Potential Solutions to the Agunah Problem
Orthodox and Conservative rabbis have worked to create solutions within the Jewish framework, including prenuptial agreements and retroactive annulment.
When a husband refuses to grant a Jewish divorce to his wife, she is an agunah--"chained" to the marriage. Were she to marry again without a get (a Jewish bill of divorce), any children she bears would be considered considered mamzerim, meaning they are allowed to marry only other mamzerim or converts. This article reviews the situation of agunot in Israel and the United States as well as solutions that rabbis have proposed. Excerpted with permission of the author from "A Chained Woman" in the Jewish News of Greater Phoenix.
Jurisdiction of Rabbinic Courts
In Israel, where all aspects of marriage and divorce are handled by the beit din [Jewish court], there is a special division of the beit din dedicated to resolving [divorce] cases that have been shuffled around the rabbinical court system for three years, according to [Dr. Isaac] Skolnik [director of Kayama, an organization whose aim is to inform the Jewish public about the importance of obtaining a get].
In America, by contrast, most divorcing parties are not subject to the beit din (in absence of a prenuptial agreement granting the beit din jurisdiction), and even if they were, the beit din lacks ability to enforce its own decisions. Skolnik also points to American legal problems concerning the division of church and state, a separation protected by the First Amendment to the United States Constitution.
The situation in Israel is a bit more favorable for women, according to Skolnik, since divorcing parties must go before a beit din.
In Israel, if a woman wants to divorce her husband and he does not agree, she must petition the rabbinical courts to decide whether she has grounds for divorce. When the pair do not agree on whether to divorce, the beit din insists on attempts at reconciliation, even after adultery or domestic violence. Once the court decides that the time for reconciliation has run out, they investigate whether the woman has grounds for divorce, and how strong these grounds are. One possibility is that they reject the suit, in which case the beit din does not even consider the woman an agunah. If they do find grounds for divorce, they order the husband to divorce his wife.
There are many cases in which the rabbinical courts have not forced the husband to give a get. In one case, the beit din held that despite the husband having had sexual relations with prostitutes, it is not enough grounds to obligate or compel divorce, since he expressed remorse. The court merely recommended divorce. Similarly, in Israel, domestic violence is often ignored by the beit din if the husband says he wants shalom bayit, a peaceful relationship.