Notes from Limmud 2006
Rabbi Diana Villa
An aguna is a wife who is tied to a husband who refuses to give a get [bill of divorcement]. In ancient times this referred to men who had disappeared, for example on a long trading journey. The rabbis were lenient in accepting testimony of people that the husband was dead. In modern times this is not the problem. The problem is where the location of the husband is known but will not give a גט. The woman is then still considered married in religious law; she cannot marry again in Judaism, and any subsequent civil marriage she undertakes will be considered adultery, making her children mamzerim.
Even though Jewish law allows for pressuring the husband in certain cases—coerced divorce—for example, the husband is very smelly due to working tanning leather, or has a growth in his nose, or does not support his wife—other reasons are not considered in the Talmud.
Of course there are always two ways to deal with precedent: Whatever is not in the Talmud they did not want to incorporate into Jewish law so we cannot add it; or that we [interpret and adapt for our generation by extrapolating from what is in the Talmud].
So we find coercive divorce for violence in the thirteenth century; and in the fifteenth century the Tashbetz says we if can force the husband to divorce because of a smelly mouth, how much more so can we do so for violence.
What if the wife says she can't stand being with him? There are different opinions about this in the Talmud.
Considering that the dayanim [judges in Batei Din (religious courts)] tend to be on the husband's side, the rabbis try not to use pressure that might result in a divorce that some people might say is not valid; so they try and get the couple of work it out themselves, or try and get the wife to accept the husband's terms, no matter how bad; or get them to make up full stop even if there are writs from the civil court banning the husband from seeing the children.
Not all judges are like this but almost all in Israel are charedim [ultra-Orthodox] and bow to charedi pressure. There was, however, a case a few years ago in which the Chief Rabbi of Haifa applied coerced divorce, with the backing of the majority of his Beth Din. (Unfortunately, this does not apply precedent. And there's no way of getting to a higher court unless the lower, regional court, has actually given a ruling rather than procrastinating endlessly, as above.)
גט מעושה denotes a coerced divorce; גט מעושה כדין is one accepted by everyone. כפית גט kefiyat get is compulsory divorce, allowed only in certain limited cases (in principle the husband has to divorce willingly).
The Chatam Sofer say we need agreement from all the rabbis for adding new reasons to the list of those that justify coerced divorce. The Chazon Ish says this is not possible. But if the divorce is not for one of the agreed reasons it would not [sc. [presumably] be universally accepted.] Most Israeli courts go with the former.
How is coercion done? In the Talmud it says you can hit a recalcitrant husband until he relents. The Rambam supports lashes, and says in his innermost thoughts the recalcitrant husband wants to adhere to rabbinic law, but his evil inclination [inner temptation] prevents him from expressing this; hence when he says he wants to under torture he really means it (!).
Rabbeinu Tam applies the harchakot deRabbeinu Tam—social sanctions against a recalcitrant husband—not visiting when sick, or burying their dead, etc. This is an indirect pressure.
This is not very useful in modern times. However in 1995 the civil Sanctions Law was passed in Israel, enabling rabbis to place recalcitrant husbands in jail, or in solitary confinement if they're already in jail; to take away their passport, bank account, close up their business, etc. Merely the threat of this is often enough for the husband to give the get nowadays. However, the rabbis apply these sanctions only very sparingly; they're afraid of being accused of forcing people.
Since it is so difficult to get a recalcitrant husband to issue a get, or to get Batei Din to act on the issue, the best thing is to go for preventative solutions. There are organisations in Israel pushing for this.
One well-known implementation of this is in the form of pre-nuptial agreements, stipulating, for example, that the husband will be legally bound to give large monthly payments if he divorces civilly without issuing a get. This has been very successful in the United States, though it has not yet come to court in Israel.
This talk, however, concerns a different approach, and something not yet accepted by the Orthodox world: conditional marriage.
In Jewish Law when you do anything conditionally, it has to be done in a certain way. Shulchan Aruch, Even Ha'ezer 38:2:
Every condition must include four things: it must be double, the positive must precede the negative, the condition must appear before the act, and the condition must be something possible to fulfil.
