Заң бойынша күйеуінен ажыраса алмаған әйелдер мәселесі

Woman who is stuck in her marriage according to Jewish law

An agunah or aguna (, aguná, plural: עגונות \ עֲגוּנוֹת, agunót; plural form: agunot; literally "anchored" or "chained") is a Jewish woman who is stuck in her religious marriage as determined by halakha (Jewish law). The classic case of this is a man who has left on a journey and has not returned, or has gone into battle and is missing in action. It is used as a borrowed term to refer to a woman whose husband refuses, or is unable, to grant her a divorce (which requires a document known as a get). For a divorce to be effective, halakha requires that a man grant his wife a get of his own free will. Without a get, no new marriage will be recognized, and any child she might have with another man would be considered a mamzer (illegitimate). It is sometimes possible for a woman to receive special dispensation from a posek (halakhic authority), called a heter agunah, based on a complex decision supported by substantial evidence that her husband is presumed dead, but this cannot be applied if the husband is clearly alive. Because of the difficulty for women in such situations, it has been a task for every generation of halakhic authorities to try to find halakhically acceptable means to permit such women to remarry. In the past it was not uncommon, due to the danger of travel and primitive means of communication, for people leaving home never to be heard of again; consequently rabbis often had had to deal with this issue. Over the past few centuries, thousands of responsa have been written to deal with cases of agunot. In the past most agunah cases were due to a husband dying without leaving clear evidence of his demise, or becoming mentally ill (insane). Nowadays many agunah cases arise as a result of a husband withholding a get, perhaps seeking a more favorable divorce settlement, or out of vindictiveness. In response agunah groups have organized to support these women and try to find a solution to this problem. Various remedies have been proposed, but as yet, no one solution has common acceptance. Nevertheless, the Jewish prenuptial agreement is one remedy which is in use in Modern Orthodox Jewish communities worldwide and is accepted by moderate halakhic authorities. During World War II, some American Jewish and other chaplains provided combat soldiers with a "provisional get", which only goes into effect if the husband is missing in action, leaving his wife an agunah. This practice is based on the Talmudic declaration that King David did not commit adultery when lying with Bathsheba (see II Samuel 11), since all of his soldiers (including Bathsheba's husband) gave a "provisional get" to their wives before leaving for battle. This practice can raise halakhic issues, especially for Kohanim (members of the priestly class). Since they are forbidden from marrying divorcees, were they to end up returning safely after the date the provisional get went into effect they would be unable to remarry their wives. In other words, if it is known that the man fell into a ditch of snakes and scorpions and did not come out, it can be assumed that he is dead, and there is no need for further evidence (unlike falling into a lion's den where there is still a slight chance of survival). If, however, it is later discovered that the husband is not dead, the woman will find herself in particularly bad circumstances: her children from her second marriage will be considered mamzerim, and she will be forced to divorce both her first and second husbands, subject to the halakhic ruling that an adulterous woman "is forbidden to her husband and the man with whom she fornicated". While such situations are extremely rare under normal circumstances, they did occur in the aftermath of the Holocaust and also occurred frequently in the wake of pogroms and other forms of persecution. Finding a flaw in the marriage ceremony is considered to be a last resort in releasing an agunah. It is rarely used as it is typically difficult to find actual cause in most marriages sufficient to invalidate them retroactively. In Jewish law, a marriage must be performed in front of two witnesses. In order to release the agunah, efforts are made to identify reasons why one of the witnesses was ineligible. This is typically unachievable as strong efforts are made at the time of marriage to ensure the validity of the witnesses and the marriage ceremony. Another possibility is to prove that the woman did not consent to the marriage clearly and of her own free will, so that the marriage ceremony is declared invalid. This too is not generally accepted amongst the halakhic authorities as there is generally no method to disprove intent. It is felt that the purpose of this endeavor is solely or primarily to retroactively delegitimize a marriage that was performed and accepted often many years previously. Annulling the marriage has no impact on the status of the woman's children. However, since it is not a generally accepted mechanism, it may leave the wife susceptible to a halakhic ruling that she was still married, and any subsequent relations with another man to be adultery. And it may lead to other halakhic problems, so it is only used as a last resort by the authorities that do accept its use.

