Man’s Absolute Right is Absolutely Wrong

One morning in August, two emails came into my inbox only minutes apart. One was about a Pakistani couple convicted in London for the “honor killing” of their teenage daughter, who had refused an arranged marriage. The next was a call to agunah activists asking that we try to stop the forthcoming Jewish marriage of a man who refused to give his first wife, now 21, a gett — a Jewish divorce. While the victimization and suffering are not comparable, these stories share one cultural feature: persistent violation of the human rights of women.

During the last 50 years, there has been considerable agunah activism, beginning with the call for repair by important rabbinic leaders, Rabbi Emanuel Rackman and Rabbi Eliezer Berkovits among others. Agunah aid organizations; sanctions against me’agnim (recalcitrant men who withhold the gett for spite or blackmail); the establishment of International Agunah Day; protests, books, films; toanot trained to accompany an agunah as she goes through the beit din, the religious divorce court; agunah conferences scheduled and cancelled; agunah-free zones; shul shunning — these are but a few of the many attempts during the last half century to rid the Orthodox community of this continuing blight. Two of the latest initiatives to galvanize the community have been the mass rallies organized by ORA and the prenuptial agreements recommended by the Modern Orthodox rabbinate.

But have we really made progress? I think not. There is no discussion underway regarding a global solution to release current agunot, and the two latest initiatives fall far short of the mark. ORA rallies, albeit well organized and often successful, cannot keep pace with new cases cropping up, and the prenups will qualify as a systemic solution only when every last married couple has signed one. As anyone who has ever tried to sign on an entire community to a new project knows, this could take another 50 years. Meanwhile, we will continue to have women such as M., who recently called her rabbi in panic. When she told her husband, from whom she has lived apart for the last 2 years, that she wanted a gett, he told her to forget about it. When she reminded him that they’d signed a prenuptial agreement, he replied, “I don’t care what I signed. Sue me.” With three young children to raise, she has neither means nor energy to fight this battle; an experienced agunah activist familiar with the situation told me that M. would probably be looking at five to seven years of struggle for a gett. Really, then, very little progress.

What is the problem? It lies in the core of Jewish divorce law, Deuteronomy 24:1ff: “If a man ‘acquires’ a wife…and wishes to divorce her, he writes her a bill of divorce [gett], places it in her hand and sends her away….” From those verses the principle of a man’s absolute right was derived. “What is the difference between man and woman in divorce?” the Talmud asks. “A man divorces of his own free will [i.e., cannot be coerced], and a woman is divorced at will or against her will.” Throughout the ages, the Rabbis ameliorated this inequity in divorce. They protected the wife with ketubah alimony; enabled her to sue for divorce, albeit not to grant one; classified intolerable characteristics in a husband that would justify the court to compel him to grant her a divorce; forbad forcible divorce of a wife; and more. But still, the principle of a man’s absolute right remained, always guarding, the unyielding standard against which all other solutions were tested. “We compel him until he says I want to [give her the gett]” was a brilliant Talmudic dictum, but ultimately a man could say no. Even today in Israel, some religious courts are invalidating previously won divorces on the grounds that the husband was coerced into giving the gett.

The sad part of all of this is that in addition to the human tragedy, in addition to the insult to Judaism when application of a Torah law breeds injustice, I believe this was not the Torah’s intention. The law of divorce comes to us embedded in the magnificent human rights code of Judaism. In an age when women were a vulnerable underclass, the gett provided them with official protection. A wife could not summarily be thrown out of the house by means of the instant oral divorce that operated widely in the ancient Middle East (and exists today in some Muslim societies where women struggle against “repudiation”). The Jewish wife in a benevolent patriarchy could not be treated as chattel. Her new official status was assigned through a formal document, handed to her directly by the husband and not by his new wife or servant. Scant consolation though it was, the procedure accorded her a measure of dignity at a most difficult passage in her life. Divorce law was on the same plane of protection as the biblical law of the hungry passerby who was permitted to eat from the landowner’s field; or the borrower who was returned his collateral cloak every night to sleep in warmth; or the day worker who had to be paid by evening; or the captive wife who was allowed to mourn her parents for 30 days and not be gang raped or sold into sexual slavery as beastly warriors did — and do — all around the world. Torah law aimed not only to serve justice, but to preserve human dignity. Unfortunately, the procedure of conveying a gett to preserve that dignity was translated into a principle of man’s absolute right, a principle that persisted long after the Rabbis reconfigured Jewish marriage from “acquisition” to sanctification. Consequently, sympathetic rabbis of every generation struggled to help women within that framework of inequity, but could go only so far. And that is why we still have agunot thousands of years later.

What is needed is a halakhic methodology that can remove absolute power from the husband’s hands in urgent cases of recalcitrance and transfer that power to the courts, so that justice and human dignity can be served in divorce, without exception. In actual fact, such procedures have long existed in the tradition: Hafkaat kiddushin, nullification of a marriage by the court, and kiddushei taut, retroactive disqualification of the original “mistaken” marriage ceremony on the grounds that the woman would not have married had she known then of her husband’s bad proclivities. These halakhic methodologies are found as far back as the Talmud. But they are used rarely and under very limited circumstances. Traditionalist rabbis oppose their use, and most other Orthodox rabbis will not challenge them for fear of delegitimization. Now, greater communal pressure must be brought to bear on contemporary rabbis to allow wider, systemic use of these or other procedures — to put a final end to aginut. On a practical level, broader use of such methodologies would inhibit future recalcitrance, as there would be no gain in withholding the gett. Moreover, it would seem to be much easier to apply these beit din releases to the relatively few cases of aginut than to sign up an entire community to a new document — one that happens to be still mired in controversy within Orthodoxy.

One thing is certain: in the year 5773 the principle of a man’s absolute right in divorce is absolutely wrong.

Blu Greenberg’s writing appeared in the first issue of Lilith, in 1976, and she has been a Lilith contributing editor ever since.  The author of books on feminism in traditional Judaism, she is the founder and was first president of JOFA, the Jewish Orthodox Feminist Alliance.

Lilith thanks Blu Greenberg for changing the transliteration of the term for Jewish divorce from “get” to “gett,” thus removing some confusion for readers and simplifying the work of proofreaders. We have adopted this new spelling, and hope others will too.