Tish‘ah be-Av and the Agunah Problem by Rabbi Shalom C. Spira

    The Gemara, Ta‘anit 30a, prohibits most areas of Torah study on Tish‘ah be-Av. One of the few permitted exceptions, as identified by Mishnah Berurah, Orach Chaim 554, se’if katan 3, is the passage in Gittin 55b-58a regarding the Temple destruction. The conclusion of that passage – an exposition of Micah 2:2 – is interpreted by Maharsha (Chiddushei Aggadot) as declaring that if even one husband is wrongfully pressured to divorce his wife [in violation of Exodus 20:14] or if even one marriage is poisoned by adultery – then the entire Jewish People is held accountable to collectively protest. Thus, it emerges that Tish‘ah be-Av is a time to reaffirm our commitment to the sanctity of marriage – and to eschew half-baked solutions to the agunah problem – as I previously wrote at <http://daattorah.blogspot.com/2023/01/the-legacy-of-rabbi-feivel-cohen-vis.html>.

      R. Simchah Rabinowitz, Piskei Teshuvot al Mishnah Berurah Chelek Shishi, points to another exception presented by Mishnah Berurah, this time in se‘if katan 5. Where a halakhic verdict is urgently needed on Tish‘ah be-Av for a sick patient or for litigants in a monetary dispute (who cannot wait until tomorrow), a decisor may study the case as is necessary to provide immediate guidance. Rabbi Rabinowitz explains that this is what justified R. Shalom Mordechai Schwadron, Teshuvot Maharsham, I, no. 84, to formulate a responsum on Tish‘ah be-Av to permit an agunah to remarry. Indeed, Rabbi Schwadron concludes that responsum by citing Bach to the effect that rescuing an agunah is a spiritual achievement equivalent to rebuilding one of the ruins of Jerusalem. 

            Upon careful reflection, it emerges that there is no contradiction between the aforementioned Maharsha and Maharsham regarding the agunah-problem message of Tish‘ah be-Av [and, poetically enough, their works carry almost identical names]. Where the Oral Torah declares that an agunah can remarry, such as the case of Maharsham in which he discovered sufficient circumstantial evidence to presume the first husband to be dead, then it is indeed a great mitzvah to enable this remarriage. But where the first husband is demonstrably both alive and innocent of any wrongdoing, then Maharsha directs us to respect that first (and only) marriage. 

For this reason, R. J. David Bleich, responding to the 1992 New York Get Law [a well-meaning but unfortunately less-than-successful attempt to solve the agunah problem], comments as follows [available at <https://traditiononline.org/communications-86/> ]:

                "Regrettably, instead of serving as a panacea resolving the plight of the agunah, the Get Law has itself                       created countless agunot. It is precisely because of concern for agunot that the Get Law cannot                       be allowed to stand."

In other words, we must always take into consideration the Maharsha vs. Maharsham dichotomy, thereby distinguishing true from imagined solutions to the agunah problem. That is why my own prenup proposal [available at <http://www.scribd.com/doc/176990434/Prenuptial-Agreements>] contains a clause shielding the husband and wife from any secular court that might wreak havoc with a get. 

Prenuptial Agreements | PDF | Halakha | Hebrew Words And Phrases Halakhic analysis of prenuptial agreements, leading to a combination of two halakhically kosher prenuptial agreements to benefit the Jewish wife www.scribd.com

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Continuing on this theme, I would like to highlight my recent exchange with R. Heshey Zelcer in Hakirah Vol. 28 (Spring 2020) [available at <https://hakirah.org/Vol28Letters.pdf>] regarding the [once again well-meaning] Yashar Prenup. I hypothesize that the poskim who are advertised as supporting this prenup (R. Moshe Sternbuch, et al, be-mechilat Kevod Toratam) innocently glossed over paragraph 16 of the agreement, which states as follows: 

 

           “At the initial session, Beth Din shall outline the issues between the Parties and make a            determination of the interim payments necessary to ensure that the lifestyle of the un-                                emancipated children of the household (if any) can be maintained, and that they can continue            to attend yeshiva.” 

 

 Rabbi Sternbuch et al do not raise an objection to this paragraph, presumably because it does not explicitly require the husband to pay the wife until he grants her a get. However, as one can discern from the aforementioned Hakirah exchange, Rabbi Zelcer effectively interprets this clause to in fact mean that the Beth Din will direct the husband to pay the wife until he grants a get. And so, the Yashar Prenup seems to present a problem that is essentially identical to that of the RCA prenup, the latter representing a prenup that Rabbi Sternbuch and others have identified would produce an invalid get. [See <https://hebrewbooks.org/60970>.] 

A careful examination of Rabbi Sternbuch’s letter of approbation for the Yashar Prenup [available at <https://yasharinitiative.org/docs/RabbiMosheSternbuch.pdf>] reveals that he is appreciative to the framers of the prenup for keeping the Jewish litigants out of secular court. However, Rabbi Sternbuch does not say that he permits charging the husband money until the latter grants a get, and – indeed – he could not permit such an innovation without contradicting what he wrote regarding the RCA prenup. [For a different perspective (than mine) on the Yashar Prenup, see Yechezkel Hirshman at <https://achaslmaala.blogspot.com/2023/01/prenups-xii-straight-dope-on-yashar.html>. Hirshman does not believe that the Yashar Prenup actually costs the husband any money, yet he concurs in practice (with me) to keep the proposal on ice. See there for his illuminating approach.] 

      

Rabbi Spira works as the Editor of Manuscripts and Grants at the Lady Davis Institute of Medical Research, a pavilion of the Jewish General Hospital in Montreal, Canada.