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Women Plaintiffs in Rabbinical Courts: The Struggle to Solve the Problems of Mesoravot Get [women denied a divorce] - Two Steps Forward, One Step Back
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From:
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Date Published:
4/16/2008
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Last Updated:
7/27/2009
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Category:
Breaking the News
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The law in the State of Israel determines that "marriage and divorce of Jews shall be conducted in Israel according to Jewish law." [1]Therefore, Jewish couples who want to get divorced must do so only through the rabbinical courts, whether by arranging the divorce itself or via a divorce verdict.[2] In order to understand the problematics of women in Jewish divorce, it is important to understand two important principles: the woman's dependence on the get in order to re –marry, and the importance placed by the poskim (rabbinical judges) on the "desire of the husband" in giving the divorce. According to Halacha (Jewish law), a married women continues to have the status of 'married' until she is divorced or until her husband dies[3] and mere separation of the couple does not constitute divorce. A married woman who has relations with another man is considered an adulterer, and any children from this new union will be considered mamzerim (halachikly illegitimate)--they and their descendents may never marry into the Jewish community. On the other hand, a married man who has relations with another woman is not considered an adulterer as long as she is not married, and his children from her will not be mamzerim.
The get must be given by the husband of his own free will. A get obtained out of coercion is not kosher and called a get meuseh (forced or coerced get). If a get was obtained without the husband's free will, the woman is still considered married and any children from another man will be mamzerim. The one exception to this rule is if the rabbinical courts obligate the husband to give a get.[4]
If the man so chooses, the process of getting a divorce, even in the rare cases a rabbinical court obligates a man to grant a get, can drag on for years. A woman who wants to start a new family and feels the pressure to get divorced in her fertile years, fears that her husband may prevent her from obtaining a get expediently.
All the factors listed above combine to create 'ideal' conditions for extortion of a woman by her husband in exchange for a get. Many women are coerced into making significant concessions such as waiving child support payments or giving up valuable possessions or property, in order to receive a get. Many women are forced to wait for interminable periods of time thereby losing precious years, years in which they could create another family if they were free. There are women who remain agunot (literally, women 'chained' to marriage usually because the husband's whereabouts are unknown) or mesoravot get (women refused a get by their husbands),[5] until the day they die or their husband dies, only because they cannot (or will not) pay the price.
Women's Organizations: From a Moderate to a Forceful Approach
In the 1980s and the beginning of the 1990s there was sporadic activity for agunot, usually within general women's organizations. From 1995, women established organizations whose sole purpose was to assist agunot and mesoravot get.[6] At first, the organizations adopted a relatively moderate approach out of the desire to avoid friction and, instead, work together with the rabbinical courts towards solutions. The organizations focused on helping women privately with financial aid, social-welfare intervention, or representation in the rabbinical courts. The initial strategy was to work within the given system to bring about piskei din (verdicts) to obligate recalcitrant husbands to give divorces and to activate legal sanctions against get-refusing men.[7] The women who worked in these organizations, including female rabbinical pleaders or advocates (toanot rabaniyot), believed in the possibility of change within the rabbinical courts. However, it did not take them long to feel frustrated and discontented with the foot-dragging of the rabbinical courts. Thus, the activists in the organizations went through processes of deep soul-searching: the difficult stories of the mesoravot get accumulated; the criticism of the rabbinical court proceedings became more pointed; and the understanding that available halachik solutions were not being implemented, sank in. All these, had a deep effect on the inner lives of the women involved in the organizations.[8] Meanwhile, on the other side of the playing field, no serious progress had occurred in the rabbinical courts except for self-justifying attempts to safeguard their power and status.
As a result, activism assumed a second stage as the women's organizations developed a more aggressive stance. Women activists came to realize that salvation was not going to come from the rabbinical courts and that they would have to operate in additional arenas. The organizations started to turn to the media in order to awaken public awareness of the issue, even at the price of confrontation with dayanim (religious judges).[9] Lawsuits for damages were submitted to the civil courts and appeals were submitted to the Supreme Court against the rabbinical courts in an attempt to involve the civil courts in what was going on in the rabbinical courts. In the political arena, activists initiated legislation and even attempted to influence the appointment of dayanim. In short, the activities of the women's organizations has had effect in various ways on the position of the rabbinical courts regarding mesoravot get and the halachik discourse of the dayanim. Below I review a number of examples.[10]
Polemics over Facts and Figures
The public tends to view the question of mesoravot get as an important quantitative, data-driven issue that has not been sufficiently clarified; they want to know the facts and figures. Activists in women's organizations estimate thousands of cases of mesoravot get. With much experience in the field, these activists believe that the phenomenon is widespread and that there is no real significance to exact numbers. They feel that as long as the get is the man’s to give or withhold, women will always find themselves at a disadvantage during divorce and will be forced to waive their rights for the long-awaited get.
