New American Reform Responsa
QUESTION: Should we marry women considered agunot by Orthodox rabbis? (Martin Cohen, Los Angeles CA)
ANSWER: In the long span of Jewish history, aside from the normal problems and aggravated circumstances surrounding divorce, the chief issue has been that of the agunah, a status caused by the disappearance of the husband or by his refusal to provide a religious divorce (get) for his wife. The second problem has often been solved through communal pressure which stopped short of actually forcing a get, as that would not be legally valid (Solomon ben Aderet Responsa IV #40; Simon ben Zemah Duran Responsa II #68; Tur and Shulhan Arukh Even Haezer 134 and 154; Responsa Reanana #43; Responsa Mabit 11 #138; Pisqei Din shel Batei Hadin Harabanim Vol II pp 300 ff).
Much more difficult is the problem of a husband who disappeared. Usually in the past this condition occurred when the husband had disappeared in time of war or during a long journey to distant lands. Despite a presumption of death, as it could not be proven, the wife continued to be considered as married. During the period of heavy Eastern European emigration to the United States and other western lands, some men were lost at sea or in the wild West, while others slipped away and thus relieved themselves of family responsibilities. In modern times, in addition to these cases of agunah, we have thousands of Orthodox women whose husbands simply refuse to provide a get and leave their wives with no solution. After civil courts have dissolved the marriage, only moral persuasion can be exercised on the husband and that is frequently difficult because of the hostility which exists between the individuals. Although some states, for example New York, now recognize the obligations of a ketubah and would enforce its provision until a get had been given, this is only minimally helpful as it is easy to escape its jurisdictions.
The problem of the agunah in modern times has been solved in a number of different ways. Our Reform method simply acknowledges civil divorce. For the Orthodox an annulment is possible, but very difficult. Some traditional Jews solve the problem when the original marriage was Reform or Conservative by not accepting the witnesses who signed the ketubah and so denying its validity. As no marriage has taken place in their eyes, no get is necessary (Moses Feinstein Igrot Mosheh Even Haezer #74 #75; David Hoffmann Melamed Lehoil Even Haezer #20).
Although this path may be technically correct from an Orthodox point of view, it is insulting to all Reform and Conservative Jews; it also does not satisfy psychologically. One of the problems with this approach is the Jewish doctrine that Jews who engage in intercourse do so with serious intent; furthermore, individuals, who have lived together for a period of time and are recognized as husband and wife by the community in which they live, are so accepted (Git 81b). The Orthodox authorities who suggested the above mentioned solution claim that this ruling does not apply to sinners (Moses Feinstein Op Cit #75; Jehiel Weinberg Seridei Esh Even Haezer #28).
A variety of modern proposals have incorporated some statement about divorce, or at least about the jurisdiction of the rabbinic court in the ketubah in order to solve the problem. The modern Orthodox scholar, Eliezer Berkovits, made such a proposal and urged the use of a conditional marriage; he subsequently defended it in his book Tenai Benissuin Vehaget. The rabbis of Turkey in 1924 made a similar proposal which was later rejected by Ben Zion Uziel of Israel (A. H. Freiman Seder Qiddushin Venissuin pp 391 ff).
A most determined effort in this direction was made by Louis Epstein for the Conservative Rabbinical Assembly in 1930; he suggested that a conditional divorce be given at the time of marriage. This approach which is halakhically sound was rejected by the Orthodox rabbinate and Epstein’s efforts to defend it failed. (I. Epstein Hatzaah Lemaan Taqanot Agunot; Lisheelah Ha-agunot). Many considered it inappropriate to deal with divorce in the wedding document. The Conservative Rabbinical Assembly has added a clause to its ketubah which simply states that the couple places itself under the authority of the Conservative bet din. This removes one of the objections to the document of Epstein (Rabbinic Manual pp 37 f). The effort of the Conservative Rabbinical Assembly was made under the guidance of Joshua Liebermann and has been incorporated in the ketubot used by the Conservative movement.
A more radical suggestion was made by the French Orthodox Rabbinate in 1907, which urged that all ketubot include a clause which indicate that a civil divorce decree would annul the marriage and the woman would be released and free to marry according to Jewish ritual subsequently. This suggestion was attacked by Orthodox authorities in other lands (A. H. Freiman Seder Kiddushin Venisuin p 390).
These efforts have tried to deal with the problem of agunot but largely to no avail, as the complications have usually led individuals who sought a second marriage to use a Reform rabbi who recognizes a civil divorce or a “Document of Separation” (W. Jacob (ed) American Reform Responsa #162) or to turn to the civil authorities. We should continue to perform such marriages of agunot as a way of helping the Jewish community with a difficult problem. We recognize civil divorce as sufficient. Our solution is within the range of those proposed by some Orthodox authorities and so is part of our effort to unite the Jewish community.
If needed, please consult Abbreviations used in CCAR Responsa.