Introduction New Historical and Socio-Legal Perspectives on Jewish Divorce

The availability of divorce on demand to both men and women under secular civil law is a fairly novel innovation. The first divorce in Massachusetts was granted in 1629, but divorce was available only on the grounds of adultery—and only the adultery of the wife.¹ For over a century after that, civil divorce was rare, expensive and achieved only through passage of an act of the state legislature, which served to dissolve only that one particular marriage. After the Civil War, divorce and desertion increased dramatically and became unwieldy for the legislatures to handle. Jurisdiction over divorce gradually passed from the legislatures to the courts. By the twentieth century, divorce had become available on a range of grounds—most commonly incompatibility, cruelty and abandonment.²

Since the 1970s, every state in the US has also developed a no-fault option, allowing parties to divorce at will, based on their subjective perception that the marriage has irretrievably broken down, without having to demonstrate some moral failing on the part of the other spouse. New York State was the last to enact no-fault divorce, in 2010.³ The divorce laws include a right to be granted a divorce over and above the objections of the other spouse.

American laws dealing with rights to property and custody in divorce have also changed. In the nineteenth century, married women had no rights to property and limited custodial rights. Until the 1970s, wives walked away from marriage only with property to which they held personal title. Over recent decades, American family law has become a system in which men and women have equal rights to ask for a divorce, to their share in assets accumulated over the course of a marriage, and to receiving custody of children, according to a civil court's determination of the best interests of the child.

Jewish law, weighted against women since ancient times, has not undergone a similar transformation. Jewish divorce, though strictly regulated by Jewish law, is not granted by a rabbinical court, but only by the husband, and it can be finalized only with the wife's acceptance. While men and women are accorded a semblance of formal equality under halakhah, in that the consent of both is required to proceed, the implications of withholding such consent are substantively different. If the husband withholds his consent to divorce, the wife cannot remarry, cohabit or have children in a new relationship without being condemned as an adulteress and having the children stigmatized as mamzerim. The husband, however, may demonstrate to a rabbinical court that the wife is withholding her consent unreasonably. He may succeed in being issued a heter me'ah rabanim, which permits him to deposit a divorce decree with the court for her to collect and a grant of permission for the husband to take a second wife. The heter procedure leaves her in a legal no-woman's land, neither entitled to the benefits of marriage nor able to negotiate for what she thinks is a fair settlement of the divorce. She must accept the divorce he has left for her, on the terms he decides, in order to go on with her life. He therefore has a remedy for her refusal which renders it meaningless. Moreover, even without a heter or a get, a man may marry civilly or father children out of wedlock who will not have the status of mamzerim. This power imbalance allows men to withhold divorce out of spite or in the hope of achieving some advantage in divorce negotiations—rabbinic or civil—over property, alimony and custody. Men can use their power under Jewish law to claw back some of the egalitarian entitlements that women have gained under secular law over the last 50 years.

There have always been agunot—"chained" women whose husbands are unwilling, unable or unavailable to divorce them. Jewish legal texts, responsa, popular literature and newspaper archives are replete with tales of women who became agunot because of their husbands' abandonment of them. The modern-day agunah, however, is more often a woman whose husband...