No Agunah Left Behind: A Proposal to Solve the Agunah Crisis – by Rabbi Zev Farber

At the recent agunah summit, I submitted an outline for a solution to the agunah/mesurevet gett problem. Having sent this to a number of rabbis and agunah activists, I post here a revised version of that proposal. I will begin with an annotated outline and move on to some final observations and a summary.

Annotated Outline

1. Create a network of rabbis and communities who are intent on solving the problem.

I suggest a motto of sorts for this community, styled after the famous pledge of the rangers: “No agunah left behind.” As I wrote about in a different venue, solving the agunah crisis is the job of the rabbis, wielding their halakhic knowledge and authority.[1]

2. Become self-sufficient when it comes to divorce.

One of the political difficulties emergency-style solutions—like the Rackman beit din—come up against is the fact that they only exist as emergency problem solvers. In other words, the vast majority of gittin, where there is no agunah issue, are done through the auspices of people or groups who may not subscribe to the “no agunah left behind” philosophy. This fact leaves the more left-wing Orthodox community open to the claim that when things are easy we go to the “real batei din and mesadrei gittin,” but when we don’t like what they say we create our own “fake batei din.”

3. Agree to use only batei din and mesadrei gittin who see themselves as part of the network.

I suggest this not only for agunah cases, but for any case of divorce whatsoever. I imagine that this will mean a radical shift in the divorce process in our communities.

4. Rabbis who perform life-cycle events should be trained as mesadrei gittin.

There is far too much emphasis on how complicated and technical siddur gett is, which I believe functions to obfuscate the process and place it into the hands of a select few. We should create a network of soferim and a core of people with training and experience who can show rabbis how to do the ceremony. After a while each rabbi in our network will be self-sufficient in presiding over the divorces in his own community with a direct connection to the soferim. If and when an agunah case arises, the rabbi will be the woman’s chief advocate.

5. Ensure that our system is professional, transparent and user-friendly.

Part of doing this means that the power in the vaad cannot only be the mesadrei gittin themselves but there must be oversight from community leaders as well.

6. In cases where an agunah situation does arise, the problem will be solved.

When the solution is unclear to the rabbi requested to do the gett, there will be a central body of rabbis, posqim, scholars, and lay-leaders (including and especially women) who will be the advisory committee for that rabbi on how to solve the problem in each case. This body will help the rabbi and the woman explore the halakhic options, whether it be qiddushei taut (declaring the marriage invalid), hafqa’at qiddushin (annulment), or some other mechanism.[2]

7. When necessary, the vaad must be willing to bypass the husband entirely in finding a solution.

With the gett hanging over the head of the woman, there are simply too many instances of abuse, where withholding of the gett is threatened or implied so that women give up many of their rights, whether financial or custody, in order to ensure receiving the gett. Additionally, a recalcitrant husband can cause delays and other unpleasantness. For this reason it must be made clear to all parties that the vaad/beit din will resort to solutions that totally bypass the husband if need be. He holds no power over her in our court.

8. The group is a vaad with an attached beit din because it must include lay members, pulpit rabbis, and community leaders of both genders.

This is for two reasons. First, it is never safe to have only one interest group hold all the power. Even ignoring the possibilities of bias or corruption, every group sees matters through the lens of its own experiences. Having more than one type of person in the vaad/think-tank will facilitate a robust and honest process. Second, freeing agunot has accidentally slipped into magical thinking—as if some special rabbis have the “power” to free these women. Declaring a marriage invalid (I refer here to qiddushei ta’ut, not hafqa’at qiddushin) is not a ma’aseh beit din (rabbinic act)—the rabbi simply clarifies the fact that the marriage was invalid. This can and should be done by the woman’s rabbi, not by a third party beit din or poseq, even if said party is needed for a consultation. Additionally, although annulling a marriage (hafqa’at qiddushin) is a ma’aseh beit din—and the advisory committee should have members who can also form the beit din—there is no reason why the pulpit rabbi himself should not be part of this beit din, especially when the woman in question lives in his community and the decision effects his community.

9. All rabbis in this network must agree to only perform marriages with prenuptial agreements—specifically the Tripartite Prenuptial Agreement.

Although one may choose to use the RCA prenuptial—or some other version of this type of prenuptial—in addition to the Tripartite, nevertheless, all weddings should include this agreement as it creates the possibility of totally bypassing the husband if he is recalcitrant. The RCA prenuptial, in contrast, makes use of penalty clauses which require enforcement by secular authorities and the cooperation of the husband.

