Today I received a question about Jewish Divorce:
“This came up in my class and I was hoping you knew the answer. I know that a woman cannot get a get if the husband says no. But what about the reverse situation, i.e., if the woman opposes the get? Can the husband still get it?”
The following is adapted from my answer:
If this is a practical question, the simple answer is “Ask your local Rabbi.” There are a lot of details that could have an impact on the situation.
For the theoretical side: Note that originally, a man could divorce his wife without her consent, but the Rabbis enacted legislation that prevented a man from divorcing his wife without her consent: she must accept the Get (Jewish divorce document) for it to take effect. The ramifications for a husband whose wife refuses the divorce are—as you can imagine—nowhere near the same as those for a wife whose husband refuses to divorce her.
A wife who refused to accept a Get cannot remarry, according to Jewish law. A wife might refuse to accept a Get in hopes of reconciliation, although it seems to me that in most cases, by the time a proper Get is executed, this is unrealistic. (Indeed, even though some couples remarry after divorcing with a Get, presumably the Get would only be executed after the Rabbinic Court overseeing the process concluded reconciliation was unlikely at the time). Once it is clear that the marriage is over, I’m not sure what responsibilities are owed to the wife by the husband who offers a Get that she refuses to accept (more on this below, from a case in Israel).
For the husband, if the marriage is clearly over, some Rabbis might approve what might be called a “technical exemption from monogamy,” i.e., special permission (heter) allowing remarriage for the husband whose wife does not accept the Get but whose marriage is clearly over. Similarly, if the wife has disappeared and that’s why she cannot accept the divorce, the technical exemption from monogamy would also permit his remarriage.
No such solution is so readily available to the wife whose husband refuses to issue the Get: she is an aguna (literally: “chained woman”) and cannot remarry. Generally these situations are resolved, but the process is individual, long, and often painful. And, I should note, although the situation is rarer, it can be as individualized, long and painful for the agun (“chained man”) as for the aguna.
There are different Rabbis with different approaches to this issue. My guess is that as a practical matter, almost all would recommend the woman accept the divorce if the marriage is definitely over. In practice, what Rabbis would counsel the man whose wife refused, or the woman who was adamant about not accepting the Get, would depend on the specifics of the situation.
The Israeli newspaper Haaretz carried a story about such a case; dateline July 26 2011. http://www.haaretz.com/news/national/jerusalem-rabbinical-court-wants-woman-jailed-for-refusing-to-accept-divorce-1.375294. A Hebrew version of this story is at http://www.get.what2do.co.il/%D7%A1%D7%A8%D7%91%D7%A0%D7%99%D7%AA-%D7%92%D7%98-%D7%9E%D7%90%D7%A1%D7%A8/
In this case, the Rabbinic Court approved the divorce in 1996, and ordered the wife to accept it, but she has steadfastly refused. Eventually the Rabbinic court was willing to let the man remarry, but the Israeli Interior Ministry would not change the husband’s status, so he was prevented from remarrying not by religious law so much as by Israeli civil law’s recognition of religious marriage and divorce. The husband appealed the Interior Ministry’s ruling. The woman apparently refused to accept the divorce because she claimed her settlement was unfair, and she was holding out for property and substantial cash (The husband and the court argued that she had been given a fair settlement). Note also that as a married woman, she would retain various rights with respect to pension funds, inheritance, taxes, health insurance and National Insurance (Israel’s Social Security). The Rabbinic Court ordered her to be jailed. According to the report in Hebrew, while the refusal of the husband to issue a Get is much more common, there were “not a few” cases in which the wife refused to accept a Get—yet no woman had ever been jailed before for refusing to accept a Get.
I was unable to find out what happened in this case following the date of these reports.
In another case, from October 2011, a woman was fined NIS 400,000 for refusing to accept a Get from her husband. Apparently this was within the Haredi community, and the judge took note of the special difficulty divorce—and refusal to accept divorce—had in the Haredi world, even for men.
Rabbi Jonathan Reiss of the Beth Din of America (Orthodox) mentions women who do not want to work with the Rabbinic Court (Beit Din) in http://www.jlaw.com/Articles/divorcebeit.html. His wording seems to suggest that he is not referring to wives refusing to accept a Get, but primarily referring to women who accept their Get but do not work with the Beit Din for any other purpose, feeling that the Jewish Religious Court will be biased against the woman regarding any division of property or other marital settlements.
At the end, he invites questions, and, in his role with the Beth Din, he may be the person with the best experience to give further practical discussion of this issue as it relates to contemporary American Orthodox practice. (As for the other main movements within American Judaism, this is much less of a problem for Reform Judaism; some strategies have been tried in Conservative Judaism to avoid this problem but in general, Conservative rabbis require a get to be issued and accepted in the case of divorce).
Addendum (March 22 2013): I wrote to the Beth Din of America, and received a response from Rabbi Shelomo Weissmann, the current Director of the Beth Din (Rabbi Reiss is now at YU). He kindly clarified that the policy of the Beth Din of America is to offer what I called “exemption from monogamy” (the full traditional name is heter me’ah rabbanim “permission [signed by] 100 rabbis”) only in very limited circumstances in which the woman is totally incapacitated or in a vegetative state, but that he is aware of other Rabbinic Courts that “will arrange a heter me’ah rabbonim in any situation where the wife refuses to receive a get.” (By the way, there is no parallel solution for a woman whose husband is incapacitated or in a vegetative state).
Rabbi Weissmann also stressed that it’s important to mention in any discussion of this issue that the Beth Din of America has had proven success with the prenuptual agreement, and he drew my attention to his very well-written essay about its necessity and effectiveness: http://www.ou.org/life/relationships/ending-agunah-problem-as-we-know-it-shlomo-wiessmann/#.UUxtcBzg2So
I note that the prenup is mostly concerned with the recalcitrant husband, and Rabbi Weissman notes that this is vastly more common than the recalcitrant wife in the experience of the Beth Din of America. (Although he advised there is a prenup version that deals with the recalcitrant wife).
Many thanks to Rabbi Weissmann for his help!
Addendum: Rabbi Reiss responded to my inquiry about this issue after he returned to work (he had been away for Passover). Many thanks for his helpful response.