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.
Using Sanctions Against a Recalcitrant Husband
It is important to note that while sanctions are available, the process to implement a sanction is protracted and comprises three stages: first, a decree by the beit din, followed by two secular stages. According to the rabbinical courts' own statistics, in January 1998 sanctions have been imposed 106 times in three years, and have only achieved the desired goal of divorce in 43 of these cases.
Imprisonment, moreover, is only used in about one or two cases a year. Imprisonment is so rare because in practice, the couple has to have been separated for at least seven years, in addition to which the woman has to prove that the man is impotent, gay, or violent. According to International Jewish Women's Human Rights Watch, eight recalcitrant husbands are now in prison in Israel for refusing their wives a get.
Extortion Sometimes Yields Get
It is also not uncommon in both Israel and America for husbands to extort money from their wives. Susan Weiss, an attorney and director of Yad L'Isha, another Jewish organization helping free wives from agunah, points out that some husbands will not issue the wife a get unless she contractually agrees to indemnify him (reimburse him) for any future support awarded by the court. This, in essence, deprives her of alimony and child support. Other times, Weiss points out, husbands demand money or concessions in return for issuing a get.
Secular Law Helps Agunot
Under Israeli law and in a few North American jurisdictions, such as New York and Montreal, withholding a get is considered a compensable injury under tort law, which addresses private or civil wrongs or injury. Initiating action in civil court under tort law often causes a recalcitrant husband to have "a change of heart."
The Israeli civil court has ruled that "unlawful infringement of personal feelings as a result of not honoring a person's basic right to shape his life as he wishes constitutes an infringement of the welfare of that person, and it is encompassed by the definition of 'injury.'"
Similarly, in April 2001, a New York Supreme Court judge held that a husband who withholds a get is liable for the tort of intentional infliction of emotional distress.
What is colloquially known as the "first New York State Get Law" withholds a civil divorce until all barriers to the spouse's remarriage are removed. Halakhic [Jewish legal] authorities, including the widely respected Rabbi Moshe Feinstein, approved of it.
The law, however, was heavily criticized mostly from an American constitutional perspective. The law will work to help agunot only if it is the husband who applies for a civil divorce while denying a get. If it is the wife who applies for a civil divorce, or if the civil divorce was granted before the religious, the first New York Get Law is of little use.
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