Injustice in Jewish Divorce Laws

Question

In the unfortunate cases of an Aguna "chained woman", Mesurevet Get "get refuser", if the husband is mentally deranged or in a coma, the wife is stuck. There is no way of getting divorced by Jewish law and she can therefore not remarry.

The Torah's laws are always so fair and balanced. How can it be so cruel and unfair?

Answer 1

The problem is that a beth din used to have teeth, and could force, even by physical force if necessary, a man to give a get. When the rabbinate makes a ruling that a get should be given, a man is compelled to follow them. If the man refuses, this carries consequences. For example, as stated in Ketubot 86A:

א"ל רב כהנא לרב פפא לדידך דאמרת פריעת בעל חוב מצוה אמר לא ניחא לי דאיעביד מצוה מאי א"ל תנינא במה דברים אמורים במצות לא תעשה אבל במצות עשה כגון שאומרין לו עשה סוכה ואינו עושה לולב ואינו עושה מכין מכין אותו עד שתצא נפשו:

Said R. Kahana to R. Papa: According to you, that you said that the repayment of [a debt to] a creditor is a mitzvah, what is the ruling where [a debtor] said, 'I do not want to perform [this] mitzvah'? He replied, "We have learned: [We whip someone 40 lashes] in what case? For [someone who refuses to perform] negative precepts, but in the case of positive precepts, as for instance, when a man is told, 'Make a sukkah' and he does not make it or, 'Perform the commandment of the lulav', and he does not perform it he is beaten until his soul departs.

"Ad sheteitzei nafsho" does not mean to 'kill', but I lack a source for that. At least take this as an enforcement of the powers that the beth din had to prevent a woman from becoming an aguna. Nowadays the rabbinate lacks such power, which creates a situation in which people can abuse the system with relative impunity. The state has the monopoly on law enforcement, so the rabbi's powers are limited to administrative handling of the get, and can't assign agents to enforce their rulings like they could when the rabbinate was the state's judicial system. The system itself isn't cruel, but the current system lacks the power to make it work.

It is a myth however that this system is uniquely cruel to women. Men can also be in the position that women refuse the get. According to the israeli rabbinate in 2007 the ratio of women to men who suffer as 'agunot' is about 50-50. I don't have more recent statistics but it would suprise me if this has shifted drastically

Answer 2

Your question refers to two cases - Aguna and Mesurevet Get. Your question seems to address the cases where she is really stuck through no fault of her own, as when her husband is in a coma, or the classical case where her husband is presumed dead but there is no proof. Mesurevet Get is generally through her own fault and is a very different question, so I suggest removing it from this question. It is really a duplicate of Why can't a woman demand a divorce? as @DoubleAA pointed out. I will not specifically address Mesurevet Get in this answer.

As others have pointed out, it is never possible to say definitely why the laws of the Torah are what they are, but we can give suggestions.

Regarding a legitimate Aguna, we have to understand why the basic arrangement is as it is, and then why there are no special rules for handling exceptional cases. Many people today look at marriage as simply a formalized bond of love, or something like that, and then they cannot understand why a woman cannot simply dissolve a marriage when she no longer feels the love. Jewish marriage encourages love, obviously, but it is neither a necessary nor sufficient condition. In order to understand Jewish marriage it is important to understand the basic social function of marriage - why marriage is almost universal, what social/anthropological pressures it addresses, and why marriage must be formalized as a social institution.

Basically, marriage involves two aspects. One is a woman guaranteeing her exclusivity to the man, and the other is the man committing to care for her and her children. From the social perspective, everyone else is agreeing to respect her exclusivity to this man, and they are also requiring him to provide for her, and they will enforce this if necessary. This is why marriage must be an official, public ceremony. This is how marriage addresses the very basic social needs of protecting women and providing for them, and of regulating intra-social competition over women. This is also why a women cannot just walk out of a marriage. Her husband has taken on a very serious commitment, basically dedicating his entire life to take care of her, and we cannot expect men to do this if there is no long-term guarantee that she will stay. From the perspective of the society they have told him, "this woman is yours, and only yours, and you must take care of her for your entire life", and after that she is his, and no one else has the right to take her away from him. This is why a court cannot decide on their own that a marriage should be dissolved. That would be a gross violation of their commitment here, which says that so long as the husband is keeping his commitments to the best of his ability, they are guaranteeing his wife's exclusivity to him. (This is why a flagrant violation of his responsibilities is really the only time a Beit Din may force him to divorce her.)

