Eve Sacks
Eve Sacks

Where to now on coercive control bill and forced Gittin?

Illustrative. (via Shutterstock) via Jewish News
Illustrative. (via Shutterstock) via Jewish News

The ongoing saga with the Federation Beth Din and the coercive control legislation has demonstrated that the UK Batei Din have not been enthusiastic or creative enough in finding ways to free women from chained marriages.

Whilst there are halachic issues to navigate with the new coercive control legislation, many of these are solvable if there was a real will by the Batei Din to free those suffering from get abuse.

Recent events have left many confused as they know the halacha does allow coercion, but they are not clear when this is possible, and there is a real sense of exasperation that the Federation Beth Din have not realised how problematic it is to tell victims of abuse not to report it to the Police.

The encouraging latest statement from the Federation Beth Din is a helpful contrast to their previous statementwhich concluded that the new coercive control legislation could make it impossible for them, in some cases, to administer a kosher get. Whilst it is positive that the Federation have acknowledged that there is scope within halacha for them to support the coercive control legislation, there are still many issues to resolve.

One of the biggest issues is that the Batei Din have not acted quickly to rule that many of the current agunot are entitled to a get.

Without these rulings it will be far harder for the Beth Din to administer the gittim to free these agunot.

When does the halachah allow for coercion (on the husband) by a Beth Din (Jewish Court)?

Various forms of coercion and pressure have been used over the centuries on recalcitrant husbands, including cherem(social pressure), beatings, and prison sentences. However, the Federation Beth Din are concerned about aGet Meusa(forced bill of divorce) particularly when a woman is not entitled to a get, or there has been no ruling of her entitlement (to a get) by a Beth Din, or coercion is being exerted by a non-Jewish court.

The Mishnah in Ketubot (77a) lists several scenarios when the Beth Din can coerce a husband to give a get. These include, but are not limited to, one who is afflicted with boils, bad breath, one who gathers the excrement of digs and a tanner (Shulchan Aruch, Even HaEzer, 154:1). Other examples listed (in the Shulchan Aruch) are someone who refuses to feed his wife, hits his wife or is a pimp. In certain scenarios, the Beth Din will coerce an impotent husband to give a get.

Coercion by a Beth Din would be more difficult when the Beth Din have not already ruled that she entitled to a get(as the circumstances do not match the scenarios given). However, once a Beth Din has ruled that a woman is entitled to a get, halachah can allow for coercion by the Beth Din. A development in Israeli halachic divorce law is the use of the opinion of Rabbenu Yeruham, a 14th-century posek, who ruled that in the case of a “rebellious” couple, (a couple where both husband and wife are reluctant to live together), the husband is required to give his wife a divorce without delay, as he is no longer providing conjugal rights.

When might coercion by a non-Jewish court be allowed?

The Mishnah clearly rules that the coercion must come from a Jewish court. Non-Jews may execute the coercion, but the initial impetus must come from the Bet Din. It is not clear if the impetus can be indirect (as in the Beth Din provide the civil court with a witness statement asking them to coerce) or whether it must be direct (as in the Beth Din are able to require the civil court to coerce him).

“With regard to a bill of divorce that the husband was compelled by the court to write and give his wife, if he was compelled by a Jewish court it is valid, but if he was compelled by gentiles it is invalid. But with regard to gentiles, they may beat him at the request of the Jewish court and say to him: Do what the Jews are telling you and it is a valid divorce.”

Mishna Gittin 9:8 and see also Mishna Torah Hilkhot Gerushin 2:20.

How could the Beth Din help resolve the current situation?

The Beth Din should be quicker and more efficient at ruling that each woman who approaches them is entitled to a get when the couple have ceased living together and have initiated civil divorce proceedings. The Beth Din should exert pressure on the man to give the get immediately, with no conditionality. They could confirm they accept the Rabbenu Yeruham principle as is being used by Israeli Batei Din. The Beth Din could also provide witness statements to the civil court, clarifying that they had exerted pressure, and requesting that the civil court exert any power it may have over the recalcitrant husband.

How does the Coercive Control Legislation Work?