10. The community at large should pressure their rabbis and their synagogues to be part of this network.

Furthermore, the community should pressure their synagogues to make having a prenuptial or postnuptial agreement a membership requirement for married couples, and to hire only rabbis who are part of the “no agunah left behind” network.

11. The goal is to create a system that works and is accepted by a large community, despite the strong probability that many on the right will reject the solution.

The best is the enemy of the good here, and total consensus is impossible in the current climate. Nevertheless, our goal is to create a large enough network such that any agunah/mesurevet gett will have a place to turn. We must commit to these women that we will have them freed from their dead marriages, that we will perform their future marriage(s), and that we will defend their children from the pernicious claim of mamzerut.[3]

The Logic of the Proposal

Imagine the world of Jewish marriage and divorce as a pyramid. If we start from a firm base we can build something vast. If we start from the pointy top and try and build backwards it will not work. To illustrate: There are many marriages in the Jewish world, there are less, but still many divorces, of those marriages that end there are some agunot/mesuravot gett. We cannot focus only on mesuravot gett to solve what is a systemic problem (rabbinic paralysis, and the weak position of women in the process.)

Similarly, there are many cases of mesuravot gett. Some can be handled by invoking a prenuptial (if there is one) or with a strong phone call from the man’s rabbi. In cases where this does not work, many can be solved by a robust use of qiddushei ta’ut. Of those that cannot be solved by persuasion or qiddushei ta’ut, the rest can (must?) be solved by hafqa’at qiddushin (dissolving the marriage). However, for this chain of events to have practical effect, there must be “buy-in” from the beginning; the rabbinic and community participants must sign on to a marriage-divorce system that buys into this approach before matters come to a head.

Therefore, we must begin with a campaign of rabbis/congregations/lay leaders/agunah activists who are willing to say that we are solving this problem. Period. No agunah left behind. The benefit here is that by signing on in advance, the rabbis have skin in the game and the communities have skin in the game. With a large base, hopefully, this pesaq will quickly become minhag yisrael in the Open Orthodox world.

Brief Summary

1. Every member of the group agrees to use the Tripartite Prenuptial Agreement.

2. Rabbis in this group agree to learn siddur gett. This will contribute to ending the mystification of the divorce process at the expense of the average rabbi and his congregants.

3. The rabbi agrees to use qiddushei ta’ut when it works, and will consult with this group’s vaad to learn how to pasqen these questions.

4. If there is no other way, the rabbi will join with members of the vaad to form a beit din to do hafqa’at qiddushin - as a last resort.

Conclusion

I hope that the larger Open Orthodox and even Modern Orthodox community will take this proposal seriously, and with that may we end this blight on our community and this desecration of God’s name for all time. We must do what is right and, in the end, our community will be stronger for it and our Torah will again be a Torah of life. Hopefully our system will be a “light to the right” as well, and, speedily in our days, the problem will be solved for all Jewish women from any community.

Zev Farber


[1] To be clear, I do not consider sending thugs to beat up on recalcitrant husbands as a legitimate solution or as an example of wielding halakhic authority.

[2] I will explain more about this and other halakhic mechanisms in future postings.

[3] Here is a schematic look at the outline:

  1. Create a network of rabbis and communities who are intent on solving the problem.
  2. Become self-sufficient when it comes to divorce.
  3. Agree to use only batei din and mesadrei gittin who see themselves as part of the network.
  4. Rabbis who perform life-cycle events should be trained as mesadrei gittin.
  5. Ensure that our system is professional, transparent and user-friendly.
  6. In cases where an agunah situation does arise, the problem will be solved.
  7. When necessary, the vaad must be willing to bypass the husband entirely in finding a solution.
  8. The group is a vaad with an attached beit din, not just a beit din, because it must include lay members, pulpit rabbis, and community leaders of both genders
  9. All rabbis in this network must agree to only perform marriages with prenuptial agreements—specifically (but not limited to) the Tripartite Prenuptial Agreement.
  10. The community at large should pressure their rabbis and their synagogues to be part of this network.
  11. The goal is to create a system that works and is accepted by a large community, despite the strong probability that many on the right will reject the solution.
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20 Responses to No Agunah Left Behind: A Proposal to Solve the Agunah Crisis – by Rabbi Zev Farber

  1. Bahtya says:

    Is this system meant to be implemented in Israel or America, or both? In Israel, I can’t imagine this working or becoming widespread unless it was in conjunction with, or under the auspices of the Rabbanut. And, I hope someone proves me wrong, but I don’t see the Rabbanut agreeing to anything like this without a major dynamics-of-the-country-changing fight.

