Alice Shalvi

Agunah - the Abandoned

[German]

Marriage: The traditional halakhic marriage ceremony is an act of purchase (kinyan) that, according to Jewish law, makes the wife the property of her husband and places her under his authority. The Hebrew word for husband is, in fact, ba’al, that is “owner.” The verb from this noun - li’vol – means “to have intercourse (with a woman).” However, the marriage contract (ketubah) also gives the woman security, her husband being obligated to honour, support and maintain her in proper style, pay her medical bills, ransom her if she is taken captive and provide for her burial. He is also obligated to satisfy her sexually. The ketubah also protects her in case of divorce, obligating the husband to pay a sum over and above the dowry he received with her. Since the 11^th century, halakha has also ruled that the woman must agree to the divorce.

Divorce: While either husband or wife may request a divorce, the rabbinical court (bet din) must authorise it and it is not effective until the husband of his own free will and being of sound mind places the get, or bill of divorcement, into his wife’s willingly outstretched hands. (The rabbinical courts’ initial response is, frequently, to suggest shalom bayt, namely an attempt at reconciliation.) Should the husband not perform the required act, the wife is powerless to attain her freedom.

The reasons for such refusal may be sheer spite, the desire to profit by demanding a “ransom” in the form of property or payment, or a display of power. The man also has less of a motive for desiring a divorce, since he may co-habit with another woman, provided she is unmarried and even have children by her, without their being considered mamzerim (bastards) – an option not available to the wife, who would be considered an adulteress.

There are several options available to the rabbinical court should the man refuse to grant the get once it has been authorised. These range from k’viat get – ruling that there must be a divorce, through hiuv get – ordering a get – to k’fiat get – compelling a divorce, even if this entails using physical force or other means of persuasion, such as ostracism or excommunication. In Israel, compulsion can include imprisonment. As a last resort, the courts can also annul the marriage, though usually they are reluctant to do so, since this cannot be considered as something done willingly by the parties concerned.

There are also two ways to prevent the withholding of a get: pre-nuptial agreements, whereby both parties undertake not to impede or delay the granting or acceptance of the get; and a conditional get, whereby the husband agrees that in case of his disappearance it will be as if the wife has received the get from him.

In some places (the State of New York and Canada), Jewish couples cannot receive a civil divorce if the get has not occurred. In Israel, where there is neither civil marriage nor civil divorce, hundreds of women are being held ransom by recalcitrant husbands or husbands who have “disappeared,” often by going abroad. They are in a tragic limbo – neither really married nor free to marry again. So far, the rabbinic authorities have shown little willingness to address the problem seriously or sympathetically. Yet every year an average of 15-18 Israeli men whose wives have refused or been unable (for reasons of mental illness) to accept the get receive rabbinical approval to take a second wife without being divorced from the first – this despite the fact that there is a civil law forbidding bigamy! In all the 53 years of statehood, only 14 men have been “coerced” into giving a get. Could there be a more blatant example of the inequities from that women suffer at the hands of the Orthodox rabbinical establishment? The problem cries out for solution. Fortunately, women of all religious denominations and from all over the Jewish world have joined together to challenge halakhic (mis-) rule. Let us hope and pray that they may be successful!

Prof. Dr. Alice Shalvi: Born in Germany in 1926; educated in England (1934-1949); Aliyah (1949). Member of the English Department of Hebrew University (1950-1990). Principal of Pelech, Religious Experimental High School for Girls (1975-1990). Founding chairwoman of the Israel Women's Network (1984-2000). Married to Moshe Shalvi, editor and translator, since 1950. Mother and grandmother. Until recently Rector of the Schechter Institute of Jewish Studies in Jerusalem (1996-2000).