Agunot -- The Real Issue is Beit Din

The issue of agunot, again, sadly, has filled the Jewish and -- perhaps even more problematically - the non-Jewish media within the recent past. There is indeed a problem -- and it must be addressed. What I have noticed, though, is that the language that surrounds the discussion, rather that furthering a solution to the problem, actually, in many ways, only extends the problem. We talk about the agunah outside of its proper context and, to find any basis for a solution, we must, rather, define the issue within this proper context. The agunah problem must be placed within the general issue of Beit Din -- and to fully develop a proper and effective response to the matter, we must inherently deal with the modern issues in the place and structure of Beit Din in general. It is only then that we will be able to deal effectively with this specific issue. This, of course, is not to say that the patently criminal behaviour that is found linked to the agunah problem will be solved simply with this recognition but I do believe that by properly structuring the issue within its proper context, we would be able to better develop a method of responding to it. 

Right from the beginning, though, what one may find strange with my assertion is the implicit assumption therein contained that the challenge of Beit Din is not already being addressed. Beit Din would seem to be an essential part of the get process and thus, it would seem, any attempted solution to the agunah problem must already include the matter of beit din. The issue, however, is how we view get issues and, thus, the role of beit din within this process. What I am advocating for is the need to actually see beit din within its proper halachic parameters and this is not presently being done.

We should, perhaps, begin our investigation with how we presently look at the issue of the agunah and, more specifically, the connected perception most have of the giving of a get. In a general way, most people look at the giving of a get as simply a religious act -- an individualistic religious ritual done by a person, who wishes to do religion, in a totally personal context. Beit Din is then simply seen as part of this ritual. Defined as such, the giving of a get is, thus, simply seen to be a religious ritual that has no context outside of the person's religious desire to do the ritual -- albeit that there may be possible, powerful consequences for this individual who feels bound to this religious practice. The result of such a perception is that the one who is blocking the get procedure -- be it the man who does not wish to give it or, and there are cases of this, the woman who does not wish to receive it -- is solely seen as one who is blocking another from fulfilling this personal ritual, that is, meeting this religious obligation -- something deemed to be problematic because of the consequences to the one blocked who, within the context of his/her religious perceptions, cannot go on with their lives, specifically in terms of finding a new relationship. While this description may be applicable, on some level, in many cases, as a base for further movement on the issue, it must be recognized that, structurally, this is not really the way that Halacha actually sees the giving of a get in totality. Seeing the get process within this sole and narrow perspective may actually cause further havoc in the attempt to truly solve the overall agunah issue. We must see the issue within its actual halachic perspective.  

Within the context of Halacha, the get is part of the general divorce proceeding. It is not an isolated personal act but an action undertaken within the context of the court's, i.e. Beit Din's, overview of a divorce. This is not to say that a get necessarily needs a Beit Din, (on this issue, see Encyclopedia Talmudit 3:159) but the minhag [custom] is that it does. Beyond this, practically, the get is part of a process – i.e. the divorce litigation -- that often clearly must involve a court. This is so because of the outstanding issues which are necessarily included in a divorce break-up. Chinuch, Mitzvah 479, in defining this mitzvah of the get, enunciates this perception. The mitzvah is that when a man wishes to divorce his wife, he should do so through the halachic process of a get. The get, within the context of Halacha, is the concluding procedural element of a divorce process.

Let's expand this context. Indeed, originally, a get could be given unilaterally -- and even against the wife's will -- by a husband wishing to divorce his wife. This would, indeed, imply that the act was solely a personal one and not part of a court proceeding (except, perhaps, to ensure that the form of the get is executed correctly). Subsequent to Cherem Rabbeinu Gershon, however, which prohibited a get being given against a wife's will, this would seem to be clearly not the case anymore. The fact is, though, that it was also substantially not the case even prior to the establishment of this Cherem. T.B. Ketubot 39b informs us that the reason why the Rabbis instituted the concept of the ketubah was to limit unilateral action by a husband in this regard. If a husband would unilaterally give a get, he would be liable for the full payment of the ketubah, a substantial amount of money. A husband would thus either re-consider his desire to divorce or wish to go to Beit Din to get permission to give a get without being responsible for the ketubah -- thus clearly bringing the get into the realm of Beit Din. In that T.B. Ketubot 10a presents divergent opinions as to whether the ketubah is of Rabbinic (d'rabbanan) or Biblical (d'oraita) origin, it may even be that this was always an inherent issue within the Torah divorce system. The get was part of the Torah divorce proceedings -- and especially in cases of contested divorces, this necessitated a Beit Din.

This role of Beit Din is reinforced through other aspects of the halachic divorce system. It may be true that Biblically a man could divorce his wife against her will but since Cherem Rabbeinu Gershon this is no longer an option. Unless a wife consents to receiving a get, i.e. consents to the divorce, there is nothing that can be done outside of the Beit Din -- for it is only a Beit Din who can take action if it determines that a get is appropriate and a wife refuses to take one. This is similar in the opposite case as well. While it is the husband who must initiate the get procedure, and this must be done of his own free will, a wife has the right to petition a court for a divorce -- that is to petition beit din to declare that the husband should give a get. See Shulchan Aruch, Even HaEzer c. 154. If the beit din does so order and the husband refuses, the beit din can then take any action to force the husband to do so -- and this is deemed to be a good get given by the husband pursuant to his free will. See Rambam, Mishneh Torah, Hilchot Gerushin 2:20.

