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The Agunah and the Missing Husband: An American Solution to a Jewish Problem

Published online by Cambridge University Press:  24 April 2015

Yael V. Levy
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Extract

Husband and Wife have a fight. It is the culmination of many such fights. In a rage, Husband packs his bags and leaves home. He never returns.

Husband is a reservist in the army. A war breaks out and he is called up to serve. He is sent abroad, never to return.

Husband is the captain of a ship. He leaves home for a long journey at sea. Wife does not join him. The ship sinks and nobody aboard survives.

Husband goes on a business trip abroad. Wife stays at home. Husband does not return when he is scheduled to. Nobody hears from him again.

Husband and Wife are separated during the Holocaust. Wife survives but is unable to locate Husband.

Years pass. Wife gets on with her life. She meets a man who proposes marriage to her. She wants to accept, but may she?

The answer to that question, if she is a traditional Jew who wishes to abide by the halakhah is no. According to the halakhah, Wife is still a married woman. If she remarries without unequivocally ascertaining Husband's death, she will have committed adultery, an act which is absolutely prohibited by Jewish law.

Type
Articles
Information
Journal of Law and Religion , Volume 10 , Issue 1 , February 1993 , pp. 49 - 71
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1993

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References

1. Halakhah is Jewish law. It covers all aspects of life including personal and social relationships. It encompasses both God-given Jewish law (Halakhah le-Moshe mi-Sinai) which is set forth in the Torah and Jewish law decreed by Rabbis which was codified in the books of the Talmud after the destruction of the Second Temple in 70 C.E. It has also come to signify all the laws and observances encompassed in the entire Jewish legal system. See 7 Encyclopaedia Judaica 1155–66 (Keter Publishing House Jerusalem, 1972)Google Scholar.

2. Adultery, according to Jewish law, is voluntary sexual intercourse between a married woman and a man other than her husband. Lev. 20:10; 2 Encyclopaedia Judaica at 314 (cited in note 1). A married man who has sex with a woman other than his wife has not committed adultery.

3. The sixth of the Ten Commandments admonishes: “Thou shalt not commit adultery.” Exodus 20:13. In Biblical times adultery, defined in note 2, was punishable by death. Lev. 20:10; Deut. 22:22; 2 Encyclopaedia Judaica at 314 (cited in note 1).

4. The plural of agunah is agunot. The state of being an agunah is aginut.

5. 2 Encyclopaedia Judaica at 430 (cited in note 1).

6. Pfeffer, Leo and Pfeffer, Alan, The Agunah in American Secular Law, 31 J Church & State 487 (1989)CrossRefGoogle Scholar.

7. Deut. 24:1-2, translated in Tanakh: The Holy Scriptures: The New JPS Translation According to the Traditional Hebrew Text 311 (Jewish Publication Society, 1985)Google Scholar (“Tanakh”). See also Gordis, Robert, A Different Kind of Hostage, The Moment 58 (04 1987)Google Scholar (“Rabbinic interpretation of Deuteronomy 24:1 ff places the initiative for the issuance of a get solely in the hands of the husband”).

8. Amram, David Werner, The Jewish Law of Divorce 52 (Hermon Press 1975)Google Scholar. The requirement that the wife consent to the divorce is a rabbinic decree attributable to Rabenu Gershom of Mayence (960-1028), one of the early great German talmudic scholars. Id; 7 Encyclopaedia Judaica at 511-12 (cited in note 1).

9. See note 3 and accompanying text.

10. 11 Encyclopaedia Judaica at 840 (cited in note 1); Pfeffer, and Pfeffer, , 31 J Church & State at 488–89 (cited in note 6)Google Scholar.

11. Deut. 23:3, translated in Tanakh at 309-10 (cited in note 7); 11 Encyclopaedia Judaica at 840 (cited in note 1).

12. 11 Encyclopaedia Judaica at 840 (cited in note 1).

13. Id; Pfeffer and Pfeffer, 31 J Church & State at 489 (cited in note 6). This ramification of mamzerut also comes from Deuteronomy 23:3: “even to the tenth generation shall none of his fa mamzer's offspring] enter into the assembly of the Lord.”

14. Pfeffer and Pfeffer, 31 J Church & State at 489 (cited in note 6).

15. 2 Encyclopaedia Judaica at 430 (cited in note 1).

