The Problem of Recalcitrance in Jewish Divorce

In each generation since the institution of the laws of divorce, there has existed countless tales of husbands who have deserted their wives without issuing them a get. This is problematic for many reasons in addition to the fact that without the issuance of a get, a civil or religious divorce is not valid according to Jewish law. If a woman's husband has deserted her, is insane, missing (e.g., kidnapped, missing in action during a war), or is presumed dead but without verification, a woman is left in an immobilized state for she has no way to divorce her husband or remarry; a get is a prerequisite for both. A woman in such a state is called an agunah ["chained woman," or "anchored wife"]. The only way an agunah can remarry is through the issuance of a get by her husband or through her husband's confirmed death. Also, evidence of a husband's death must be direct; circumstantial evidence is not sufficient according to Jewish law.

With regards to confirming the death of a wife's husband to prevent her from becoming an agunah, Jewish law is a bit more lenient than in other categories of litigation in that testimony will be permitted from only one witness (normally two male witnesses are required in matters of Jewish law), as well as of persons who are usually ineligible to be witnesses, such as a woman, a minor, the words heard in passing in the conversation of non-Jews, and non-Jews themselves whose testimony to the husband's death is spontaneous and without the intention to act as a witness on behalf of an agunah. Even the wife herself may testify as to witnessing herself the confirmed death of her husband, pending that she lived in harmony with her first husband (otherwise, she may be motivated to lie about her husband's death to be rid of him and free to remarry), and her husband's disappearance was not tied to wartime activities. This leniency is allowed in Jewish law when dealing with the issue of the agunah, since a man who has died is gone for good, and if there is no other testimony to his death, no new evidence is likely to arise. Only five women are invalid witnesses in agunah cases as to the death of the wife's husband, all on the husband's side: (1) his mother; (2) his sister; (3) his second wife; (4) his wife by levirate marriage; and (5) his daughter by another wife. It is presumed that these witnesses may be hostile towards the agunah, such as plotting to get rid of her, hence their testimony would be suspect. Of course, such plotting is more theoretical than realistic, but the law to exclude them as witnesses is meant to protect an agunah. In any event, if no valid witness can confirm the death of a wife's husband, yet he is missing or his whereabouts are unknown, a Jewish wife will be considered an agunah; without information about her husband, she may remain an agunah indefinitely, and therefore simply cannot remarry until valid information comes forth.

This restriction against remarriage also applies in cases of Jewish wives who are civilly divorced, but not religiously divorced under Jewish law as stated earlier. Although it is obviously known that the husbands of these wives are alive, the fact that they either have not granted their wives a get or are refusing to grant their wives a get leaves these women unable to remarry, for they are still maritally "chained" to their husbands. The marital bonds of these women are still in tact according to Jewish law, hence, they are in a state of immobility in that they cannot validly remarry under Jewish law. This phenomenon is likely more common in today's modern world, especially in America, than a situation of unknown whereabouts of a wife's husband. It may even be argued that the case of the recalcitrant husband who refuses to religiously free his wife from her marital ties is more psychologically abusive to an agunah than the case of a missing husband and the lack of information as to his whereabouts. This point can be seen when looking at many of the articles in the professional literature that have addressed Jewish divorce law. The following quotes are some examples:

"Throughout the long history of Jewish law, no problem has constituted a greater challenge to basic equity than that of the agunah, the woman who is unable to remarry due to the legal inability to terminate her present marriage" [Washofsky, M. (1981). The recalcitrant husband: The problem of definition. Jewish Law Annual, 4, 144-166].

"The fate of the agunah is perhaps the most tragic consequence of the laws of marriage and divorce" [Biale, R. (1984). Women and Jewish law: An exploration of women's issues in Halakhic sources. New York: Schocken Books].

"No other question has vexed modern students of Jewish law more than the question of the agunah or "bound wife" - that is, the woman who is still legally tied to an absent husband" [Novak, D. (1974). Law and theology in Judaism. New York" KTAV Publishing House].

"One cannot fail to be deeply sympathetic to the sorrowful plight of the agunah (one who is "tied") under Jewish religious law" [Pfeffer, L., & Pfeffer, A. (1989). The Agunah in American secular law. Journal of Church and State, 31, 487-525].

The following discussion demonstrates the abuse that results in the case of the recalcitrant spouse.

