Q. Why aren’t the rabbis doing more to help agunot, “chained” women whose husbands refuse them a gett (a bill of divorce)?
A. There would be no agunah problem if every couple whose marriage is over had the conscience to do the right thing and co-operate in a gett, but it does not always work so smoothly if one party (usually the man) is, at least initially, unco-operative. In such cases some persuasion is necessary. Here lies a halachic problem, since a gett must be given and received without compulsion or conditions as an act of free will.
How free must the free will be? Moshe Chigier, in his “Husband and Wife in Israeli Law and Jewish Law”, says: “Philosophically, absolute free will is non-existent… When the law demands that an act to have legal validity must be done with a free will, it refers only to a strong physical force. Force of circumstances of any kind does not invalidate it.” The Mishnah says (Gittin 9:8), “A gett given under compulsion is valid if ordered by an Israelite court, but if by a gentile court it is invalid. But if the gentiles beat a man and say to him, ‘Do what the Israelites bid you’, it is valid”.
Maimonides explains that when a gett is ordered by an Israelite court the court is not interfering with a man’s free will but using dramatic means to arouse his natural law-abiding instinct. Hence a Jewish court may use appropriate pressure, and a civil court may pressure a person to comply with the directives of the Jewish court. In the Diaspora a Jewish court has few ways of exerting pressure though it can deny communal honours to a recalcitrant husband or shame him. In Israel various sanctions are available including putting a man in jail. Couples who sign a prenuptial agreement undertake in case of problems
to attend at a designated Beth Din and comply with its instructions.
In the Diaspora various endeavours are under way to secure the assistance of the secular law, e.g. by having a court adjourn proceedings if one party has not taken all steps within their power to remove barriers to their former spouse’s remarriage or by having the giving and acceptance of a gett incorporated into settlements, agreements and orders.
The rabbis agonise over the problem. Some people want them to find loopholes in the law. However, it is not fair to expect anyone to go looking for loopholes in the legal system. The system is designed to avoid loopholes. Further, great rabbis with expertise in an area have to assent to proposed approaches to halachic problems. Otherwise we risk additional problems within Judaism.