If divorce were up to the Beit Din, instead of being up to the husband, that would mean that society basically enslaved the husband, making him care for the woman as long as they want him to (and we see that they will make him care for her even after the marriage) but only giving him access to her as long as they see fit. Hiw wife and his marriage and his family are not his - they all belong to the society, who may take it all away from him whenever they want, but his commitment is absolute. When this happens (as is done today, both in Jewish and non-Jewish courts) men stop marrying, because marriage does not make sense anymore.

Much ink has been spilled on this topic. I suggest you begin by googling "evolutionary basis marriage", and explore from there.

As with any formal social institution, marriage is designed to be the best possible arrangement for the majority of cases. There are obviously individual cases where it would be more fair to have different rules, but if we make new rules for each case that means there are no rules at all, and we have destroyed the institution. Therefore, even in the case of a bad marriage we cannot force someone to divorce, because that would mean that the marriage is the responsibility of the court, and not of the husband.

Given all this, you can still expect that in extreme, well defined cases there should be some way to declare the marriage over, for example after the husband is completely incapacitated for some time, or missing and presumed dead, or maybe even where he did not keep up his commitments but still refuses to give a get. I think that answer here is that courts simply cannot be trusted to have any right to take a woman away from her husband, as they will not use this power responsibly. These women are stuck because there is no way to give courts partial power over marriages. Once courts believe they are the protectors and providers of women they forget what marriage is about, and will abuse their power, and decide that they have the authority to destroy any marriage. (If you will look around, you will see that this happened.)

I think that a good, short answer to this question about Agunot is "Marriage must have clear rules, and cannot depend on the arbitrary feeling of outside parties, and therefore the courts cannot have the authority to nullify a marriage. Even in cases where it is clear that this is hurting someone we still need to hold to the same rules, otherwise marriage loses its function, marriages fall apart, and society falls apart, as you can see happening all around you."

Another important consideration is the long-term expectations we want to offer people in their marriage. If someone knows their marriage is only valid as long as its going good, but will be terminated without their consent if something really bad happens to them, then they are hedging their bets the entire marriage. They will not feel truly committed, because they know that their wife is only their as long as everything else is ok. Even though divorce is allowed and marriages are not always permanent, we want people to invest in their marriages as if they were permanent. We encourage them to give it all their strength in thick and in thin. For this to make sense, marriage has to be as permanent as possible, and cannot have a annulment clause specifically for when bad things happen, which is when the guarantees of sticking it through are most important. The risk of being an Aguna in case of disaster is the price for having strong and stable marriage under normal circumstances.

I will suggest another consideration, which applies to many cases in Judaism. Hashem created laws of nature, and gave us the laws of the Torah. Both are immutable, both are very well suited to their purpose, and both create situations where people suffer, and we do not know why. From a religious perspective, just as we appeal to Hashem's control when people suffer from nature, we must also realize the Hand of God when people suffer in Halachic edge case. If a woman cannot marry for health reasons we would say that she should recognize that it is from Hashem. If her husband is in a coma, it is just another way that Hashem arranged the same life challenge for her. Likewise of someone loses their home from a natural disaster, or from a fire which spread because it was Shabbos. (Obviously, the possibility of human agency intervening in the Halachic cases changes how we relate to it.) As long as we can see the value and the logic of the Halacha for the typical cases, and we see why it is needed in general, addressing the unpleasantness of individual cases is not very different from dealing with any other evil and suffering in the world.

Answer 3

The OP asks about the "fairness" of two cases in Torah Law claiming that they seem "unfair":

1. A man who refuses to give his wife a get (divorce); for whatever reason.

2. A woman who never received a divorce from a husband who is still alive, but incapacitated, or his whereabouts and/or living status is unknown. (missing but we do not know if he is in fact dead)

In both cases, Torah law does not have any simple usual way to dissolve the marriage other than waiting until the husband willingly issues a get (bill of divorce). This unfortunately leaves the woman as an "agunah" or chained to a (seemingly) dead marriage.

Of course, the true depths of Hashem's wisdom on any matter is not known to me. However, I feel it is better to present what we do know, since the best partial answer is better than none at all IMHO. People will benefit from an answer that guides us to the proper conclusion for the most part, despite the limitations on human wisdom and understanding.

Lets start with #1.

First of all, the assumption that justice and fairness would dictate: "that a man who refuses to give a get is evil; or that any woman who claims she wants a divorce is certainly allowed to move on with her life", is absolutely wrong. Actually, common sense dictates that the only true justice in the matter is to simply wait until the husband wants to willingly grant a divorce.

