The Agunah - Finding a Solution: An Interview with Rabbi Shlomo Riskin
Volume 3 , Issue 1 (Sept, 1989 | Tishrei, 5750)
Jewish Review: Rabbi Riskin, in your recent book, Women and Jewish Divorce, you propose a solution to the problem of the agunah, the woman whose estranged husband cannot or will not provide her with a get or Jewish bill of divorce. Could you explain the problem of the agunah and why it is so important in our day to find a solution to this problem.
Rabbi Riskin: According to Jewish law, it is the man who writes the divorce for his wife. This stems from the Biblical text: ?You shall write for her a bill of divorcement and place it in her hands.? Let me say in parenthesis that in the Biblical period, since it was very difficult, if not impossible for a woman to make her way socially or economically on her own, it was inconceivable to imagine a woman suing her husband for divorce. Everything was thus placed in the hands of the husband. Nevertheless, there has been a movement since earliest Biblical times to make it more difficult for the husband and easier for the woman to initiate a divorce. At least according to one view in the Talmud, the requirement that a man make a large alimony payment to the woman in the event of divorce, is Biblical in origin. This was a means of discouraging a man from divorcing his wife. As Jewish law developed from generation to generation, it was made increasingly easy for the woman, in effect, to initiate the divorce proceedings. Certainly, if she found something objectively wrong with her husband, if he were impotent, or even if he became a tanner and as a result of this occupation, he smelled bad, the woman was able to go to a Jewish court and the court would coerce the husband into granting his wife a divorce. Later, approximately 100 years ago, Rabbeinu Gershom decreed that ?each cannot give a divorce without the consent of the other.? This was another historic move in the direction of equalization.
The tragic problem in our day is that in many instances, the Jewish court has lost its power and cannot coerce the husband to give a divorce. Nevertheless, if a husband wants a divorce and his wife refuses to give it to him, he can have recourse via the heter of meah rabbanim: a hundred rabbis sign a document to the effect that there is validity to his complaint and he can marry someone else, because technically, Biblically, he is permitted to marry more than one wife. (It is as a result of another decree of that same Rabbeinu Gershom that we must now be monogomous.) However, if the woman is the one who cannot get the divorce because her husband refuses, she has no such recourse, and this is the fundamental problem of the agunah. The problem becomes exacerbated by the fact that there is civil divorce. It is, thus, possible for a non‑observant husband who is recalcitrant to get a civil divorce, but not grant the woman a religious divorce, and literally hold her up for very exorbitant sums of money. This makes for a very tragic situation.
Now I'm convinced (and this is the heart of my book) that historically we took care of these problems, whether it be that according to Gemorrah in Ketubbot 63 that if a woman claimed she found her husband distasteful, a Jewish court would coerce the husband into giving her a divorce. In the Jerusalem Talmud we have special conditions written into the ketubbah, the marriage contract, that if the husband would come to hate the wife or the wife would come to hate the husband, the marriage would be dissolved, the husband, in effect, agreeing ab initio, to give his wife a divorce. Unfortunately, the Jewish courts no longer have this kind of power or no longer choose to arrogate to themselves this kind of power and, there are, therefore, many women who are involved in the tragic plight of agunah, in which they are no longer married to their husbands, but where they are not free to marry someone else because they don't have a religious divorce. It is to this issue that my book is addressed.
Jewish Review: You say there was a period when even without coercion of the husband that the Jewish courts were able to dissolve a marriage?
Rabbi Riskin: The usual methodology was to coerce the husband to grant a divorce, but there is also precedent in the Talmud, in some cases, for the Jewish court's cancelling the marriage retroactively. During the marriage ceremony, we say ?in accordance with the laws of Moses and Israel,? and this states, in effect, that Moses and the Jewish people, i.e., the rabbis, become partners with the husband in every marriage ceremony and, therefore, they ostensibly have the right to cancel the marriage retroactively. Now there is a difference of opinion amongst the rishonim (post‑Talmudic rabbis) as to whether we, in the post‑Talmudic period, still have this power and they're very reluctant to utilize it.
Jewish Review: You indicate in your book that there was a turning point with respect to the agunah with the edict of Rabbeinu Tam in the twelfth century. What did he do?