The Recalcitrant Spouse

In today's world, Jewish men can easily withhold a get in divorce cases. Although a civil court may grant Jewish couples a divorce, Jewish law regards the couple to still be married. Hence, husbands can keep their wives at their mercy and under their control by simply refusing to issue them a get; indeed, a severe form of psychological abuse. For instance, husbands may use the threat of withholding a get as bargaining power to obtain certain benefits in divorce cases, such as financial gains or certain custody arrangements. A husband may ". . . vengefully and strategically use this dramatically superior bargaining power in negotiating a favorable property settlement or custody settlement with his wife" [Fox, B. N., & Krasnow, H. C. (1988, January). Secular solutions to obtaining a Jewish divorce. Illinois Bar Journal, pp. 274-278, 280]. This type of situation occurs when a husband makes it entirely clear to his wife that he will not cooperate in the executing and delivering of a get until his wife complies with his specific demands [A get-extorted agreement presents a strong case for coercion, and a wife may be able to seek relief under the law for her husband's unfair bargaining in the divorce. However, it may be difficult to prove that coercion took place, so it may be best for a Jewish wife consult with a lawyer before agreeing to her husband's blackmail]. If wives do not comply with their husbands' requests, husbands can literally keep their wives' marital ties intact for indefinite periods of time (or at least until they comply with their wishes). This situation forces the Jewish woman who believes in and wants to follow Jewish religious law to be faced with the impossible choice of either giving into her blackmailing husband or becoming an agunah. Although some women stand their ground, many simply choose to give in so that they can move on with their life. In any event, it should be clear here that whether or not a Jewish wife accepts her husband's demands and is issued a get, she is subjected to severe psychological abuse. This situation inflicts severe wounds on a Jewish wife, and certainly may leave permanent scars.

Is there ever a reason for Jewish husbands to withhold a get in Jewish divorce? Although the answer to this question may appear to be an obvious "no", the present author believes there may be two: (1) in certain cases it may be appropriate to make sure that the civil divorce is actually complete before issuing a get; and (2) to simply make sure that the relationship, hence marriage, is really over. With regards to the first reason, one may wait to grant a get to first make sure that all the specifics of the civil aspect of divorce have been agreed upon and finalized to avoid later problems; it is likely that this advice would stem from the lawyer working on the husband's behalf [Of course, this reason for withholding a get would only work for honest couples, where the husband would not later trick his wife and become recalcitrant after the civil divorce is complete. Moreover, in most Jewish divorce cases, the civil divorce is completed first, and then the religious divorce takes place under the advisement of rabbis trained in Jewish divorce]. With regards to the second reason, one may wish to make sure that the couple has, indeed, decided to divorce from one another (i.e., determine that reconciliation is no longer possible). In some cases in Jewish law, there is no possibility of remarriage once a couple divorces [The most profound example of this is the kohen, a member of the priestly tribe in Jewish culture, who is not allowed to marry a divorcée, even his own former wife. Hence, a kohen would definitely want to make sure that his relationship has ended before divorcing, for once divorced he can never remarry his ex-wife]. For instance, if a couple divorced, remarried, and then they both divorced their second spouses, they could not then go ahead and remarry each other, for this is forbidden under Jewish law. Hence, withholding a get in these cases may be understandable. Even so, the reality remains that the withholding of a get is unethical if it is not correctly justified, and it is extremely difficult to ever justify withholding a get any longer than absolutely necessary (assuming that the withholding of a particular get is justifiable in the first place).

This problem of husbands refusing to give their wives a get is a widespread phenomenon today, and exists wherever Jews reside in the world. For example, the number of agunot [plural of agunah] in New York State is estimated to be as high as 15,000 [Berkowitz, A. (1987). The prisoners of divorce. Lilith, 18, 18-23], although some estimates of the number of agunot in New York have been as high as 150,000 [Breitowitz, I. A. (1993). Between civil and religious law: The plight of the agunah in American society. Westport, CT: Greenwood Press]. There are enough publicly reported incidents of agunot to permit the inference that there are many more unpublicized cases. Astoundingly, in Israel there exist many cases where husbands choose to remain in the jail to which the Jewish courts have sentenced them for refusing to issue a get to their wives rather than freeing them of their marital bonds [In ancient times, the bet din ["Jewish court of law"] was allowed to use extreme force, if necessary, to cause a recalcitrant husband to issue his wife a get. This usually involved a pack of men beating the man continuously until he agreed to issue a get. If he died during the beatings, his wife was declared a widow and was allowed to remarry, since widowhood allows women to remarry. This phenomenon is an excellent example of the additional "abuse" that often occurred in Jewish divorce cases of the past]. This last point demonstrates that no matter where Jewish women live, they are always at the mercy of their husbands to be issued a get in divorce cases.