In response to the publication of true stories of women who were refused divorces and of evidence regarding the malfunctioning of the entire system, the rabbinical courts tried to detract from the problem. In lectures and publications, the rabbinical court spokesmen claimed that the get-refusal phenomenon was very marginal, numbering only about two hundred.[11] The reason for the tremendous disparity in facts and figures lies in different definitions of mesoravot get: the rabbinical courts counted women as mesoravot get only after they ruled that the husband must grant a get and he refused to heed the court for thirty days. The problem was that the rabbinical courts have been very reluctant to rule that the men must grant a get to begin with (hence the low numbers). The women's organizations viewed the rabbinical courts' classification as ridiculous, and they define mesoravot get as women who started divorce proceedings and did not receive a get for a year or longer, since the courts drag the women through the system for many years with innumerable deliberations and no psak din to require the husband to give a get, and sometimes without any psak at all.
Meanwhile it was publicized that about a hundred thousand women were, or are, mesoravot get.[12] This figure may be misleading because it does not refer to the number of mesoravot get today but the estimated number of those who suffered in the past, as well as today, from the get refusal phenomenon. The use of the media to publicize this figure irritated the rabbinical court administration. As a result, the website of the rabbinical courts with advertised the statement that the number of mesoravot get is 180.[13] In addition to this "impressive" figure, the rabbinical courts claimed that there are more men denied gitim, than women. Thus, they tried to dismiss the problem completely. Although the women's organizations explained the reasons behind the statistical bias of this fact,[14] they have not yet been able to come up with well-established findings of their own. The problem is that it is the rabbinical courts that possess the database, and they have vested interests in minimizing the extent of the mesoravot get phenomenon.
Polemics Regarding Pre-Nuptial Agreements: Averting the Problem or Creating Get Meuseh
As an attempt to prevent the problem of get-refusal, it has been proposed to have couples sign a prenuptial agreement to eliminate get-refusal.Several prenuptial agreements have been drafted in recent years, and the guiding principle of most of the agreements is that both sides agree to pay 'increased support payments' if they refuse the other side's wishes for a divorce. Even though many of the agreements were reviewed and endorsed by Orthodox rabbis, some dissenters object to them on principle for the following reasons:
A. Fear of undermining the stability of the marital unit
B. Fear that pressure on the recalcitrant male could cause the get to become a get meuseh (fictitious get).
C. Some of the agreements state that division of marital property will be carried out in the civil courts, thus transferring jurisdiction from the rabbinical courts to the civil courts
Newspapers and halachik journals have participated in the polemics on this topic. Rav Uriel Lavie, av beit din (presiding judge of rabbinical court) of Tzfat and Teverya is the head of the opposition to these kinds of agreements and he listed the principles he feels should be the basis for an agreement that would be, in his opinion, halachikly acceptable (conforming to Jewish law). But it appears that an agreement containing these principles will not be effective at all in neutralizing or averting the existing problems. The fact is that many couples today already routinely draw up prenuptial financial agreements in order to ensure monetary rights in the event of divorce, and now that public awareness has grown with respect to the get-refusal (sarvanut) issue-- more and more couples want to secure their rights in this arena as well. It is hard to imagine that worries about a get meuseh will halt this process.
Get Coercion and Hilchat HaMaharashdam
Even though in recent years the number of piskei din has grown in chiyuv get (forcing the recalcitrant husband to give a get), a parallel phenomenon has also emerged in backlash: a psak Halacha of the Maharashdam has been revived. This ruling determines that a husband has the right to stipulate conditions for his wife in giving a get.. If these stipulations are reasonable, the recalcitrant husband cannot be coerced to give the get even if there are grounds for doing so. This ruling plays into the hands of the recalcitrant husband because all he has to do is make demands that are ‘reasonable’ in the eyes of the rabbinical courts. For example, a demand to re-open property agreements that were ruled in the civil courts will be considered very reasonable in the rabbinical courts because they, in any case, invalidate the authority of the civil courts in favor of the rabbinical courts. So a demand like this from a recalcitrant husband even allows the rabbinical courts to recapture authority that had been taken from it and thus dominate spheres ancillary to the get, spheres that are not under the jurisdiction of the rabbinical courts. Thus, ironically, although more rabbinical courts dispense piskei din (verdicts) obliging husbands to grant a get, the Hilchat HaMaharstam states that a husband cannot be compelled to issue a get if he has 'reasonable' stipulations. The upshot of this is, that no matter how severe are the grounds for divorce--the husband can still refuse to give a get until his stipulations are fulfilled.
