Justice For The Agunah: The Bais Din, Shabbos, And He Who Would Withhold A Get


divorceBy Rabbi Eliyahu Safran

Not every marriage is successful.  Despite our desire for each to be perfect, we know the truth is that there are hundreds of reasons a man and a woman, once joined in love and joy, should no longer remain together.  When that happens, Judaism recognizes the need to let the marriage come to an end in a way that allows both bride and groom, husband and wife, to grieve for what “could have been” but wasn’t, for promise unrealized, and then go forward with a productive and meaningful life.  The Torah envisions the reality of our deepest relationships by providing both the roadmap for marriage – the kesuba – and the mechanism for ending a marriage – the Get.

In recent months and years, we hear more and more of the men who withhold Gitten from their wives; wives who have a God-given right to be released from their failed marriages.  Such cruelty by such men damns these agunos to a non-life.

And it is wrong.

Just how wrong can be clearly understood by an examination of the Bais Din’s elevated role in the community and the holiness of Shabbos and yom tov.  Simply consider that the Bais Din does not convene on Shabbos or yom tov.  At first glance, this would seem obvious.  But it is closed not only for judgment but also for deliberations among the dayanim (judges) even though one could suggest that dayanim deliberating without issuing piskei din(decisions)is little different that Talmud Torah.  However, the Talmud, in the latter part of Maseches Beitza (37a) which Daf Yomi recently concluded, teaches that the Bais Din does not issue judgments on Shabbos and yom tov lest they would be prompted to write the psak din and transgress the prohibition of kesiva (writing).  Likewise, merely deliberating runs the risk that it may lead to their writing their thoughts and observations on a given case.

But the role of theBais Dinis not only to rule but also mete out punishment. Further, it is empowered to imprison one whom it suspects may escape in order to avoid appropriate punishment.   It would seem that these Bais Din actions would be excluded from the Talmud’s prohibition of lo danin, not to issue rulings.  These responsibilities and actions require no writing.  Yet, quoting Shibolei Haleket,the Rema rules that it is prohibited to punish or imprison on Shabbos and yom tov, a ruling founded not on the Talmud’s positions on danin but rather because God ordained that punishments not be administered on Shabbos and yom tov.  As Rambam teaches (Hilchos Shabbos 23:14), “we do not punish on the Shabbos… if one was sentenced to lashings or to death, we do not mete out the lashings (malkos) or execute him on the Shabbos…” The Shibolei Haleket further ruled that it is likewise forbidden to imprison one who is suspect of escaping from punishment – because imprisonment is also a form of punishment.

The Sefer Hachinuch (Vayakhel) explains the basis of this principle that all are gifted with a day of rest Shabbos that, “…It was the will of God to honor this day, that all should find rest in it, even the sinners and the guilty.  A parable teaches that a great king summoned the people of the country to a one-day feast; a feast when he would invite every man, bar none, to the celebration even though immediately after the feast day he would sit in judgment (of some who were present at the feast). So in this matter, HaShem commanded us to hallow and honor the Shabbos day for our good and our merit.”

This too is for the honor of the day.

Even the administration of punishment which may not entail any chilul Shabbos is forbidden on the Shabbos.  To imprison one who may escape punishment is not deliberation of law; it is not adjudication of law which is rabbinically forbidden; it is also not administering punishment which is Biblically forbidden,”that the judges should not carry out judgment on the Shabbos” (Chinuch 114).  It is merely subsumed in the logic and grace of the prohibition to administer punishments – so that all may equally enjoy God’s desire for all to rest, whoever they are.

Such a blessing and gift!  That all should enjoy the beauty of Shabbos!  Imagine then what it means to learn that there is an exceptionto this rule. A single, sole exception.  The one exception deemed by Chazal as possessing an intention and goal to cause such miserythat he can be imprisoned on Shabbos, is not a murderer, is not a thief, and is not even one who has waged war.

