Every now and then, we hear a term being tossed around flippantly, while the true meaning of the term is clouded by misconception. “Agunah” is one such example. Today, “agunah” is used to describe the plight of a woman whose husband refuses to grant her a get, or religious bill of divorce. While this is not inaccurate, it’s important to take a step back and start from the beginning to gain a broader understanding of the agunah in history and halacha.
A Brief Background
You may be surprised to learn of the word’s maritime origin. In a discussion about which parts of a ship are included in its sale, the Mishnah uses the word agun for the anchor. Hence, and agunah means a woman who is anchored in place due to her inability to remarry. The earliest source of dealing with the agunah problem is the Talmud (Yevamos ), but it has nothing to do with divorce. Back then, wives faced a different problem: their husbands would travel overseas for various reasons, and then disappear without a trace. Although Jewish courts usually require a minimum of two witnesses for evidence, the Talmud explains that we are more lenient for an agunah, and many other forms of evidence are acceptable to prove the husband’s death and allow his wife to remarry.
Things have changed dramatically over the past two millennia. Unless a man went on a solo expedition to the Amazon, it is not so difficult to track him down, dead or alive. However, such problems still arise close to home. After 9/11, rabbis grappled with the question of proving death when no body was recovered. Does a man’s phone call from the upper floors of the burning towers moments before their collapse prove that he died? After the Holocaust, rabbis were faced with similar questions. A man was seen being led to the gas chambers – is that sufficient evidence to free an agunah? How about video or DNA evidence? The questions may be new, but all responsa are based on the Talmud and its commentaries.
Although a missing husband still creates an agunah problem, contemporary agunos are more often the result of a husband who refuses to divorce his wife. But there is another crucial change that must be mentioned. In Talmudic times, the husband would never be stuck in an agunah situation because he was permitted to marry a second wife. This ended when Rabbeinu Gershom (d. 1040 CE) enacted a ban on polygamy, which was universally accepted by all of Ashkenazic Jewry. He also forbade a man from divorcing his wife against her will. Yes, this is the same Rabbeinu Gershom who placed a ban on those who read others mail (and emails). In a post Rabbeinu Gershom world, a man whose wife disappeared or refuses a divorce is no different than his female counterpart.
Despite the seemingly level playing field, the reality is that in most often, it is the man who is holding up a divorce. He may be doing this to force concessions from his wife, or for countless other reasons. Whatever the case, we have the modern-day application of agunah – a woman who is stuck because her husband will not divorce her.
The Role of Bais Din
The good news is that Jewish courts have long had the tradition of aiding agunos. The precedent for this is the aforementioned Talmudic discussions which clearly demonstrates the Torah’s prioritization of freeing agunos with less-than perfect evidence. Over the years, countless pages of complex responsa have been written to allow a woman to remarry. It is well known that rabbis have exerted great effort to find halachic basis to free agunos, often fasting and praying to merit Divine assistance in their work. In an interesting twist, it is customary for a rabbi to preface his lenient ruling by stating that it should only be relied upon if other rabbis agree.
Despite their best efforts, Bais Din has limited options when a spouse refuses a get. An experienced court can exert a proper balance of support and pressure to avoid acrimonious disputes from flaring. However, getting both spouses to agree on which Bais Din to use can a be a time-consuming process. In large cities there is often more than one Bais Din to choose from, and it is not uncommon for one spouse to have specific preferences for reasons real or otherwise. As with all disputes, if a compromise can be reached in finding one mediating body, there is hope for positive results.
For most people, the best thing they can do for an agunah is to support them by boosting their spirits and directing them to the array of resources available. A man has fewer obstacles as he navigates the Jewish court system, so we must do everything we can to make sure a woman’s plight is not ignored.