|Conflict of legislations ?|
|By Rachel Levmore|
The feeling was one of déjà vu. Once again I found myself in the courtroom of the Rabbinical High Court in Jerusalem. While listening to the three honorable Rabbis attempting to convince Yaakov , a recalcitrant husband, to give a get (Jewish divorce) to his wife, I turned my gaze upon him.
Yaakov, a self-righteous man, was confident in his behavior. Physically he was a big man—tall and broad, yet slightly stooped. He adjusted the large kippah on his head when he rose to speak. As Yaakov approached the bench to present his latest list of demands, the iron chains binding his feet clanged while he shuffled forward. At the next table, opposite the venerable Rabbinic Judges, sat Leora—Yaakov's wife, so to speak. She was very much his wife legally, as well as according to Jewish law (halakha), even though she had asked to dissolve the marriage through divorce eleven years previously. During the last three years of this so-called "marriage", Yaakov found himself living in the Israeli prison. He had not been sentenced in any criminal proceedings. Rather, he had been incarcerated by this very Rabbinical Court in the wake of his stubborn refusal to abide by the Court's ruling—divorce your wife! As a Rabbinical Court Advocate representing Leora, I had been the one to petition the High Court to send Yaakov to prison. The Corurt had ruled in favor of that particular petition, however we had not yet achieved what I really wanted—a get for Leora. For the past three years, the key to Yaakov opening the prison door lay in his own hands. He could simply give a get—setting both himself and Leora free. This surrealistic scene is very much a reality for many women. These women are unwillingly bound by the chains of a Jewish marriage, both in Israel and in the Diaspora.
In the Diaspora a marriage is legally sanctioned by the state in which the couple resides. This is in essence a civil marriage. If the couple chooses to have their marriage sanctified by Jewish law, then the kiddushin ceremony is performed under a huppa, presided over by the officiating rabbi. This is the religious marriage ceremony. However, in Israel, the Jewish state, in order for Jews to have a marriage recognized by civil law, there is only one ceremony which is sanctioned-- the religious marriage ceremony of kiddushin. So too is the situation with regard to divorce. In all the democracies of the world, aside from Israel, a civil judge, representing the state, presides over divorce proceedings and rules for divorce. When he does so, the judge has in essence changed the personal status of the man and woman from married to divorced—single in the eyes of the law. If the couple is Jewish and wishes to dissolve their union according to Jewish law, then the husband must deliver a get—a Jewish writ of divorce into the wife's hands. All over the world, this is done under the aegis of a Rabbinical Court. Thus two procedures are undertaken, and when finalized, the couple will be divorced both legally and halakhically. However, in the State of Israel, only one procedure is performed—the delivery of a get by the husband into his wife's hands, under the watchful eyes of the State Rabbinical Court. After this is successfully completed, then the change in personal status of each individual is recognized both legally and halakhically. There is no such thing as civil marriage and divorce in the State of Israel.
This obvious difference between the situation in the Diaspora and the situation in Israel is not the only difference. In civil marriage ceremonies all over the world, both the man and the woman must consent to marry each other. If one or the other does not agree to the union, there is none. The agreement to marry and the performance of the ceremony is actually a type of contract. Eventually, if one or both parties want to get out of the contract, it must be implemented through the court. The divorce decree is issued by the court, and not the parties themselves. It is the presiding judge who changes the personal status of both the man and the woman from "married" to "divorced", as he issues the divorce edict and stamps the papers. It is significant that the judge has the power to do so, even if one of the spouses objects vociferously. In a religious marriage ceremony the agreement of both the man and the woman is necessary, much like in civil law. However, when it comes to divorce, the situation is not comparable to civil procedure. No outside party, not even a Rabbinical Court judge, has the power to issue a divorce decree. The change in personal status of both the husband and the wife is affected by the action of the husband. He must place the get in his wife's hands out of his own free will. If the husband does not have the will to divorce his wife, no other party—person or court, can do so in his stead. Thus, women who have agreed to bind themselves to their husbands through a religious Jewish ceremony, sanctifying the union by doing so, cannot separate themselves freely from that union. Such a woman is not free to "get a divorce" through a court or any outside party, and then remarry. She remains married to her spouse in the eyes of the halakha until he agrees to free her—an agunah.