The Problem of Get Revocations
Another severe get-related problem, in addition to that of extortion, is the issue of get revocation (bitulei get). One of the methods used by women to overcome the extortion used against them in obtaining the get, is to turn to the civil courts after receiving the get and sue for child-support payments. This is how they try to obviate the great concessions they made in order to obtain the get. However the rabbinical courts were disgruntled at this trick. In order to regain authority over the spouses, some dayanim (religious judges) have adopted a new procedure of 'get revocation.' In the past, Jewish sages frowned on attempts to revoke a get and even excommunicated people who slandered or doubted the get. Casting aspersions on a get could not be ignored because if a woman's get became cast in doubt, then any children born to her from a second marriage could be considered mamzerim, a very drastic situation. Despite this, there are cases wherein modern rabbinical courts cancelled a get retroactively when the women turned to the civil court.The rabbinical court claimed that if the husband would have known that his wife would turn to the civil courts to circumvent his demands, he would not have consented to the get and thus it should be viewed as a get given under false pretenses (get muteh) --thus cancelled retroactively. The significance of this kind of verdict is unbearable control of the rabbinical courts over the lives of women who are in the process of divorce, since any violation of the divorce agreement can cause the rabbinical courts to cancel the get retroactively--thus rendering the children of a new union, as mamzerim. This is so incomprehensible that the public seems unwilling to believe that such piskei din were actually rendered.
Suing for Punitive Damages in Civil Courts: A Help or a Hindrance?
Suing for punitive damages in civil court for financial compensation to mesoravot get is based on the concept that the husband's recalcitrance in giving a get severely impinges on the woman's autonomy, her chances to re-marry and have more children--in short, her ability to take her life into her own hands. The compensation she receives corrects a perversion of justice and does justice. There are two additional aspects to compensation for recalcitrance (sarvanut): First, the verdict assigns a name or label to the sarvanut problem and defines it as a real injury with a price. (This is analogous to the verdicts on sexual harassment that defined and labeled a phenomenon that was well-known to women since time immemorial, but did not have an official label.) Second, such a verdict could bring relief to the overall sarvanut problem since many men are likely to avoid delaying the get, once they know that they may have to pay large sums of money in court for their recalcitrance.
Attorney Susan Weiss is very active on the issue of agunot in general, and in the arena of punitive damages, in specific. Weiss says that as far back as the 1990s she turned to organizations for help in submitting suits for punitive damages on behalf of mesoravot get that were put through the wringer in the rabbinical courts, but her plea was rejected. Expert opinion was loud and clear: they claimed that there was no chance of winning such a suit. Only in 2003 did Weiss submit a lawsuit that created a precedent: Menachem Cohen, judge of a district court, handed down compensation of about 450,000 NIS to a mesoravot get. In this case the woman had a rabbinical court verdict compelling the husband to give her a get, and the court awarded the compensation only for the time-period that elapsed from the psak din until the day the suit was submitted to the court. Women's organizations try to build on this precedent and obtain verdicts from the courts for compensation even from recalcitrant husbands who are not compelled to give a get by the rabbinical courts. Such a verdict would severely curtail the ability of the rabbinical courts to control the lives of mesoravot get, since they would be able to find assistance and solution in civil courts even when they don't have a rabbinic psak din to compel the husband to issue a get.
The rabbinical courts feel very threatened by the civil suits, which they perceive as interference of the civil courts in their turf. In the first convention of dayanim that was held after dissemination of Justice Cohen's verdict, Rav Uriel Lavie (av beit din of Tzfat and Teverya) spoke and claimed that these kinds of lawsuits would lead to illegitimate gitim.In practice, some rabbinical courts flatly said that they would not continue to discuss a get or arrange a get for the parties involved as long as civil suits were pending. The pressure on mesoravot get to close their suits for punitive damages (that they opened in civil court) is massive, since usually the first objective of the women is to obtain the coveted get.
The position of the various women's organizations is not uniform, but most of the activists are prepared to face any problem that will arise in the rabbinical courts after the verdict of the civil courts. According to Weiss, neither we nor the civil courts have the prerogative to decide for a woman whether she prefers to avoid a get meuseh or to receive a large sum of money--compensation for her husband's ill treatment. In any case, Weiss and other activists feel that they must not surrender to the rabbinical courts' attempts to score points for themselves in their struggle against the mesoravot get.
What Is Next?
The clash between the rabbinical courts and the women's organizations is not inevitable. In other places in the world, rabbis and dayanim formulate and promote prenuptial agreements for preventing sarvanut and they back the women up in submitting lawsuits in civil courts. One could imagine such a scenario in Israel too, where the rabbinical courts attempt to aid women who are mesoravot get in order to root out the sarvanut phenomenon. It is not within the scope of this article to analyze why such confrontational dynamics developed between the religious institution and women's organizations in Israel. We will just hint that the answer is rooted in the institutional-political framework of religion in the State of Israel.
The last decade has witnessed the growing of women's influence; an increasing number of people are becoming convinced of the justice of the cause of the women's organizations and the urgent need to address the grievances they testify to. On the other hand, the rabbinical courts not only are unwilling to promote solutions to the problem, they actually exacerbate it. If the rabbinical courts do not lead the way to a breakthrough in their treatment of the sarvanut phenomenon, the situation is likely to deteriorate even further and lead to even more painful confrontations. One likely result is the increasing demand of the secular public for civil marriages and the demand of the religious public for alternative rabbinical courts.
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