However, it should be noted that this problem has a reciprocal element. Jewish wives can temporarily or permanently refuse to accept a get from their husbands (a matriarchal element of the divorce process). They may blackmail their husbands just like their husbands may blackmail them. This may cause an immense amount of psychological and financial turmoil for husbands. If husbands are not religiously divorced, they too cannot remarry under rabbinical law [Such men could remarry under Biblical law, since the Bible allows men to have more than one wife, but rabbinical law forbids polygamy, and most religious Jews in the world today follow rabbinical law]. Moreover, if husbands want a divorce but are refused one by their wives, they must still fulfill their financial obligations to their wives (until a religious divorce has occurred). Although this scenario is probably less likely to occur than husbands refusing to issue a get to their wives, the possibility exists that wives can psychologically abuse their husbands. In any event, it should still be clear that the Jewish husband has much more power to abuse his wife than a Jewish wife has to abuse her husband when it comes to divorce.

This power differential can be seen more clearly by looking at the following phenomenon. If a wife refuses to accept a divorce from her husband, and that husband decides to go ahead and remarry anyway without divorcing his wife, he is not guilty of adultery, but rather polygamy, a much less serious offense in Jewish law. Although Rabbenu Gershom, a famous Jewish sage, forbid polygamous marriages in the eleventh century (i.e., rabbinical law forbids polygamy), it is still permitted under Biblical law. As a result, a husband who remarries without first divorcing is not guilty of adultery (but only the violation of a rabbinic prohibition), and any children that may result from such a union are not considered mamzerim ["illegitimate children"] [It is assumed here that the husband's remarriage is to a single woman. Certainly, if his remarriage is to a "married" woman who has not obtained a get from her husband, he would be in an adulterous relationship and the children that would result from the union would then be considered mamzerim ("illegitimate")]. A mamzer, or illegitimate child, is severely stigmatized in Jewish law, and it may be argued that knowingly producing a mamzer is an indirect form of child abuse. The reason that a man can have a child with another (single) women without making that child a mamzer is because a mamzer is, by definition, the product of a sexual relationship between a man and a "forbidden" woman; the Torah [Five Books of Moses] does not speak about "forbidden" men. Without question, we have before us a double-standard in Jewish law, with women having far less power and control over their situations, for if a woman were to go ahead and remarry without first divorcing, she would be guilty of adultery, one of the most severe offenses in Jewish law, and the children that would result from her "adulterous" union would be mamzerim, hence illegitimate. This point alone demonstrates how Jewish law in cases of divorce and remarriage may create an abusive situation for women when a recalcitrant husband refuses to grant his wife a religious divorce.

Equally important to these points is the fact that Jewish rabbinical law has ruled that in cases where the wife has abandoned the husband, the husband is permitted to remarry without issuing his wife a get. This declaration was brought down by the eleventh century Jewish sage, Rabbenu Gershom, who also prohibited polygamy as mentioned above. Since the disintegration of the marriage resulted from the wife's decision to abandon her husband rather than accepting a divorce from him, it would, in the absence of a Biblical prohibition against polygamy, be inequitable to bar the husband from marrying another wife by reason of rabbinic legislation. However, this is only allowed provided that the husband obtains the signatures of one-hundred rabbis from three different jurisdictions approving that the remarriage is factually justified. This aspect of Jewish law displays an obvious double standard, in that a husband can remarry if his wife abandons him, while a wife whose husband has abandoned her cannot. Clearly, there exists the potential for abuse within Jewish marriage and divorce.

Many religious women leave Judaism because they feel that it offers no resolve in their plight as agunot [Aiken, L. (1992). To be a Jewish woman. Northvale, NJ: Jason Aronson, Inc.]. Since wives may be rendered agunot for indefinite periods of time after civil divorces, many formerly religious women choose to simply go ahead and remarry civilly without receiving a get from their husband. This is problematic for three reasons: (1) these women have committed adultery because they are still bonded maritally by religious law to their ex-spouses for failure to obtain a valid divorce as required by Jewish law; (2) any child that arises from a union between a woman married according to Jewish law and someone other than her religious husband becomes a mamzer ["illegitimate child"]; and (3) a pre-get relationship of a "married" woman and another man cannot be solemnized after a get is granted by an agunah's husband because a once adulterous relationship cannot later become a legal marital relationship according to Jewish law. It is this third point that is relevant here in the discussion. A Jewish woman and her adulterous partner are not allowed to marry after the adulterer divorces her husband. Said another way, since the two individuals violated religious law initially, Jewish law does not permit them to each other after the woman obtains a get from her husband, even though the once adulterous relationship would now appear to be allowed since it would no longer be adultery if continued (figuratively speaking), for the woman obtained a get. No matter how we look at this situation, the important point to take from Jewish law is how essential it is that a "married" Jewish woman who is civilly divorced and her new love interest (assumed to be a Jewish man) wait until she obtains a get before commencing their relationship. Failure to do so creates the likelihood that a controversial and abusive situation will develop. This point of Jewish law is yet another example of the abuse and difficulties that may arise for the wife of a recalcitrant husband post civil divorce, and the level of self-abuse that the wife may inflict upon herself if she does not obtain a get before proceeding into a new relationship.

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