Viable Solutions to the Aguna Problem - Part I by Rabbi Howard Jachter

1998/5759

Introduction

            The halachic community is faced with a very serious problem.  On one hand, the problem of Agunot is a most serious issue that should be a primary communal concern.  In fact, as a member of the Beth Din of Elizabeth, this author devotes much time dealing with situations of Igun.  With God's help and with much effort we have successfully resolved many problem situations.

            On the other hand, the halachic community is faced with a phenomenon that poses serious concerns for the Orthodox community.  We are referring specifically to the court that annuls marriages of Agunot, which consists of Rabbi Emanuel Rackman, Rabbi Moshe Morgenstern, and an unnamed third rabbi.  Virtually the entire Orthodox rabbinate (including the entire Orthodox rabbinate of Teaneck) has publicly declared that they do not recognize this court's rulings as halachically valid.  In fact, the (RCA-OU) Beth Din of America has repeatedly sent letters to every member of the Rabbinical Council of America, urging in the strongest of terms, that this court's rulings not be honored.

            In the next few weeks we will briefly outline some of the reasons this court's proceedings are not recognized by virtually the entire Orthodox rabbinate.  However, before we criticize others, we will outline viable solutions to the Aguna problem.  We will discuss the issues of prenuptial agreements, severe communal pressure, rabbinic persistence, discovering certain marriages to be invalid, and the 1983 New York State Get Law.

            It should be noted at the outset that the halacha restricts the situations in which a spouse can be coerced to give Get (see Gittin 88b; Ketubot 77a; Shulchan Aruch, Even Haezer 134:4-9 and chapter 154).  Only leading rabbis with great expertise and experience in this area of halacha are competent to issue rulings regarding which actions do not constitute illicit coercion of a spouse to participate in a Get ceremony.  We will present the views of leading rabbis regarding the varied methods of securing the cooperation of a recalcitrant spouse.

 

Prenuptial Agreements

            A major tool in the struggle to eliminate problems of Igun is the prenuptial agreement.  On many occasions in past years, we have discussed the prenuptial agreement formulated by Rav Zalman Nechemia Goldberg and Rav Mordechai Willig.  (These agreements and explanations of the agreements appear on the internet at www.orthodoxcaucus.org.)

            Rabbis who officiate at Get proceedings have seen positive results from the use of prenuptial agreement.  A properly formulated prenuptial empowers the rabbinic court by giving it standing in civil court.  A problem posed by living in a society which separates religion and state is the disempowerment of the rabbinate, especially in regards to resolving difficult "Get situations."  This author has witnessed recalcitrant parties, who have signed halachically sound prenuptial agreements, give Gittin because of the enhanced stature given the Beth Din by the prenuptial.

            It should be noted that Rav Moshe Feinstein (Igrot Moshe Even Haezer, 4:107) writes, regarding signing a binding arbitration agreement which assigns jurisdiction to resolving a Get dispute to a specific Beit Din, - "This is halachically permissible to do and a Get given in the wake of such an agreement will not be considered illicitly coerced ("Get M'eusah"). Saving both parties from being trapped in an Aguna situation is indeed a matter of great importance."

            It should be noted that Rav Mordechai Willig's prenuptial agreements have received the approval of halachic luminaries such as Rav Ovadia Yosef, Rav Yitzchak Isaac Liebes, Rav Zalman Nechemia Goldberg, Rav Gedaliah Schwartz, and Rav Hershel Schachter.  Nonetheless, Rav Moshe writes (in 1980) that the Rav who officiates a wedding should be careful not to urge a couple to sign such an agreement if it will cause fights.  This approach is similar to Rav Moshe's approach to Tay- Sachs testing (Igrot Moshe, Even Haezer 4:10).  Rav Feinstein favored testing couples for Tay-Sachs but not in a manner which would cause social problems.

            It appears to this author that just as the observant community has successfully taken proactive measures to significantly reduce the incidence of Tay Sachs disease, without causing social problems, the observant Jewish community can take effective measures to have everyone sign a halachically acceptable prenuptial.  The more couples who sign a prenuptial agreement (or even married couples who sign a postnuptial agreement) the less controversial the procedure becomes.  If everyone signs the prenuptial then it will not be a source of a dispute or ill feelings between the couple; it will just be a standard procedure of a Jewish wedding. 

            At this author's wedding, someone complained to my father-in-law when he saw me signing Rav Willig's prenuptial - "what do you need this for?" was his claim.  My father-in-law, Rabbi Dr. Shmuel Tokayer promptly responded with the Talmudic phrase "Lo Plug Rabbanan," we make no exception to the rule.  Chazal did not say that only certain couples should sign a Ketuba - they decreed that everyone must sign a Ketuba, "Lo Plug Rabbanan."  No one should sign the agreement with the primary intention of protecting themselves from Igun.  Rather, the primary intent should be to help others and to make a lasting impact on Am Yisrael by helping reduce the scourge of Igun.