Rabbi Riskin: Yes, Rabbeinu
Tam turns out to be responsible for a major change in the plight of the agunah. Until the time of Rabbeinu
Tam, everyone agreed, based on the simple interpretation of the Gemorrah in Ketubbot 63,
that if the wife claimed that her husband was distasteful, then the court has
the power to coerce him to give a divorce and such a divorce is legitimate. The
court would coerce the husband through financial or even corporal sanctions,
and it had the power in those days to do so, for there was no secular court
above them. The Gaonim decreed that not only must the
husband grant such a divorce, but he must give her alimony payments, as well.
Maimonides said, ?our wives are not captives to their husbands.? Rashi had the same kind of interpretation: if she finds her
husband distasteful, then he has to give her a divorce. Rabbeinu
Tam reinterpreted the Gemorrah. He reinterpreted it
to mean that the husband cannot be coerced to give the wife a divorce against
his will, and it is because of his reinterpretation that after his time we have
found very, very few great religio‑legal decisors coercing the husband to give a divorce in a
situation where a wife claims that her husband is distasteful without her
providing objective grounds. Rabbeinu Tam's influence
was great, not only amongst Ashkenazic Jews, but his
influence also spread through
Jewish Review: In this century, there have been a variety of proposals which would enable a religious court to dissolve a Jewish marriage without the husband's consent. These have all involved alterations in the original marriage contract. Why, in your opinion, haven't the leaders of Orthodox Jewry adopted one of these proposals or otherwise created a solution to this problem? Is there, as you imply in your book, a lack of spiritual or judicial courage in our time?
Rabbi Riskin: I think to a certain extent that there
is a lack of judicial courage in our time. Sometimes, I think, ?it din, v'let dayan,? there is the law,
but we lack the proper judges. However, we are dealing with something which is
potentially very explosive. We are dealing with the most sacred institution we
have, and, of course, there is a great reluctance to tamper with the marriage
ceremony itself and to coerce divorce; and for each proposal, I must say, there
is a valid religio‑legal objection. However, I
think that there are very positive signs. Rabbi J. David Bleich,
for example, has suggested the possibility of a pre‑nuptial marriage
contract which avoids the problems of the prior proposals, does not tamper with
the ketubbah per se, and which does not
make the marriage a conditional marriage or give a conditional divorce ab initio. For example, one of the things
that was tried at the beginning of the twentieth century in France was to make
every marriage a conditional marriage, so that if the wife finds the husband
distasteful and the husband doesn't want to give her a divorce, but he does
take a civil divorce, then the marriage will automatically be dissolved because
it was a conditional marriage to begin with. Maimonides claims, however, that
any time there is a sexual relationship, this automatically nullifies any
conditions to a marriage. A sexual relationship is such a complete act that it
cancels the prior conditions. And so on, in each case there were valid religio‑legal reasons for rejecting the previous ?solutions?
to the agunah problem. However, it seems to me
that Rabbi Bleich's suggestion and my very minor
addition to it can meet the objections which have been raised against the prior
proposals and (as I try to show in my book) there are very real historical
roots to his suggestion. Rabbis, throughout the generations, have been very
sensitive to the problem of the woman who is ?chained? to a marriage which
gives her no satisfaction. The solution I propose will actually, in effect,
renew the meaning of the t'noyim (or pre‑nuptial
contract). Most religious marriages today have t'noyim,
but it is currently a meaningless ceremony which is performed prior to the
actual marriage. Under my proposal, however, the t'noyim
becomes a prenuptial agreement in which the husband agrees to pay a very large
sum of money each day his wife cannot be remarried because of his refusal to
grant her a get. This would, in effect, be a very powerful means of
coercing the husband. Now HaRav Zholty,
ztl, the former Chief Rabbi of
Jewish Review: Assuming that
rabbis would start using such a document in the
Rabbi Riskin: Not in the least. Rav Zholty, ztl has, in effect, given his blessing to this. What I expect to do, please G‑d, in September, is to take a copy of my book and the copy of the prenuptial contract which I suggest and which is very similar to the one currently used by Rabbi Weiss, and put them in the hands of all the Orthodox rabbis in America, certainly all the members of the RCA, as well as [in the hands of the] Orthodox rabbinate in Israel; and with all of the documentation that my book provides, I'm hopeful that it will turn the tide and that there will be a movement amongst Orthodox rabbis to make the prenuptial agreement part and parcel of every religious wedding ceremony.
