Writing by Dr. Dannielle Blumenthal

To address the issue of Gett refusal without relying on public shaming, the most effective rabbinic solution is nullification (known as Kiddushei Ta’ut or Afke’inhu). This process allows a Beis Din (rabbinical court) to declare that a marriage was never legally valid from its inception, usually due to a “hidden defect” or a fundamental flaw in the original agreement. By nullifying the union rather than waiting for a husband to grant a divorce, the court can release a woman from her status as an agunah (chained woman) through legal decree.

Impact on Children and Mamzerut

A primary concern in these cases is whether nullification affects the status of the children.

Important: In Halacha, children of a nullified marriage are not mamzerim.

• Definition: A mamzer results only from relationships punishable by Karet (divine excision) where the parents cannot legally marry, such as adultery or most forms of incest. (This excludes Niddah or intermarriage, which do not result in mamzerut).
• Legal Status: When a marriage is nullified, the parents are retroactively viewed as having been single. Therefore, the children were not born of an “adulterous” union.
• Legitimacy: Halachically, children of unmarried parents are perfectly legitimate and face no marital restrictions.

Proposed Institutional Remedies

Rather than focusing on individual disputes, the following institutional remedies can provide a systemic solution to Gett refusal:

• Mandatory Prenuptial Agreements: Every Jewish marriage should require a bilingual (Hebrew/English) prenup. This document should include a mental and physical health attestation, a clause stating that a divorce will not be withheld, and a strict time limit to ensure the Gett is granted promptly.
• Education and Counseling: Premarital counseling and formal education regarding the legal obligations of marriage should be required in Jewish high schools and yeshivas to foster a culture of mutual respect.
• Expert Advisory Boards: Batei Din should utilize former agunot, therapists, social workers, and mediators as subject-matter experts to provide better context and sensitivity during proceedings.
• Fast-Tracking for Children: In cases involving children, the Gett process must be prioritized and fast-tracked to protect their emotional and psychological well-being.

By implementing these structural changes, the community can uphold the sanctity of marriage while ensuring that no individual is trapped in a defunct union.

Written with the help of AI. AI image.