            Finally, it should be added that signing a proper prenuptial serves "L'hotzi Milibam Shel Tz'dukim," to counter the claims of the heretical "Sadducees" (Chazal instituted a number of practices to counter the heretical claims of the Sadducees, especially in the area of Korban Ha'omer and Parah Adumah).  Universal adoption of the practice of signing a halachically sound prenuptial agreement counters the unjustified claim that halacha is unsympathetic to those suffering with a problem of Igun.  It also proves the capability of halacha to effectively grapple with the challenges of the contemporary situations.  Rav David Zvi Hoffman (Melameid L'hoil III: 33) writes, in the context of discussing the establishment of a tradition how to write Gittin in Brussels, Belgium that, "In our time it is a Mitzva for us to take proactive steps so that the skeptics should not be able to criticize us by saying that Orthodoxy has severely declined and is incapable of doing anything unless previous generations have done it for them."

            It must be emphasized that no couple who uses Rav Willig's agreements should modify them without consulting an eminent halachic authority and an attorney with great expertise in this area of law.  Rav Willig spent years meeting with great rabbis and attorneys to carefully craft the agreement to meet stringent halachic and secular legal standards.  Any modification may render the agreement halachically and/or legally invalid or ineffective. 

            For example, Rav Willig secured the agreement of many halachic giants that a husband agreeing to give $150 per day in support payments for the duration of the marriage to one's wife (i.e. until he gives a get) does not constitute illicit coercion. This is based on rulings of the great Rav Yaakov Lisa (the author of "Netivot," and "Chavat Da'at"). that appears in the Pitchei Teshuva Shulchan Aruch, E.H. 134:9. If, however, one writes that he will give his wife $1000 a day until he gives a Get, a Beit Din will consider the agreement to be invalid (see Rama on Shulchan Aruch, E.H. 134:4 and Pitchei Teshuva 134:11).  A payment of $150 per day constitutes support payment to the wife; a payment of $1000 per day constitutes monetary coercion to give a Get, for most people. 

 

Rabbinic Persistence

            More than seven years of experience of serving on rabbinic courts has taught this author that a rabbinic court which politely but persistently contacts the recalcitrant party will often eventually convince a recalcitrant spouse to participate in a Get ceremony.

             A Beit Din which pursues justice ("Tzedek Tzedek Tirdof") will often produce positive results. The Rambam (Hilchot Sanhedrin 2:7) writes that a member of a Beit Din "must posses a courageous heart, willing to save the oppressed from the hands of the oppressors."  The Rambam cites Moshe Rabbeinu's saving Yitro's daughters from the shepherds as a model for a Dayan's behavior.  The rabbinic court often needs to be willing to inconvenience itself by accommodating a recalcitrant spouses's request to come to his or her office or house to administrate a Get at odd hours of the day.  A Get should preferably not be performed at night, Chol Hamoed, Rosh Chodesh, and the month of Iyar, however, in case of great need a Get can be supervised by a Beit Din on these dates (see Shulchan Aruch, Even Ha'ezer 123:5, 126:6, 127:7; Aruch Hashulchan 126:15 and 154: Seder Haget 3-4, Kitvei Ha-Rav Yosef Eliyahu Henkin 2:144-145, and Beit Yitzchak 26:219 where the practice of Rav Moshe Feinstein is cited).  In fact, Rav Henkin writes that Gittin in America (where rabbis have no legal powers) should always be considered "Makom Igun," an emergency situation. Thus Rav Henkin ruled (and practiced) that Gittin in this country may, if need be, performed at night, Rosh Chodesh, Chol Hamoed, and the month of Iyar.

            When choosing a Beit Din to resolve a potential problem of Igun, one should choose a rabbinic court which engages in a persistent and flexible manner to resolve problems of Igun.  Similarly, the Beit Din designated in one's prenuptial or postnuptial agreement should be one which is known for its proactive approach to resolving problems of Igun.

            A lesson can be derived from the Rambam's description of a king (Hilchot Melachim 4:9).  Among the roles of a king, writes the Rambam, is that he "break the arms of the wicked".  This not only applies to a king but to any leadership position.  Even in a country where the rabbinate has no legal power this can still be accomplished with a combination of perseverance and skill. In addition, the cooperation of lay people such as attorneys (who help agunot pro bono) has helped resolve many situations of Igun. 

            An example of this is Rav Yosef Dov Soloveitchik's courageous fight against the Boston kosher poultry industry for years in the 1930s and the 1940s in a successful effort to establish higher kashrut standards and more humane working conditions for the "shochatim" (see Tradition Summer 1996 pp. 198-201).  Similarly, a Beit Din should skillfully work to stop the unethical actions of recalcitrant spouses.  Moreover, if the recalcitrant spouse's friends, family, and community strongly reprimand him, it is much more likely that he or she will give or receive a Get.  If many people present recalcitrant spouses with an unambiguous message stating that their actions are profoundly intolerable, they most often will not persist in their hurtful behavior.  It should be noted that recalcitrant spouses invariably present a litany of excuses for their behavior.  There is, however, virtually no excuse for ignoring the ruling of a legitimate Beit Din that one should give a Get. Anyone who is in contempt of a recognized Beit Din should be severely ostracized by the Jewish community. 

            Next week, we shall with God's help and Bli Neder, continue our overview of viable solutions to the Aguna problem.  We conclude with the words of Rav Yosef Eliyahu Henkin (Kol Kitvei Ha-Rav Henkin pp.143-144):

"one who withholds a Get because of unjust monetary demands is a thief and violates a sub-prohibition (Abizrie'hu) which is part of the prohibition of murder."

Viable Solutions to the Aguna Problem - Part II by Rabbi Howard Jachter

The Mitzvah of Charoset by Rabbi Chaim Jachter