The “Agunah” Dilemma in Orthodox Jewish Circles

In October of last year, two Brooklyn rabbis, Mendel Epstein and Martin Wolmark, were reportedly arrested for an alleged plot to kidnap and torture a man who had refused to grant his wife a Jewish ritual divorce, called a “get.” A month later, an Orthodox Jewish woman, Gital Dodelson, told the New York Post that she had been unsuccessfully attempting to persuade her ex-husband to grant her a get since their civil divorce in 2012. And in March of this year, a group of demonstrators protested outside the wedding ceremony of a man who has refused to give his ex-wife a get but has nonetheless married a (second) woman. The last story recently appeared in the New York Times. As hundreds of women within the Orthodox community await release from their marriages, the dilemma of ex-husbands who refuse to give their wives a religious get exposes the gender inequity at the heart of the “get” requirement.

Divorce in Orthodox and Conservative Judaism Requires a Get

Under Jewish law, as traditionally understood in Orthodox and Conservative Judaism, a married man and woman remain officially married even after they have obtained a civil (secular) divorce. To achieve a religiously recognized divorce, the man must give the woman a document called a “get.” The get officially communicates the message that the woman is now permitted to marry or date other men (i.e., she does not have the status of a married woman subject to the prohibition against adultery).

For people outside the Jewish community and even, to a great extent, inside the secular, Reform, and Reconstructionist Jewish communities, the get is not an important matter. If two Jews (or a Jew and a non-Jew) outside an Orthodox or Conservative congregation marry and then divorce, others outside these congregations will not care (or likely even know to inquire about) whether or not the former husband gave his former wife a get. But things change within observant communities.

If you are either an Orthodox or a Conservative Jewish woman, and/or you wish to have the option of marrying someone in the future who is either an Orthodox or a Conservative Jewish man, then you will probably care a great deal whether your ex-husband has given you a get. Without one, an Orthodox rabbi will refuse to perform your ceremony (because he—and it will be a man—will consider you a married woman and therefore off-limits sexually to your intended partner), and a Conservative rabbi almost certainly will refuse as well. As I discovered in my research, moreover, although a Reform rabbi will be willing to marry you to your new husband without a get, he or she will still encourage you to obtain one. Why is this?

Polygamy and Adultery in Jewish Law

To understand the importance of the get, it is useful first to examine the meaning of marriage and divorce in Jewish law. Under traditional Jewish doctrine, it is the act of the man giving his wife a get—and not any civil or secular divorce decree—that terminates their marriage. To say this more tendentiously, it is the man in the male-female traditional Jewish marriage who has the power to control whether and how long he and his wife remain married. Therefore, if he has not given his ex-wife a get (whether because he has not been asked to do so or because he chooses to withhold the get, despite his ex-wife’s request), she remains religiously bound to him in marriage so long as they both are alive.

If a woman is herself Orthodox or Conservative, then she will very much want the get to avoid committing the sin of adultery, an offense that is considered one of the most serious in Judaism. Reflecting its seriousness, adultery is one of the few offenses for which duress is not available as a defense, despite the fact that almost all other Jewish requirements and prohibitions, including those associated with observing the Sabbath, recognize a duress defense when a person’s life is in danger. As a result, in the event that one is faced with the (admittedly improbable) choice of being killed or committing adultery, one is expected to accept death. And even if a woman is not herself concerned about committing the sin of adultery, she may want the get to enable her to marry someone within the universe of Orthodox and Conservative men, a desire that is likely to characterize any woman who is herself part of that community. Men who have refused their wives a get do not necessarily face the same dilemma, so the incentives are not well aligned. Why not?

As one can tell from reading the Jewish Bible (known to many as the “Old Testament”), there is no Biblical stigma attached to a man marrying more than one woman. Indeed, polygamy appeared to have been the rule among the various Jewish Patriarchs, and that does not even include the numerous concubines that the Patriarchs took unto themselves. For example, Abraham’s concubine Hagar, was the mother of Ishmael, and Jacob’s concubines Bilhah and Zilpah, collectively had four boys (Gad, Asher, Dan, and Naphtali), who became four of the twelve Tribes of Israel.

One does not, however, see the matriarchs taking more than one man into their beds. Under Biblical rules, polygamy and male “cheating” are permissible, but a woman must be faithful to her husband. Indeed, for a man to commit adultery (and thereby earn the penalty of death) would require that he have sex with a woman who is married to another man. In Jewish tradition, adultery was thus essentially and exclusively an offense against the married man (and God).

