This year, Esther Kahan, a member of the London Jewish community, finally received a Jewish bill of divorce (get) from her husband. After 15 years of waiting, Kahan agreed to pay her husband more than 50,000 pounds in return for a get. She has spoken publicly about how painful and difficult it was to be trapped for so long in an unwanted marriage and has repeatedly expressed the feeling that the rabbinical judges and religious courts didn’t do enough to help her.
According to the commonly accepted interpretation of Jewish Law (halacha), a couple can only get divorced if a man willingly gives his wife a get in the rabbinical court (beit din). A get cannot be granted in a civil court. While a woman can refuse to accept a get, halacha is skewed in favor of men.
Men whose wives refuse to accept a get can move on to new romantic relationships and father children without significant halachic repercussions. This is not true for women whose husbands refuse to give them gets. If a woman engages in an extramarital romantic relationship, she is halachically forbidden from marrying that man once she gets divorced. Any children born by a married woman to a man not her husband are considered illegitimate (mamzerim) and are forbidden to marry within the Jewish community for at least ten generations.
If a man refuses or is unable to give his wife a get she is essentially trapped forever in an unwanted marriage.
This summer I am interning at Mavoi Satum, an organization based in Jerusalem that provides legal representation and psychological support to women whose husbands are withholding gets. As an Orthodox Jewish feminist, I’ve struggled my whole life with what feels to me to be stubbornly sexist interpretations of halacha and my own loyalty and love for observant Judaism. Mavoi Satum fights to protect the rights of women in the rabbinic courts, but does so from the basis of religious observance, straddling the two parts of my identity that I thought would be impossible to reconcile.
In Israel there is no civil marriage or divorce. Every Jewish marriage and divorce are under the exclusive jurisdiction of the Orthodox Rabbinate and must take place in accordance with the Orthodox interpretation of halacha. In the time that I’ve worked with Mavoi Satum, I’ve heard horrifying stories of women trapped in dead or abusive relationships.
For example, one of the women represented by Mavoi Satum is married to a man who has been in a vegetative state for more than ten years. She cannot remarry because her husband is still alive, but she cannot get divorced because he is unable to give her a get. It’s incredibly painful to meet her and understand that this woman might never again be able to enjoy the partnership of marriage or the blessing of children.
But as proven by Esther Kahan’s story, the problem of agunot (women whose husbands are not physically or mentally present and therefore cannot give them a get) and mesoravot get (women whose husbands refuse to give them gets) is found in the Jewish community at large, not just in Israel.
In May, a case of a man refusing his wife a get appeared before a civil New York appellate court. In the case of Cohen v. Cohen, the appellate court reversed the decision of a lower court which had ordered the husband to give his wife a get in accordance with Domestic Relations Law 253 (DOM 253). According to the appellate court, there was no obligation for the husband to give his wife a get and free her from an unwanted marriage under New York’s civil law code.
In discussions of the problem of mesoravot get or agunot, the blame generally falls on the religious courts. A common argument is that the rabbinical judges don’t do enough to protect women or that their priorities are skewed in favor of the husband’s desires. Indeed, Esther Kahan has expressed this belief. These claims are often legitimate.
But in the case of Cohen v. Cohen, it’s not the religious courts but the civil courts that are involved. Although the civil judges and lawyers did everything in their power to free the wife, the law simply wasn’t on their side.
In order to prevent this from happening again, we can work to fix the wording of DOM 253. We can systematically comb through the legal codes of every state, municipality, and country where Jews live throughout the world, fixing all laws of this type in order to protect women. Or, much more simply and efficiently, we can fix the halacha that leaves women powerless to exit unwanted marriages without their husband’s consent, introducing a systemic solution that protects women from vindictive spouses.
Only halacha and can be depended upon to protect Jewish women all over the world.
In the past few years there has been incremental halachic progress on this issue. In 2016, the Rabbinical Council of America (RCA) ruled that their member rabbis couldn’t marry a couple without a halachic prenuptial agreement. The halachic prenup, a legally binding document, requires men to pay their wives at least $150 per day from the day the couple stops living together until the day the husband gives his wife a get. This ruling emphasizes how seriously the RCA takes the problem of agunot and mesorevot get and is an important step forward.
There are other halachic solutions to the problem, including conditional marriage (tnai bekidushin) and conditional divorce (tnai beget). Tnai bekidushin is a legal formula that annuls the couples’ marriage if certain conditions are met. For instance, a condition could be that if the couple doesn’t live together for more than a year than it is as if their marriage never happened. Tnai beget is a similar mechanism by which a man grants his wife a get after their marriage ceremony but the get only becomes legally binding if certain conditions are met.
But these solutions are not enough.
In Israel, where every couple must marry through religious courts and under religious law, radical steps like that of the RCA have not been taken to minimize the risk of mesoravot get. The halachic prenup, tnai bekidushin, and tnai beget, are all exceptions in Israel, not the rule. Why? I think that the rabbinic courts and judges in Israel and around the world are more interested in maintaining the status quo – and the power it grants them – than protecting the rights of women.
It is time for the Jewish community worldwide to band together and demand better halachic solutions. We need systemic change.
Broad halachic change is not unprecedented in the arena of marriage. One of the most famous examples in Jewish history are the takkanot (institutional reforms) that Rabbenu Gershom introduced around 1000 CE. These takkanot include rules forbidding men from marrying more than one woman and mandating that men could not obtain a divorce without their wives’ consent.
It’s time for the great rabbis of our time to be courageous, like Rabbenu Gershom, and use their power to reform halacha in order to solve the problem of agunut and mesoravot get in our era.
Malka Himelhoch is a rising junior at Princeton University and is interning this summer at Mavoi Satum.
Featured image credit: Pixabay.com/PublicDomainPictures.
