Jessica Davidson Miller, The History of the Agunah in America: A Clash of Religious Law and Social Progress , 19 Women's Rights L. Rep. 1 (1997)

According to Jewish law, only men can initiate a divorce. The husband must give his wife a document called a get , without which she cannot remarry. A man may abandon his wife or obtain a civil divorce, leaving his spouse as an agunah --a chained woman. This has created inequities for Jewish women.

In Europe before the twentieth century, Jews lived in shtetls , small, insular communities. If a man withheld a get , he could not remarry under civil authorities and would often be shunned by the community. These practices reduced the number of agunot --chained women. But those women left without Jewish divorces who wished to remarry could only flee and assume a new life, a nearly impossible feat. In the late 19th and early 20th centuries, agunot escaped these strictures by immigrating to America. They could leave shattered marriages and remarry without scandal. Women in America who wanted to adhere to their religious traditions, however, found themselves in a weaker position. It was fairly easy for a man to abandon his wife, go to the frontier and remarry. Men could also extort their wives by granting a get only in exchange for money. In 1869, Reform Jews voted to accept civil divorce. While men could get a civil divorce and remarry in a Reform congregation, more traditional wives lost another bit of leverage over their husbands. Reform Judaism's acceptance of the civil divorce thus left Conservative and Orthodox Jewish women in a worse position than they had been before.

The Conservative movement devised a partial solution to the problem of the agunah in 1954 by inserting a clause in the standard ketubah --marriage contract--requiring one spouse to appear before a rabbinical court at the other spouse's behest when the issuance of a get is in dispute. When the husband appears in front of the tribunal, the rabbis are free to exert moral and ethical authority to convince him to issue a get . The formulation insures that the get will be given "voluntarily," as Jewish law requires. But it also allows a husband to refuse to grant a get . Some wives switched to Reform Judaism or abandoned religion so that they could remarry. In 1968 these problems led the Conservative Rabbinical Assembly to give itself the power to nullify a marriage if a husband withheld a get, leaving the tragedy of the agunah a problem for Orthodox Jews alone. 

In the 1970s and 1980s, Orthodox women began to combat the practice of the agunah . The Get Organization began to exert pressure on recalcitrant husbands and called upon rabbis to demand that husbands cooperate when their wives seek a get . Instead of breaking with tradition, women appealed to rabbis and religious courts for sympathy and equality. Dependent on male rabbis, the Get Organization and other such groups had no power base of their own. The results were mixed.

In 1983, the New York legislature took steps to solve the problem of the agunah , denying any plaintiff a divorce until he has taken all steps within his power to remove barriers to the defendant's remarriage. Though the law's constitutionality is questionable because it attempts to force men to perform a religious act, New York courts have enforced it. The statute also was not without flaws. It only applies to plaintiffs, leaving women who sue for divorce no better off. In 1992 the New York legislature passed a law allowing a court to take party's inability to remarry into account when equitably distributing the property of a marriage. Some rabbis, however, do not recognize divorces , arguing that a get given under these circumstances is involuntary. Women also are reluctant to make claims under these laws for fear of being stigmatized. These legislative solutions, therefore, have not been very effective. The of the agunah may not be soluble by government action. Resolution requires a fundamental change within Orthodox Judaism.

 

Revised July 23, 2003 (MD)