16. Id.

17. Sreter, Debbie Eis, Nothing to Lose But Their Chains: A Survey of the Aguna Problem in American Law, 28 J Family L 703, 704 (1989–1990)Google Scholar.

18. See note 8 and accompanying text. Rabenu Gershom also enacted a law prohibiting polygamous marriages which later came to be accepted by the majority of the Jewish world. Id; 7 Encyclopaedia Judaica at 511-12 (cited in note 1). See also Pfeffer, and Pfeffer, , 31 J Church & State at 489 (cited in note 6)Google Scholar.

19. 2 Encyclopaedia Judaica at 430 (cited in note 1).

20. Sreter, 28 J Family L at 704 n8 (cited in note 17).

21. Id at 704; Pfeffer, and Pfeffer, , 31 J Church & State at 489 (cited in note 6)Google Scholar.

22. See 11 Encyclopaedia Judaica at 840 (cited in note 1).

23. Biale, Rachel, Women and Jewish Law 102 (Schocken Books 1984)Google Scholar.

24. Yevamot 112b; Gittin 67b, 88b; 6 Encyclopaedia Judaica at 130 (cited in note 1). See generally Rosen-Zvi, Ariel, Israel: Inter-Family Agreements and Parent-Child Relationships: Developments Within an Anachronistic System, 28 J Family L 526, 528 (1989–1990)Google Scholar.

25. The Talmud similarly prohibits a man from divorcing his wife if she becomes insane, reasoning that, since she is unable to care for herself, she may fall prey to evil men if she is involuntarily divorced. Yevamot 112a, 113b, cited in Amram, , Jewish Divorce at 45 (cited in note 8)Google Scholar.

26. A man is also prohibited from divorcing a comatose wife for the same reasons that he may not divorce an insane one. See id.

27. Sreter, , 28 J Family L at 704 (cited in note 17)Google Scholar. Sreter's article provides a thorough analysis of the problem of the recalcitrant husband and the methods by which American Jewry and American courts have attempted to deal with it. For a similar analysis, see Pfeffer, and Pfeffer, , 31 J Church & State at 487 (cited in note 6)CrossRefGoogle Scholar.

28. Sreter, , 28 J Family L at 704 (cited in note 17)Google Scholar.

29. Id (“the plight of agunot is one which has historically concerned sages and the community”); Biale, , Women and Jewish Law at 102–03 (cited in note 23)(problem of agunah has received much attention in halakhic literature)Google Scholar; Gordis, The Moment at 58 (cited in note 7)(“the ancient and medieval rabbis were highly sensitive to the woman's undeserved suffering, and sought every conceivable method of freeing the agunah from her chains”); Sigal, Phillip, 2 The Emergence of Contemporary Judaism 378 (Pickwick Press, 1977) (“rabbis have struggled for generations with the puzzle of how to allow the remarriage of an agunah”)Google Scholar; Bleich, J. David, Contemporary Halakhic Problems 151 (Ktav Publishing House, 1983)Google Scholar (“the tragic plight of the agunah has spurred rabbinic authorities throughout the generations to seek every possible means of remedying such grievous situations”).

30. A takkanah is a directive enacted by halakhic scholars or rabbis which adds a new norm to the overall halakhic system. 15 Encyclopaedia Judaica at 713 (cited in note 1). These scholars derive their authority to enact binding halakhah from Deuteronomy 17:8-11 which states what should be done if legal matter should arise whose solution is too complicated to be gleaned from existing halakhah:

If there arise a matter too hard for thee in judgment… then shalt thou arise, and get thee up unto the place which the Lord the God shall choose. And thou shalt come unto the priests the Levites, and unto the judge that shall be in those days; and thou shalt inquire; and they shall declare unto thee the sentence of thy judgment. And thou shall do according to the tenor of the sentence, which they shall declare unto thee from that place which the Lord shall choose; and thou shalt observe to do according to all that they shall teach thee. According to the law which they shall teach thee, and according to the judgment which they shall teach thee, thou shalt do; thou shalt not turn aside from the sentence which they shall declare unto thee, to the right hand, nor to the left.

Deut. 17:8-13; see 15 Encyclopaedia Judaica at 713 (cited in note 1). The purpose of a takkanah is to respond to the changing times and its resulting legal questions and issues which are not addressed by existing halakhah. 15 Encyclopaedia Judaica at 714-15 (cited in note 1). To this end rabbis and scholars may both add to and amend existing halakhah. Id at 715.

