What is the Agunah problem, and how has it been handled in the Conservative movement?
Jewish law provides norms for marriages and divorces. Civil marriages and divorces have no validity in Judaism. In Jewish law, when a couple gets divorced, it is the man who has to present the woman with a bill of divorce, called a get. Without a get, the couple is still Jewishly married, whether or not a civil divorce is obtained or not.
Up until the 19th century, most Jews lived in observant Jewish communities, so there was little problem in this area. If a woman was refused a divorce because a man refused to give his wife a get, the rabbis would force the man to do so, and were authorized to use imprisonment, fines and even physical force if all other options failed. Judaism would allow no withholding of a get, as this heinous act could trap women inside a marriage that they no longer wanted to be in.
However since the age of emancipation for Jews worldwide, most Jews no longer live in an observant Jewish community, and many Jews do not follow Jewish the mandates of the rabbis. Hence, sadly, some Jewish husbands sometimes refuse to give their wives a get, and the Jewish community was powerless to force him to do so. Without a get, a Jewish women is forbidden to remarry and is therefore called an agunah (an anchored woman). This is a problem of tragic proportions. There are a number of halakhic solutions to this problem, the simplest being that rabbis have the authority to annul a marriage, thus solving the problem outright. Unfortunately, most of the Orthodox rabbinate has been in a state of paralysis for over a century, and maintains that today's rabbis are not of the same caliber as the rabbis of old, and thus we do not deserve to use the same Talmudic privilege of annulment. The great majority of Orthodoxy rejects most other halakhic solutions as well.
What are the ways that Conservative Jews solved with the agunah problem?
The quoted parts of this section are from an essay by Rabbi Mayer E. Rabinowitz, adapted from his comments to the Agunot Conference in Jerusalem in July 1998.
The Committee on Jewish Law and Standards (CJLS) spent years working on halakhic solutions to the agunah problem, and three such solutions were eventually developed. All three are still in use. In 1955 the Rabbinical Assembly issued a takkanah allow rabbis to add the Lieberman clause to the ketubah (Jewish wedding document).
"Named after its author, Prof. Saul Lieberman, it is in effect an arbitration agreement in which the couple agree to go to a central Conservative bet din (court of law) for counseling. It states that after receiving a secular divorce both parties must heed the directive of the bet din, and the husband must then give his wife a get. If not, the wife can then enforce the decision of the bet din in a secular court. However, in the United States many State Supreme Courts will not accept the Lieberman clause because, according to them, it violates the principle of separation of church and state. There was one case in New York that was appealed to the Supreme Court of the United States. The husband claimed that the clause was never explained to him, and he was just told to accept the ketubbah as written. Based on this case, the Joint Bet Din created a Letter of Intent that is signed by both husband and wife. In this letter, which is separate from the ketubbah, the couple testifies to the fact that they met with Rabbi So-and-So who explained to them what is in the ketubbah, including the Lieberman clause, which obligates them to appear before the Joint Bet Din, and to obey its decision. The couple signs the letter indicating their acceptance of the ketubbah and the Lieberman clause. They are informed that this letter is binding in a civil court."
"In the 1950s, when Professor Lieberman suggested the clause, the head of the Rabbinical Council of America (Orthodox) and the Rabbinical Assembly (Conservative) met to discuss this. Participating in these discussions were Rabbi Joseph Soloveitchik and Professor Saul Lieberman. All agreed that from a halakhic point of view the clause could be added to the ketubah, and was usable. However, the Orthodox rabbis decided not to cooperate in this manner, and the Lieberman clause appears only in Conservative ketubbot." (*)
Still, the RA was not fully happy with this solution. They noted that later secular court decisions could make it more difficult to enforce this provision. Thus another approach was needed, and one was adapted from the work of a Modern Orthodox rabbi, Eliezer Berkowitz, from his book, "Tenai be-nisuin uve-get". This was a t'nai (pre-nuptual agreement) and is based upon the ideas of the French and Turkish rabbinate. In 1968 Conservative rabbis began using such a t'nai.
"This is a separate document and is not part of the ketubbah. The principle involved is that the husband betroths the woman "kedat Moshe v'Yisrael" with the following condition: If we should be divorced civilly, and within a period of six months after the civil divorce I give you a get, then the kiddushin are valid. But if we should be divorced civilly, and within a period of six months after the civil divorce I do not grant you a get, then the marriage was not a valid one. The groom reads the T'nai in the presence of a Bet Din and the bride says that she agrees. The bride and groom sign the document and the members of the Bet Din sign it as well. Under the huppah, before the groom betroths the bride, the rabbi asks them if they agree to be betrothed in accordance with the laws of Moses and Israel and the conditions they agreed to beforehand. If they agree at the time of kiddushin, then the wedding ceremony continues with the betrothal formula."
"When the t'nai is used and the couple gets a civil divorce, the wife can appear before a Bet Din because her husband refuses to give a get. The Bet Din then verifies the fact that the condition was agreed to, but not fulfilled. Then the kiddushin is rendered invalid and the woman can remarry, based on the P'tur the Bet Din issues. There are no arguments or problems."
With the T'nai and the Lieberman Ketubah, the Rabbinical Assembly nearly eliminated the Agunah issue. However, two problems remained. The Joint Bet Din could only free a woman if she and her husband has signed either a Lieberman Ketubah or the t'nai. Since some Conservative Jews still do not do this, and since Orthodox Jews never do this to begin with, there are still some women who could become agunot that the Bet Din would not be able to help. To resolve this, in 1969 the CJLS voted to put into use a teshuva written by Rabbi David Aronson "Kedat Moshe VeYisrael", which was originally adopted by the law commitee in 1951. This teshuva reasserts the rabbinic privilege of annulment, hafka'at kiddushin, which was used by rabbis throughout the Geonic and Rishonic eras. The Talmudic principal is that all Jewish marriages take place in accordance with Jewish law, with the approval of the rabbis. In short, in cases of need, the rabbis have the power to revoke this approval, thus rendering the marriage null and void.
For more information see the above mentioned teshuvot in volume 2 of "Proceedings of the Committee on Jewish Law and Standards of the Rabbinical Assembly: 1927-1970" and the law committee summary papers in Volume I, pages 593-597 and 603-604.
Agunot and annullment - Rabbi Mayer E. Rabinowitz
http://learn.jtsa.edu/topics/luminaries/monograph/agunot.shtml
Annulment of marriage in the Mishna - Prof. Judith Hauptman
http://learn.jtsa.edu/topics/luminaries/monograph/annulm.shtml
(*) References on this subject:
"Seventy Faces", by Rabbi Norman Lamm, _Moment_ Vol. II, No. 6 June 1986 -
Sivan 5746 ; "Tradition Renewed: A History of the Jewish Theological Seminary of
America", Vol. II, p.450, 474 (JTS, NY, 1997) ; article by Rabbi Emmanuel Rackman published in "Jewish Week" May 8, 1997, page 28.