The problems posed by this situation differ from the Diaspora to Israel. In most countries one must enter into a marriage through a civil procedure in order to attain legal recognition, with the religious ceremony being optional. To be recognized as divorced one must go through the civil courts while, similar to the marriage, the religious ceremony is optional. (However, an Orthodox Jewess will not remarry civilly or religiously if she has not received a get from her "ex-husband".) In Israel there is only one way for Jews to divorce, similar to marriage, and have state recognition of that divorce. That is through the State Rabbinical Courts, which adjudicate according to the halakha. The halakha—religious law, is the determining factor in the civil recognition of the marriage or divorce. The civil courts, including the State Family Court, have no jurisdiction by law over matters of personal status. A Jewish person wishing to avail himself of State provided services of marriage and divorce, falls under the jurisdiction of the Rabbinical Court. All this leads us to the conclusion that while in the Diaspora, a Jewish woman may receive a civil divorce and then remarry civilly, in Israel a Jewish woman needs her husband's compliance in the giving of a get before she can consider remarrying. The phenomenon of get-refusal now becomes clear. Before entering a marriage, either potential partner can refuse to change his/her personal status. They both have to agree to the marriage. Likewise, before entering the state of divorce, the husband (according to Torah law) can refuse to change his personal status. He has to agree to the divorce. That being the case, the husband can make demands, outrageous or otherwise, which must be met by the wife in order to secure his compliance to divorce. He can even simply refuse to give a get. A Rabbinical Court may have jurisdiction in Israel and far-reaching powers, but neither it nor its counterpart in the Diaspora has the power to issue a divorce decree in the husband's stead.
The demands made by a recalcitrant husband can reach the level of outright extortion. At times the demands made are couched in terms of a negotiation process as "legitimate", such as "monies owed to him" by the wife. He may even stipulate that he will give the get only if the wife gives up their common children and grants him full custody "for the good of the children". The pressure exerted by the husband on the wife and the Rabbinical Court is enormous. The leverage he has is actually categorized as dinei nefashot—dealing with the laws of lives. Without this man's agreement, this woman cannot rebuild her life. She cannot remarry; she cannot bear another man's child. Most important, all the while the case is dragging on her biological clock is ticking.
This untenable situation has been exacerbated in the past century or so. Modernism and mobility have contributed to the creation of a problem which is a world-wide phenomenon—that of get-refusal. In some communities these tragic cases are hushed up, while in others the spotlight has been aimed directly at them. In Israel and in the United States there are attempts being made by female Rabbinical Court Advocates, Rabbis and laypeople to develop solutions to the problem from within the halakha. However, at this point in time there are no universally accepted solutions. All of the players in the courtroom scene described above know that Yaakov and Leora are but one example out of thousands of cases involving recalcitrant husbands in the State of Israel. The chains binding those women to unwanted marriages are as heavy and limiting as the chains binding Yaakov's feet. However, there is no comfort in numbers to those involved in trying to free Leora. The magnitude of the situation just serves to intensify her personal tragedy.
Biography – Rachel Levmore As an active Rabbinical Court Advocate since 1995, Rachel Levmore has specialized in representing women in cases of Iggun and Get-refusal heard by the Israeli Rabbinical Courts. In January 2000 she became the first woman to join the “Agunah Unit” in the Directorate of the Israeli Rabbinical Courts. Rachel was one of a team that developed a Pre-Nuptial Agreement for the Prevention of Get-Refusal that relates to problems peculiar to Israeli society, while still valid for world-wide application. Through her lectures and discussion groups held in Israel and abroad, she raises the awareness of the Jewish world regarding the subject of the complexity of Jewish divorce today. Her academic background includes a Master’s degree (Summa Cum Laude) from the Talmud Department of Bar-Ilan University. At present she is writing her doctoral dissertation, centering on the meeting point of modern democratic law in the State of Israel with the centuries-old Jewish Halacha in the most difficult cases of Get-Refusal faced by the Israeli Rabbinical Courts.