Ten years ago, when I stood in the Jerusalem Beit Din to represent my aunt, who was seeking a divorce from a man who refused to let her go, I had expectations. I expected to be heard. I expected compassion, integrity, and justice. I expected to see all the qualities that I’d been taught that rabbis and judges embodied.
I was wrong. It took us years — over 10 years — of pain and disappointment, of begging and reminding, of fighting apathy and antipathy, simply to get her freedom via a gett (a Jewish bill of divorcement) and certificate of divorce (not the same thing).
So, it comes as no surprise to me that the salvation of Jewish women is increasingly coming from civil courts rather than religious ones.
It’s darkly ironic. Throughout Jewish history, civil courts were fearsome places for Jews, where we couldn’t look for a fair trial and where those who were “out to get us” could persecute us using the law of the land. Jews were taught to avoid civil courts at all costs.
Now, the opposite is true — at least for Jewish women.
Why some Jewish women are terrified of Jewish “justice”
In Jewish law, it is the husband’s prerogative to end or maintain a marriage. For a woman to move on, her husband must release her with a ceremony and give her a document called a gett. Women whose husbands won’t or can’t release them are called agunot, chained to their Jewish marriage.
If a woman requests a divorce, the couple must go to a religious court (Beit Din), where the husband either gives his wife a gett, or refuses to do so. If he refuses, the religious court can encourage him to free her. They cannot force him to divorce her, for a gett meuseh, or forced gett, is not valid, but Jewish law gives them power to encourage, even pressure, the husband in many ways. In Israel, this includes legal restrictions such as revoking a driver’s license, closing bank accounts, and even jail sentences.
If the man still refuses, there are potential mechanisms within Jewish law that can be used to end the marriage and free her. Unfortunately, today’s Jewish courts are loath to use these powers, leaving thousands of women around the world chained to dead marriages.
In the Diaspora, the situation is more complex. There, religious courts can’t enforce their decisions using the same channels. True, they can excommunicate the man from his community, but does that really mean anything, when he can simply jump from synagogue to synagogue? The result is that many men worship freely in their community while holding their wives hostage.
What remains for Jewish women when religious law abandons her?
What can a Jewish woman do when the religious courts can’t or won’t help her? When they abdicate their responsibility, refuse to use their legal mechanisms to free her, and raise their hands in surrender, what are her options?
Remarrying is not an option for most Orthodox women. If they did, Jewish law would consider their children mamzerim, ostracized Jews who can’t marry other Jews, because they were conceived with one man while married to another. Leaving the Jewish faith and Jewish community is just as unthinkable. These are caring, devout women. They don’t want to abandon their religion, their beliefs, or their God.
Civil law steps in where Jewish courts fear to tread
For more and more Jewish women around the world, civil law is the only answer. Take a tour around the world of the ways that activists are using civil law to fulfill the responsibilities of the religious establishment.
Ellyse Borghi is a lawyer and a member of the Unchain My Heart Committee, an Australian organization that helps women obtain their gett. She describes two ways Australian civil law helps agunot.
- Charges of violent crime
Borghi goes to court to have gett refusal categorized as family violence.
“It is a criminal offense to breach a restraining order by committing Family Violence (what we call a Family Violence Intervention Order or IVO). If the court/police consider that withholding a gett meets the legal definition of Family Violence – then the husband could face criminal charges and up to 2 years in jail.”
So far, a magistrate (lower court judge) has only once issued an IVO due to gett refusal. The man in question promptly gave his wife her gett, so that he wouldn’t risk criminal charges. Simply the threat of earning a criminal record was enough to convince him.
- Family court law
Borghi explains, “When the court makes the final orders (in the civil divorce), we can include an order that the parties attend the Beit Din (religious court) and follow Beit Din procedures, without specifically ordering that the gett be given. That way we don’t have issues of a forced gett.”
This year, for what is believed to be the first time, the criminal justice system in the UK has been used to free an agunah, reported the Jewish Chronicle.
Lawyers for the agunah used laws against controlling or coercive behavior, which came into effect at the end of 2015.
This new use of criminal law joins existing family law that gives the court the power to hold up a civil divorce if there is an obstacle to religious re-marriage. Adding criminal charges to the situation serves as “another weapon in our armory,” said Gary Lesin-Davis, the woman’s lawyer.
Refusing to give her a gett “involved a serious restriction on the liberty of the victim and was clearly behavior designed to control and undermine her, keeping her in an intimate relationship against her will, and preventing her from remarrying,” he added.
Although Batei Din in the UK have tried to apply sanctions to husbands in the past, like denying them honors in the synagogue, the threat of a jail sentence is a lot more powerful than being told you are not going to get an aliyah in shul.
