The Agunah Crisis
Women Chained to Dead Marriages
Is Easily Solved
We have so many options:
– a clause in the kethuba stipulating binding arbitrage (including divorce, if mandated) in the event of marital dispute (the “Lieberman Clause”)
– a prenuptial agreement stipulating payment of thousands of dollars a month in the event of separation without divorce (the RCA’s approach)
– a pre-written divorce document placed in escrow (the bride can choose a relative or friend she trusts) and given to the wife in the event she files for civil divorce
– a pre-written divorce document, written, signed, and given to the bride on camera, stipulating that it automatically takes effect in the event that she presents it to a court and requests her marriage be terminated
These are all great solutions, even though (of course) none of them are universally agreed upon or accepted – but the problem is that they all require planning for the possibility of terminating the marriage BEFORE getting married.
What about women who are chained to marriages and did not plan for this possibility with their partners?
I think the best solution is one that is based on the plain reading of the Gemara, as understood by Rambam, the Tosaphists, and other Rishonim:
– annulment of the marriage by a duly-constituted court exercising its Torah-given discretion
You can annul marriages in Judaism???
Yep. In several places in the Gemara, cases are described where rabbinic courts annulled marriages. The justification given is a simple principle:
“Everyone who marries, does so by dint of the court’s dispensation.”
Rambam (the greatest rabbi of the past 1500 years) cites this principle in his responsa, claiming it applies to all forms of marriage.
Why?
While the operational form, details, and regulations of every biblical precept are left to the human court to decide and formulate, the other precepts all correspond to an objective substrate – an act or an object – that can be identified as constitutive of the precept, even if the exact legal definition is left to the court.
For example, if I make a vow, I’ve performed an objective speech act articulating an intent to (not) do something. Whether it technically qualifies as a vow under halakha is secondary to the act itself.
To give another example, if I slaughter a sheep, I’ve performed an objective act that had the identifiable effect of killing an animal. Whether or not it technically qualifies as acceptable slaughter according to halakha, you can still point to what I’ve done and said that’s slaughter.
But marriage is something different.
There’s no underlying substrate to marriage – no act or object that it refers to.
It exists purely as signification – a communicated sign of status and relationship, not an ontologically real phenomenon.
Every society has to choose how it signifies marriage.
Jewish society is based around the Torah and its precepts. The Torah says “when a man takes a woman [as a wife]” – and what man? what woman? how? are, like all other details of the precepts, all left for the court to determine.
But unlike all other precepts, the court’s determination of what signifies marriage *is all marriage is*.
Without the court’s choice that they should signify marriage in Jewish society, the classic forms of halakhic marriage would just be unrelated acts of gift giving, note passing, or relations, not obviously connoting any sort of special status or relationship.
The court’s choice that they signify marriage is what makes marriage possible in a halakhic society.
Or in the Gemara’s words:
“Everyone who marries, does so by dint of the court’s dispensation.”
And if the court can decide that an act signifies marriage, it can decide that THIS act – this giving of a ring, this writing of a note, these relations – no longer signify marriage.
By withdrawing its recognition of THIS act as constituting the marriage, the court is able to annul the marriage.
(Without any negative repercussions for any children produced in the union, I might add.)
That is the power of the court in halakha.
Of course…
Not everyone agrees.
Some people read the Gemara’s “everyone who marries” as meaning only people who marry in the specific cases listed in the Gemara.
Some people believe that only national courts, or courts of the caliber of bygone days, can annul marriages.
Some people are afraid that if you allow courts to annul marriages, then they’ll start rubber-stamping every impulsive separation (or worse) presented to them by their constituents.
I think some of these objections are more rational than others. All are fairly easy to rebut. But ultimately, none of them address the unacceptable cost of keeping people chained in marriages that they want (or need) to leave.
Their suffering should be enough to motivate the rabbinic establishment to at least seriously consider the option to annul those marriages.
In the twentieth century, two famous rabbis – R Uzziep and R Rackman – each proposed exactly that – make discretionary use of the court’s power to annul marriages that need to be terminated.
Both rabbis requested the support of their colleagues.
Both were ignored, despite their formidable reputations, and despite the stakes of the issue.
Why?
Because centuries of interpretative inertia had made the non-Maimonidean reading of the Gemara the dominant one, and when the Rema ruled that a formal divorce document is required in all cases to terminate a Jewish marriage, that became the final word for most of the Jewish world (even those who don’t normally hold like the Rema 🤦 thus is the power of doubt wields in the conservative mind).
My friends, it seems the rabbinic establishment – at least in the Orthodox world – has painted itself into a corner and is unwilling to step outside of it.
Yes, they recognize the problem exists and are willing to take some small steps to prevent it from growing (although the Orthodox rabbis who will refuse to assist with a marriage unless one of the aforementioned methods is utilized, are still few and far between).
But the really necessary action – what it takes to actually SOLVE the problem – is still off the table. It would require changing historical course and (even respectfully) disagreeing with some of Jewish history’s Great Men. And that’s something that the current rabbinic establishment – comprised almost entirely of a) men b) educated in an Ashkenormative milieu and c) who themselves aspire to be Great Men – simply can not bring itself to do.
No matter what the cost, apparently.
Will things stay this way forever?
Will there always be women chained in marriages that for all practical purposes ended years ago?
I hope not.
The Orthodox world is slowly warming up to the idea that Yes Women Can Be Rabbis Too, and as they join the ranks of the rabbinic establishment they’ll hopefully bring with them a heightened focus on and concern for issues currently sidelined or ignored.
Orthodox Jewish people are also considering alternative paths of halakhic observance that aren’t limited to what their grandparents did or what they learned in yeshiva. The internet age has drastically increased the amount of halakhic information, opinions, and possibilities people are exposed to, and the corresponding changes in observance are starting to emerge.
And across the Orthodox world, people are starting to demand more of their rabbis. People are looking for real answers and real solutions, and “we don’t pasken that way” sounds increasingly hollow to increasingly exhausted ears. Rabbis must live with the times and meet the needs of the moment of history in which they actually live and preach – or they will be replaced with those will.
One day, it will be commonplace for courts to annul marriages that they decide should be terminated.
We’ll look back at the Aguna Crisis (along with so many other issues – another chat, friends) and wonder how we could have let it persist for so long.
“Everyone who marries, does so by dint of the court’s dispensation.”
כל המקדש אדעתא דרבנן מקדש
