Is the Jewish "Get" Archaic?
Within the last few days, there were some frightening news stories about two "Orthodox Rabbis" in New York who were arrested by the FBI for arranging--for a hefty fee--the kidnapping, beating and sometimes torture of men who had refused to divorce their wives, that is, refused to give their wives a religious Jewish decree of divorce, called a "get." From The New York Times:
...While it’s common for rabbis to take action against defiant husbands, such as barring them from synagogue life, Rabbi Epstein, 68, took matters much further, according to the authorities.For hefty fees, he orchestrated the kidnapping and torture of reluctant husbands, charging their wives as much as $10,000 for a rabbinical decree permitting violence and $50,000 to hire others to carry out the deed, according to federal charges unsealed on Thursday morning...
In and of itself, this is horrific: that so-called spiritual leaders of the community, supposedly well-versed in Jewish law, promoting chesed*, should commit a crime such as this. The ex-husbands themselves are guilty as well, for not granting their ex-wives a religious divorce which, in effect, traps the wives in a marriage they don't want....Rabbi Epstein was sued in the late 1990s by another Brooklyn rabbi, Abraham Rubin, who claimed that a group of men shoved him into a van as he left synagogue, hooded him, and applied electric shocks to his genitals in an effort to force him to provide a get to his wife. The lawsuit was dismissed.According to newspaper accounts from the late 90s, other men, too, have come forward with similar tales of curbside abductions and mistreatment.
At this point a little basic background is necessary. In Judaism, while divorce is frowned upon, it is not prohibited. Marriage is considered in Judaism a holy union, but it is also a legal transaction, the ketubah* being the legal document; consequently, the dissolution of marriage needs to be legal as well, which is where the get comes in to play: it is the document needed to legally dissolve the marriage. Without it--if it is not granted--the divorced wife is considered still married, and cannot under Jewish law remarry. The problem is, that only men are given the right to divorce a wife:
In biblical law, a husband has the right to divorce his wife but a wife cannot initiate a divorce. About 1,000 years ago, Rebbeinu Gershom ben Yehuda (965-1028) decreed that a husband could no longer divorce his wife without her consent. This decision was accepted as binding by European Jewry.I have read within the past two days articles and much discussion by various bloggers on whether or not the New York rabbis were justified in what they did, or how terrible it was, or how the husband is to blame for not granting his wife a get, forcing her to become an agunah* who is considered still married and thus not permitted to remarry. But consider this analysis on the site Judaism 101, below (emphasis mine):
The position of husband and wife with regard to divorce is not an equal one. According to the Talmud, only the husband can initiate a divorce, and the wife cannot prevent him from divorcing her. Later rabbinical authorities took steps to ease the harshness of these rules by prohibiting a man from divorcing a woman without her consent. In addition, a rabbinical court can compel a husband to divorce his wife under certain circumstances: when he is physically repulsive because of some medical condition or other characteristic, when he violates or neglects his marital obligations (food, clothing and sexual intercourse), or, according to some views, when there is sexual incompatibility.And even more information you might not even want to hear, from that New York Times article, here:
A peculiar problem arises, however, if a man disappears or deserts his wife or is presumed dead but there is insufficient proof of death. Under Jewish law, divorce can only be initiated by the man; thus, if the husband cannot be found, he cannot be compelled to divorce the wife and she cannot marry another man. A woman in this situation is referred to as agunah (literally, anchored). The rabbis agonized over this problem, balancing the need to allow the woman to remarry with the risk of an adulterous marriage (a grave transgression that would affect the status of offspring of the marriage) if the husband reappeared. No definitive solution to this problem exists.
Rabbi Epstein was sued in the late 1990s by another Brooklyn rabbi, Abraham Rubin, who claimed that a group of men shoved him into a van as he left synagogue, hooded him, and applied electric shocks to his genitals in an effort to force him to provide a get to his wife. The lawsuit was dismissed.
