.” Many alterations were made to biblical marriage and divorce laws, but the agunah law has not changed.
The Hebrew Bible gives few details about marriage and divorce. Deuteronomy 24:1 states: “If a man takes (yikach) a wife and has sex with her, but she becomes displeasing to him because he found something wrong, he should write a bill of divorce for her, place it in her hand, and send her from his house.”
The Bible uses “takes,” an act performed only by men; men consummate marriages, women are passive. The same applies with divorces; men write bills of divorce and hand them to inactive spouses.
Ancient rabbis changed these rules; but didn’t complete the evolution. They recognized that the biblical directive that marriages are consummated by sex is somewhat repugnant, so in the beginning of the Common Era two additional means to marry were added: giving women something of value (such as a ring) or a document saying that the two are married. In the eleventh century, they decreed that men can only marry one wife (monogamy) and that, generally, divorces are not effective if wives refuse to accept the bill of divorce. But they didn’t amend the ruling that only men can effectuate marriages and divorces while women are passive.
As a result, there are too many separated Jewish women whose husbands refuse to give them a get. These women remain married to their estranged husbands and cannot remarry. It is not uncommon for these husbands to blackmail their wives saying, in essence, “I will not hand you a get unless you give me…” and frequently, this demand is for hundreds of thousands of dollars.
Many rabbis insist that the agunah law cannot cease because the tradition existed for millennia. But there are good reasons to change the law. First, as we saw, many other aspects of marriage and divorce were modified; why is this law different? Second, human decency – the pain of thousands of women – require the annulment. Rabbi Dr. Daniel Sperber pointed out in his Relationship of Mitzvot between Man and his Neighbor and Man and his Maker: when there is a clash between commands of these two categories, the interpersonal concerns should generally override those of a ritual nature. Third, people understand that some Torah statements reflect the situation of the time which was transformed as civilization and culture advanced. Eve’s punishment in Genesis 4:16 “your desire will be toward your husband and he will rule over you,” describes male/female relations in ancient times and in parts of the world today, but is not desirable in civilized societies.
On June 20, 2013, the Rabbinical Council of America (RCA), the organization of over 1,000 Orthodox American rabbis took a giant step to resolve this problem. While they didn’t change the agunah law, they sent their rabbis a proposed “Prenuptial Agreement for the Prevention of Get Refusal.” Under the Agreement, husbands are subject to large fines if they refuse to give a get. The RCA instructed its rabbis that they should not “officiate at a wedding where a proper prenuptial agreement has not been executed.” Unfortunately, this step has not yet been accepted by rabbis in Israel and by ultra-Orthodox rabbis in America.
Yehuda Warburg in his 2013 book Rabbinic Authority suggests another possible solution: rabbinic courts should punish recalcitrant husbands with huge fines for the emotional pain inflicted upon their wives. The problems with this solution arethat it doesn’t address the case of the missing husband, such as Merl’s situation, rabbis outside of Israel have little authority, and rabbis in Israeli rabbinic courts take years to adjudicate cases, are loath to impose fines, have no authority to issue a get since only husbands can do so, and generally feel that they cannot compel husbands to give the get; they only “obligate” them to do so, meaning strongly encourage.
Chaim Grade’s The Agunah should be read. Perhaps readers will help create a ground-swell resulting in an amendment of the current repugnant agunah affairs.
 It is well established that sabbath laws are suspended to save lives.
 I do not intend in this short essay to delve into the laws of illegitimacy, mamzerim.
 However, the ancient biblical practice remains as a vestige in the modern marriage ceremony. The couple is married under a canopy which symbolizes the room where the marriage is consummated, and Orthodox Jews also require the couple to seclude themselves in a room for a period of time after the ceremony under the canopy; again symbolizing the act of consummation.
 These rules were accepted by Ashkenazic Jews, of Europe, in the eleventh century, but not Sephardic Jews, of Muslim countries, until recently.