Given all this, how can we now understand the get process? In the case where both parties wish the get, there would seem to be no issue -- it would seem similar to any other case, within any other legal system, where there is mutual consent to the divorce. You may even want to define it as a personal matter. The fact is, though, that even in cases where the parties have mutually consented to a get, there are batei dinim who would still be reluctant to proceed, believing that a get in such circumstances is inappropriate within the parameters of Torah thought. This would be similar, in certain ways, to other societal legal systems who would only allow a divorce with cause. Divorce is actually not inherently solely about personal consent. By extension, a get is not really, in any circumstance, simply a personal, religious issue but rather – as with divorce issues within, actually, any legal system – a matter that also inherently involves the society and, thus, societal institutions. A get is a divorce, with all the contextual meanings of this word – and a fundamental role of beit din in the process is as this legal representative of Torah society.

Let us continue with the case of mutual consent, when the parties have agreed to wishing a divorce. We can assume that, in such a case, if there is any other outstanding issues, the parties would have also agreed on how these issues will be reconciled or the parties would have accepted that they would be adjudicated pursuant to given methods of conflict resolution. Like any other litigation, there will be a resolution. By definition, in the interests of society, a divorce will not be granted until these other matters are worked out; the disagreement between the couple will naturally postpone the divorce, regardless of how much the parties may wish for one. Divorce in terms of separating the bond between the two members of the couple is part of a greater realm of divorce in which many additional matters -- custody, property -- must also be adjudicated. Sometimes the marital bond between the couple can be severed before this adjudication but the process for these further determinations must be in place or is inherently in place. If they are not, the severing of the marital bond will, simply, within any normative legal system not occur – not until the court has ruled on these matters. Within the Torah society, this falls also under the role of beit din.

Let us now apply this further to the get. The two parties, in desiring the get, may not be thinking of these additional issues but the fact is that they are there and they have to be addressed. This is part of the process of divorce. The fact is that when a couple, together, approach a beit din solely to arrange for a get, the couple have effectively agreed upon a method of dealing with all the other substantial issues -- thus the only matter before the beit din may be the get, seen in solely religious terms. Essentially, though, from the halachic-legal perspective, with the giving of the get, the beit din is inherently accepting the conclusions reached about the other divorce issues. 

When the two parties, however, do not, together, approach a beit din requesting a get, the full -- and true -- matter of divorce in all its complexity, it must be recognized, is really the issue, not just the get. From a halachic perspective, the issue is not simply that one wants a get and the other does not (or is trying to use the get as an unfair bargaining chip). The issue, from the perspective of Torah, is that one wants a divorce and the other does not. Or the issue concerns the corollary issues that accompany a divorce. The issue is thus really litigation before Beit Din. It is important to note that this litigation before beit din would also include whether the parties are bound to any previously determined decision concerning the divorce, even by a secular court. Once it comes to the get, it is beit din that is halachically the final court of record. By proceeding with the get, it is inherently accepting the other decisions as binding. It can, though, decide not to do so and thus demand a re-adjudication of these issues before overseeing the get.

No one, in our present halachic reality, has what you may term a right to a get. Inherently, a get is only good if the husband gives it of his own free will. The corollary of this is that a wife does not have a legal right to simply demand a get. Theoretically, a husband can refuse to give a get. Of course, it may be unethical for the husband to so refuse – and moral suasion can be brought upon the husband to give a get – but this does not mean that the husband does not have this right. He does. The only exception is when beit din declares that a husband should give a get -- and a wife can request such a ruling. In such a case when beit din, properly convened, gives such a ruling – that is a ruling through proper adjudication that a divorce is appropriate -- the husband should not refuse and can be forced to act upon the court’s direction. The truth is that even in cases where moral suasion is being used to cause a husband to give a get, this really still necessitates a ruling of beit din. It is only a properly done adjudication before beit din that can clearly declare the husband to be incorrect in withholding a get. Until that point, one really can’t declare the husband wrong in refusing to give a get. The fact is, also, if the moral suasion is done without the sanction of beit din there may be further problems in the get being defined as one given through coercion and thus invalid. The result of all this is that an agunah case that demands public reaction should be, generally, really only one that has been properly adjudicated in beit din with the husband still refusing to follow the direction of the beit din to give the get. This is why proper adjudication in beit din is often the real issue. In many cases, the problems of agunot begin in the lack of a proper beit din adjudication process – including the determination of the forum. (Post Cherem Rabbeinu Gershon, this same argument, with halachic emendations, applies in the opposite model of a wife refusing to receive a get.)

