Creative Legal Solutions to Prevent Get-Refusal
Feb. 24, 2021
By Shanna T. Giora-Gorfajn
Over the past 50 years, laws across the U.S. have evolved to recognize that a person should not be forced to remain in a marriage that is irretrievably broken. But as women in particular have made progress with no-fault divorce and financial independence, religious law has ironically — though perhaps unsurprisingly — gained traction as a way for men to assert power over their would-be ex-wives.
To effect a divorce under Jewish law, the husband must give his wife a get (a religious document of divorce), which can be issued and delivered only with his consent. The classical definition of an agunah (literally, a "chained woman") described a woman trapped in marriage to a man who could not give her a get — either because he had gone missing or because he lacked capacity to form the requisite intent. Over time, this term has come to also refer to a woman whose husband is purposely obstructing the religious divorce process by withholding a get.
Tomorrow, the day before Purim, is Ta’anit Esther, commemorating the fast declared by Queen Esther — herself a woman chained to an unwanted marriage. Tomorrow we will also observe International Agunah Day, raising awareness of the plight of >agunot today and standing together with them in solidarity.
It is also a time to highlight the work of the Boston Agunah TaskForce, a part of HBI's Project on Gender, Culture, Religion and the Law. BATF is devoted to research, education, and advocacy for fairness in the Jewish divorce process. We believe that withholding a Jewish divorce is a form of domestic abuse. Together with our allies in the movement on behalf of agunot, we seek to employ a range of remedies to change the culture around get-refusal.
Some use get-refusal as a means to an end, demanding custody or financial concessions before fulfilling the religious requirements. Others seem to engage in this vengeful power play for its own sake, a demonstration of continued control preventing a woman from moving on with her life.
Both men and women can find themselves at the mercy of a recalcitrant spouse. However, there are more dire consequences under Jewish law for women who remain technically bound to dead marriages. A man whose wife refuses to cooperate in receiving a get may seek rabbinic dispensation allowing him to remarry. For a woman, there is no such loophole. Any new relationship with another man would be deemed adulterous. A woman's status as an agunah is not only a barrier to remarriage; it may also affect the woman's freedom to begin dating again and the legitimacy of any future children in their religious communities. But there is no simple remedy at civil law; because a Jewish divorce requires the husband’s knowing consent, a court order directing the husband to give a get could be viewed as forcing his hand, rendering the get invalid under Jewish law.
One popular approach has been to encourage couples to sign a binding arbitration agreement (approved by the Beth Din of America) before they are married, whereby they commit to cooperate in the get</i process should either party seek a divorce. Despite increasing acceptance among engaged couples, this sort of agreement has not been adopted universally — and it can be of no help where it does not exist.
BATF has engaged in a collaborative effort by rabbis, legal scholars, and practicing attorneys to develop the GetReady initiative — a procedure to be implemented during a divorce, allowing for meaningful enforcement in civil court without invalidating the get under Jewish law. Both parties agree to engage in binding arbitration limited to the issuance, delivery and acceptance of the get, identifying a mutually acceptable rabbinical court as the arbitration board and committing themselves to completing their roles in the process quickly (ideally within a matter of weeks). The rabbinical court may then hold back the "receipt" needed to prove a religious divorce until after there is a final judgment in the civil divorce matter.
In most circumstances, tension between the parties will only increase as the case progresses. Therefore, we encourage individuals to raise the issue of the get with their attorneys from the outset, even if get-refusal seems unlikely in their particular situation. It is an unfortunate reality of divorce that even formerly loving spouses can turn aggressive, nasty or downright unethical as they become entrenched in divorce proceedings.
There is often a window of opportunity when the parties initially separate, as they work together to sort out immediate logistical issues such as weekly parenting schedules or paying bills for the marital home. These things need to get done now, irrespective of how the final settlement will shake out, so the lights stay on and the children know where they will be sleeping next Tuesday night. If that line of communication is open, it's also a good time to have both parties agree, in writing, to cooperate in the get process as simply another thing that must get done. Addressing the get early on removes the incentive for either party to leverage get-refusal as a weapon in later negotiations. If one party resists making this commitment, that's a red flag that trouble may be brewing.
Even if the parties intend to negotiate a full divorce agreement in mediation or with the assistance of lawyers, we suggest that they address the get as one of the first steps in that process. They can sign a memorandum of understanding or interim agreement dealing solely with the issuance, delivery, and acceptance of the get. This memorandum should state that both parties intend for it to remain in effect even if negotiations break down and one or the other files for a contested divorce.
Finally, we encourage every divorcing Jewish couple to include a section in their divorce agreement referencing the get, even if they have already resolved this issue to their mutual satisfaction. This acknowledgment helps raise awareness of the get requirement among lawyers and judges. As it becomes more commonplace, we anticipate a somewhat easier road for agunot seeking intervention of the civil courts in their fights.
It is important to find creative solutions and to educate family law attorneys and judges about these issues. Get-refusal is emotional abuse. Unlike other forms of abuse, however, a judge cannot enter a restraining order to curb this behavior or mitigate its effects.
Through both the Beth Din of America's arbitration agreement and BATF's GetReady initiative, couples commit to a fair and equitable religious dissolution of the marriage. The ultimate goal is to reduce emotional abuse in the Jewish community by publicizing and normalizing get-cooperation.
We anticipate that we can help shift community norms through widespread adoption of all these procedures: to commit to equity prior to the marriage; to address issuance of the get early in the divorce process; and to routinely acknowledge the get in divorce agreements. This also shifts the balance of power, by tying the religious divorce process back to a more egalitarian civil process and providing an avenue for enforcement within the court system.
The Boston Agunah Taskforce is proud to be a member of CHEIRUT, a new international network connecting organizations throughout the world whose mission is to help agunot. There's so much we can accomplish when we work together, most importantly showing agunot that they are not alone — that we "get it."
Too many of us know women who have gone through traumatic divorces, experienced get-refusal, or received their get only after making steep concessions. On this Agunah Day, please help us amplify support for agunot by using the hashtag #iGETit on social media. Together, we can make a difference!
Shanna T. Giora-Gorfajn, Esq., is the chair of the Legal Advisory Board for the Boston Agunah Taskforce and an associate at The Wagner Law Group P.C., where her practice focuses on family law and estate planning.
The Boston Agunah Taskforce is funded by a generous grant from the Miriam Fund of CJP and other donors. We welcome donations to support our continued work.