At the 1998 Jerusalem Agunot Conference, Mayer Rabinowitz, the Chairman of the Joint Bet Din of the Conservative Movement, explained the four approaches taken by leaders of Conservative Judaism to find remedies for the problem of the agunah. The first, beginning in the 1950s, was the inclusion of the Lieberman clause in the ketubah (marriage contract). Named for Talmudic scholar and Jewish Theological Seminary (JTS) professor Saul Lieberman, the clause requires that a get be granted if a civil divorce is ever issued. While most Orthodox rabbis have rejected the Lieberman clause, leaders of the Conservative movement claim that the original intent was to find a solution that could be used by Orthodox and Conservative rabbis alike, and that leaders of Orthodox Judaism's Rabbinical Council of America, and respected Orthodox rabbis, including Joseph B. Soloveitchik, supposedly recognized the clause as valid. The third approach, using contacts both within Judaism and external to it, was to coerce the recalcitrant husband to grant a get. One example cited at the conference was a case where the civilly divorced husband planned to remarry, this time to a Catholic woman in a Catholic religious ceremony. The Conservative movement's Bet Din contacted the Catholic Church, which agreed to refuse to have the marriage performed until the previous marriage was religiously dissolved, resulting in the almost immediate granting of the get by the husband. So far, no solution has been found that satisfies most orthodox religious leaders. A number of modern papers and conferences have continued to discuss both issues and possible solutions, including the possibility of a modern takkanah (religious legislative enaction), to empower the Chief Rabbinate of Israel to intervene to annul marriages retroactively, in a way that was possible for some time during the Middle Ages. Such proposals are considered too radical—and not legally permissible (in terms of halakha) by most orthodox leaders. However, as studies and discussions continue, a number of modern works and conferences have referenced the work of past Orthodox rabbis, such as Ya'akov Moshe Toledano, who recommended in 1930/31 that every Jewish marriage be made contingent on the "continuing agreement" of the local rabbinic court, so that the court could retroactively annul the marriage as a remedy to the agunah problem; and Mnachem Risikoff, who recommended in 1937 that such consideration be given not to every local court, but at least to the Jerusalem rabbinical court, specifically recognizing that authority in the words recited under the chuppah (wedding canopy). Risikoff, among others, also proposed a discussion of the reinstatement of the Biblical status of the pilegesh, a relationship status between man and woman that does not require a Get upon dissolution, thereby avoiding the category of agunah. Other approaches that have been discussed by religious leaders, including leading Orthodox rabbis, have included the possibility of prenuptial agreements, not incorporated into the ketubah or mentioned in the words recited by the groom during the ceremony, through which the husband and wife agree to abide by orders of a designated Beth Din, regarding the giving or acceptance of a get. Jechiel Perr discussed such a proposal, and it has been reported that Moshe Feinstein, looked upon this idea with favor, and Australian Chabad rabbi Moshe Gutnick has spoken out strongly in favor of it. Additionally, discussions have considered the possibility of various forms of coercion that could be applied to the husband, to compel him to grant the get. In 2012 the International Rabbinic Fellowship (IRF), an organization of (as of 2012) 150 Modern Orthodox rabbis, passed a resolution saying that, "IRF Rabbis may not officiate at a wedding unless the couple has signed a halakhic prenuptial agreement. IRF Rabbis are further encouraged to participate ritually only in weddings in which the couple has signed a halakhic prenuptial agreement. Ritual participation includes but is not limited to reading the ketubah, serving as a witness, and making one of the sheva berachot". By 2019, the vast majority of Modern Orthodox rabbis took the same approach.

A related case is that of a woman whose husband has died childless: in such a situation, the husband's brother is required by Jewish law to enter into yibbum (a kind of levirate marriage) with the widow so as to have children with her in the name of the deceased. The brother can refuse to do yibbum and instead perform a ceremony known as halizah to release her from her bond to him (in modern times halizah is nearly always performed instead of yibbum). If the brother is missing, or if he is still a child, the woman is required to wait until he is located or has reached adolescence so that he can perform the halizah ceremony. There have been recorded cases of the husband's brother trying to blackmail the widow by delaying the halizah ceremony, effectively leaving her as an agunah.

