March 12, 2024|ב' אדר ב' ה' אלפים תשפ"ד The Plight of Agunot: Our Communal Responsibility By Rabbi Jonathan Muskat

Our holy Torah believes in the beauty of marriage. At the dawn of creation, the Torah states, “al ken ya-azov ish et aviv v’et imo v’davak b’ishto v’hayu l’vasar echad,” or “therefore, a man leaves his father and mother and clings to his wife so that they become one flesh”. The process of marriage begins with “kiddushin,” which literally means “sanctity.” The bond that husband and wife create in the institution of marriage is a holy bond. Naturally, in the context of marriage, a couple will face challenges and the Torah advocates that a couple rise to face these challenges and try to overcome them, to use them as opportunities to further strengthen their relationship.

 

That being said, there is a halachic institution called “gerushin,” or divorce. The Torah understands that under some circumstances, it is not healthy for a couple to remain together and we recognize the separation between husband and wife with a legal document called a gett. This document will allow each party to move forward with his or her personal life and perhaps start a relationship with a new partner. 

 

Unfortunately, sometimes one spouse is unwilling to deliver a gett, sometimes as an act of spite and sometimes as an act of extortion to achieve a more favorable divorce agreement. Halacha believes that this refusal is a form of abuse. The Jewish community has a halachic obligation of “lo ta-amod al dam rei-acha,” of not standing idly by when a friend is in pain. When the marriage is functionally over, we must do whatever we can to help facilitate the delivery of a gett when one spouse refuses to deliver or receive a gett.

 

What does this responsibility of “lo ta-amod al dam rei-acha” look like in practice? First, it means that every community must encourage every couple before they get married to sign a halachic prenup. If they didn’t sign a halachic prenup then they should sign a halachic postnup. In fact, a few years ago, our community had a “postnup party.” We invited Rav Mordechai Willig to deliver a shiur to our community and he shared with us the history of how he gained broad halachic consensus to the halachic prenup. After the shiur, many couples who hadn’t signed a halachic prenup when they got married signed a halachic postnup.

 

If a couple did not sign a halachic prenup, and one spouse does not want to deliver or receive a gett, then the community must get involved if doing so will be helpful. It is important that the spouse seeking the gettgo through the process of going to a reputable Beit Din, like the Beit Din of America, and having the Beit Dinsummon the recalcitrant spouse to come to court. The Beit Din will rule on whether the husband should deliver the gett. The Beit Din will need to clarify that the marriage is functionally over and it will need to provide both parties the opportunity to appear in court to facilitate delivery of the gett.  

 

In Eastern Europe over one hundred years ago, the gett was signed after all the terms of the divorce were finalized. Therefore, a Beit Din today may often order the delivery of a gett at the time when the divorce agreement is finalized if it looks like that will happen in the short term. If the Beit Din goes through this process of clarifying and concluding that the marriage is functionally over and the sides are not planning to sign a divorce agreement in the short term, the Beit Din should order the husband to deliver and the wife to receive the gett If a spouse refuses to comply with the order of the Beit Din, the Beit Din will publish a seruv, which is a document asserting that the spouse refuses to either deliver or receive a gett. 

 

What is the next step? Should communities publish the seruv and use communal pressure to convince the spouse to comply? The answer is maybe. When I have been faced with this situation, I told the wife in each case who was trying to secure a gett that I will do what ORA tells me to do. I am not an expert in how to leverage communal pressure to convince a recalcitrant spouse to deliver or receive a gett. ORA is an organization that knows best practices in how to most effectively use the seruv to help pressure a spouse to deliver or receive a gett, as the case may be. For example, is it better to publicize the seruv and create an adversarial situation immediately or is it better to use the threat of publicizing the seruv as a means to pressure a spouse to deliver or receive a gett? I would rather that the experts at ORA answer that question in each particular case. 

 

I remember one time when I had informed my shul’s executive board about a seruv against an individual. I wanted to inform the members of the board that I planned on publicizing the seruv and the implications of doing that. The entire executive board was very supportive. At the last minute, a representative from ORA advised me not to publicize the seruv as she believed that there would be a more effective way to secure the gett. Indeed, a few days later, the gett was delivered.

 

The plight of agunot is nothing short of heartbreaking. As communities, we should do all that we can to alleviate that plight, including creating a culture that every married couple in our community sign either a halachic prenup or postnup agreement. We should encourage couples going through a divorce to have a reputable Beit Din facilitate the delivery of a gett. We must understand that just like with secular court proceedings, the process in securing a gett or, unfortunately at times, a seruv, may take some time. At the end of the day, communities must be prepared to lean on wonderful organizations like ORA and leverage the power of the community to apply pressure when necessary and advisable to hopefully alleviate suffering of agunot in our community.