Agunot — We’re a Beth Din: Don’t expect creativity

A British dayan warned last Saturday evening that an Orthodox Beth Din can do little to help a spouse who can’t get a divorce from an unwilling partner, and that new initiatives by the English civil courts will only make matters worse.

The context of the talk is that an agunah who belongs to Britain’s Federation of Synagogues was recently told by lawyers that under new legislation, she will be able to ask the civil courts to take action against her estranged husband. The civil courts will not of course be empowered to force the husband to give her a get but they will be able to bring a criminal prosecution against him on grounds of abusive behaviour. 

In response to this proposed legislation, the Federation has stated categorically that it would not respond to any civil pressure, and that any get that might follow a court judgment — for example, by a defendant wanting to avoid being sent to prison or as a result of being sent to prison — would not be kosher. 

News of the Federation’s opposition to the new law has drawn responses ranging from disappointment to outrage from many senior Jewish lawyers, including Baroness Altmann, Baroness Deech, Lord Mendelsohn and Lord Palmer, as well as Yehudis Fletcher, founder of Nahamu, a body set up to counter extremism in the Jewish community.

Barrister Daniel Greenberg told the London Jewish Chronicle that the Federation’s ruling was “an extraordinarily damaging and worrying piece of double-think”. 

Saturday evening’s talk — by Dayan Yehonoson Dovid Hool — was intended to explain the reasons behind his Beth Din’s thinking, to calm things down and to contextualise the problem, although he spoke to an audience that had expressed no misgivings about its actions and was not a member synagogue of the Federation.

Dayan Hool began by berating the press for inflaming the community and, in his view, misrepresenting the facts. His view was that we needed to be even-handed and not constantly attack men as if they were the only guilty party. In his experience, women were equally recalcitrant. 

Halachically, he explained, a divorce bill has to be willingly given (by a man) and willingly received (by a woman); and both these conditions need to be satisfied for a get to be valid. This was not an arbitrary criterion dreamed up by the rabbonim, he said; it had its origins in Torah and was developed in Mishnah and Gemara, and so down through the ages — and therefore could not be argued with. If the get was not given and received willingly, it was not kosher. There was nothing the Beth Din could do to coerce willingness beyond suggesting various financial incentives, which he felt were the main drivers of reconciliation.

Having stressed the egalitarianism of recalcitrance, the dayan then gave three examples of cases in which the obdurate party was the woman, presumably to balance what he saw as the exclusive focus in the press on male offenders. In each case the women he quoted had been guilty of attempted extortion of their estranged husbands. 

While wearied by spouses trapped in failed marriages, Dayan Hool solicited sympathy for the entrapment of dayanim trapped by halachic diktat. At one point he illustrated the recurring quandary of trying to negotiate sums of money that would appease both parties and thereby lead to a resolution. “Often, we don’t know what to do,” he admitted later, “but if anyone has any suggestions, please come and tell us.”

In the dayan’s personal experience of 11 cases brought to his Beth Bin, women wanted to be paid large sums before they would accept a get. This, he implied, was what women typically did — either because they had big families to support or to punish a spouse who had walked out on them. “He left me ten years ago and now he wants to marry the woman he’s been living with? No way,” he recalled one woman saying.  

The dayan hoped the community would appreciate the Beth Din’s difficulties, especially when one party wanted to make the other party suffer. “We try to be flexible,” he suggested. When a husband insisted on making a half-hour speech in front of the Beth Bin before agreeing terms, Dayan Hool let him, adding that he hadn’t wasted his time listening to what the man had to say.

Civil coercion might be allowed in Israel, Dayan Hool conceded, where the chief rabbinate is a department of state, but not in the diaspora. And in the UK, the Beth Din cannot coerce an uncooperative spouse by fining or imprisoning them because that would not lead to a willing settlement. All it can do, he said, is to apply indirect pressure, asking members of the community not to associate or engage in business with them. 

One other form of indirect pressure — preventing a man from receiving an aliyah—was pointless, he claimed, because most men who refuse to give a get do not attend synagogue and would therefore not care. (Not everyone listening to this was sure that this was the case.)

The history of Batei Din applying more forceful pressure in the past was not an issue the dayan chose to address. At most, he was prepared to acknowledge that there were three circumstances in which a Beth Din could impose a get—all of them Talmudic. One circumstance was where the man suffered from psoriasis or some similar skin disease; here, he said, one could not expect a wife to want to stay with a suppurating husband, and the dayanim could act to bring the marriage to an end. 

He would not elaborate on the other two criteria, one of which probably related to a man’s inability to perform sexually, possibly because he felt the topic was unsuitable for a mixed audience. When pressed three times after the talk was over, the dayan would only say that it was “very complicated”.

The eighty or so guests at the seudah seemed largely receptive to the talk. As far as one can tell, they accepted that no Orthodox Beth Din could compromise nor bring matters to a close when one party refused to comply, no matter how much pain this caused. No questions were raised and there was no challenge to aspects of the talk that seemed unapologetically misogynistic or protective of religious men — or indeed of the Beth Din itself.

When the dayan said that the number of cases that could not be resolved was very few, no one objected that this did not justify shrugging one’s shoulders and leaving those few stranded. 

No one complained that focusing attention mostly on the guilt of women rather than of men could be seen not as balancing the question but as scapegoating women for a change, and avoiding the very obvious elephant in the room of lingering enchainment.

When the dayan admitted that men are supposed to write a get with their own ink on their own paper but that no Beth Din requires this anymore, no one observed that this illustrated how Batei Din have in the past discarded religious directives that no longer served a purpose, and could do so again. 

And faced with the dayan’s defence that proposed intervention by the courts would have unhalachic consequences, no one pointed out that the inaction of the Beth Din also has unhalachic consequences.

In most respects, Dayan Hool’s charm offensive appeared to persuade his audience of his own fair-mindedness and of his Beth Din’s helplessness at being trapped in the amber of religious proscription. 

It was not surprising, therefore, that no one expressed shock that Dayan Hool had advised a husband to wait before giving a get because the Beth Din needed to check whether or not the wife’s request for one amounted to coercion.

After the talk, a regular attender of the shul complimented Dayan Hool on the brilliance of his legal mind. It appears that for happily married members of London’s Hampstead Garden Suburb synagogue, which hosted the event, brilliance rather than ingenuity is what really counts. Brilliance determines that no further measures can be taken, that agunot cannot be helped and that all criticisms of the Beth Din are unfounded. Brilliant.