Two recent articles reflect the problem that I am trying to address. This is not to say that the articles do not have legitimate points but, I believe, they are lacking in that they do not include this perception of beit din in their approaches. One, at http://www.thejewishweek.com/editorial-opinion/opinion/withholding-get-between-leverage-and-extortion, does not reflect on the role of an active beit din at all. The beit din, as with any court, is theoretically an imposing voice of authority with the power of adjudication. A get is not solely a matter of negotiation; there can also be judicial determination. While, truthfully, there may still be a problem due to the limitations on the enforcement capabilities of beit din within our society, I would argue that it is still important to define the issue correctly. In terms of the article, a beit din’s decision would also play a significant role in the determination of whether the withholding of a get is leverage or extortion.

In the other article, at http://5tjt.com/false-accusations-and-the-withholding-of-a-get/, the question posed is whether there is ever a legitimate reason for a husband to withhold a get. The answer of the posek asked is yes, in very particular circumstances – but this demands a ruling by a posek as such. While the author does also refer to beit din in this context, the use of the term posek in this discussion only reflects the problem I am noting and adds to the confusion. A posek responds to an individual’s question; he responds to the person asking what he/she may do. This answer, however, does not extend to another who did not ask this posek, especially if the other person asks a different posek. In cases that involve conflict between individuals, the forum for such resolution is solely a beit din, albeit that if two people agree to a single dayan to resolve a conflict, that is also generally halachically acceptable.  The person being asked, though, should then be seen as an individual dayan and not as a posek. The author, to be honest, actually addresses the need to hear both sides by referring to the fact that the posek should only render a decision upon hearing from both husband and wife. There is still, though, the problem in this language for what is missed is the inherent litigious nature of the issue. This is a court procedure. This is not a time to send one party off to his or her posek. This is a time for both of them to go before beit din. 

The direction of an individual posek must be for the parties to go to beit din. What does it mean that the husband is withholding the get? It is only a case of such withholding if beit din has so ruled; the role of beit din does not begin just in the technical procedure of giving the get. A contentious divorce proceeding demands a court and that is what beit din is. If that article is discussing a case where there was a secular decision on custody which is being challenged and the posek believes that the challenge has a halachic basis, this only reinforces my point. Beit din is the halachic forum for adjudication and it is within this structure that a get is to occur. If a posek is being asked if there is any legitimate basis, within the case, for challenging a secular court decision on custody – that may be a proper question. But that question can only arise because of a perception that a get is solely a ritualistic undertaking. If the matter was before beit din within its proper definitions, the issue would already be before it. What is thus necessary is a clear structure for such adjudication. (The author actually does conclude with the need for a protocol for determining forum – which emerges from a recognition of the proper role of beit din.  While this is to be commended, I still believe that the language of the article would still promote the present incorrect understanding of the process and the subsequent difficulties.)

Of course, in some agunah cases, there is such a proceeding and a husband still refuses to give a get – and gets away with it because of the limited power of beit din to enforce its findings within the secular world and the husband often believing he can do better by ignoring beit din (not to ignore the cases of vice versa) – and we still have to consider how to better respond in such cases. I have mentioned this and do so again. Yet, in many cases, just like the one noted in this second article, the problem would seem to be really at the beit din level. Without a clearly defined beit din to which the husband and wife have to go (agree to go), the two parties – sometimes, sadly, just trying to forum shop and find the beit din that would be most approving of their side; other times, however, because of rifts in hashkafa reflecting the tensions in the Torah world -- remain in contention because there is a lack of a properly adjudicating beit din in the case. This role of beit din is actually an issue in regard to all litigious matters within the Torah society. It is unfortunately most pronounced in the case of agunah.
Within the general rules of our societies, if a couple – or individuals within a couple – wishes to divorce, they go to court. If they are able to work out the issues on their own, there is no need for an adjudication on the matter by the court; the court merely rubberstamps it. If they cannot, then the court must intervene to render decisions on the matter. There are no games -- for the court that has jurisdiction is a given. The parties are bound by it and know that they are bound by it. This is the first challenge in the case of the get and the agunah. Effectively, the Torah believes strongly in the role of beit din as the tribunal of adjudication within the Jewish People. From the Torah perspective, you do not go to beit din simply for a get. You go to beit din to adjudicate the matter of a divorce. When this procedure is not working effectively, problems are clearly going to ensue. This is an essential base issue in the case of agunah. 

Practically, even with this recognition, problems still will ensue. I don’t have all the solutions – or, practically, even some. My goal in this piece is simply to define the issue in a manner which will, hopefully, be more truthful to its essence and, as such, better serve it. I was involved in one agunah case where the problem was simply that the husband went to one beit din and the wife went to another. My solution, when I was asked to intervene, was simply to find a beit din to which they would both agree to go. I was actually able to do so quite quickly and within the week the matter was resolved. I know that this was a relatively simple case and what happened in that case will not be duplicated in every other agunah cases. What astonished me, though, was that no one involved in this case previously came up with such a solution. I believe it was because I saw the issue as a beit din issue and defined the problem jurisdictionally. This was the opening of the solution in that case.
Beit din is part of Torah life and structure. This permeates the whole Torah system but is perhaps most felt, presently, in the case of the agunah. To solve problems in that matter, the answer may be found in this recognition of the structure of beit din. That may be the place to start – at least in how we speak of the issues.

Rabbi Ben Hecht