The husband was due to face a Crown Court trial in July under the new laws. If convicted, he could have been jailed for up to five years. The woman discontinued the case after her ex-husband finally gave her a gett last month.
Contrast this with another UK woman, Mrs. Kahan, who was chained for 15 years. During all that time, she said that she “did not feel there was much of a sense of urgency by those in authority to resolve my predicament.” Mrs Kahan approached three different Batei Din for help. She said, “the dayanim (Jewish judges in the Beit Din) are simply not doing enough to deal with a major problem.” She only gained her freedom after raising £50K for her husband, according to his demands.
Keshet Starr, CEO of ORA (the Organization for the Resolution of Agunot) in the United States, says that because of the separation of church and state and other constitutional issues, using civil law to gain religious divorce in the US is complicated.
There are ways that New York’s state civil laws help agunot, although not in the rest of the country. New York is the only state that’s succeeded in passing laws relating to Jewish divorce (others have tried and failed).
- Domestic Relations Law 235
The Domestic Relations Law 235 states that in order to get a final judgement of divorce, the plaintiff who filed for divorce must prove that they have removed all barriers to remarriage, and the defendant must affirm. “It’s not an easy law to use,” Starr admits. It only kicks in at the very end of the divorce process, so “It doesn’t help if it’s being dragged on, as it often is. However, it’s good in sending a message that withholding a gett is wrong.” Starr adds that like in the UK, the law that protects Jewish women “is also in use by the Muslim community.”
- Legislation 236b
Legislation 236b deals with property division. In NY, property is divided “fairly” in a divorce case, which means a judge has 14 factors s/he can use to determine how to divide the property. One of these is whether one person is preventing the other from remarrying.
“The two “gett laws” in NY can be helpful but don’t solve the problem,” Starr says. “The best use of civil law for Jewish divorce is contractual law, because in a contract, both parties have agreed to the terms.” This is where prenups come in, and why ORA encourages halachic pre- and post-nups. These contracts have mechanisms for disincentivizing gett refusal, and can be used in a civil court of law.
Israel is unique in that not only is there no separation between religion and state, but the religious courts are state institutions. That means that Israeli courts can use legal measures against anyone found to be in contempt of court.
- Court sanctions
The religious courts can levy sanctions on men and women who refuse a court order to grant or receive a gett. (Yes, there are also women who refuse to accept a gett. Unlike women, however, men can move on without their future children becoming mamzerim..)
But these sanctions are usually not put into practice, or they are made so light that they are ineffective Here’s but one example: G. is a woman who was physically abused by her husband. She waited years for her divorce. During those three years, her husband often behaved violently in court, But the only sanctions levied were losing his driver’s license, and closing his bank account. The husband drove without his license anyway, without any penalties, and kept all his money at home. The sanctions were meaningless. Nothing changed until G. turned to Mavoi Satum, an organization representing agunot. Mavoi Satum petitioned to have the man put in jail, which was within the power of the court the entire time. After one day in jail, he gave her a gett.
- Dissolving the marriage
There are halachic mechanisms that go beyond legal sanctions to dissolve a marriage without permission from the husband (these mechanisms are complex and beyond the scope of this article). Religious courts around the world don’t use these tools, even when justification is clear and obvious, like a marriage that a woman only entered because of a lie or hidden information. The fact that they refuse to use them is a frightful commentary on their integrity.
That said, when one court in Tzfat did use a halachic tool to free a woman whose husband was in a persistent vegetative state, the chief judge was harassed terribly and denied an expected promotion. Chief Rabbi Yosef and the rabbinic court even tried to re-open the case and re-chain the woman to her vegetative ex-husband. The civil court came to the rescue again: Mavoi Satum brought the case to the Supreme Court, who blocked the rabbinic courts from reopening the case.
- Tort law
The Center for Women’s Justice, headed by Susan Weiss, uses tort law to free women. Tort law rests on the argument that refusing to give a woman her gett is harmful and damaging. Based on this, Weiss takes recalcitrant husbands to civil court to claim payment for the damages caused to their chained wife. According to Weiss, 85% of women who filed a tort in this way received their gett, or their gett plus damages, within 15 months.
Relying on civil law to free agunot shames us all
Orthodox Jews worldwide should feel shame that Jewish women have to turn to civil courts in order to find justice. Civil courts consider gett refusal to be a form of abuse. Why do civil courts see what Jewish courts do not?
Until the religious establishment views gett refusal as the abuse it really is, and creates a systemic solution to the problem of agunot, salvation for Jewish women will come from civil courts; a true shonda for our people.