The ongoing conversation about the agunah problem in the wake of the Gital Dodelson article in the NY Post consistently raises one impossibly difficult question. I’ve been asked this question many times and in many different ways. In my opinion, it’s the fundamental issue of the agunah crisis.
The public is justifiably angry with a husband who does not give a get. But the recalcitrant husband has a pretty compelling argument in his favor.
The Torah itself gives the husband absolute authority in the matter of the divorce. If this is Torah law then we are forced to say that this is God’s will. If God gave the power of divorce to the man alone, how can it be considered wrong or evil if he does not give his wife a get? And how can we call it an injustice when he does not give a get? Don’t blame the husband, blame the Torah. The Torah is at fault. God is at fault. Change the laws of divorce and the problem will be solved!
Some variant of this question is the crux of the agunah problem. In simple terms, why is the husband a bad guy when he doesn’t give a get if God gave him the power to decide if he wants to give the get? It is a very difficult question for an Orthodox Jew. And now it is being asked over and over again.
I think I have an answer to this question.
It’s true that in terms of divorce law, the power to divorce vests in the husband and he is the only one who can dissolve a marriage. The husband must willingly give the get. We are stuck with that law. Pure legalistic Torah matters are almost always unassailable. There is almost no way for contemporary rabbinic authorities to change a law derived from the Torah or even established by Chazal. There’s just no acceptable mechanism within Orthodox Judaism to make changes to Torah law.
(Rabbinic laws often have loopholes baked into the law, e.g. eruvei chatzeros, eruv tavshilin. Pruzbul and hefker beis din hefker are examples of the rabbis creating a legal fiction that circumvents Torah laws with regard to money, they do not change the actual Torah laws.)
The thing is, divorce law is not the only part of the Torah that informs us how to behave in case of divorce. That part of the Torah will never change. There are other parts of the Torah that do fluctuate and are subject to societal norms and niceties. Ethical and moral laws in the Torah depend on the context. Kindness and virtue largely depend on the subjective expectations of one’s friends and community. Perhaps at one time a certain act or behavior was considered normal and fair. But at a different time it could be considered evil or wrong. Things in this arena are more subjective and they do change. These bein adam l’chaveiro elements of the Torah always apply and I think they are especially important during a divorce.
• One is obligated to love his fellow as himself. “That which is hated to you, do not do to others.” Would a husband want his wife to hold him hostage? No. Thus it is prohibited to hold the wife hostage.
• It is prohibited to cause an animal pain. All the more so it is prohibited to cause pain to a fellow human being. Withholding a get causes extreme pain to the estranged wife.
• One who causes emotional damage to another person is obligated to compensate the victim. One cannot act in a way that causes other emotional harm. R’ Elyashiv paskened that sexual abusers were rodfim (pursuers) because of the emotional harm caused by their violence toward their victims. Causing another person emotional harm is a very serious issue and is absolutely against the Torah.
• The Torah requires that we help unload the animal of our enemy. Many authorities learn from this that we are required to lend a helping hand to anyone who requires help. Does a wife waiting for her get not require assistance?
• We are obligated to follow in the merciful ways of God. Is it merciful to withhold a get? Clearly not. A recalcitrant husband violates this mitzvah as well.Rabbi Eliyahu Fink