31. Rabbenu Asher ben Yehiel, also known as Asheri and Rosh, lived from 1250 until 1327 in France, Germany, and Spain. He was the acknowledged leader of German Jewry of his time and later became one of the most influential halakhic authorities in Spain. 3 Encyclopaedia Judaica at 706-07 (cited in note 1).

32. Responsa of Rosh 51:2, quoted in Biale, , Women and Jewish Law at 103 (cited in note 23)Google Scholar.

33. Rabbi David be Solomon ibn Abi Zimra, also known as RaDBaZ, lived from 1479 until 1573 in Spain, Safed, Jerusalem, and Egypt, where he remained for forty years. He became the head of Egyptian Jewry and his wisdom was sought out by Jewish communities throughout the Middle East and North Africa. 5 Encyclopaedia Judaica at 1356 (cited in note 1).

34. David ben Zimra (Radbaz), Responsa, No. 25, quoted in Biale, , Women and Jewish Law at 103–04 (cited in note 23)Google Scholar.

35. Biale, , Women and Jewish Law at 104 (cited in note 23)Google Scholar.

36. Id.

37. Rev. Dr.Mielziner, Moses, The Jewish Law of Marriage and Divorce in Ancient and Modern Times 110 (Fred B. Rothman & Co, 1987)Google Scholar.

38. Id.

39. Id.

40. Maimonides, more commonly known as Rambam from the acronym for Rabbi Moses ben Maimon, lived from 1135 until 1204 in Spain, Egypt, and present-day Israel. He was the foremost rabbinic authority, codifier, and philosopher of the post-talmudic era and one of the most influential halakhists of all time. His three most widely studied works are his commentary on the Mishnah, the Torah, Mishneh, and The Guide of the Perplexed. 11 Encyclopaedia Judaica at 754–61 (cited in note 1)Google Scholar.

41. Maim Gerushin 13, quoted in Berkovitz, Eliezer, Jewish Women in Time and Torah 48 (Ktav Publishing House, 1990)Google Scholar. See also Biale, , Women and Jewish Law at 105 (cited in note 23)Google Scholar, quoting Yevamot 93b (The halakhah presumes that “concerning such matters as are bound to come to light, one does not lie.”).

42. Maim Gerushin 13, quoted in Berkovitz, , Jewish Women at 48 (cited in note 41)Google Scholar.

43. Berkovitz, , Jewish Women at 107 (cited in note 41)Google Scholar.

44. Id. However, there are five categories of women whose testimony in such a situation was deemed invalid. These are: “the wife's mother-in-law, the daughter of her mother-in-law, her rival [her husband's second wife], her sister-in-law and her husband's daughter.” Yevamot 117a. The reason these women could not testify is that they may have been hostile to the agunah and might have claimed falsely that her husband was dead in order to get rid of her. Biale, , Women and Jewish Law at 105 (cited in note 23)Google Scholar.

45. 2 Encyclopaedia Judaica at 430 (cited in note 1).

46. Yevamot 121b.

47. Id.

48. Id.

49. Yevamot 93b (“A woman who stated, ‘My husband is dead’ may be married again.”).

50. Gordis, The Moment at 58 (cited in note 7).

51. 2 Encyclopaedia Judaica at 430 (cited in note 1), referring to Yevamot 114b.

52. Yevamot 116a; Biale, , Women and Jewish Law at 106 (cited in note 23)Google Scholar.

53. Yevamot 114b.

54. Yevamot 93b.

55. Id.

56. See text accompanying note 15.

57. Berkovitz, , Jewish Women at 107 (cited in note 41)Google Scholar.

58. Biale, , Women and Jewish Law at 105 (cited in note 23)Google Scholar. See also 2 Encyclopaedia Judaica at 431 (cited in note 1).

59. Yevamot 121a. “Death must with certainty be proved either (1) by the testimony of persons who witnessed either his demise or his funeral, or (2) by an unmistakable identification of his dead body.” Mielziner, , Jewish Law of Marriage at 109 (cited in note 37)Google Scholar. Since nobody bore witness to the actual death of the man, there was no body to identify, and there was no funeral, these requirements were not met and the possibility of the husband's survival remained.

60. The amoraim were rabbinic scholars of the first through fifth centuries who interpreted the Mishnah and derived from it the final halakhah. The Talmud is largely comprised of recordings of their discourse. 2 Encyclopaedia Judaica at 865 (cited in note 1).