Rabbinical law has righted the gender inequity to some extent. It is now considered improper (under Rabbinical law) for a married man either to marry additional women or to have sexual relations with a woman other than his wife, regardless of the woman’s marital status. Because this prohibition is considered Rabbinical rather than Biblical in origin, however, it is not as strict and is subject to potential loopholes (one of which allowed for the man in the New York Times story referenced above to marry a second wife even as he refused to grant his first wife a get).

Impact on the Children of Adultery

In modern times, where no one may be executed for violating the Jewish prohibition against adultery, one serious consequence that still flows from adulterous relationships (between a man and an officially still-married woman who has not received a get) is that the children who result from their union will be considered “mamzerim” (loosely translated as “bastards”) under Orthodox Jewish law. Unlike illegitimacy in the American context (which applies to anyone whose parents are unmarried), only the children of specifically prohibited unions qualify as mamzerim in Jewish law—children of incest, for example, and children of a married woman and a man other than the one to whom she remains married. Under traditional Jewish law, mamzerim are cut off from the Jewish people, so that no Jew is permitted to marry them or any of their descendants. Orthodox Jewish law, in other words, regards mamzerim as eternal outcasts.

“Agunah”: Chained to a Dead Marriage

When a woman is no longer with her husband but is unable to obtain a get, she has the status of “agunah,” literally translated as a “chained woman.” In the ordinary course of events, a woman can become an agunah without any malevolence on her husband’s part, for example, because her husband has gone to war as a soldier and is now missing in action. Though secular law presumes the man’s death for relevant purposes after a certain amount of time has passed, traditional Jewish law does not. When an Orthodox woman’s husband disappears, she therefore becomes an agunah, unable to marry under Jewish law and also condemned to giving birth to mamzerim (whose descendants will forever be cut off from the Jewish nation) if she decides to partner and have offspring with another man.

The above situation is a tragedy that follows predictably from a tradition that places the fate of the marriage in the hands of one and only one of the partners. If the male partner disappears without a trace, then no one has the capacity to free the female partner from being bound to the no-longer-extant marriage. Neither partner need harbor malevolent intentions. In controversies that have recently arisen, however, we have wrongdoers to blame as well. In these cases, a man could give his ex-wife a get but chooses not to do so. He thereby intentionally and effectively prevents her from moving on with her life after the extinction of their marriage.

Why might a man do this? One answer, applicable in the case of Gital Dodelson, described above, is that he does so as a means of extortion. In Dodelson’s case, those representing the man—Avrohom Meir Weiss—reportedly proposed that if his ex-wife gave him $350,000 and surrendered her court-awarded custody of their son Arieh to him, then he might have granted her the get that she sought. If a man has the power to withhold a get without consequence to himself, then it is foreseeable that some men will use that power to extract money and other concessions from their ex-wives. Other men might refuse to grant a get in order to force their wives to remain either with them or with no one, a move that represents a less extreme version of what men do when they murder their wives rather than allow them to leave the relationship. Avrohom Meir Weiss appeared to have this motive as well, as he reportedly told Gital Dodelson, “I can’t give you a get—how else would I control you?” And third, a man might withhold a get as a means of punishing an ex-wife whom he has come to hate.

Solutions

One approach to the situation in which agunot (the plural of agunah) find themselves is to try to shame the man into giving his ex-wife a get. If a man cares about his status in the religious community, then he might deliver a get, notwithstanding his preference for control, extortion, revenge, or some combination of the three. The problem is that some men might not especially care how others within their community view them, especially given that they might have allies in their endeavor to control their wives (as, for example, Avrohom Meir Weiss appeared to have had). For Mr. Weiss, however, perhaps shaming on a grander stage worked. A few months after his ex-wife Gital Dodelson’s account appeared in the New York Post, Weiss reportedly (finally) released her from the hostage situation in which he had been holding her.

When shaming and appeals to conscience fail, what can one do? One answer is to use torture to force a man to give his ex-wife a get. That is what Mendel Epstein, Martin Wolmark, and others stood accused of doing for a profit. Torture is, of course, illegal and immoral, and that is why the men accused of engaging in such conduct were arrested. But the fact that some people have resorted to torture (and I recall an episode of the Sopranos with a similar theme) exposes the desperate need for a systemic solution. Unfortunately, secular law can do little for agunot, given that the granting of a get is entirely a religious matter. But perhaps it is time for traditional communities to reinterpret divorce in a manner that allows any unhappy partner to successfully exit a marriage and that accordingly places the decision with someone other than a potentially recalcitrant and abusive ex-husband.