Saturday, September 13, 2008

A brief history of divorce halacha

Shavua tov,

Being that one of the mitzvot in this weeks parsha is about divorce, I happened to see a few divrei torah related to the subject of divorce and agunot. Below is a dvar torah from Rabbi Avi Weiss of the Hebrew Institute of Riverdale that I think gives a short history as to why we have the problem of agunot nowadays. This ties in very nicely with Jameel's post the other day.


RABBI AVI WEISS Shabbat Forshpeis

This week's portion touches upon the controversial issue of spouses who refuse to grant a Jewish divorce (get).

The Torah states "and he [the husband] shall write her a bill of divorce and place it in her hands" (Deuteronomy 24:1). In other words, the giving of a get is the husband's exclusive domain. While it is difficult to pinpoint why the Torah so decreed, it could be suggested that since women in biblical times found it difficult and even impossible to fend for themselves socio-economically, they would never desire a get. Yet, as pointed out to me by Rabbi Shlomo Riskin, the pendulum swung as time went on.

The unilateral right of the husband to divorce his wife was limited by the advent of the ketubah (marital contract) which details the many obligations that a husband has to his wife, including an amount of money that his wife would receive in case of divorce. In this way, a husband's absolute power to divorce his wife was severely restricted through this financial obligation.

The unilateral power of the husband to give the get totally disappeared one thousand years ago when Rabbenu Gershom declared that a get could not be given without the wife's consent. If the ketubah made it difficult for a husband to unilaterally divorce his wife, Rabbenu Gershom obviated that unilateral power in its entirety. The get became a bilateral process rather than a unilateral one.

With time, the get process entered yet a different stage, a stage in which women could initiate a get. In the middle ages, for example, central communities in Europe were governed by the Va'ad Arba Aratzot, the committee of the four major Jewish population centers. Jews there had their own political sovereignty and judicial autonomy. If the bet din found a wife's claim reason for divorce, it was powerful enough to order the husband to give the get. As long as the bet din was strong enough, the agunah matter was resolved.

The situation here in the United States is different. Because of the principle of separation of Church and State, the bet din has no legal power to implement its decisions. This has created a situation where a husband could blackmail his wife by demanding exorbitant sums of money or custody of their child(ren) before giving his wife a get, even when the bet din believes the get should be issued.

While America has seen an unprecedented amount of Jewish life and activity, it has not reached the level of the Va'ad Arba Aratzot. Both the leadership and the people are at fault. The population refuses to submit to the will of the Bet Din, and the Bet Din has not worked hard enough to earn the respect its constituents. Until this vicious circle is broken, the agunah problem, a problem that has been successfully addressed in the past, will remain one of the most painful issues we face today. © 2008 Hebrew Institute of Riverdale & CJC-AMCHA. Rabbi Avi Weiss is Founder and Dean of Yeshivat Chovevei Torah, the Open Orthodox Rabbinical School, and Senior Rabbi of the Hebrew Institute of Riverdale.

Wherever I am, my blog turns towards Eretz Yisrael טובה הארץ מאד מאד


annie said...

The problem is not only in the US. The problem is everywhere in the Jewish world today, even (or especially) in Israel. In fact, outside of Israel, some countries (I think the UK and the US) have decreed that in order for a civil divorce to be granted, a get must be granted first, so there is a measure of leverage for the Jewish female divorcee. However in Israel there is no civil divorce and therefore no leverage for the woman. Many women are trapped not as classical agunot, where the husband has run off, but are trapped as me'ukavot get - their gets are being withheld by malicious husbands and uncaring batei din.

Even when the Bet Din is on the side of the woman, the husband has a huge amount of leeway in blackmailing the woman into accepting extrememly unfavourable conditions in order to receive her get. I saw this when my sister got divorced 20 years ago, and I'm seeing this again with my cousin who is divorcing her violent husband. These were both religious marriages - yet these supposedly "religous" men had no compunction is harshly mistreating their wives.

Until the Batei Din grow some spine and harshly punish recalcitrant husbands there will be no end to this disgrace. It makes a huge chilul Hashem on top of everything else.

Anonymous said...

But still there is little being done for men who are left as chained husbands. So many people don't even realize that it can and does happen.

There are also women who blackmail their husbands into accepting an unfavorable divorce settlement (for the man).

Jerusalemcop said...

Annie: You are 100% right that that this issue is more than just in the US. Obviously the dvar Torah was written assuming that the intended readers were in the US. But as you see from the history, the main reason the rabbanim changed the way everything worked was because of the fear that men would divorce their wives "just for the hell of it" The batei din definitely need to grow a spine, but for some reason they have feared doing so.

Anon: as a former "chained" husband myself, (for 16 months) I know what you are talking about. I had to give up my half of my apt in order to get her to agree to a divorce. It was worth it to me just to be free, so I can definitely understand what you mean.


Anonymous said...

No one ever talks about the rights of the husband, or more precisely the father. It doesn't matter for instance that the father might be the better parent. The courts automatically give over custody to the mother, and the father has to fight just to get an alternating Shabbos with his kids.

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