  2. Avi says:

    Congratulations, you will have forever split the Jewish people into two peoples that can’t marry each other. I hope you’re happy.

    • S. Levin says:

      I for one, wouldn’t want to marry into a community that holds women hostage.

      • shaul shapira says:

        i

        No one’s holding her hostage. She can get a civil divorce and legally remarry or go cheat in a night club.
        IMHO, It would actually be more honest than the results oriented “Halachah” peddled in this post.

  3. Yerachmiel says:

    As much as I disagree with many of the policies of the IRF, I find it difficult to believe that they would embrace such a reckless approach to this problem, creating a new class of people who would be deemed ineligible to marry into the Modern Orthodox and Chareidi community.

    It would certainly, once and for all, create a clear and distinct line of demarkation between their movement and the Orthodox community.

  4. rabbihaber says:

    It is one thing to claim that the contemporary rabbinic leadership is not doing enough to solve the problem, and that there are halachic solutions that can be utilized much more readily than they currently are. That is a fair and reasonable position that one can either agree with or disagree with (personally, to a certain extent, I agree with it).

    However, it is something entirely different to begin with a slogan that “no agunah will be left behind” and to then promise that every case – no matter what the details – WILL be solved.

    Declaring in advance that we will solve every problem (and that all that remains is to determine which mechanism to use) amounts to drawing the target around the proverbial arrow. Frankly, that makes a mockery out of the entire halachic process.

    If such a solution were halachically possible, there should never have been cases of agunot, at any point in our history. Indeed, the entire halachic category of aguna should never have existed. Tragically, though, those are not the facts.

    Rabbi Alan Haber
    Alon Shvut

    • Yonatan says:

      Why do you assume that, just because a halachic paradigm exists, we must necessarily accept its practical occurrence? See, for example, “ben sorer u’moreh”. Your last point is factually incorrect, and belies any meaningful understanding of halacha l’maaseh or Jewish history.

      Furthermore, declaring in advance the intention/goal of solving every agunah problem isn’t “making a mockery out of the entire halachic process”! Rather, it is pointing out the systemic failure of the orthodox community to care for women who are abused by the opportunistic perversion of the halachic process by their ex-husbands. By perpetuating this status quo under the guise of “defending halacha”, you effectively condone the abuse of both halacha and a human being, and can only end up on the wrong side of history, humanity and, yes, halacha.

      • shaul shapira says:

        “Why do you assume that, just because a halachic paradigm exists, we must necessarily accept its practical occurrence?”

        Say what???

        “See, for example, “ben sorer u’moreh”.

        What does that have to do with anything? If you’re referring to the fact that according to 1 opinion in Sanhedrin, none ever existed, it’s because the Torah already limited it to cases where it simply never occurred. DR Farber is essentially saying “You can’t kill the poor kid, he’s barely Bar Mitzvah”

        “By perpetuating this status quo under the guise of “defending halacha”, you effectively condone the abuse of both halacha and a human being, and can only end up on the wrong side of history, humanity and, yes, halacha.”

        You really should read volume 9 of RSRH’s collected writings. Dr Wexler also “solved” the Agunah crisis. [1] I suppose RSRH was also on the wrong side of history, humanity and Halachah.

        [1] http://www.feldheim.com/collected-writings-of-rabbi-samson-raphael-hirsch-volume-9.html
        Especially
        Outrage in Hamburg – a criticism of a Jewish community’s response to a forbidden marriage, thereby highlighting the need for independent Orthodoxy

      • rabbihaber says:

        Yonatan,

        I did not defend the status quo. In fact, if you read my first sentence, I actually endorsed the statement that the status quo can and should change.

        Ben Sorer uMoreh is not relevant here. Yes, there are categories in halacha which (as noted, according to one of the opinions in the Gemara) are purely theoretical in nature. However, unfortunately, the agunah was never such a category. The responsa literature is full of real-life examples of women who were agunot for various reasons, and rabbis trying very hard to release them – sometimes successfully, and sometimes not.

