Agunah. An agunah is a Jewish woman anchored to her failed marriage by a husband who refuses, or is unable, 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). A Jewish wife remains married to her 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. Under Jewish law, a husband’s agreement to deliver a get must be given of his own free and unfettered will (a get meuseh). If a husband is forced to deliver a get, Jewish law will not recognize the divorce as valid. If a husband refuses to deliver a get for any reason, or if he is missing or incapacitated and cannot physically deliver a get, Jewish law offers no legal tools with which to declare the marriage over and the wife will remain forever “anchored” to her husband, an agunah, 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 halakha by force of custom and community. Unless they leave their communities, Jewish men and women will still consider themselves married if the get ceremony has not been completed, even if a civil, secular court of law declared their marriage over.
The agunah in Israel
In Israel, the state requires all Jews– whether religious or not– to marry and divorce in accordance with halakha (Rabbinic Court (Marriage and Divorce) Jurisdiction Law of 1953). Jews must marry under a huppah, with an Orthodox rabbi; and they will only be considered divorced if they 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.
Israeli gives authority to rabbinic courts to apply pressure on husbands to undergo the get ceremony (Rabbinic Court (Enforcement of Judgement) Law of 1995). Although Jewish law deems a forced divorce invalid, force applied with the authorization of a rabbinic court is considered appropriate, and will not invalidate a get. Israeli rabbinic courts can and will: issue injunctions against husbands preventing them from leaving the country; suspend husbands’ professional licenses; freeze husbands’ bank accounts; and sometimes incarcerated husbands for years on end. However, rabbinic courts are reluctant to issue such orders. Moreover, if those punitive orders do not convince a recalcitrant husband to agree to the get, Israeli rabbinic judges have not (except on a few isolated occasions) drawn on any halakhic heuristic to declare a marriage over. Read about the Three Methods of Divorce Resolution in Israel: Rigid Fundamentalism, Extortion, and Violence.
The non—Jewish agunah
Jewish women are not the only women held in marital captivity by dint of customary laws. Canon law prohibits divorce for Catholic men and women except under limited circumstances. Shariya law allows Muslim men to divorce their wives against their will, as well as to withhold divorce. (Khadis, like rabbinic judges, hesitate to interfere with a husband’s religious privilege to keep their wives in marital captivity, even though shariya law gives them more opportunity to do so than the halakha.) Because Israel applies religious laws in all matters of marriage and divorce for all its citizens (the millet system), the state is implicated in the marital captivity of its female citizens of all sects and denominations.
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 and the foreign citizen agunah
Recently, Israeli has expanded the jurisdictional arm of state rabbinic courts over foreign citizens, both men and women who refuse to take part in the get ceremony ( Section 4a. Rabbinic Court (Enforcement of Judgement) Law. of 1995). Under the umbrella of the law, Israeli rabbinic courts have restrained the right of foreign citizens to travel back to their country of origin, have fined them, and even put them in jail.
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.”
Though the Center for Women’s Justice condemns all acts of marital captivity, it filed a legal opinion with the Knesset that agrees with Prof. Dershowitz. CWJ is of the opinion that the state cannot correct one human rights violation (marital captivity) by imposing another (violation of right to travel and privacy) in violation of rules of international law. Instead of restraining and incarcerating foreign nationals, CWJ recommends that Israel expand the jurisdiction of Israeli Family Courts to allow those courts to award damages against foreign recalcitrant husbands. .