The original statement by the Federation Beth Din indicated that they have fundamental misunderstanding of the coercive control legislation. Coercive control is a criminal offence, but the first cases were private prosecutions.They were attractive due to the flexibility they brought; should the man agree to give a get before the hearing, the women could drop the charges, and the man would not face the risk of a criminal prosecution, despite his history of abusive behaviour. Based on this, the Federation Beth Din have concluded that when the woman initiates legal proceedings, it is to coerce her husband to give her a get. However, if a case were to be brought by the Crown Prosecution Service (CPS), stopping a pattern of abusive behaviour at a particular point (by giving a get before a hearing) would not compensate for previous abusive behaviour. Approaching the police to report a crime under this legislation does not coerce the man (to give the get), and has no influence over the get process. All the legislation can do is punish current and previous criminal behaviour (withholding the get, even if the get withholding is in the past).

Additionally, with get refusal recognised as a criminal offence, a man may feel compelled to give a get regardless of whether his estranged wife has approached the police about the coercive control she has suffered. How would the Federation Beth Din deal with a man who came to them and said he is only giving a get because of his concern of future prosecution under UK criminal law, even though his wife has not reported abuse? How about if the Beth Din just suspect it’s a factor in his decision making based on previous conversations they had with him? Or if he tells them later that’s the reason he gave it? It doesn’t appear that the Beth Din share these concerns, as they only seemed concerned about cases when the women reported abuse without their permission.

What was the previous UK “Get Legislation”?

The previous “get legislationwas supported by the late Chief Rabbi Jonathan Sacks and it empowered the secular judge to deny a final decree absolute. This allowed the civil court to pressurise the man in a different way; he would be unable to finalise his civil divorce or remarry under secular law unless he gave a get. More recently we have seen civil courts take the woman’s agunah status into account when dividing up assets, comparable to the New York get law.

How does the Beth Din actually know what the husband’s reasons are for giving a Get?

When the man appears before the Beth Din he has to consider the consequences of giving a get versus continuing to withhold the get. These could include communal ostracization, that he cannot finalise his civil divorce or remarry. He could also be concerned that the longer he continues to abuse his wife (by waiting to give the get), the worse his potential punishment could be under criminal law.

“With regard to this person who [outwardly] refuses to divorce [his wife] – he wants to be part of the Jewish people, and he wants to perform all the mitzvot and eschew all the transgressions; it is only his evil inclination that presses him. Therefore, when he is beaten until his [evil] inclination has been weakened, and he consents [to the divorce], he is considered to have performed the divorce willfully.” Rambam Hilchot Gerushim 2:20

So, when the Beth Din have already ruled that he is required to give a get, and they ask him “do you want to give a get?” and he replies “yes”; the assumption is that because the right thing to do is to consent to perform the mitzvah of giving the get, at that moment he does want to give the get, and the Beth Din can take his answer on face value.

Where are we now?

The power dynamic in Jewish divorces has always been biased in the favour of men, causing untold suffering to women. The new legislation validates victims of abuse, and reiterates condemnation of abuse by civilised society. This incident leaves us questioning why any Beth Din would want to uphold the biased power dynamic in Jewish divorces, rather than embrace solutions that break it down.

We find ourselves in an ironic situation. The issue of a secular court coercing, raised by the Federation Beth Din, is only relevant to private prosecutions which allowed men to avoid prosecution by finally granting a get. Men may no longer benefit from this opportunity, following an amendment to the Serious Crime Act which enables CPS prosecutions for historic or ongoing get abuse.

Once again, we find ourselves in the tragic and embarrassing position of victims of get abuse having to rely on the secular courts to recognise their distress when the Beth Din has not. The UK Batei Din have collectively not been quick enough, when a woman approaches them, to rule that she is entitled to a get. When there is a question whether a wife is halachically entitled to a get, sadly the Batei Din have again and again erred on the side of caution. Even when they do rule that she is entitled, they have not made enough use of the pressure available to them.

Were the Beth Din to always to quickly rule that a woman was entitled to a get, and create a culture in our community whereby withholding a get was simply not a tenable position for any man to take, we would never have got to this point of communal failure.

 

About the Author
Eve Sacks is a co-founder of Nahamu, a think-tank lobbying on harms in the Charedi community, and a trustee of the Jewish Orthodox Feminist Alliance UK.
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