What is a double condition? "If you do X, Y will happen, whereas if you do not do X, Z will happen", for example:
Numbers 32:20-32:23 במדבר לב כ-כג And Moses said unto them, If ye will do this thing, if ye will go armed before the LORD to war, And will go all of you armed over Jordan before the LORD, until he hath driven out his enemies from before him, And the land be subdued before the LORD: then afterward ye shall return, and be guiltless before the LORD, and before Israel; and this land shall be your possession before the LORD. But if ye will not do so, behold, ye have sinned against the LORD: and be sure your sin will find you out. אם תחלצו לפני ה׳ למלחמה׃ :ויאמר אליהם משה אם תעשון את הדבר הזה ועבר לכם כל חלוץ את הירדן לפני ה׳ עד הורישו את איביו מפניו׃ ונכבשה הארץ לפני ה׳ ואחר תשבו והייתם נקים מה׳ ומישראל והיתה הארץ הזאת לכם לאחזה לפני ה׳׃ ודעו חטאתכם אשר תמצא אתכם׃ ;ואם לא תעשון כן הנה חטאתם לה׳׃
The first example of a conditional marriage here concerns men nobody was willing to marry because they had an apostate brother. This is because of the risk of levirate marriage [if the man died, the wife would have to marry the brother], or even chalitzah! It creates an עגונה tied to the brother-in-law rather than the husband. R. Israel of Brunn (1400-1480) said (paraphased in the R. Moses Isserles' notes to the Shulchan Aruch—the original responsum is no longer extant):
Whoever betroths a woman and has an apostate brother, can betroth her and stipulate by means of double condition that if the brother should be required to fulfil the levir's duty, the betrothal would be null and void.
This is important to understand because you cannot annull a Toraitic law: You can't say should the husband die and have no children, we will not apply the law of levirate marriage; instead you say should this happen, the marriage was not valid.
In the sixteenth and seventeenth century various rabbis wrote responsa in which they provided texts (in a combination of Hebrew and Yiddish) for conditional marriage in the case of an apostate brother, or disappeared brother. This would be signed by the rabbis of the Beth Din and hence considered a rabbinic court ruling.
Towards the end of the nineteenth century, the problem shifted from one of apostate brothers to recalcitrant husbands. This problem started in France when civil divorce was introduced—something which has no meaning in civil law.
The rabbis started discussing how to deal with this. In 1907 the French rabbinate wrote (Prof. Freiman, סדר קידושין ונשואין לאחר התימת התלמוד):
You are betrothed to me on condition that you are not left an אגונה on my account; and if the civil court should decree a divorce, my betrothal shall not be valid; and (you) my wife will be able lawfully to (re-marry) with chuppah and kiddushin.
This was probably never applied, because it caused terrible problems in Orthodoxy in Europe. In אין תנאי בנשואין, the leading rabbis of the time wrote lots of reasons why they thought this was a terrible idea.
One of the halachic criticisms was that in a way we are making Jewish divorce conditional on what the non-Jews decide in their courts. Even though they had precedents (about levirate marriage), that they couldn't do anything about because they had been approved by major halachic decisors, they said there was a big difference between annulling a marriage after the husband is dead and doing so when the husband is still alive, because no husband wants to see his wife with another man. They said this was contra to Toraitic law. This is not the case!
Another criticism was that nobody wants their marriage to be considered fornication (זנות) retroactively. However, this is also not the case according to Jewish law. Jewish law recognises a category of concubinage (פלגשות).
Though of course the criticism could be levelled that any man worried about their marriage being considered fornication should just give his wife the גט!
The Constantinople Rabbinate in 1924 (Maḥberet Kiddushin al T'nai, Istanbul, 1924):
They proposed introducing the stipulation of a condition to betrothal and marriage: if the husband should leave his wife for a prolonged period of time without her consent, or refuse to abide by Torah law (by giving a get), or have a mental illness, or should she need to be freed (through chalitzah) from a recalcitrant levir or one who lost his memory—in all of these cases, the betrothal would be retroactively annulled and the money he gave her as kiddushin would be considered a present, and she would not require a divorce from him (the husband) or a chalitzah from the levir.