Who then has committed such a grievous sin that even the blessing of enjoying Shabbos as a free man can be denied him?  Who is considered so depraved that he is not welcome to God’s feast unless and until he fulfills his Godly and human obligation?  Who is called out even when the thief and criminal are not?  It is the husband who seeks to escape and leave his wife without a valid get, an agunah.

The Mishna Berura is emphatic,v’ein b’klal zehnot included in this general rule[that we may not imprison one whom we suspect will escape]- im echad rotzeh l’vroach k’dei lehagen ishto – if one wants to escape in order to leave his wife an Agunah- mutar haya l’chovsho (it is permitted to imprison him).

It is only this one that the bais dinis allowed – no! obligated!- to detain on the Shabbos.  His imprisonment is not regarded as punishment which is forbidden on Shabbos, but rather an emergency permit granted to the bais din to assure that this vengeful, spiteful fellow is denied an escape route which denies the woman her God-given right to go on with her life.  This one can be detained on Shabbos in order to assure that he not destroy countless future Shabbos feasts of this unwanted wife.

Again, it is understandable that there is bitterness after a marriage fails.  There is grieving for a life envisioned and promised that did not come to fruition.  But that bitterness, that grief, that unfulfilled promise, cannot and does not allow a man to become a virtual jailor of his wife’s future.

We can all weep for the marriage that does not succeed.  But our sadness necessarily turns to astonishment and then anger when we learn that the husband, far from acknowledging and accepting this reality, lashes out in anger and vindictiveness by withholding the Get.

Such a man who then seeks to flee so his poor wife remain an Agunah is NOT a category of punishment (onesh) forbidden by Torah law.  It is not a category of deliberation/adjudication of law (din) forbidden by rabbinic law.  It is, in fact, a category unto itself and, as such, presents the Bais Din with the power and authority to put the man in his “place” in order to protect the legitimate rights of the potential Agunah.

Chazal are clear, being an Agunah is an unspeakable curse, one that necessitates the suspension of this Shabbos rule.

That our tradition and ways are consistently concerned and sympathetic to the Agunah is made even more evident when Poskim discuss this exception to the rule regarding imprisonment on Shabbos. They cite an additional example of one who may also be detained on Shabbos.  In Mishna Berura, it is written, “…that it is likewise mutar (permitted) to receive testimony from a dangerously ill witness [who may very well die, unless we receive his testimony immediately, on Shabbos] about a woman whose husband died, where we are concerned that no other witness will subsequently be found to verify that the husband indeed died.”

It is clear that halacha is determined to find a way to free a married woman from remaining in a perpetual state of limbo, without being able to move on with her life – going so far as to allow the imprisonment of a husband on Shabbos if he refuses to provide his wife with a get or by detaining a dangerously ill man in order to receive his testimony regarding the death of a husband.  In both cases, the intention is clear – to ensure a way for the wife to move on and live a meaningful, happy life, unshackled by the sadness of a failed marriage or lost husband.

Jewish law does not tolerate allowing a woman to remain chained. It clearly stands for justice for the Agunah.

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  1. Yes, needs to be repeated again and again until this becomes part of everyone’s derech. Yasher koach Rabbi Safran

  2. Reason tells you that the idea of an agunah is not honor for the man’s charity. If he wants to enchain the woman in his vows when it is clear that the marriage has no future, ultimately the reason for his own decision is if only to hope for a reversal of her choice to keep his only decision for better favor in his favor.

  3. The aricle does not address where the wife does not want to go to Bais Din to get her Get or where she withholds visitation to take revenge on the husband and the get is withheld until visitation is estableshed. There can be no more cruel act than preventing children to see their father

  4. by just focusing just on “The Aguna” you are omitting the cause of it which are things such as going to court to get better terms than a beis din
    would give and then demanding the husband give a get even though she did not follow halacha by going to court and getting custody and a lot of his money with lies and feminist judges

  5. None the less, a coerced “get” has no validity.
    Defining “coerced”? any pressure, e.g monetary, job, embarrassment, etc.