According to newspaper accounts from the late 90s, other men, too, have come forward with similar tales of curbside abductions and mistreatment.Consider the opinion and analysis of Susan Weiss, a highly educated attorney in her own right, on the website Jewish Women, a Comprehensive Historical Encyclopedia
(again, all emphases mine):
Many scholars in the area of Jewish marriage and divorce point proudly to the fact that Jewish marriage is a private ordering between individuals. Those scholars claim that Jewish marriage is a matter of contract between two willing parties, and therefore, unlike the custom in most liberal Western democratic countries, the parties, not the state, determine their personal status. The parties by agreement can decide to get divorced, in the same way that they decided to marry. No reason need be alleged for the divorce. No fault is relevant. No time need elapse between separation and divorce. In theory, parties can marry one day, divorce the next, and then remarry without delay or period of separation.Ms.Weiss then quotes a passage by Rabbi Dr. J. David Bleich of Yeshiva University confirming the idea of "kinyan," a 'purchase of property':
However, more critically inclined scholars, and especially feminist scholars, would take issue with those who complacently remark on the “progressive, and contractual” ease with which Jewish divorce takes place. They would argue that Jewish marriage and divorce law is not about the contractual give and take between equal parties; nor is it about a sanctification of a holy relationship—kiddushin. Rather, it is about the ordering of a relationship based on patriarchal dominion, or kinyan—purchase, in which the wife is more like the property of her husband than his equal in partnership. It is about a patriarchal bargain in which a woman exchanges her sexual and household services for her husband’s protection and maintenance.
The legalistic essence of [Jewish] marriage is in effect an exclusive conjugal servitude conveyed by the bride to the groom. All other rights, responsibilities, duties and perquisites are secondary and flow therefrom. The three methods of solemnizing a marriage, i.e. kesef, shetar and bi’ah (money, deed, and sexual intercourse) parallel the conveyances prescribed for the transfer of real property [in Jewish law]. Title to real estate is transferred by payment of the purchase price; marriage is effected by kesef, delivery of an object of value, usually specie in the form of a ring, by the groom (the “purchaser”) to the bride. Transfer of real property can be effected by delivery of a deed; a man can acquire a wife by delivery to her of a shetar kiddushin … Real property can be transferred by hazakah, i.e. the recipient performing an overt act demonstrating proprietorship, e.g. plowing a furrow … Bi’ah, or cohabitation for purposes of marriage, is the counterpart of hazakah; it is an overt demonstration of the exercise of the servitude that is being acquired. Understanding that the essence of marriage lies in a conveyance of a “property” interest by the bride to the groom serves to explain why it is that only the husband can dissolve the marriage. As the beneficiary of the servitude, divestiture requires the husband’s voluntary surrender of the right that he has acquired.
The source of Jewish divorce law is from the Torah in sefer D'varim (Deuteronomy), 24:1, where it is written (translation from Mechon Mamre):
כִּי-יִקַּח אִישׁ אִשָּׁה, וּבְעָלָהּ; וְהָיָה אִם-לֹא תִמְצָא-חֵן בְּעֵינָיו, כִּי-מָצָא בָהּ עֶרְוַת דָּבָר--וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ, וְשִׁלְּחָהּ מִבֵּיתוֹ.
When a man taketh a wife, and marrieth her, then it cometh to pass, if she find no favour in his eyes, because he hath found some unseemly thing in her, that he writeth her a bill of divorcement, and giveth it in her hand, and sendeth her out of his house...Ms. Weiss continues:
According to this Biblical verse, the husband writes the bill of divorce (a get), gives it to his wife, and banishes her from his house. Professor Zev Falk described Biblical divorce as the “arbitrary, unilateral, private act of the husband.” The husband initiated and executed the divorce at his will and in accordance with his subjective evaluation of the nature and quality of his marriage. His wife had no capacity, voice or power to protest. It did not matter whether she was at fault for the breakdown of the marriage, having refused conjugal relations with her husband, committed adultery, or merely burnt his dinner (in accordance with the opinion of Bet Hillel).She then quotes from the Mishnah, in Yevamot 14:1 where it states that a man can divorce his wife against her will. She has no recourse, however: he has to want the divorce, as she cannot divorce him against his will. Then, she quotes a passage on coercive divorce ("get me'useh"), or being coerced to give the woman a get:
Only a man can give a get, and that get must be given of his free will. A get which is given under duress or coercion (known as a get me’useh, a “forced divorce”) is void. The rabbis derive this rule from the same verse in Deuteronomy quoted above for the principle that a man could divorce his wife unilaterally. Since the husband has the unilateral power to divorce his wife, the rabbis maintain that the act of divorce can occur only if it complies with the husband’s discretion and free will.
