The Hebrew bible views marriage as a sacred and vital institution in Jewish life. But it also recognizes that in some cases marriages do not work out, and, in such circumstances, it emphasizes the need for the marriage to end. In order to end the marriage, a husband must voluntarily give, and a wife must voluntarily receive, a Jewish bill of divorce, known as a get. The origin of the word get, according to a rabbinic source: the Gaon of Vilna, stems from the fact that the Hebrew letters of Gimel and Tet are the only letters of the Hebrew alphabet that alone cannot form a word, thus symbolizing the divorce. In the absence of a get, the wife is prohibited from remarriage.
Traditionally Batei Dins, rabbinical courts, held the responsibility of overseeing the process of a Jewish divorce, and ensured that the get is not withheld improperly. A husband who refused the court’s demand that he divorce his wife would be subjected to various penalties in order to pressure him into granting a divorce. Such penalties included excommunication, monetary punishments, or corporal punishment. However, in modern society Batei Din do not have sufficient power to take such measures against uncooperative participants in a divorce proceeding.
Today we are seeing more and more cases of spouses that have purposely withheld a get even where their marriages have functionally ended. Some spouses have refused to participate in the get process in order to extract concessions in civil divorce negotiations, in order to extort money, in order to receive child custody or simply out of malice for their ex. Other times a man may just refuse to grant a divorce altogether, leaving his wife with no possibility of remarriage.
A woman whose marriage is functionally over, but whose husband refuses to give her a get is called an agunah. Later children born to the wife may bear the stigma of mamzerut (illegitimacy) in the case that she remarries without receiving a get.
Recently, in many of my community synagogues, there have been announcements to exclude from communal religious activities a man, who has remarried without giving his first wife a get, thus not properly ending his marriage in the eyes of the Torah. In cases like this, the Beit Din has issued a seiruv to the noncompliant spouse for failure to appear before or obey the Beit Din, in hopes that this pressure of exclusion will encourage him to grant the divorce.
However, a seiruv, has not been the answer for dozens of divorced Jewish women. There are cases where the Beit Din has issued a seiruv, but the wives maintained the agunah status for three, or five, or even ten years. Many women live with the abuse burdens, and fears of remaining an agunah.
NY DRL §236 provides:
“No final judgment of annulment or divorce shall thereafter be entered unless the plaintiff shall have filed and served a sworn statement: (i) that, to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant’s remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision.”
For all intents and purposes this would seem to make it a requirement that the get be given by the husband in order to proceed with a civil divorce. However, many judges have used loopholes in the statute to award the husband a divorce despite lack of a get, compensating the wife by distributing more property to her. This still leaves such women in a sorry state. Courts need to strictly follow the law, and refuse to grant a divorce when the get has not been given. It is important that the civil courts be aware that leaving women as agunot while awarding them more property is not sufficient. This education about agunot as well as stricter enforcement of the statute can help to prevent the problems of agunot and domestic abuse from continuing any further.