The Problem of Recalcitrance in Jewish divorce

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The Problem of Recalcitrance in Jewish divorce
In each generation since the institution of the laws of divorce, there has existed countless tales of husbands who have deserted their wives without issuing them get. This is problematic for many reasons in addition to the fact that without the issuance of get, civil or religious divorce is not valid according to Jewish law. If a woman's husband has deserted her, is insane, missing (e.g., kidnapped, missing in action during a war), or is presumed dead but without verification, a woman is left in an immobilized state for she has no way to divorce her husband or remarry; a get is prerequisite for both. woman in such a state is called an agunah ["chained woman," or "anchored wife"]. The only way an agunah can remarry is through the issuance of get by her husband or through her husband' confirmed death. Also, evidence of a husband's death must be direct; circumstantial evidence is not sufficient according to Jewish law.
With regards to confirming the death of wife's husband to prevent her from becoming an agunah, Jewish law is bit more lenient than in other categories of litigation in that testimony will be permitted from only one witness (normally two male witnesses are required in matters of Jewish law), as well as of persons who are usually ineligible to be witnesses, such as a woman, a minor, the words heard in passing in the conversation of non-Jews, and non-Jews themselves whose testimony to the husband's death is spontaneous and without the intention to act as a witness on behalf of an agunah. Even the wife herself may testify as to witnessing herself the confirmed death of her husband, pending that she lived in harmony with her first husband (otherwise, she may be motivated to lie about her husband' death to be rid of him and free to remarry), and her husband's disappearance was not tied to wartime activities. This leniency is allowed in Jewish law when dealing with the issue of the agunah, since man who has died is gone for good, and if there is no other testimony to his death, no new evidence is likely to arise. Only five jewish women are invalid witnesses in agunah cases as to the death of the wife' husband, all on the husband's side: (1) his mother; (2) his sister; (3) his second wife; (4) his wife by levirate Jewish Marriage; and (5) his daughter by another wife. It is presumed that these witnesses may be hostile towards the agunah, such as plotting to get rid of her, hence their testimony would be suspect. Of course, such plotting is more theoretical than realistic, but the law to exclude them as witnesses is meant to protect an agunah. In any event, if no valid witness can confirm the death of wife's husband, yet he is missing or his whereabouts are unknown, a Jewish wife will be considered an agunah; without information about her husband, she may remain an agunah indefinitely, and therefore simply cannot remarry until valid information comes forth.
This restriction against remarriage also applies in cases of Jewish wives who are civilly divorced, but not religiously divorced under Jewish law as stated earlier. Although it is obviously known that the husbands of these wives are alive, the fact that they either have not granted their wives get or are refusing to grant their wives get leaves these jewish women unable to remarry, for they are still maritally "chained" to their husbands. The marital bonds of these jewish women are still in tact according to Jewish law, hence, they are in state of immobility in that they cannot validly remarry under Jewish law. This phenomenon is likely more common in today's modern world, especially in America, than a situation of unknown whereabouts of a wife's husband. It may even be argued that the case of the recalcitrant husband who refuses to religiously free his wife from her marital ties is more psychologically abusive to an agunah than the case of missing husband and the lack of information as to his whereabouts. This point can be seen when looking at many of the articles in the professional literature that have addressed Jewish divorce law. The following quotes are some examples:

"Throughout the long history of Jewish law, no problem has constituted greater challenge to basic equity than that of the agunah, the woman who is unable to remarry due to the legal inability to terminate her present Jewish Marriage" [Washofsky, M. (1981). The recalcitrant husband: The problem of definition. Jewish Law Annual, 4, 144-166].

"The fate of the agunah is perhaps the most tragic consequence of the laws of Jewish Marriage and divorce" [Biale, R. (1984). jewish women and Jewish law: An exploration of jewish women' issues in Halakhic sources. New York: Schocken Books].

"No other question has vexed modern students of Jewish law more than the question of the agunah or "bound wife" - that is, the woman who is still legally tied to an absent husband" [Novak, D. (1974). Law and theology in Judaism. New York" KTAV Publishing House].

"One cannot fail to be deeply sympathetic to the sorrowful plight of the agunah (one who is "tied") under Jewish religious law" [Pfeffer, ., & Pfeffer, . (1989). The Agunah in American secular law. Journal of Church and State, 31, 487-525].
The following discussion demonstrates the abuse that results in the case of the recalcitrant spouse.

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The Recalcitrant Spouse
In today' world, Jewish men can easily withhold a get in divorce cases. Although civil court may grant Jewish couples a divorce, Jewish law regards the couple to still be married. Hence, husbands can keep their wives at their mercy and under their control by simply refusing to issue them a get; indeed, severe form of psychological abuse. For instance, husbands may use the threat of withholding a get as bargaining power to obtain certain benefits in divorce cases, such as financial gains or certain custody arrangements. husband may ". . . vengefully and strategically use this dramatically superior bargaining power in negotiating a favorable property settlement or custody settlement with his wife" [Fox, B. ., & Krasnow, H. C. (1988, January). Secular solutions to obtaining a Jewish divorce. Illinois Bar Journal, pp. 274-278, 280]. This type of situation occurs when husband makes it entirely clear to his wife that he will not cooperate in the executing and delivering of a get until his wife complies with his specific demands [ get-extorted agreement presents strong case for coercion, and a wife may be able to seek relief under the law for her husband's unfair bargaining in the divorce. However, it may be difficult to prove that coercion took place, so it may be best for a Jewish wife consult with a lawyer before agreeing to her husband's blackmail]. If wives do not comply with their husbands' requests, husbands can literally keep their wives' marital ties intact for indefinite periods of time (or at least until they comply with their wishes). This situation forces the Jewish woman who believes in and wants to follow Jewish religious law to be faced with the impossible choice of either giving into her blackmailing husband or becoming an agunah. Although some jewish women stand their ground, many simply choose to give in so that they can move on with their life. In any event, it should be clear here that whether or not Jewish wife accepts her husband's demands and is issued a get, she is subjected to severe psychological abuse. This situation inflicts severe wounds on Jewish wife, and certainly may leave permanent scars.

am not Jewish Single nor Shomer Shabbos, but don't know where to turn. am a divorced reform Jew who has since remarried. My ex is a newly orthodox Jew and wants me to give him a Get so he can remarry. He owes me thousands of dollars in back child support. My children are grown and don't choose to pursue having him jailed for back support. He has taken over payments on my son's car because my son moved to .Y. and no longer needs it and my ex needed it. My ex has missed some payments and messed up our son's credit. have been reading up on obtaining a Get and cannot find out if there is anyway can get him to commit to honoring his commitment to my son. Withholding the Get is the only leverage have. Is this something can do? If you all can't help me can you direct me to where might find out my rights under Jewish law?

Thank you for your kindness.

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Depending where HE lives - you have an option of calling him to Din Torah to panel of 3 Rabbis or other alternatives.
call the Rabbinical Board of New York at 1 212 425 2242

[Cubanita]

am sorry that you came across such man. hope G-d will help you.

You are too kind. This guy actually deserves to go to jail for not paying child support and also for ruining your son' credit which could be handled in small claims court without having to make his father go to jail.

"Who would takke family member to jail?", you might ask, well some people just deserve it.


Too bad that you were reform and didnt have Ketubbah.

You remarried without recieving get...

wonder if the beis have heard of an issue like this?

To obtain free copy of JOFA's Guide to Jewish divorce and the Beit Din System email agunah@jofa.org