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April 21, 2014 / 21 Nisan, 5774
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The Aguna-In-Waiting

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(Names and situations altered)

[Information stated in this article should be verified with your Orthodox rabbi.]

A Get (Jewish divorce) must be given freely and received freely. A man must be able, in front of two witnesses, to indicate his willingness to divorce his wife. He must be of sound mind, know what he is doing, and be able to indicate his desire to divorce, or the divorce is invalid. Living together after the wife receives a Get nullifies the Get. A wife may not remarry without a Get for as long as her husband is alive. Once a person has lost his cognitive ability, and may, for example, no longer recognize his wife or know what is going on around him, he can no longer give his wife a Get. She then cannot remarry for the rest of his life.

In the same manner, if the husband is on life support, and is physically unable to indicate his desire for a Get, the wife cannot receive a Get and she cannot remarry for as long as he lives.

There are many chronic illnesses today that affect the young. The disease may be diagnosed shortly after a couple has been married or celebrated the birth of a child. The couple may struggle with a slow, ever deteriorating condition for as many as 30 or more years. In those years of caring for him, the wife loses, over time, her companion, lover, friend and breadwinner.

The deterioration may be so quick, on the other hand, that the sick person loses all physical and cognitive functioning within months. This may leave the young wife childless, or with young children whose father doesn’t know them and is unable to relate to them.

At some point, the well spouse may find herself with a husband who has neither the mental capacity nor possibly the physical capacity to give her a Get. She is bound to him and cannot remarry for the rest of his life. She may have nursed him for over 20 years and still be young, perhaps in her 40′s, with a desire to proceed with her life, or she may be still in her 20s, with a husband in a nursing home. Without a Get, she cannot remarry. She is, for all intents and purposes, an Aguna for the rest of his life.

Most couples dealing with the onset of chronic illness rarely think about divorce initially. They are so overwhelmed with just coping with the losses that multiply every day as the disease progresses. They live with coping in the moment, caring for his needs and thinking little of the future. If the disease moves rapidly, the inability to give a Get may be on them before they realize it.

For other couples who have coped for decades, the idea of a Get may not occur to them until much later. At that point, the wife is still young, the husband is continuing to deteriorate and may need care beyond what she can manage at home.

The wife’s thoughts may legitimately turn to her future. She has cared for her husband for decades. She is still young, still healthy, and perhaps at some point would like to remarry. If her husband understands and gives her a Get, he can no longer live in their home and receive her care. If he does not understand, or his condition is such that a nursing home is called for, and the placement is made against his will, he may refuse to give his wife a Get. She, at that point, has no choice but to wait and watch him deteriorate. Her only freedom is at his death.

Leila learned that her husband had MS the day she found out she was pregnant with her second child. She was in turmoil of emotions, but was determined to keep her family together as best she could. The thought of a Get never entered her mind. For a few years, she managed to keep her husband at home and care for him. However, his mental and physical deterioration was swift. She finally had to place him in a nursing facility. She still visits him several times a week and takes him out for a walk or a car ride. He no longer speaks or knows who she is. At this point, she thinks of remarrying someday, but she can no longer get a Get. She is in her 30s.

Rivka had to put her husband in a nursing home against his will. He could not see the burden which his inabilities had placed upon his wife. He was deaf to the verbal and emotional abusive demands he constantly yelled at his family. He is still very angry. Though unable to do anything for himself physically, his mind is intact. Rivka has tried discussing a Get with him, but he refuses to give her one. Rivka is in her 40s.

Shulamit’s husband may need a nursing home in the future. Presently, he is living at home and his wife is doing her best to cope with the stress and difficulties. They have talked about a Get. Shulamit’s husband does not want her bound as an Aguna if he deteriorates to the point where he will no longer be able to give a Get. He has told her she needs to go on with her life.

If she received a Get now, Shulamit would not be able to continue to care for her husband in their home without nullifying the Get. They have heard there are certain circumstances of physical disability wherein this does not apply. If their situation qualified, they could continue to live together for the purpose of care and still have a Get. They have also heard that sometimes a provisional Get can be granted. This would go into effect (unless voided by the husband beforehand) at a time when the husband could no longer cognitively or physically consent to a Get. They are still working on clarifying this information.

Well spouses’ lives are difficult. Most will do the best they can for as long as they can to care for their husbands. Many are quite young when their husbands no longer recognize them or are physically incapable of communicating. At that point, some well spouses would like to go on with their lives and experience the fulfillment and caring that most of us have in marriage. It is terrible to ask a well spouse to choose between caring for her husband now and having a future later. As we live longer and are faced with more diseases that rob us of our physical and mental ability over time, there must be a Halachic way to deal with these Agunot-in-waiting. ◙

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I’ve read your last few articles on psycho-neurological testing (Oct.8-22) with interest. As a therapist who has counseled couples dealing with chronic illness, I’d like to give you another perspective.

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Your articles on the Neuro-Psychological Testing were right on (October 8-22). My husband underwent testing twice and your articles explained it things exactly the way they were. Besides the test, we also tried therapy.

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