61. Yevamot 121a. The presumption is that if the man had been rescued, the rescue would have been seen by the witness to the drowning since all shores on which it could have taken place were visible to him. Id.

62. Rabbi Eliezer ben Samuel of Verona was an early thirteenth century Italian tosafist (Talmudic commentator) whose ruling on the agunah created extreme controversy among rabbis of the middle ages. 6 Encyclopaedia Judaica at 629 (cited in note 1).

63. Rabbi Eliezer of Verona's views are set forth by Jacobs, Louis in A Tree of Life: Diversity, Flexibility, and Creativity in Jewish Law 150 (Oxford U. Press, 1984)Google Scholar.

64. Id.

65. Id at 150-51.

66. Rabbi Moses Sofer, known as Hatam Sofer, lived from 1762 until 1839 in Germany, Moravia, and Hungary. He was the leader of Orthodox Jewry during his time and founded the largest yeshivah (school for the study of halakhah) since those of the Babylonian era in an effort to combat the expanding Reform movement and other liberal halakhic interpreters. 15 Encyclopaedia Judaica at 77 (cited in note 1).

67. Rabbi Isaac Elhanan Spektor lived from 1817 until 1896 and was the head rabbi of Lithuania where he established a yeshivah in order to train new rabbis. He was renowned for his efforts to alleviate the suffering of Jews throughout Lithuania, Russia, and surrounding countries. 15 Encyclopaedia Judaica at 259 (cited in note 1).

68. Id at 151.

69. Id.

70. Berkovitz, , Jewish Women at 107 (cited in note 41)Google Scholar (“the witness's testimony is accepted even if it is based on what he heard from another person”); Neusner, Jacob, A History of the Mishnaic Law of Women 227 (E. J. Brill, 1980)Google Scholar(“If the most flimsy evidence of the husband's death is available, e.g., hearsay evidence … the court may permit the wife to remarry.”).

71. Id.

72. Biale, , Women and Jewish Law at 108 (cited in note 23)Google Scholar.

73. Ketubot 9b. This anecdote, though not explicitly related in the Bible, is derived from the Book of Samuel in which King David's father, Jesse, sends a young David to deliver food to his brothers at the battle camp where the Jews were preparing to fight the Philistines and says: “and to thy brethren shalt thou bring greetings, and take their pledge,” the pledge being the conditional get. I Samuel 17:18. See also 2 Encyclopaedia Judaica at 432 (cited in note 1).

74. Ketubot 9b.

75. 6 Encyclopaedia Judaica at 133 (cited in note 1).

76. 2 Encyclopaedia Judaica at 432 (cited in note 1).

77. Id.

78. Id. This proposed solution was premised upon the rabbinic law allowing rabbis to annul “inappropriate” marriages. Biale, , Women and Jewish Law at 110 (cited in note 23)Google Scholar. See also Gittin 33a (“When a man betroths a woman, he does so under the conditions laid down by the Rabbis, and in this case the Rabbis annul his betrothal.”). See also Gittin 73a, Yevamot 19a, 110a, Ketubot 3a, and Baba Batra 48b.

79. 2 Encyclopaedia Judaica 432 (cited in note 1).

80. Id. See also Gittin 33a.

81. 2 Encyclopaedia Judaica at 432 (cited in note 1).

82. See text accompanying note 58.

83. Lev. 21:7.

84. 11 Encyclopaedia Judaica at 1053 (cited in note 1), citing Resp Ribash no. 348.

85. Ketubot 2b. The purpose of this rule is to protect wives who might think that their husbands were delayed due to accidental circumstances and who would therefore wait for them indefinitely and not remarry because they regarded themselves as tied to their absent husbands. Ketubot 9b. 6 Encyclopaedia Judaica at 133 (cited in note 1).

86. 2 Encyclopaedia Judaica at 432 (cited in note 1); Biale, , Women and Jewish Law at 109 (cited in note 23)Google Scholar.

87. Biale, , Women and Jewish Law at 109 (cited in note 23)Google Scholar.

88. According to the Torah, if a couple divorces, the wife remarries, and she then divorces her second husband, the first husband may not remarry her. In fact, he may not even remarry her if the second husband dies. Deut. 24:1-4.

89. 2 Encyclopaedia Judaica at 433 (cited in note 1).

