Untying the Knots


Why divorce has created a major moral problem for Jews and is endangering Jewish continuity.

by Dr. Norma Joseph

The excerpt below is by Norma Joseph, a founding member of the Canadian Coalition of Jewish Women for the Get. Dr. Joseph successfully worked with the federal government to pass a law in 1990 that would protect Jewish women in difficult divorce situations and aid them in pursuit of their get.

Note: Aguna (which means in Hebrew literally “anchored or chained”) is a halakhic term for a Jewish woman who is “chained” to her marriage because her husband’s whereabouts are unknown. Today it is commonly used to describe a woman whose husband refuses or is unable to grant her an official bill of divorce, known as a get. Jewish law requires that a man grant his wife a get of his own free will to make a divorce official. Without this get, no new marriage will be recognized (and any children she might have would be considered bastards).

The problem of agunot is found in Jewish law (halakha). Only Jewish law can solve it!

Jewish law is the source of the problem and while in the past it may have dealt with it, today it is failing that task. Hence many of us here today [at the Gender, Religion and the Law Conference] have been working to implement solutions both temporary and definitive.
Jewish divorce, like any other, can be simple or complicated; a release or a tragedy; straightforward or a swindle. It can set people free to resume or reinvent their lives, or it can embroil individuals and families in a never ending cycle of abuse. The intent of rabbinic Judaism was to ensure a tolerable disengagement. Regrettably, the current implementation of the halakhic (Jewish law) system does not meet that minimal standard.
Many individuals, women and men, rabbis and volunteers, have labored to maintain a fair practice. And in some cases it does work.

What the Bible says

However, the biblical account of divorce found in Deuteronomy, while accepting marital break ups, establishes a procedure that is at the heart of the problem. “When a man has taken a wife, and married her, and it come (sic) to pass that she find (sic) no favour in his eyes, because he has found some unseemliness in her: then let him write her a bill of divorce, and give it in her hand, and send her out of his house. And when she is departed out of his house, she may go and be another man’s wife.” (Deut. 24: 1,2) Clearly, the man is the initiator, the actor. And while rabbinic law established that there need be no grounds for divorce other than mutual consent, it enforced the structured order of the verse: the male is the active legal principle. He must initiate, author, and give the document to her. She receives it and only then is free to resume control.

While in most cases Judaism’s tolerant acceptance of divorce enables a decent split, in too many situations this male prerogative becomes the means for extortion, vengeance and affliction. Certainly not a biblical ideal. Thus, although her consent to the divorce is necessary, the woman is still at the mercy of the man. In the course of the centuries-long development of Jewish law, many improvements have been incorporated into the system in an attempt to limit the man’s unilateral power and prevent the misery. The rabbis were aware of and sensitive to women’s vulnerability. But…

A Jewish divorce requires a get, a document that a man freely gives to his wife and she must voluntarily accept. Without this document neither partner may remarry according to classic Jewish law. Today, this affects Conservative, Orthodox and all Israeli Jews. The Reform movement often relies on local civil divorce courts and the Conservative movement has empowered its central court to intervene and act unilaterally to affect a divorce when there are insurmountable problems. But throughout Israel and in the Orthodox community outside of Israel, the pattern of insisting on the biblical directive has left too many women agunot.

Since the rabbinic court cannot authorize the writing of the get, and only a man can initiate the proceedings, problems arise most frequently for women although the term can be applied to men (agun).

Children used as pawns

The problems for women within this system are obvious. Procedurally dependent on her husband and on a rabbinic court, her future children also become pawns in this tug of war. If a woman without a get gives birth, her newborn children will be considered the product of an adulterous union and hence be categorized as mamzerim, Jews who are not allowed to marry other Jews. A mamzer can be a rabbi, but can only marry a non Jew or another mamzer. There is no remedy. To be sure, both a man and a woman can be found guilty of adultery, but the category depends on the marital status of the woman only. The applicable result is that the woman suffers the most from an incomplete divorce.

The irony is that if the Jewish process of divorce was established to set one free, even to encourage remarriage, the current reality is one in which the process itself has created a group of people who are not free. And the numbers and problems are increasing.

Exact numbers are actually hard to come by, but the numerical dimensions of this issue should not become the primary consideration. We cannot subordinate our concerns for human rights to arithmetic. Our social activism should not become a matter of counting heads. Where there is injustice, we are commanded to pursue justice. I personally know many silenced women suffering the fate of an anchored life. Their stories not their numbers are our call to action.

For Jewish society today, for all of us, divorce constitutes a major moral problem. Not because of the increase in numbers, nor because of the guilt of either party—but because of the inequities of the process and the indifference of the larger community. People no longer married, no longer living together, are still tied to each other. Bound together and abandoned. The credibility, viability and continuity of Judaism is on the line.

About the Author

Dr. Norma Joseph
The excerpt above was taken from Civil Solutions to Religious Problems: A Feminist Perspective by Norma Baumel Joseph. Dr. Joseph is an associate professor and chair of the Department of Religion at Concordia University, and director of the Women and Religion specialization. Her teaching and research areas include women and Judaism, and Jewish Law and ethics. She was a consultant for the films Half the Kingdom and Untying the Bonds… Jewish Divorce.

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