The word agunah in Hebrew means “one who is chained,” specifically one who is chained in a marriage and is unable to receive a get, a Jewish divorce, thus rendering them incapable of moving on to another relationship and marriage. According to Jewish law, a Jewish religious marriage must be dissolved by a Jewish divorce. Remarrying without an official Jewish divorce can render the second marriage an adulterous one in the eyes of Jewish law since the party is still technically married to the previous spouse. In this case, if a spouse is unable to attain a Jewish divorce they would remain “chained” to their first marriage and unable to remarry.
Sometimes in cases of difficult divorce, one party will refuse to give or receive a get, a Jewish divorce, holding their spouse up for custody wishes or monetary gain. Using one's agreement to give a get as extortion is obviously considered a terrible crime in Judaism, but today's Jewish courts have little power to punish the offender or force them to agree to a get.
The benefit of the Lieberman clause was that in theory the couple agrees in writing to pursue a religious divorce in addition to a civil one. The dilemma is that since it is contained within a religious document it is not usually admissible in a secular court and is therefore difficult to enforce.
This potential for abuse has been addressed by different Jewish groups in different ways. The Conservative movement requires a clause in the Aramaic text of the ketubah that states that the husband and wife will agree to appear before a Bait Din, a Jewish court, for a Jewish divorce in the event that the couple is civilly divorced but not religiously divorced. This clause is commonly referred to as the Lieberman Clause after its author, Rabbi Saul Lieberman, who was at one time the head of the Conservative rabbinical school, the Jewish Theological Seminary in New York City.
Reform kitubot do not usually contain any language of agreement to a Jewish divorce since the ceremony of Jewish divorce is not a part of Reform Judaism today.
Religiously Required Prenuptial Agreements
Orthodox kitubot do not contain such a clause in the ketubah since there is a desire in more traditional communities not to change the text of such an ancient document. The problem of agunah is a powerful one in the Orthodox community; in response, many Orthodox rabbis have begun requiring couples to sign a legal prenuptial agreement that is admissible in a secular court. It states that if the couple ever becomes divorced civilly or the couple is separated and the wife has asked for a religious divorce, the husband must continue to support his wife as is his halachic, Jewish legal obligation, until such time as he gives her a religious divorce. The results of such a prenuptial agreement have proven to be quite positive and some rabbinical organizations will not allow a wedding to be performed without one. See Appendix D for additional resources.
In the Bible and in traditional Judaism according to the Talmud, when a divorce is executed it must be written carefully by a trained scribe and given volitionally by the man to the woman. This process is based on the biblical verse in Deuteronomy 24:1: “… and he shall write for her a document of separation and place it into her hands….” Originally, this verse also gave the husband the power to divorce his wife without her consent.
The rabbis of the Talmud, in an attempt to grant wives power, enacted a set sum of money that the husband was obligated to give the wife with her divorce, thus giving her at least some monetary power, though the husband could still divorce her against her will if he was willing to pay the amount. In the eleventh century, Rabbanu Gershom, the leader of Ashkenazik European Jewry, made a rabbinical decree that no man could divorce his wife without her consent and that no man would any longer be allowed to have more than one wife, even though it was biblically permitted. Since wives now had to agree to any divorce, they gained a great deal of bargaining power over the financial terms of the divorce. Husband and wife needed to come to an agreement together as to the terms of their divorce before they would both agree to it.
Today several problems have emerged with this arrangement. Sometimes Jewish men, knowing that they are biblically permitted to have more than one wife, will leave a marriage with only a civil divorce. Though the wife may want the husband to agree to her monetary terms of the divorce, he may simply find another wife. This violates the rabbinic decree and leaves his first wife essentially an agunah, a chained woman, using this power to force his own divorce terms. In addition, if a wife demands a divorce and the husband refuses, though she can obtain a civil divorce in a civil court, for a Jewish divorce to be biblically and rabbinically valid it must be given by the husband to the wife.
To address these problems, in the Orthodox community some groups of rabbis have instituted the binding secular prenuptial agreement which is admissible in a secular court. Though the document can not compel the husband by physical or corporal force to give a get, since technically a get given under coercion can be declared invalid, the husband is obligated while he is religiously married to his wife to support her fully. In Israel today husbands are sometimes jailed for refusing to give their wives a religious divorce.
This prenuptial agreement works because it obligates the husband to support his wife with a good living wage all the time they are separated or civilly divorced until such time as he gives her a religious divorce, which is truly his obligation.
He supports her with a good, though not outlandish, living wage, currently valued at $150 per day and attached to the cost of living and inflationary indices in order to obviate devaluation over time. Thus, if inflation goes up, the amount he must pay her increases. In the years since this prenuptial agreement has been instituted there have not been any cases of husbands withholding a get as extortion in order to obtain additional money or custody consideration beyond what they were legally granted. For a link to this prenuptial agreement on the internet, see Appendix D.