    A woman who remarries after a coereced get, their offspring are illegitametes.

  6. Why in the world would you print this? This is a chidush to anyone? This helps solve anything? All it does is cause pain.

  7. “what if the women is withholding visitation and turning the children against him.”

    Doesn’t matter. If he doesn’t want to be married to her, he has a chiyuv to give the get. End of story.

    If she is doing something improper she will be called to account in olam haba.

  8. my best friends wife is not agreeing to sholom bayis or accepting a get . the man is a tzadik and is stuck
    often its the woman who making the man an “agunah”

  9. I did not read the whole article.

    Did you mention the Rama, in seder haget in Shulchan Aruch, who paskens that a man should not give a get until all issues are settled???

    I hope you are not advising to defy the Rama.

  10. I am glad we have psakim here for the resident Open Orthodox commentator.

    We know that they are implementing batei Din that will cause mamzeirim according to every Orthodox (unmodified by “Open”)posek and as is clear from normative halacha.

  11. “my best friends wife is not agreeing to sholom bayis or accepting a get”

    I also know someone whose wife refused a get. This does go both ways.

  12. A woman who runs from Beis Din to Bies Din in an effort to find a sympathetic BD to her cause, and then gets an “override” of Halacha, is just as bad.
    In this case, the wife would not accept a Get from her husband unless he agreed to fork over 95% of his yearly income – almost a million a year.
    He refused.
    She “shopped” around and found a Beis Din to release her.
    He is still not remarried.
    She is “remarried” but is really a Mezaneh Tachas Ba’alah.
    No Shul should allow her “husband” to take part in their Davening.
    They should be ostrasized from the community.
    And instead of a “for sale” sign on their lawn, it should be posted “Isha Mezaneh Tachas Ba’alah, U’Boel Eishes Ish Garrim Poh.”

  13. You want to know why our young people go off the derech? One reason is seeing things that they know are wrong but that the community accepts or condones. There is no excuse for withholding a get. If there are disagreements over visitation, custody or money they should be worked out in other ways – beis din can handle these too. But when a man withholds a get – which is considered a form of murder – and the community does not avoid him, continues to give him aliyot and other kibbudim, and acts as if nothing is wrong, then this is a chillul HaShem. If every man who was ordered to give a get by the Beis Din and knew that if he didn’t, he would be shunned, isolated and held in contempt by other people, even the people in his shul, then he would think twice about doing it.

    And remember – a lot of trouble is caused by people mixing in, taking sides, and encouraging people who are getting divorced to be hard, stubborn and defiant of the Beis Din.

    If you hand a bottle of schnaps to an alcoholic, you are guilty too if he gets drunk – you are an “enabler.” If you know a husband who is getting divorced and you encourage him to “hold out” – you are also guilty of chillul HaShem. Our young people see our actions and compare them with the words they were taught in yeshiva and BY, and if they see a difference they may not talk about it – they may just “vote with their feet.”

  14. A woman whose husband doesn’t give her a Get is not an agunah.

    I am happily married, and my wife can’t marry anyone, does that make her an agunah.

    What about every seven year old girl-can’t get married=agunah

    Of course not.

    An Agunah is someone whose husband disappeared and we have no way of knowing his whereabouts. Recent examples would be people who were in The World Trade Center a few minutes before the planes crashed into them but we don’t know where they were when the towers came down, and no record of their body was found there.
    That is an Agunah.

    Now let’s discuss marriages where we know the whereabouts of the husband.

    A man who uses a Get to hurt his wife is exactly the same as a woman who uses custody to hurt her husband. They are both wrong and should not be done.
    However let us put it in perspective.
    Recently a woman was in the news because her husband did not want to give her a Get and he had gotten a Heter Meah Rabbanim to remarry. She had claimed that he didn’t want to give her a Get.
    However, the court notes say that she demanded $300,000 from him and also full custody of the children.
    So who is the correct party there!