A mesorevet get is a Jewish woman who is a victim of "get refusal", and is known as a modern day "agunah". According to halakha, a get is only valid when it is given by a husband to his wife of his own free will. However, under certain circumstances such as intimate partner violence or emotional abuse, especially where such abuse and refusal to grant a get, or ignoring the ruling of a beit din, has been ongoing for a period of several years, certain kinds of pressure may be applied on a husband to force him to grant a divorce to his wife. Where a woman has proven one or more of a list of particular grounds for divorce, the beth din (rabbinical court) may apply pressure on the husband in these situations. There are some halakhic decisors who would act accordingly in the cases of abuse or neglect. Nevertheless, not under all circumstances is a wife entitled to demand a divorce according to halakha. If a wife who is not halakhically entitled to a divorce does demand one, she may not be considered as a mesorevet get by a rabbinical court. However, not any woman who wants to leave an unwanted marriage but is refused by her husband, is considered to be a victim of get refusal. There are opinions that deem a woman's repugnance for her husband as acceptable halakhic grounds for coercion. "It is said: In cases of granting a get to a woman, the man is forced until he says, 'I wish to do so'". Nevertheless, in almost all cases, it is required to leave the man some say in the matter, lest the get be considered a "coerced divorce", which is halakhically invalid. As ruled by Rabbeinu Tam, pressures that can be exerted against the man include shunning, denying him communal benefits and honors, and in extreme cases even imprisonment. Starting in the mid 1980s, the New York divorce coercion gang employed violent tactics such as kidnapping, beating and torture to extort gittin and money from husbands in troubled marriages. They were arrested by the Federal Bureau of Investigation in 2013, and sentenced to prison. In 2016, another rabbinical team was arrested on suspicion of planning the contract killing of a husband in order to free his wife. In Israel, rabbinical courts are allowed by law to implement various measures to persuade a man to grant his wife a get (Rabbinical Courts Law [Enforcement of Divorce Rulings] 5755 1995). These sanctions are a modern day version of the aforementioned, Harchakot D'Rabeinu Tam, which include: revoking of a driver's license, closing of bank accounts, revoking professional licenses such as medical and legal, cancellation of a passport, and incarceration. Practically, one of the most effective of these has turned out to be revoking a recalcitrant husband's driver's license. Even so, neither the laws nor the Israeli Rabbinical Courts' enforcement, or lack thereof, have succeeded in eliminating get refusal in Israel. In the Diaspora, the rabbinical courts have no such powers, and any practical power that they may wield would be the product of a binding arbitration agreement (such as Prenuptial Agreement for the Prevention of Get Refusal), if signed previously by the combating couple. Within the past decade, both Orthodox rabbinical groups and women's organizations have decried the increasing number of cases of get refusal, as well as establishing task forces to deal with the issue and to help individual victims of get refusal.

Agunah Day was established by ICAR The International Coalition for Agunah Rights in 1990, to raise public awareness to the plight of the Agunah and galvanize action to solve the problem. It is observed on the Jewish calendar date of the Fast of Esther. The Fast of Esther was chosen by ICAR as Agunah Day in order to symbolize identification with the Agunah for two contrasting reasons – due to affliction and due to salvation. Like Esther, the agunah of the present era does not want to be in the marriage in which she finds herself. Like Esther, many women who are refused a get live in fear of their spouses and live a double life. Like Esther, the agunah, a victim of get refusal, finds herself lacking control of her own freedom.

The Torah allows a man to have multiple wives, and a child born to a married man with a single woman is not considered to be a mamzer. Thus, while a woman who enters a new relationship while married suffers severe halachic consequences, a man doing the same suffers much lighter consequences. However, in the beginning of the 11th century, Rabbenu Gershom issued a decree prohibiting Jewish men from practising bigamy (though this was not accepted by certain remote Jewish communities such as the Yemenite Jews). To prevent this decree from causing flippant divorces previously unnecessary, Rabbenu Gershom also decreed that "a woman may not be divorced against her will." These decrees made it possible for men to become "agunim" just as women become "agunot", if his wife should disappear or refuse to accept a get. To resolve the situation of such a man, the heter meah rabbanim (exemption by one hundred rabbis) was established, to permit him to take a second wife (after depositing a get for the first wife with the rabbis). However, due to complexities, costs and other reasons, many husbands do not succeed in obtaining a heter meah rabbanim, and thus remain chained to their wives. In Israel, there are more cases in which women choose not to accept a get when a husband wants to give one, than cases in which the man refuses to grant a get. There are also cases where the get is offered to protect the wife. For example, if the husband is undertaking a dangerous activity, or is being imprisoned for a lengthy time, he may wish to divorce entirely to help his wife by freeing her. Often, such offers are refused.

Getting Your Man (1996) — A play written and directed by Australian theatre director Margie Fischer for performance by Jewish community members on issues surrounding the Jewish religious divorce and get refusal.