The Rabbinical Court of Jerusalem has reversed itself not once but twice over issues of jurisdiction regarding the case of an eight-year aguna, and is now enabling her estranged husband to condition his granting of a divorce on the division of assets from the marriage.
Lawyers for the aguna say that the case is a classic example of the problematic phenomenon of rabbinical courts tying the right of a woman to get divorced to her acceptance of a financial settlement, essentially acquiescing to and even abetting the extortion of women.
Naomi, not her real name, separated from her husband in September 2009 following the break down of their marriage, and filed for divorce in December that year.
The couple, who have three children, lived in New York, and Naomi, then 36, filed for religious divorce in the Beth Din of America. Her husband Avi, also not his real name, has however refused to appear in rabbinical court ever since she filed for divorce.
The Beth Din of America eventually issued a siruv
order against him in 2016, a writ of social ostracism banning a person from synagogue membership and calling on the community to limit their social and economic relations with them, among other sanctions.
Avi still refused to grant a get
, a Jewish bill of divorce, and Naomi then contacted Mavoi Satum, a women’s rights organization in Israel, for further help, since her husband is an Israeli citizen and resident allowing the Israeli rabbinical courts to intervene in such situations.
The advantage of the Israeli rabbinical courts over those in the US is that the Israeli courts are empowered by law to issue various sanctions against recalcitrant spouses which can be a critical tool in persuading them to grant the divorce.
Mavoi Satum filed a request to the Rabbinical Court of Jerusalem which duly issued a ban on the husband leaving the country in September 2016.
In May this year, Naomi traveled to Israel for the first hearing but the three-man panel of the rabbinical court, including Rabbis Gidon Shiryon, Yitzhak Zar and David Bardugo, began to exert pressure on Naomi to come to an arrangement regarding the division of assets and child support payments.
The lawyers of both Naomi and Avi did then draft an agreement, but both sides began to claim that either side was trying to change the settlement and it was not implemented.
In a decision issued on June 7, the Rabbinical Court of Jerusalem ruled that since the husband is an Israeli citizen and an Israeli resident, it does indeed have jurisdiction to intervene in the divorce proceedings regarding the bill of religious divorce.
But the court also explicitly stated in the same ruling that it did not have jurisdiction over child support and division of assets, since proceedings were already underway regarding these matters in the civil courts in the US.
“Therefore, the rabbinical court clarifies that it does not have jurisdiction to deal with this argument, and they [the rabbinical judges] must confine themselves to the matters of the divorce and the ketuba
[Jewish marriage contract] alone,” wrote the court in its decision.
In a separate decision several days later regarding a proposed settlement in the US civil courts, the rabbinical court again noted that it has “already clarified to them that it has no jurisdiction at all and the only issue of the rabbinical court [to address] is the divorce suit alone.”
The court also noted that “the husband refuses to divorce at the moment [so] the rabbinical court needs to continue dealing with the divorce suit,” and then stated specifically that the travel ban should remain in place since there was a strong chance that Avi would flee the country leaving Naomi still “chained” to the marriage without the possibility of remarrying.
But at this stage, the husband and his lawyers proposed a new financial settlement, once again including matters concerning child support and division of assets, and the rabbinical judges actually drafted a handwritten agreement.
Naomi initially agreed to this settlement, but claims it was subsequently altered when Avi’s uncle met with her father and changed clauses in the document without her knowledge or approval, and without the advice of her lawyers.
She then backed away from the agreement, and insisted again that her husband give her the bill of divorce and that the court conduct the hearing on the divorce as it had promised.
Naomi’s lawyers now argue that the rabbinical court has interfered in matters pertaining to division of assets and child support in direct contravention of its own decision in June that it had no jurisdiction because these issues were being dealt with by the civil courts in the US.
Despite this, on July 4, a new hearing was held and the rabbinical judges held a lengthy debate with the husband and wife, in which they repeatedly pressured Naomi to agree to the proffered deal in order to secure the bill of divorce.
“Are you ready [to agree] to the outline, are you ready to stand by the agreement,” one of the judges asked her? Her lawyers repeated again and again that Naomi had only flown in from the US for the hearing on the divorce and that the rabbinical court itself had ruled that it would hold a hearing on the divorce issues alone, not the assets.
But throughout the lengthy and stormy proceedings in the courtroom, the rabbinical judges attempted to mediate the proposed agreement between Naomi and her husband.
“We see very severely that the rabbinical court has wasted its time on the mediation process which was agreed to, and if all of these points are coming up here it appears that the woman has backed away from the agreement,” the rabbinical judges said.
Not only was the court trying to mediate the deal regarding assets and child support, it also began to cast doubt on its earlier decision that it had jurisdiction over the divorce proceedings.
In a decision given on July 5, the rabbinical court wrote that since Naomi continues to refuse to sign the agreement and insists that the court hold a hearing on arranging the divorce, “in consultation with the legal department the rabbinical court has no option but to evaluate the jurisdiction of the rabbinical court under the law and if it is possible to have a hearing about forcing the husband to give a divorce for a foreign resident.”
Mavoi Satum director, attorney Batya Kahana-Dror noted that when a rabbinical court “forces agreements” on either party it frees it from having to make a decision or issue a formal ruling, but at the same time “creates a connection between everything ancillary to the bill of divorce such as child support, division of assets, child custody and the bill of divorce itself, even in cases when these issues are being dealt with in civil courts.”
Continued Kahana-Dror: “In effect, forcing an agreement on someone creates a condition for the bill of divorce... but Chief Rabbi David Lau has determined in the Supreme Rabbinical Court that there can be no connection between matters of assets and the demands of a woman for a bill of divorce.
“They are two separate tracks and therefore there is no reason why in this case the rabbinical court has refrained from issuing a ruling obliging the husband to issue a bill of divorce.”
Kahana-Dror did commend the rabbinical courts for agreeing to issue travel bans on recalcitrant husbands residing or staying in Israel in the many cases in which it receives requests from women abroad, saying this has helped free many “chained” women.
She said, however, that should the Jerusalem Rabbinical Court retract the travel ban against Avi, she would appeal to the High Court of Justice against such a step.
The Rabbinical Court’s administration said in response that the actions of the court were “a proper legal process, and described the case as “complicated, and in which during the early and critical stage of the hearing the issue of international judicial jurisdiction of the Rabbinical Courts arose.”
“This is a complex and complicated issue, especially when talking about the use of sanctions which can harm the freedom of the litigants.
“It is not acceptable that in the middle of the legal process the legal representatives of one of the parties tries to advance the legal process through the media. Passing the hearing from the legal and professional field to the media at the same time the case is being dealt with is not ethical and not professional. The lawyers will be respected and will plead their cases before the authorized courts of the State of Israel.”