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.

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Feinstein, whose opinions on matters of halakhah are of enormous importance today, annulled marriages if he could find a defect in the marriage ceremony, including the presumed non-kosher (translation: non-Sabbath-observing) witnesses involved in weddings performed under Reform or Conservative auspices.

Irwin H. Haut, who was an Orthodox rabbi and practicing attorney in the United States, held that the only viable and complete solution is legislation and called for the Israeli rabbinate to enact such legislation. He envisioned a Jewish decree under which "the refusal of one spouse to participate in get proceedings, after the civil dissolution of their marriage, would result in the retroactive annulment of that marriage." The solution resembles what the Conservative movement uses today.

Conservative rabbis do require a get and the Conservative movement has worked hard to find solutions to the agunah problem and yet remain faithful to tradition. Under the leadership of Rabbi Saul Lieberman, the idea of an appendage to the ketubah (marriage contract) was introduced. Known as the Lieberman Clause, it states that if the marriage ends in a civil divorce and either spouse refuses to participate in the get procedures, the matter will go before a beit din and the parties would be bound by the rabbinical court's decision.

If the recalcitrant party would refuse to go before the beit din or follow its ruling, compensation would be imposed and enforceable by a secular court since it would constitute a breach of contract. This clause is rejected by most Orthodox rabbis as invalid because it is indeterminate and vague, apparently cause for halakhic concern. It was also rejected by the Supreme Court of the United States as unconstitutionally entangling church and state.

Rabbi Eliezer Berkovits, an [Orthodox] leader known for creatively combining halakhah with solutions to modern problems, brought forth a suggestion of annulment of the marriage by the rabbinic authorities, if certain conditions, stipulated in a separate prenuptial agreement, were not met. The husband agrees therein that if the wife seeks a divorce and he does not grant her a get, the marriage will be annulled retroactively.

Today, the solution used by the Conservative movement is to annul marriages, based on cases in the Talmud. In short, the concept is that all Jewish betrothals are done with the consent of the rabbis, and the annulment consists of the rabbis removing this consent if the recalcitrant husband refuses to grant a get. This differs from Berkovits' solution, in that no additional conditions or agreements need to be signed. Again, Orthodox authorities have criticized this.

The Reform rabbinate as a whole does not require a get in order to perform a marriage for a Jew who has been previously married. A civil divorce is enough. However, many individual Reform rabbis do require it. The Reconstructionist movement does use a get, but in the case of a woman whose husband refuses to give her a get, a Reconstructionist beit din simply gives her a document that states that she is free to remarry anyway. Clearly, this get is not obtained within the parameters of halakhah. (It should also be noted that some Reconstructionist rabbis encourage couples to obtain an Orthodox get to fulfill any halakhic (legal) requirements that may arise in the future, and the Reconstuctionists get to satisfy any number of personal needs.)

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Soriya Daniels

Soriya Daniels is a freelance writer based in Philadelphia.