With Jewish marriage and divorce both derived from ancient property law, the balance of power for each lays with the man: The man gives the wife a ring, repeats an ancient formula in front of two witnesses, and they’re married. The man hands his wife a get (a Jewish bill of divorce), states that his wife is “free to become the wife of any man,” and the union is dissolved.
Because husbands have so much power over the wife in a divorce situation, they sometimes use this power to extort money, property, or other concessions from the wife in exchange for granting her a get. If the husband refuses to give her a get or for some reason cannot do so, the wife becomes an agunah, a chained wife who, according to Jewish law, cannot remarry. The obstacle to remarriage is that any children she conceives will be mamzerim–who can marry only other mamzerim or converts. The husband, however, is free to remarry, because biblical law allows polygamy, and only a rabbinic ban prohibits it.
Before the modern era, the agunah issue was somewhat less of a problem. When Jewish communities were strong and rabbis had more power, the husband could often be persuaded to give his wife a get–through negative public opinion, social ostracism, and even excommunication. Today in Israel, the rabbinic courts still have the power to use sanctions against a recalcitrant husband or imprison him, but some have accused them of not using these tools extensively.
Potential resolutions for the agunah issue have been sought in both secular and religious realms. One example, known colloquially as the “first New York State Get Law,” withholds a civil divorce until all barriers to the spouse’s remarriage are removed. Such a law, however, has the potential to be ruled invalid because of church-state issues. And according to Jewish law, any coercion by a civil court must be at the behest of a Jewish court or a resulting get will be invalid.
Religious solutions to the agunah problem vary across the Jewish movements. For traditional Jews who accept that the children of a woman who remarries without a get are mamzerim, any proposed solution must be accepted as halakhically valid across the Orthodox movement. If a particular solution is accepted in some quarters and not in others, then the children of remarriages will still have the status of “mamzer.” A partial solution that has gained currency and halakhic approval in recent years is for a couple to sign a prenuptial marriage protection agreement. These agreements can help secure a woman’s freedom to remarry in case of divorce. Another course of action is for a rabbinic court to annul a marriage if it finds that the husband had some “defect” that the wife did not know about when they married (such as mental illness) or that some aspect of the marriage ceremony was not “kosher” (such as the witnesses were not valid).
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