    Many times the women cry that they are disadvantaged in the Get process, but men are disadvantaged in the custody and money process.

    I know someone who claimed her husband was ‘insane’ and now she has full custody, and he has to pay $3000 a month for kids he is only allowed to see 2 weekends a year.

    Any woman who agrees to go through a Beis Din and ONLY through a Beis Din will have a short, sweet, simple, Get process. (as simple as a Get is!)
    A woman who wants to fight it out in court, will have problems.

    The sooner we agree on not going through the secular courts (Assur in almost all circumstances) the quicker we can clean up this painful, delicate process.

    (but please stop calling these women-Agunos)

  15. A rosh bais-din told me that agunah cases are very rare when the Botei-Din follow Shulchan Aruch to dissolve a marriage. Namely, male offspring aged 6 and older go with the father, female offspring with the mother. Marital assets belong to the husband except for assets brought in by the wife known as nichsei melug and nichsei tzon barzel.

  16. #10 and #12:
    Why “doesn’t matter?” Why is keeping a woman as agunah plain cruel whatever the case may be and whichever way you look at it?

    If a woman is making insane demands, whether regarding money or custody, and she refuses to listen to reason, why is it “plain cruel” to tell her “listen, I’m not giving you a get until you’re willing to be reasonable?”

    And why are all the spotlights on the men, and not on the many women – yes, many – who refuse to accept a get and thereby chain their husbands?

    To say that there’s no comparison because a man can get a heter d’meiah rabbonim is not an answer; any such heter worth its salt is very difficult to maintain and can easily take a decade or more.

    And yes, I’m a woman.

    I am not detracting from the pain that true agunos go through. I have seen it from up close. But I have also seen men whose lives were ruined the same way. Yet the Jewish media – even the frum media – doesn’t seem to notice, or to care.

  17. Not to quibble too much with Rabbi Safran, whom I greatly respect, but most of the cases in the Talmud and poskim dealing with freeing agunos are discussing circumstances when it is likely that the husband has died, yet proof might be lacking. They are generally not discussing divorce.

    As to our current “crisis,” the Agunahphobes ignore the fact that the silent majority of men are not cruel or evil; they simply want a fair settlement when it comes to financial issues and custody/visitation of the children. It is well-known that the courts heavily favor the woman in these situations and for a man it can be back-breaking financially and heart-breaking to be apart from his kids. In fact, divorce lawyers have coached their female clients to run to beis din for the get and then, once the get has been secured, cease further contact, and instead turn to the secular courts for the finance and custody arrangements.

    Just as women are known to falsely accuse their husband of physical abuse, and even abuse of the children (r’l!) in order to have them locked up and gain the upper hand (again under the coaching of legal counsel), so too they are coached to scream “Agunah!” as soon as they don’t get the settlement they want.

    It is a known aphorism that gehennom has no fury like a woman scorned. Most men wand to move on from a bad marriage; women often want a pound of flesh on the way out.

    Why don’t we give the Torah some credit for its wisdom in selecting the man to freely give a get, instead of trying to do a halachic runaround and look to dismantle God’s intention.

  18. To Ish Yasher #23 -IS the case cited bt Rabbi Safran not speaking of a husband who wants to be meagen his wife, and therefore bais din is allowed to be chovesh him on Shabbos and Yom tov?
    your other comments are relevant …

  19. To tzedeck, Yes it is (and can be found in M”B III, 339:14) However, the MAJORITY of agunah discussions in halachah do not revolve around such cases, but around cases of unconfirmed death. Notice that the very same note of the Mishnah Berurah continues to say that Beis Din also convenes on Shabbos to accept testimony from a dying man who witnessed the death of a husband, also to prevent an agunah situation.

    While there are some evil, recalcitrant husbands out there, the MAJORITY are not. The majority of divorcing men will willingly give their wives a get AFTER financial and custody arrangements are settled through a legitimate BEIS DIN, not secular courts. There is nothing wrong with this, halachically.


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