Are the Rabbinical Courts Making Progress for Agunot? The Case for "Yes"
Dec. 7, 2016
By Avishalom Westreich
I would like to open with a surprising statement that some will call "false" and others will call "provocative." I think that there are significant developments within Israeli rabbinical courts towards solving the problems ofagunot (women chained to broken marriages). It is not complete. It is not enough, but it is there. Although some would demand faster and more complete change and others will object to any change at all, I believe that it is quite natural for a traditional legal system to take small steps in order to adjust to our time's needs.
So — what is all about? The well-known "Tsfat case," in which a regional rabbinical court gave the wife a get (writ of divorce) in the name of a husband who was in a permanent vegetative state (May, 2014) could have been a good example, but unfortunately, Rabbi Yitzhak Yosef, Israel's chief rabbi, intends to convene the High Rabbinical Court in a special tribunal to cancel that decision. So where is the mentioned positive development?
A much less known case, but very similar to the Tsfat case, took place a few months later in the Haifa rabbinical court (December 2014). In that case, the husband attempted suicide and failed, but ended up in a permanent vegetative state. His wife became an agunah. The regional rabbinical court of Haifa retroactively annulled the marriage on the basis of a "mistaken marriage," because of the husband's original mental illness. Interestingly, the court’s decision was supported by well known rabbinical judges, including some of the more conservative among them. In the Tsfat case, the court received criticism.
The Haifa court, however, differs from the Tsfat case, probably correctly, due to the specific circumstances of the case in which annulment could be based on halakhic precedents such as those of Rabbi Moshe Feinstein, the well-known and widely accepted 20th-century American halakhic decisor, who advocated for annulments to "mistaken marriages." However, the Haifa case was the first time an official Israeli rabbinical court explicitly adopted this annulment option for an agunah and got a widespread support. In short, a somehow disputed halakhic construction for marriage annulment is now a legitimate one for solving problems of agunot.
But, is it really progress? Creativity for classic agunot, whose husbands disappeared or had a mental or physical inability to give the get, has a long halakhic tradition. What about the modern agunah, those whose husband refuses to give a get?
Here, too, we can point to positive progress. In Jewish law, there are some sources that do support imposing some pressure to divorce on a recalcitrant spouse whether wife or husband. One of them, Rabbenu Yerocham (Provence, France and Toledo, Spain, first half of 14th century) justifies coerced divorce when both spouses do not want to be together anymore, but one refuses to go through the divorce process. Today, we would call it an irretrievable breakdown of marriage. Surprisingly, there are a growing number of rabbinical courts that accept this view today. The practical result is that in many cases of get refusal, when there is a marital breakdown but one spouse refuses to divorce, perhaps to exact revenge or more favorable divorce benefits, the rabbinical court would oblige him (or her) to give a get. This is so, even if there is no fault on either one of the spouses, despite what many times is considered as the legitimate and classic ground for divorce.
In the Israeli context, obligation to divorce may result in sanctions against the recalcitrant spouse such as refusal to issue a driver's license, a bank account, or prevention of leaving the country or in extreme cases, imprisonment. So is it progress? In my opinion, yes.
Rabbinical courts take the view of Rabbenu Yerocham that is not always at the "mainstream," and base their rulings on it to solve problems of get refusal.
In addition, we can identify, in recent rabbinical verdicts, some willingness to attribute responsibility for the situation to relatives of the recalcitrant spouse when it is clear they have a negative influence. In one case, the Tel Aviv regional court sent the father of the recalcitrant husband to jail for 30 days (March 2016). Truly, this is an exceptional case, and the father indeed appealed to the High Court of Justice (which as of December 2016 did not yet give its decision), but for us the important point is the very willingness of the court to impose sanctions on other family members in order to solve a problem of an agunah.
I admit that the process is not yet completed, and in some aspects there is still a long way to go. The application of Rabbenu Yerocham's view is not unanimously accepted. Other important elements for solving the agunah problem are not yet accepted or widely enough practiced in the Israeli context, such as the use of prenuptial agreement. Too many leading halakhic figures reject it, and needless to say, the rabbinic establishment does not encourage it. These backwards steps might be due to internal halakhic reasons such as the rejection of Rabbenu Yerocham's view, policy considerations such as negation of general enactments which may affect what is considered as the image of Jewish marriage — as opposed to adopting practical solutions, or political-institutional reasons like the fear of diminishing the authority of the Israeli rabbinical courts, which may result from a wide use of certain prenuptial agreements.
But all of this cannot and should not prevent us from viewing the positive aspects of the important steps that are taken in order to solve cases of agunot. Steps that include halakhic creativity and wise use of legal tools that Israeli law provide the rabbinical courts.
Thus, is there really progress? In my opinion, progress is not just finding solutions to exceptional tragic cases. Progress is the process within the rabbinical courts even when gradual. They recognize the problem, and are willing to take creative steps to find solutions. Each small step is part of an evolutionary process that ultimately may add up to significant change. That process, in my opinion, is highly important for modern Jewish law in general, and for solving the agunah problem in particular. My only wish is that this process will continue and gather momentum for a more global solution to the agunah problem.
Avishalom Westreich is an HBI Helen Gartner Hammer Scholar, a Senior Lecturer (associate professor) at the College of Law and Business, Ramat Gan and a Research Fellow in the Kogod Research Center for Contemporary Jewish Thought at the Shalom Hartman Institute, Jerusalem.