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The Tears of the Oppressed - An Examination of the Agunah Problems: Background and Halakhic Sources
The Tears of the Oppressed - An Examination of the Agunah Problems: Background and Halakhic Sources
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Foreword by Menachem Elon, Deptuty President (Retired), Supreme Court of Israel }}Afterward by Emanuel Rackman, Chancellor Emeritus, Bar-Ilan University}}The Tears of the Oppressed examines one of the most difficult legal and social questions in the Jewish world today, that of the agunah or "chained woman". An agunah is a married Jewish woman who may not remarry-because the death of her husband has not been verified (a rare situation today) or because she is unable to obtain a get (Jewish divorce) from her husband. The legal (halakhic) questions concerning the agunah go back more than two thousand years, but in many ways the problem has become more acute in recent times. This is because today's cases of iggun (state of being an agunah) are situations where the husband's whereabouts are known, but where he cannot or will not give his wife a get. At times, the reasons are objective, such as a husband's insanity or imprisonment. More often, however, the reasons are subjective, including a husband's desire simply to spite his wife or to extort monies from her or her family. Individual rabbis and rabbinic courts (batei din) try to mediate cases of iggun, often urging the husband to consent to the Jewish divorce and give the get when the marriage seems to have no future. The batei din, however, do not have the power to issue a get without the husband's approval. Tears of the Oppressed presents the case for greater application of a legal methodology of early origins, but infrequent use. Entitled kiddushei ta'ut, it is a process by which the court examines the facts as they existed at the time of marriage to determine whether or not a valid marriage was ever constituted. This volume describes how the rabbis who utilized the methodology of kiddushei ta'ut carefully inquired into the background of each case to determine, among other things, whether a "defect" in the husband was concealed from his wife prior to the marriage. Among the "defects" are medical infirmities such as epilepsy, insanity and impotence, and problems such as physical abuse, imprisonment and prior criminal activities. Dr. Hacohen sets before us and analyzes an impressive array of precedents, beginning with basic Biblical and Talmudic source and continuing through many centuries of commentaries and legal decisions until our own day. The author extracts several guiding principles and offers recommendations for the alleviation of the agunah problem.

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