Had Ehud (Goldwasser) Had Married Karnit “on Condition”

"You are hereby betrothed to me with this ring on the condition that I'm not missing in action."  This wording is not the most romantic but it could prevent aginut.  Rivkah Lubitch thinks about Karnit and she's convinced that there's a "prophylactic solution." She writes: "If the solution doesn't come from the rabbis, the community must rise to the occasion and take action."

Rivkah Lubitch  06-26-08

Things were never clearer.   If a man who loves a woman and wants to marry her according to halakha without putting her, G-d forbid, in the situation of aginut, he must take preliminary measures to marry her "on condition."  That's my humble opinion on the matter.

The time has come to discuss these matters openly.  I've been quiet for two years.  I don’t want to hurt the feelings of the captives' families.  I don’t want to aggravate the daily pain that they endure of not knowing the status of their sons—if they're alive or if they're dead.  But I have no choice.  It's always hard to talk about it, but now that it's already in the news, I'm going to lay it out on the table.

Karnit Goldwasser could be an agunah.  In fact, Karnit Goldwasser is, for all intents and purposes, already an agunah.  If somehow her husband returns, her personal status will be resolved, one way or another.  But if he doesn’t come back, her status will remain uncertain.  It's possible that she'll stay a "widow for life."  It's possible that the chief rabbi of the army will pronounce her husband killed in action, but it's possible that he won't.  What's clear is that there's a chance that Karnit will be stuck in this indeterminate situation forever, and that's unacceptable.

According to halakha, a married woman is bound tightly by law to her husband (by kinyan).  She can only free herself from this close bond by divorce or the death of her husband.  "Death of the husband"—that's death recognized by the rabbinic courts.  "Death" isn’t the the army’s determination that a man can no longer be alive; "death" isn’t intelligence information ; "death" is the signed and sealed decision of the Rabbanut that the person isn’t living.  This seal's given only if the appropriate evidence is found in accordance with the appropriate halakhic rules, and only if the appropriate rabbis are willing to put the weight of this difficult decision on their shoulders.

Here are four things you did, or didn’t, know about aginut:

1. The status of "agunah" is only for someone who was married according to halakha.
2. Not all agunot are "freed."  The rabbis don’t always find a halakhic solution.
3. The status of "agunah" is only applicable to women.  It's true that we're all distraught about the hardships of an agunah, but an agunah is always a woman.
4. Children born to an agunah (from a man who is not her husband) are mamzerim  according to halakha even if she doesn’t marry the other man.

We all pray that there won't be any more wars, and that there won't be any more missing soldiers.  But, even if tomorrow there's peace with all our neighbors, the problem of aginut won't be resolved.  To our dismay, there will always be car accidents and unpreventable catastrophes that will leave men in “vegetative” states.  And there will always be illnesses that leave people brain damaged for the rest of their lives.  I will say it here in the clearest way:  We have to solve the problem of aginut by preventing it from the start.  This is a tragedy that can be prevented.  It's a superfluous devastation of life.

Why are the rabbis not seeking a solution to prevent this?  Rav Goren’s suggestion-- that soldiers who are sent on dangerous missions appoint an agent to deliver the get ( "get shlichut" )-- should have opened the door to a more pervasive solution.  The silence of the rabbis—who preach that our Torah is a Torah of life and that Judaism has solutions to complicated problems—is thunderous.

If the solution won't come from the rabbis, then the time has come for the community to get up and do something.  We must find a way to marry according to halakha without a "kinyan."  If it's not possible to do away with a "kinyan," we must allow for marriage "on condition."  What condition?  The condition could be that the husband hasn’t been declared missing by the Army Rabbinate.  The husband would marry the woman saying: "You are hereby betrothed to me in accordance with halakha so long as  Iim not missing in action."  The condition could be that the husband hasn’t been declared incompetent to give a get to his wife.  The husband would say: "You are hereby bestowed to me…so long as I have not been held to be incompetent."

It's not at all romantic.  It's hard to say these things under the chuppah.  It's also hard for the congregation to hear it.  But it's also hard to be an agunah.  But with a little good intention we can solve this hard problem.  Before the chuppah, the husband can sign a document declaring the following: "I hereby acknowledge, in front of two witnesses, that when I marry this woman I intend to do so on the condition I am not declared to be unable to give a get."  If this is too hard, maybe we can find a more vague way to phrase it.  For example: "I hereby acknowledge that when I marry this woman, I do so on the condition that the marriage is in accordance with the will of a prominent Beit Din of the country."  It's so simple.  It just needs  some good will and some desire to help women.

Rivkah Lubitch is head of the Center for Women's Justice Haifa office. She is a rabbinical pleader with six years experience and has an MA in the history of the Jewish people.