Please consider, in any other transaction or relationship (besides marriage) between human beings in this world, agreements are considered binding by society. Secular law, which many of us look to as a first sign of the definition for common sense justice, has two laws available (in many countries; not just the USA) for those who break, or want to break, agreements.

a) Specific performance. This law allows a court to order someone breaking an agreement, to fulfill it anyway even if that party wishes to get on with their life without fulfilling the deal any longer.

b) Detrimental reliance. A person who breaks an agreement can be sued for heavy damages if the other party suffers by relying on their partner's word to fulfill a deal.

If two people agree to the sale of a house, and enter a binding mutual contract, we all know that "justice" assumes they must complete the deal, and anyone who breaks it (seller or buyer) is obviously in the wrong. We never say that the sudden wish of one party to back out and "move on with their life" is ever considered "fair" behavior. We have a word for such people: liars and cheaters.

This is almost always true even if the party backing out proves it has some new unforeseen loss at stake. The court says: Tough Luck. You promised. Your partner doesn't have to suffer because you have an issue.

The Torah describes the marriage bond/agreement in Genesis 2:24:

"Therefore, a man shall leave his father and his mother, and cleave to his wife, and they shall become one flesh."

Now undergoing surgery to willingly become "one flesh" with someone is a serious life changing move. Certainly, we understand that such an operation is probably permanent and any attempt at reversing it will be rare, and probably quite exceptional and painful.

If someone agrees to sell their home, and has received money etc., a secular court would demand that the seller fulfill transferring the deed!

So why would we think that a woman can simply tell a man after being married for some time, that she simply wishes out and it would be automatic justice to have the man grant it??!! That's ridiculous.

Since when does a man invest his life, money, and emotion, into a "one flesh" transformation, have children etc. only to be told that just because his partner (who promised to be his wife) is now changing her mind, that justice demands he simply accept it? Obviously just the opposite should be true. Justice would demand that no woman can simply dictate that her partner dissolve the status of "one flesh" because she is changing her mind. Who gave her the right to break the deal??!

Now you might say that if we can show the husband is abusing his wife, so that it is obvious she deserves to be released from her obligation to keep the deal, then the court can issue a divorce without him?

The simple answer here, is a verse in Koheles 3:15 "...V'HaElokim Y'vakesh es nirdaf" ("...and G-d seeks the pursued.") G-d himself finds out who is the pursuer and who is the pursued. Who is wrong and who is the true victim.

A marriage is such a complicated state, that it is impossible for fellow humans to be able to know what went on behind closed doors and decide who is right and wrong in a marriage. Only Hashem can do that. Also, they can both be guilty.

If so, there is no human court that can regularly dissolve a marriage between two people. They just do not know who is at fault and to what extent. They lack the ability to justly deprive a man or woman of their marital bond (especially if there are children involved).

Now the fact that one side's alleged abuse may be enough to grant a divorce is a safek (doubt of human judgment). The existence of a "one flesh mutual bond" between the man and wife is an undisputed fact. (vadai)

The Talmud throughout often says: "aino safek motzi midey vadai". "A doubt in judgment cannot remove the status of an undisputed fact."

Therefore, the courts are not empowered to touch the marriage directly. The husband must willingly issue the release.

2 What about a missing husband or one in a coma?

a) All of the above applies because we cannot deprive a man of his marriage since he may wake up from his coma today or he may walk in with a good excuse for being absent.

b) A Jewish woman by entering marriage is not just doing so for herself, but is becoming the guardian of the office of the Jewish married woman. It is a public status. She is responsible to uphold the sanctity of the institution of marriage, for the public, even at the price of her own suffering.

When a woman accepts a ring under the chuppah and becomes "mekudeshes to a man" she has willingly accepted that she may only have relations with that man only, for all time, until death or willing divorce occurs. If we were to be able to cancel marriages due to comas etc., we would cause such a weakening of the respect for marriage laws that courts would start tampering with just about any marriage; causing adultery to increase and marriage to become meaningless in society.

However, the Talmud does record that a husband may grant his wife a conditional divorce when faced with risk of his disappearance. For instance, all the soldiers of the house of King David would regularly issue conditional divorces to their wives, on the eve of war, in case they became MIA. That way, their wives would not become agunahs. (Ketubot 9b)

We see though, that for whatever reason, (perhaps because of the "weakening of the respect for marriage laws"- King David unfortunately was tempted by this very loophole with Batsheva; or simply because people do not feel emotionally good about writing conditional divorces) people just do not avail themselves of such insurance policies although they are halachically available.

Therefore, such chained women are no different than any other tragedy that we must rely on G-d to answer with our full faith.

This entire answer by no means could possibly cover every angle in such a short post. I am aware of other issues. However, this does serve as a firm core basis to approaching the issue of the justice and fairness of Jewish divorce law.