        I also recognize that the contemporary situation involves different challenges than those faced by many earlier authorities. And thus our situation may (in fact, probably does) require different solutions. A lot more can and must be done.

        But to start in advance by declaring that we will have a solution to every single case, no matter what the details, does in fact make a mockery out of halacha.

        Specifically, if Rabbi Farber is correct that hafka’at kiddushin can be used in cases where no other solution works, then there should never have been an unsolvable aguna case. However, the reality is that there have been such cases – and to deny that fact “belies any meaningful understanding of halacha l’maaseh or Jewish history.”

  5. Dave says:

    One thing to add to the discussion is that the modern agunah crisis does not reflect the reality of earlier periods of history. We live in open societies, outside of kehilot, with easy access to civil divorce. That makes a situation of mesurav get much more likely, and the need for creative solutions more necessay. I don’t think it is obvious that earlier poskim faced a situation like this.

  6. Moshe Shoshan says:

    “many can be solved by a robust use of qiddushei ta’ut. ”
    Are you proposing something like the Rackman beit din from the 90s?
    Even liberal MO rabbis like Rabbi Lookstein completely rejected this methodology.

  7. There is an underlying cognitive flaw here that must be recognized.
    The post has been written in the great American spirit of “can do”. When an American wants to accomplish something (at least it used to be this way) he would not stop until he found a solution. No problem was too big to fix. This post is simply applying that value to a religion that says “Sometimes, nebbich, there’s no happy answer and we have to live with tragedy.”

    • S. Levin says:

      This is not just an American ‘spirit.’ It is also why Israel has accomplished so much in so little time with so few resources.

  8. Caryn Lipson says:

    What I would like to understand is why no one is looking at the inadequate or incorrect education that boys/men are receiving which makes them think that this is acceptable and not a tremendous aveira to refuse to give a get and hold a woman hostage. And of the lack of education rabbanim receive when they don’t take willfully hurting another person as a serious aveira. Why isn’t the affect on klal yisrael, the fact that some women will get married after a time anyway and/or leave yahadut/orthodox Judaism, what this is doing to their children and the children that won’t be born because the women can’t marry again considered as an egregious aveira? If the same educational and community emphasis was placed on mitzvot ben adam l’haveiro, respect for women who are created btzelem Elokim, and of the effect this will have on their neshamot as is placed on black hats and white shirts, long skirts and covered collar bones, kemach yashan and shiurim for matzot, then perhaps change can occur. IMO, what you are looking at are solutions to symptoms, but not addressing the underlying problems.

    • Ben says:

      it isn’t fair to assume or make the claim that only men receive incorrect or inadequate education. inadequate education is an issue facing both genders especially in terms of mussar and being mentshlich etc.

  9. Gititte says:

    Hi
    I work for “Kolech”- a Jewish religious feminist organization in Israel. I would like to know If we can publish this on our website- of course we would give you credit for it and add a link to your blog. Thanks

  10. Ben Traurig says:

    Caryn was hitting on the same underlying point that keeps coming up in the minds and hearts of all those who truly care about this issue and Yiddishkeit: That is the belief that, if there was a true will to solve the outright and unjust suffering of these women; if there was just one “Pinchas” amongst the orthodox rabbomim / leadership today who found the current situation absolutely intolerable and was willing to be personally moser nefesh to solve it, then the problem would be solved. If that is too American and not enough “nebech” of an attitude for some, so be it. But that would be the Yiddishe, Gdly thing to do.

  11. Ben says:

    Many of the agunah problems in the current orthodox community come from the lack of basic fundamentals of mussar ethics and morals. a lot of other problems stem from this as well and perhaps the solution to all these problems is to better develop human beings who are polite considerate and possess all of the natural attributes inherent to Klal Yisroel and the ones listed in mussar. it just seems as a more effective method to employ one solution to many problems as opposed to tackling each problem individually. there is the quote about the simplest solution being the most effective one… just my humble opinion.

  12. […] the above analysis and my previous post on how to go about this will not convince some Orthodox rabbis and communities, I believe that we […]

  13. […] entitled: “No Agunah Left Behind: A Proposal to Solve the Agunah Crisis”, found at http://morethodoxy.org/2013/10/11/no-agunah-left-behind-a-proposal-to-solve-the-agunah-crisis-by-rab… Rabbi Farber discusses creation of a group to resolve Agunah […]

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