This may not have ever been applied. Some rabbis were annoyed at the suggestion that mental illness could result in divorce rather than taking care of the poor man!
R. Eliezer Berkovitz with the support of R. Yechiel Weinberg, 1996 (T'nai Be'Nissuim U'beget—Beirurei Halakhah, Jerusalem, 1966, p.51):
Let us consider, for example, a condition such as follows: the marital bond between husband and wife has been dissolved according to the civil laws of the State. The husband refuses to give a get to his wife and after a year or two married another one, not according to Jewish law. Or, the marriage was dissolved by a civil court and the husband refuses to give her a get and behaves towards her in a way which is against the Jewish moral principles, and this behaviour has been confirmed by a reliable Rabbinic Court. Could a condition be stipulated at the time of the betrothal that if the marriage was dissolved by a civil court, and the husband infringes upon Rabbeinu Gershom's ordinance, that the betrothal be retroactively null and void?
This should have been a big revolution in the Orthodox world, but Menachem Kasher squashed it, saying R. Weinberg had changed his mind—in a letter that nobody has ever seen. R. Weinberg's secretary say R. Weinberg was sick and could not have written a letter, but asked his secretary to write maintaining his position—i.e. he never wrote a letter recanting his support for conditional marriage. Nevertheless, the whole proposal fell through in the Orthodox world.
The Conservative Movement (1968):
T'nai Be'kiddushin—The Ante-Nuptial Agreement
The groom made the following declaration to the bride:
"I will betroth and marry you according to the laws of Moses and the people of Israel, subject to the following conditions:
"If our marriage should be terminated by decree of the civil courts and if by expiration of six months after such a decree I give you a divorce according to the laws of Moses and Israel (a get), then our betrothal (קדושין) and our marriage (נשואין) will have remained valid and binding;
"But if our marriage should be terminated by decree of the civil courts and if by expiration of six months after such a decree I do not give you a divorce according to the laws of Moses and Israel, then our betrothal (קדושין) and our marriage (נשואין) will have been null and void."
The bride replied to the groom:
"I consent to the conditions that you have made."
This is not used much, because there are other solutions used in the Conservative world; but it's in the manual of the Conservative rabbis as a tool to be used if necessary.
R. Michael Broyde (2004) recommended a tripartite document (full article), of which conditional marriage forms one part:
R. Broyde's proposal includes conditional marriage, appointing an agent for writing a divorce and, should none of this be effective annulling a marriage, if the couple has been separated for over fifteen months. His proposal is presented as theoretical (ostensibly until proper rabbinic discussion on the issue has taken place).
The transcription of the section on conditional marriage follows:
The groom made the following declaration to the bride under the chuppah:
"I will betroth and marry you according to the laws of Moses and the people of Israel, subject to the following conditions:
"If I return to live in our marital home with you present at least once every fifteen months until either you or I die, then our betrothal (קדושין) and our marriage (נשואין) shall remain valid and binding;
"But if I am absent from our joint marital home for fifteen months continuously for whatever reason, even by duress, then our betrothal (kiddushin) and our marriage (nisu'in) will have been null and void. Our conduct should be like unmarried people sharing a residence, and the blessings recited a nullity.
"I acknowledge that I have effected the above obligation by means of a qinyan (formal Jewish transaction) before a beit din hashuv (esteemed rabbinical court) as mandated by Jewish law. The above condition is made in accordance with the laws of the Torah, as derived from Numbers Chapter 32. Even a sexual relationship between us shall not void this condition. My wife shall be believed like one hundred witnesses to testify that I have never voided this condition. "
R. Broyde is not willing to apply this proposal before obtaining support from other Orthodox rabbis (להלכה ולא למעשה); however a Hebrew version adapted to Israeli law is being promoted by the Centre for Women's Justice in Jerusalem and they have couples sign it before they get married.
Finally, the Modern Orthodox world is once again considering the issue of conditional marriage, but once again it's only theoretical. Possibly someone will try and squash it again but hopefully eventually something like this will hold.