Jewish Review: One of the apparent consequences of publicity surrounding this issue is that the inability of Orthodox Jewry to solve the problem of the agunah is seen by some as just one more indication that the Orthodox rabbinate is incapable of coping with the challenges of modern life and is unconcerned about the needs of women. Could you comment?
Rabbi Riskin: You have to understand that we are dealing here with a very difficult halakhic problem and, moreover, a halakhic problem which we did not create. The whole notion of civil divorce and the consequent undermining of the power of the Jewish courts has created this problem. What I try to demonstrate in my book is that when the problem was really in the rabbis' hands they were, indeed, very sensitive to the needs of woman. Nevertheless, having said all of that, I would go along with the last statement of the MaharSha on Tractate Yevamot. He asks the question, ?why does the Tractate Yevamot conclude with the saying: 'Scholars must increase peace in the world'?? and he answers in the following manner: ?In this Tractate there seem to be many laws which are prima facie contrary to Torah principles: for example, the principles that there must be two witnesses to establish any fact or that there is no change in personal ?status? unless there are two witnesses (and this usually means two fully observant male Jews).?
Nevertheless, in order to free a woman and enable her to remarry after her husband has died, we learn from Tractate Yevamot to accept the testimony of one person, even of a gentile who relates the information in the course of telling a story. How can we do this? The MaHarsha explains, we do it because ?scholars must increase peace in the world? and a person cannot be considered at peace if he or she is alone, if she doesn't have a mate, if she doesn't have a life's partner. Therefore, he says, this is the major thrust of halakha: to have the courage and the insight to find a way to create peace. There are four tractates in Shas (The Talmud) which conclude with these words. It certainly takes courage in halakhic psak? (judgment) to fully comply with the demands of peace. However, the MaHarsha says that the real conclusion of the Gemorrah is that G‑d will grant his people strength, that G‑d will give that kind of courage to the religious decisers of his nation and will then bless His people with peace. It is my view that the scholars of our generation, in spite of all the difficulties, must make peace in the world.
Jewish Review: Have you put
your prenuptial contract into effect in
Rabbi Riskin: I am now beginning to do so. Very often
I did it in the States and I'm now beginning to do so in
Jewish Review: Is there any problem in having other rabbis recognize its validity?
Rabbi Riskin: No, I don't think there is any problem
at all. I'm an official city rabbi in
Jewish Review: So an individual who is married by you today will not have the problem of agunah.
Rabbi Riskin: I should certainly hope not. And like
Rabbi Weiss at Beth Jacob in
Jewish Review: You don't see this prenuptial agreement as a potential point of contention between those who utilize it and the more right wing elements within Orthodoxy?
Rabbi Riskin: One can question whether he wants to do
the prenuptial agreement or not, but this certainly cannot, in any way,
invalidate the marital ceremony itself. It is a prenuptial document which one
can accept or reject, but it's not necessarily tied to the marriage. You see,
this is why I was opposed to the Lieberman proposal which was similar to my
own, but which was tied to the ketubbah or
marriage contract. You don't want this agreement inextricably tied to the
marriage ceremony. One reason for this is that it can potentially get you
involved in church/state issues in
Jewish Review: On the other hand, if one were to go to a Bet Din to force the husband to provide a get, might that court refuse to recognize the terms of the t'noyim? Wouldn't it depend on which Bet Din you went to?
Rabbi Riskin: I can't imagine that any Jewish court would refuse
to recognize a valid contract between two individuals, and the fact is that the
former Chief Rabbi of
Jewish Review: Really, then the damages are the coercive punch in this contract and these damages would presumably be enforced by the secular courts.
Rabbi Riskin: In the
Jewish Review: In the event that this occurred, then the courts would be imposing damages of $1,000 per day until such time as the get was provided.
Rabbi Riskin: Yes, $1,000 a day or $2,000;it would be linked to inflation.
Jewish Review: Might not some rabbis object that the secular courts are even involved? Wasn't there a situation in which a Satmar Bes Din ruled that a get was invalid because the secular courts had coerced a husband to provide the get by putting him in jail? I believe they said that the get was invalid because it was not given of the individual's own free will.
Rabbi Riskin: Here it's a little bit different. The man is not being forced to give the get; he's being forced to give a sum of money pursuant to a contract which he himself had entered into by his own free will prior to his marriage.
