Independent Rabbinical Courts Test New Strategy in Israeli Divorce Cases
Oct. 22, 2013
By Lisa Fishbayn Joffe
Divorce is always a painful process, but Jewish divorce can have some especially painful twists because halacha gives men the control. Only the man can give the divorce, called a “get.” For example, an unscrupulous husband can refuse to divorce his wife altogether, or insist that she purchase his consent. The recent arrests in New York of rabbis accused of conspiring to abduct recalcitrant men and violently coerce them to grant a divorce highlights the lengths to which some women might be tempted to go by their inability to escape their dead marriages.
A recent decision in Israel, however, holds out promise for women caught in the web of divorce extortion. The case was brought by Mavoi Satum, an agunah (term for a women chained to her marriage) advocacy group which seeks to encourage the use of a wider range of Jewish law options to tackle the problem of get refusal and get based extortion
In Shahar Fuchs' case, she was married at 19. Her husband fled the marriage after only two days, abandoning his pregnant wife in Israel and but taking all their money. He was later found in the U.S. where he had taken up residence with another woman. The husband offered to divorce his wife if she paid him $40,000 shekels or $11,350 for her freedom.
In Israel, only rabbinical courts have jurisdiction over family law disputes involving Jewish people. There are not civil courts. The state-recognized courts are staffed by traditional judges who are reluctant to act decisively against men using divorce to coerce their wives to accept unfair bargains. But Jewish law permits the creation of ad hoc courts outside the state system.
Fuchs first took her case to the state-run rabbinical court in Netanya. They urged her to pay his demands, and when she refused, they used state funds to pay him to deliver the get.
The independent rabbinical court took a different approach. Using a wider interpretation of the law, this court determined that this marriage had been invalid from the start and the wife was free to remarry. Jewish law allows a marriage to be declared invalid if one of the spouses had a defect that was hidden from the other spouse at the time of marriage. This defect must be such that the deceived spouse would not have entered into the marriage had she known about it. A majority of the judges on the independent three- judge panel found that Fuchs's "husband" had hidden from her the fact that he had no intention of living with her after the wedding. They concluded that had she known this was his intention, she would never have consented to marry him. Under this interpretation of the law, her "genuine consent" had not been given to this bizarre marital arrangement so the marriage was declared invalid.
The independent panel's decision is a significant step forward because it seeks to undercut the problem of divorce based extortion. In remarks at the Agunah Summit, an international conference convened by JOFA and the Tikvah Center at New York University last June, Rabbi David Bigman, one of the authors of this opinion, suggested that the mere the possibility of declaring that a marriage was invalid and therefore that no termination is needed would limit a man's ability to threaten to withhold a divorce. If the marriage was void from the beginning, the basis for the husband's extortion vanishes. This legal strategy might lead some men to withdraw their demands or give women the courage to refuse extortionist tactics from their husbands for fear of having no exit options.
Finally, this decision is important because it acknowledges a woman's expectation to have a satisfying and companionate marriage. Jewish law has long relied on presumptions that women prefer any marriage no matter how unpleasant or enfeebled, to the status of being single. While these notions may have suited an earlier time, they are no longer applicable. Rabbi Bigman, during his speech at the Agunah Summit, made clear that he was able to see things from a woman's perspective. Women and men expect to find satisfaction in their marriages or to make the painful decision to divorce. Jewish law should not add to their pain by trapping them in failed marriages.
Lisa Fishbayn Joffe is director of the HBI Project on Gender, Culture, Religion and Law. She is the co-editor with Sylvia Neil of "Gender, Culture, Religion and Law: Theorizing Conflicts Between Women’s Rights and Cultural Traditions."
As part of a collaboration between the HBI's Project on Gender, Culture, Religion and the Law and the School of Law at the School of Oriental and African Studies, supported by the Bridging Voices Program of the British Council, we present a series of invited reflections on the intersection of Gender, Religion and Equality in Public Life from activists and scholars around the world. Contributors have been asked to reflect upon the ways in which conflicts over gender, religion and participation impact their work and inform their understanding of events in the news. They are particularly asked to consider how religious norms around gender shape civil policy making, adjudication and women’s capacity to fully participate in public political and ritual life.