Agunah. An agunah is a Jewish woman anchored to her failed marriage by her recalcitrant husband who refuses to deliver a Jewish bill of divorce (a get) to her.
Jewish marriage and divorce laws and the agunah
Under Jewish religious laws (halakha or din torah), a marriage occurs when a Jewish husband “purchases” (kinyan) his wife and “sequesters” her to him (kiddushin), declaring that she belongs only to him (mekudesht, mekuseshet, mekudeshet) . A Jewish wife remains married to her Jewish husband—effectively his exclusive sexual property— until he agrees to release her from the bonds of holy matrimony by writing a get and delivering it to her. By Jewish law, a husband’s agreement to deliver a get must be given of his own free and unfettered will. If he is forced to deliver a get, a rabbinic court will not recognize the divorce as valid and his wife will still be considered married to him. If he refuses to deliver a get for whatever reason, or if he is missing or incapacitated and cannot deliver a get, his wife remains, according to Jewish law, “anchored” indefinitely to her husband and their failed marriage, an agunah, literally, in Hebrew, a woman held in marital captivity.
The agunah outside Israel
Jewish men and women who marry in accordance with Jewish religious rules outside of Israel are bound by those religious laws by force of custom and community. Unless they leave their communities, Jewish men and women will still consider themselves married if the get ceremony was not completed, even if a civil, secular court of law has declared their marriage over. This means that if a Jewish husband who married in accordance with religious laws does not cooperate with the get ceremony, his wife, though in possession of a secular divorce decree, will still consider herself married. Some jurisdictions outside Israel have passed civil laws meant to help the agunah. These secular laws encourage a recalcitrant Jewish husband to “end all barriers to his wife’s remarriage,” sometimes by precluding him from appealing to the secular court for some, or any, relief; by awarding his wife alimony until such barrier to remarriage is removed, or by awarding his wife a larger share of the marital property. Read more about how various countries have passed secular laws meant to help the agunah. Some have noted –with consternation and irony– how relief for the agunah derives from the gentiles and not from internal decisions of the Jewish community. Other commentators question whether secular laws meant to solve the agunah problem are in violation of the constitutional principle separating church and state.
The agunah in Israel
In Israel, the state requires all citizens and residents to marry and divorce in accordance with the rules of their “millets,” or religious communities. It does not matter if a citizen is a religious person or an atheist.
For Israeli Jews, this means that the state requires them to marry and divorce in accordance with halakha. The state only licenses Orthodox rabbis to marry Jewish couples, as well as to oversee their divorce. In order to receive a marriage certificate acknowledged by the state, Jewish Israeli couples must first marry in accordance with the rules of a religious Orthodox ceremony. In order to receive a divorce certificate from the state, the couple must first undergo the get ceremony. If the get ceremony is not completed for any reason, the state will not recognize the woman as divorced, even if she is separated for a lifetime from her husband. Of particular poignancy are the stories of Yehia Ben Yehia; and Meir Gorodetsky. Yehiya’s wife was finally freed from marital captivity only when her husband died in prison. Meir is still alive and has refused to divorce his wife since 1999. Meir spent over twenty years in an Israeli prison for refusing to divorce his wife. She asked the rabbinic court to release him, noting, inter alia, that holding her husband in jail at the expense of the Israeli taxpayer was serving the interests of the rabbinic courts more than it was serving her.
Israel has given authority to rabbinic courts to apply pressure on husbands to undergo the divorce ceremony. Although Jewish law deems a force divorce invalid, force applied with the authorization of a rabbinic court is considered ok, and will not invalidate the get. Israeli rabbinic courts can prevent recalcitrant husbands from leaving the country; they can take away their professional licenses; freeze their bank accounts; and even put them in jail –as they did in the cases of Yehiya ben Yehiya and Meir Gorodetsky. However, rabbinic courts are reluctant to issue such orders, preferring to procrastinate and to encourage a wife to agree to her husband’s terms for divorce before applying such pressure. Read about the Three Methods of Divorce Resolution in Israel: Rigid Fundamentalism, Extortion, and Violence.
Some Jewish Israeli couple’s choose to express their autonomy from the state and its rabbinic courts, either by marrying in civil ceremonies outside Israel, and/or by consecrating their relationship in religious ceremonies conducted by rabbis who are not affiliated with the state. As a result of a case decided in 2004 before the Israeli Supreme Court, those Jewish couples who marry in foreign civil ceremonies must appeal to the rabbinic courts to oversee their divorce, even if they had specifically eschewed a religious marriage ceremony of any sort. If, however, the couple married in a religious ceremony and did not also marry in a civil ceremony of any sort, Israeli law views the couple as being in a common law marital relationship. Such couples may want to undergo a religious divorce ceremony when ending such relationship (and may have even entered into a prenup agreeing to do so), or not. If they do feel the need to undergo a religious divorce ceremony, some will appeal to the state rabbinic court to oversee that divorce; and some will go to private rabbinic courts to do so. If a husband refuses to cooperate with the religious ceremony, a bride can appeal to the rabbinic courts for help.
The non—Jewish agunah
Jewish women are not the only women living in Israel who can be held in marital captivity by a recalcitrant husband. Because religious laws determine the status of all married women in Israel, Muslim and Catholic women can also be held hostage by their husbands. Under Muslim law, kadis can sometimes declare a marriage over without the agreement of the husband, but this is not a common occurrence. If a Catholic husband refuses to temporarily convert to another religion that allows for divorce, Catholic women living in Israel can be married forever.
Read about Femmes for Freedom fighting against marital captivity of Muslim women outside Israel. They have specifically objected to the state’s suggestion to set up a Sharia Council in the Netherlands to combat martial captivity, stating: “it is the duty of the Dutch State to take all appropriate measures to make sure women in this country are not subjected to an institution which violates their right to equal treatment.”
Israel takes jurisdiction over foreign citizens who refuse religious divorce
Recently, Israeli has expanded its jurisdictional arm over foreign citizens, in particular men who refuse to divorce their wives in a religious ceremony. In these cases, the state will restrain the travel of such recalcitrant husbands who arrive on Israeli soil in order to encourage them to give their wives a get. Sometimes the state will also detain them in prison.
This new law has been approved by the Knesset. Some commentators, Alan Dershowitz among them, have noted that the law may violate rules of international law and human rights. In 2008, Dershowitz wrote:
No rabbinical court should have authority over an American citizen who happens to be Jewish. Religion should not have the compulsion of the government to enforce its decrees, especially against noncitizens who are not even parties to the legal proceeding. Religion should rely on moral persuasion, not state-sanctioned physical force.
Prenups to alleviate the plight of the agunah
Many Jewish couples will choose to sign a prenuptial agreement meant to ameliorate the plight of the agunah. Some prenups provide more substantive relief than others. Read more.