Jewish Review: Does the fact that your contract is in some ways based upon or related to the Lieberman (Conservative) Ketubbah create problems for you because of interdenominational conflict?
Rabbi Riskin: No. I tried to take the positive aspects of Lieberman's proposal and avoid the negative aspects. The problems with that proposal included the whole problem of ?asmachta? or vagueness (as I explained in my book, the Lieberman Ketubbah does not specify the amount of damages) and the problem that the Lieberman contract was part of the marriage ceremony itself. So I tried very hard to utilize the heart of the idea without these negatives. At any rate, my proposal is really more fully based upon Rabbi Bleich's proposal which suggested the notion of a prenuptial agreement.
Jewish Review: You speak about the need for a solution of the agunah problem especially in these days of assimilation and apostasy. Why should this be the case?
Rabbi Riskin: As I have mentioned, during the Gaonic period, it was ruled that not only could the husband be coerced to give his wife a divorce if she found him distasteful, but that he would also have to make alimony payments. I went to great pains in my book to trace the reason for this. After all, there seems to be an unfairness here to the husband: it is not he, but she who wants the divorce, so why must he pay her alimony? The Gaonim said (and I believe I showed this conclusively), that the reason we force the husband to provide the get and alimony payments is that even without a get, the Moslems would accept such women with open arms. In order to make certain that Jewish women who were unhappy in marriage would not turn to Islam, the Gaonim felt it was more important to free them from their husbands and provide them with the financial support to enable them to remain Jews. That's my precedent here. After all, what are the contemporary alternatives? A woman can get a civil marriage in the United States of America without a religious divorce, and therefore, if a woman just says, ?a plague on all your houses, I'm not interested in Judaism; it makes it so hard for me,? she can remarry in a civil context and forget about the whole get problem. We find that we are simply pushing women away from Judaism by not solving the agunah problem. Now this problem of potential assimilation parallels what occurred during the time of the Gaonim's decrees, and I, therefore, feel very strongly that this is one of the major reasons why we should put something like my proposal into effect.
Jewish Review: I'm just wondering, though, if some people might regard that kind of reasoning dangerous. After all, the Rabbinical Assembly of the Conservative movement utilized a similar logic in justifying the decision to permit their adherents to ride on the Sabbath, arguing that we're in times when people are assimilating and moving into suburban neighborhoods far away from the shuls, so we need to permit them to ride to synagogue on Shabbos.
Rabbi Riskin: You can take anything by analogy to anything. I would certainly argue that the analogy to the Gaonic period I have spoken of is much closer and much more specific. And look, the need of the day has indeed always been a very vital issue in halakhic decision making; that is why The Torah says in Deuteronomy, Chapter 17, ?you go to the judge in those days? and the Gemorrah comments ?Jeptha in his generation is like Samuel in his generation because Jeptha understands the needs of his generation? and he is, therefore, the decisor for his generation with all of its problems. We find, for example, that this is true with respect to another very important issue: teaching women Torah.
The Chafetz Chaim, in his notes to Tractate Sotah 21, says that although we find in the Mishnah the statement by Ben Azzai that a person who teaches his daughter Torah is teaching her immorality, the times have now changed and since women, in our generation, are given a secular education; therefore they must be educated in Torah as well. This was the major impetus behind Sara Schneurer's starting the Beis Yaakov schools. My rebbe, Rav Soloveitchik, went a step further and said that if women receive university education today, they should study Talmud as well.
Jewish Review: Then you see a
relationship between the agunah issue and
other issues relating to women, specifically women studying Talmud? My
understanding is that you have received criticism from some rabbis in
Rabbi Riskin: First of all, I want you to understand that the
only one who doesn't receive criticism is a person who doesn't do anything.
Once you do something, then you have to be ready to accept criticism. If you
can't take the heat, as the saying goes, get out of the kitchen. I received
criticism from the ultra‑Orthodox group in
Jewish Review: What then is your overall view of the status of women in Orthodox Judaism today? Do you think that there are issues that still need to be addressed?
Rabbi Riskin: Of course there are issues. I wrote my
book because I feel there are issues. I think these issues must be addressed, and
are indeed, being addressed. These include the question of whether women
themselves can participate as members of religious councils in