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Get Refusal Didnít Cause the Agunah Problem- Halachah Did

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Imagine for a moment that you are hired as a lawyer to defend a client in a high stakes court case, say regarding the custody of one’s children. After speaking to your client and gathering the relevant background information you would probably begin to refresh yourself on the germane laws surrounding the case.
 
During your initial research you suddenly remember that a 200 year old law, if applied to this case, would provide a loophole that would almost guarantee a legal victory. Needless to say, you pursue this argument and easily win the case as the judge has no choice but to respect the legal code.
 
Now If an outside observer takes issue with the verdict of this case it would be pointless to blame the judge and the lawyer, they were simply doing their respective jobs. Furthermore, while the defendant may be a horrible person and, from an ethical point of view, he may not have deserved to win the case, the defendant would still not be to blame for the final legal outcome.
 
The only reasonable thing to blame in this case is the law. If a law allows for a certain loophole, shortcut or benefit, then any lawyer or defendant would be crazy to not use it to his or her fullest advantage, especially if the defendant feels that he is in the right and deserves to win the case anyway.
 
Now if this seems unfair, there is really only one way to enact change. Try to get the law repealed or amended. Try and convince people why the law makes no sense and where it can easily be abused. Perhaps even create a petition or go out and lobby to get this law changed.
 
I see no difference between this hypothetical court case and the issue of get (Jewish divorce document) refusal.
 
The entire point of legal systems is to ensure that humans are able to civilly co-exist for the purpose of the creation of a just society (or in a Jewish legal context, the service of God). Even the Midrash states that halachah (Jewish law) was only given for the “betterment of mankind.”
 
But because of the way halachah was created and subsequently evolved, women are put at a major disadvantage when it comes to the laws of marriage and divorce (along with many other non-relevant areas). As long as the laws give men the legal upper hand, the problem will never be solved.
 
Yes, we can and should blame the individual men who refuse gets (gittin). I would never defend a man who uses halachic reasoning to commit an act of immorality, be it get refusal or the myriad of other ways that halachah can be used to contradict ethical behavior. But get refusal is only a symptom of the much larger systemic problem of halachic inequality. Put bluntly, get refusal isn’t the reason for the agunah (chained woman) problem, halachah is.
 
Yes we can talk about the halachic pre-nup as the solution to the agunah problem, and it is truly a great innovation and I highly encourage its use. However, this is only a band-aid, used by the portion of the Jewish community that is statistically less likely to engage in get-refusal in the first place. Furthermore, the pre-nup only highlights how pathetic this whole situation really is. Why can’t we all just admit that the law needs redacting?
 
The majority of the halachicly observant community keeps halachah simply because they believe that it is the objectively moral way to act in the world. Subsequently, when a halachic law allows them to commit X act, they assume that X act must be inherently moral. This tautological way of thinking highlights the fact that the only way to truly solve the agunah crisis is to attack the problem at its root.
 
People everywhere need to continuously note how archaic, sexist, and immoral it is to have a law that literally allows a man to trap his wife in legal bondage forever while he remarries or uses a get as a bargaining tool for child custody or financial advantage. No amount of thumb waving religious apologetics can defend this idea and the only way to truly change this law is to attack it at its core.
 
    Moshe Daniel Levine is a regular contributor of blog postings on Jewish Values Online.
 
Please note: All opinions expressed in Blog Postings and comments on the Jewish Values Online site and through Jewish Values Online are those of the author, and do not necessarily reflect the views, thoughts, beliefs, or position of Jewish Values Online, or those associated with it.
 
The problem of agunot ('chained' women - those who cannot get a divorce from their former husbands to allow them to move on with their lives) continues to plague our society. Why isn’t there a halachic (Jewish law) way to grant a woman a “get” (divorce decree) without the consent of her husband? Or is there? [Administrator's note: This topic has come up in past, and there are other, related questions on the JVO website that should be viewed in connection with this one for a fuller range of responses.]
See answers from Orthodox, Conservative and Reform rabbis here.
 
If you have a question about Jewish values that you would like to ask rabbis from multiple denominations, click here to enter your question. We will ask rabbis on our panel for answers and post them. You can also search our repository of over 800 questions and answers about Jewish values.
 
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