Does no one see the irony of this whole situation? The whole thing seems like a big jumble, so let me try to clarify it by listing the problems in order, as I see them:
1. A woman wants a divorce, but her husband refuses to grant her a get which she needs in order to be legally divorced under Jewish law.
2. Rabbis sometimes attempt to bar the ex-husband ("ex" under civil law, that is) from synagogue, community activities, etc. in order to prevail upon him to give his ex-wife a get.
3. The above methods often do not work and the ex remains recalcitrant, and still doesn't give his wife a get.
4. Two rabbis in New York (and maybe more) resort to criminal activities, extorting thousands of dollars from desperate woman who want out of their marriage with no religious recourse.
5. These same rabbis and their henchmen kidnap, beat and torture those men to force them to give their ex-wives gets.
6. A forced get may be invalid in Jewish law.
Back to our ironical situation: in my opinion, no one is seeing the elephant in the room. Let's take it one at a time, back to our list, in numerical order, ergo :
1. The woman should be able to divorce her husband, of her own free will, without any dependence on needing her husband to give her a get.
2. Excommunicating the guy doesn't work: he doesn't give a sh** ...ergo, don't even bother: just don't require him to give a get. He's not the problem any more.
3. See Ergo #2.
4. Ergo, the New York rabbis should be tried, convicted and jailed. Period. And their rabbinic smicha revoked (yeah, that'll be the day).
5. See Ergo #3. Assault and battery, 8 to 15.
6. Husband doesn't want to give his wife the get, husband doesn't need to give his wife the get.
There are some educated, thoughtful individuals such as Rabbi Eliyahu Fink who propose certain halakhic machinations to try to rectify the current predicament in which many Jewish, civilly-but-not-Jewishly-divorced women find themselves:
One solution for preventing an agunah crisis is the “Halakhic Prenup.” This is available and comes recommended by foremost rabbinic authorities. The prenuptial agreement triggers a daily fine of $150 if a husband withholds a get. It’s not a very elegant solution, but it works. The Halakhic Prenup is gaining traction and hopefully our discomfort with violent solutions will push more rabbis to insist on it at every wedding they officiate.Hold on a minute. Did I just read "discomfort with violent solutions?!" Is this being politically correct, or what? How about something a little stronger, like, say, abhorrence. And, "prenuptial agreements recommended by foremost rabbinic authorities?" Tiptoeing around the real issue--more political correctness, as in 'don't rock the boat.' Why don't they recommend a revision of the law itself? It's that elephant in the room again...
I say this: times have changed. I do not believe that this law is a G-d given one, but rather one decided by men at a different time in a different society. It is time for an 'upgrade' to ancient Jewish law, which is not arcane (as one blogger put it), but archaic. In our day, women are executives of corporations, are often the sole breadwinners, are independent. They are not a husband's property. And yet they are not equal in the Jewish divorce law process.
I truly believe that Occam's Razor applies here: the simplest, most direct explanation is probably correct: every one of these references point to one, underlying problem: the inequality of the divorce process, meaning necessity for the husband to give the wife a get in order for a divorce to be legal.
No need for a husband to give his wife a get, ergo no need to coerce anyone to do anything, ergo no agunot:
*get: Jewish divorce document
*chesed: loving-kindness, helping others
*ketubah: marriage contract
*agunah: a divorced Jewish woman who has not received a 'get.' Literally, an "anchored" woman, who cannot remarry.