The day before Purim is marked by many Jews around the world as Agunah Day; a day to remember and speak out on behalf of women trapped in dead marriages unless and until their husband decides to let them go. Recently, I had the privilege of speaking to a group of women gathered at Mayyim Hayyim about the agunah problem in the 21st century. I spoke about how there have always been agunot, women whose marriages are effectively over, but who are unable to divorce under Jewish law and go on with their lives. The shape of this problem has, however, changed over time. I believe that the contemporary version of the agunah problem reflects an attempt, by some men, to undermine the equality already won under American family law.
The Talmud, (our redacted oral teachings) describes the sad plight of the classical agunah whose husband could not consent to divorce. This might be because the man had disappeared while traveling to another town to trade or been lost on a ship at sea. No one could be sure whether the husband had drowned, fallen victim to bandits on the road or whether he had simply taken up with a new companion somewhere else. Perhaps he had been injured and lost his memory of where home was and of who waited there for him. In those situations, rabbis wanted certain evidence of death before allowing a woman to remarry, lest her wayward husband should someday return. Alternatively, the husband might have been physically present but unable to form the requisite intent to consent to divorce because of mental illness or a malady rendering him unconscious. In these situations, rabbis developed strategies to try to minimize the suffering of these women, through establishing grounds to presume death or to validate the consent of a mentally ill man during moments of lucidity, but still many women remained agunot.
The historian, Haim Sperber, identifies a second dramatic change in the agunah problem which came in the late 19th century. In this era, the agunah problem became one of men abandoning their families. Sperber, currently a scholar in residence at the Hadassah-Brandeis Institute Project on Gender, Culture, Religion and the Law, studies how agunot used popular Yiddish media to try to find their missing husbands, putting advertisements in the classified sections or writing to advice columns. These men had disappeared into another province, another European country or on a boat to America. With the emancipation of Jews in Europe, Jewish men could for the first time travel freely outside of Jewish ghettos and find even greater freedom in the promised land of America. They could leave behind their Jewish identities, and for many, this meant leaving their Jewish wives as well.
An open letter to a missing husband in the Bintel Brief, the advice column of the Jewish Daily Forward in 1908, captures one such woman’s pain:
Have you ever asked us why you left us? Max, where is your conscience; you used to have sympathy for the forsaken women and used to say that their terrible plight was due to the men who left them in dire need. And how did you act? I was a young, educated decent girl when you took me. You lived with me for six years, during which time I bore you four children. And then you left me.
From the late 20th century to the present day, we have seen a new kind of agunah problem emerge. We still have instances where the husband has absconded or is unable to consent, but now the most common context for the creation of an agunah is a contested civil divorce. This husband is physically present and mentally sound, but seeks to use his power to withhold a religious divorce to inflict pain on the wife or as a bargaining chip in negotiations over property, alimony and custody in the civil divorce. He demands that the wife give up her rights to family property or make cash payments in order to be granted a divorce. Why has this transformation taken place? One explanation may be the dramatic changes that have taken place in civil family law over this period.
In the wake of the second wave feminist movement, states across the U.S. rewrote their family laws to recognize the value of women’s contributions to the family enterprise and award spouses equal rights to assets accumulated over the course of marriage. Some men perceive their rights to withhold divorce under Jewish law as an appropriate tool to use to claw back some of the hard-won gains of the women’s movement. Our community should be united in rejecting these actions.
Feminist legal scholars are divided on how to fix Jewish family law. Some argue that the problem can be prevented if those marrying in Orthodox ceremonies sign an halachic (within the framework of Jewish law) prenuptial agreement in which the husband undertakes to give a divorce when asked. Others argue that the time has come to create a new understanding of Jewish marriage that recognizes our contemporary understandings of the fundamental equality of men and women, and allows women to initiate divorce, too. Just as Mayyim Hayyim has worked within halacha to re-imagine a mikveh experience that speaks to women’s needs, it is possible that both of these options provide an opportunity for a creative revision of marriage and divorce rituals.
Dr. Lisa Fishbayn Joffe is the Director of the Hadassah-Brandeis Institute Project on Gender, Culture, Religion and the Law. This is printed in collaboration with Mayyim Hayyim.