90. Id. History demonstrates that when there was a clear center of Judaism and halakhic authority, takkanot were widely accepted. However, with the dispersion of Jews throughout the world and with the concurrent loss of a center of Jewish judicial authority, halakhic legislation no longer retained the universal application that it once had. 15 Encyclopaedia Judaica at 727 (cited in note 1).

91. 15 Encyclopaedia Judaica at 727 (cited in note 1).

92. Biale, , Women and Jewish Law at 108–09 (cited in note 23)Google Scholar.

93. Id at 109.

94. Id.

95. Id.

96. Bleich, , Contemporary Halakhic Problems at 154 (cited in note 29)Google Scholar.

97. Dorff, Elliot N. and Rosett, Arthur, A Living Tree: The Roots and Growth of Jewish Law 543 (State U of NY Press, 1988)Google Scholar.

98. Id at 543-44.

99. Id.

100. Id at 543.

101. Gordis, The Moment at 59 (cited in note 7).

102. Dorff, and Rosett, , A Living Tree at 543 (cited in note 97)Google Scholar.

103. Id at 544.

104. Id at 544-45.

105. Id at 544.

106. Id at 545.

107. Mielziner, , Jewish Law of Marriage at 113–14 (cited in note 37)Google Scholar.

108. Id.

109. Dorff, and Rosett, , A Living Tree at 533–34 (cited in note 97)Google Scholar.

110. Id.

111. See notes 72-75 and accompanying text.

112. Gordis, , The Moment at 59 (cited in note 7)Google Scholar.

113. Id.

114. Id at 60 (Gordis does not explain why the plan did not work).

115. Id at 61.

116. Id.

117. See note 78.

118. See notes 78-79 and accompanying text.

119. Gordis, , The Moment at 61 (cited in note 7)Google Scholar.

120. Dorff, and Rosett, , A Living Tree at 545 (cited in note 97)Google Scholar.

121. See text accompanying notes 10-14.

122. Gordis, , The Moment at 59 (cited in note 7)Google Scholar.

123. See notes 103-05 and accompanying text.

124. See notes 90-91 and accompanying text.

125. See text accompanying notes 120-21.

126. See text accompanying notes 86-88.

127. See text accompanying notes 83-88.

128. See text accompanying note 95.

129. See text accompanying notes 120-21.

130. 2 Encyclopaedia Judaica at 433 (cited in note 1); 15 Encyclopaedia Judaica at 728 (cited in note 1).

131. 15 Encyclopaedia Judaica at 728 (cited in note 1). In fact, the Israeli rabbinate has already enacted a number of takkanot, including the introduction of adoption as a halakhic norm, the revision of intestate succession laws so as to equalize the rights of sons and daughters, and the prohibition of the marriage of a girl below the age of sixteen. Id at 727-28.

132. 22A Am Jur 2d Death §§ 551, 553 (Lawyer's Co-op, 1988).

133. Id at §§ 551, 562.

134. Id at § 551.

135. Id at § 554.

136. Id at § 563. The reason for the presumption is that a person generally “doesn't ordinarily disappear for no apparent reason and sever a long established pattern of living and all contact with family and friends.” Penrose v Heckler, 566 F Supp 301, 304 (D Nev 1983).

137. 22A Am Jur 2d Death § 564 (1988).

138. Id at §§ 565, 566.

139. In re Estate of Downes, 518 NYS2d 558 (1987).

140. Deal v A. P. Bell Fish Co., 674 F2d 438 (5th Cir 1982).

141. Jacobs v Town Clerk of Arlington, 525 NE2d 658, 660-61 (Mass 1988).

142. Mando v Secretary of Health and Human Services, 737 F2d 278, 282 n3 (2nd Cir 1984)(quoting Allen, Ronald J., Presumptions in Civil Actions Reconsidered, 66 Iowa L Rev 843, 847 (1980–1981)Google Scholar.

143. Day v Secretary of Health and Human Services, 519 F Supp 872 (DSC 1981).

144. Id at 876.

145. Id at 877.

146. Id at 878.

147. See text accompanying notes 62-64.

148. See text accompanying notes 32-34.

149. See notes 138-39.

150. See note 59 and accompanying text.

151. See text accompanying notes 138, 140.

152. See text accompanying notes 145-46.

153. See note 29 and accompanying text.

154. Sigal, , Contemporary Judaism at 378 (cited in note 29)Google Scholar.