THE RABBINICAL court of Tel Aviv. It has been said that rabbinical courts allow men to hold back consent to divorce their wives in order to extort the women into agreeing to unfair overall terms..
(photo credit: MARC ISRAEL SELLEM)
Abandoning due process in favor of machismo and replacing justice with performative generosity, Israel’s state-run rabbinic courts often wield their power in coercive, illegal ways. But when the supposed beneficiary of their strong-arming is a woman trapped in a marriage against her will by her husband, do the ends justify the means? Is the state really left with no choice but to violate a man’s human and civil rights if doing so frees an abused woman?
In Israel, divorce law is decided by state ecclesiastical courts that run in accordance with religious laws. As a result, a Jewish woman who wants a divorce in Israel must stay married forever unless her husband releases her. It doesn’t matter if her husband has abandoned her, beaten her, committed adultery, is missing or incompetent. The state will not declare a Jewish marriage over until a husband physically delivers a religious bill of divorce – a get – to his wife. In observance of the religious rule that a get must be given of a man’s free and unimpeded will, the state is hesitant to apply any sort of pressure on a recalcitrant husband.
Only on rare occasions, and only after many unfulfilling years of cajoling a non-compliant husband, will the state call on its police power to help convince him to divorce his wife. When the state rabbinic court does finally draw on this power, it often does so without restraint, without due process, without transparency, without predictability. Its actions are in direct violation of the state’s obligation to protect the civil liberties of persons within its territories and to threaten the democratic fabric of the country.
A recent case is a sad example. In 2005, an American Jewish citizen abandoned his wife and children in Israel. The wife sued for divorce in a state rabbinic court in 2008. For six full years, the state made no decision in her case, stalling and trying to persuade the wayward husband, safely ensconced in the United States, to agree to divorce. Finally, in 2014, the state ordered him to give a get, adding that, if he continues to refuse, the court would consider using coercive force against him. In 2015, the court exercised this threat against the husband’s parents – citizens and residents of the United State – who were traveling in Israel for a short visit.
Working with great alacrity, the court issued injunctions that prevented the parents from leaving the country, stating that their presence was necessary in court and that the parents were instrumental in their son’s recalcitrance. A few months later, the court also ordered the police to arrest the husband’s father. On appeal, the arrest order against the father and the travel injunction against the mother were eventually dismissed, but the parents haven’t managed to convince a court to lift the travel restrictions against the father. Nor have they managed to convince their son to divorce his wife. In August 2018, the court upped the ante and ordered the father to pay NIS 5,000 a day until his son delivers a get to his wife. While they were at it, the court also fined the father’s lawyers.
Alan Dershowitz, the famous Harvard law professor and civil libertarian, has taken up the parent’s cause and called on the state to lift the travel restriction and dismiss the fine against the father. Writing in an in an op-ed piece for The Jerusalem Post, he claims that the state is holding his clients hostage. He maintains that rabbinic judges, “some of whom seem to make up the law as they go along,” have chosen to “violate Israeli law, Jewish law and basic humanitarian principles” in a “desperate effort” to achieve a desirable end – the get – by unlawful means.
I cannot agree more with Dershowitz. Although I have spent almost my entire legal career fighting for the rights of Jewish women to divorce, and although I have set up no less than two not-for-profit organizations to help women held in marital captivity (agunot), I think that the state misuses its police power in cases like the one at hand. The state should not be putting men in jail, taking away their professional licenses, restricting their right of travel, or imposing massive fines to make it appear that can do justice within an unjust divorce regime. Certainly it should not be holding foreigners in contempt of court for three years in a lawsuit to which they are not parties.
So what can the wife do in this case? In my opinion, the wife should sue her husband, and perhaps also his parents, in an Israeli family court for damages. Since 2000, and largely because of the efforts of the Center for Women’s Justice, family courts all over Israel have awarded substantial damages to women for the harms caused to them when their husbands abuse their religious privileges to hold them in marital captivity. Those family courts have declared that the abuse of a religious “right” to withhold a get is a civil “wrong.” They have also acknowledged the right of women to sue third parties, like the parents in the current suit, if indeed they have aided and abetted the husband’s get refusal.
The family court will hold a proper trial, take evidence, and award damages, all in accordance with internationally recognized principles of due process. They may even award aggravated (punitive) damages in egregious cases. Armed with such a judgment, the wife can then enforce it in the United States, which will give full faith and credit to those family court decisions – all this, with no abuse of police power, no infringement on civil liberties, and no compromise to the democratic character of the State of Israel. Plaintiffs will owe the money awarded to the wife for the harm done to her; and not to the coffers of the state for the impudence of disobeying orders that the state should not have issued in the first instance.
Moreover, husbands, should they want to mitigate their damages, will make sure that the get is delivered ASAP. To date, with just one exception, every husband sued through the Center for Women’s Justice for the harms caused by marital captivity has delivered a get within an average of one year and two months of filing suit. In the one case in which the husband did not agree to divorce, the wife smiled on the way to the bank and collected every penny awarded to her.
In commemoration of the International Day for the Elimination of Violence against Women, it is important to take note that, when it comes to divorce, state backed rabbinic courts in Israel endorse violence against women – withholding a get – by embracing a legal system that facilitates it. It then tries to curtail that violence with greater violence. We the people of Israel made a covenant with the democratic state to wield its legitimated violence with restraint, prudence and due process. If it does not exhibit this necessary self-discipline, it’s not the kind of state we bargained for.Dr. Susan Weiss is an attorney. She founded the Center for Women’s Justice, an NGO which spearheaded the filing of tort claims against husbands who hold their wives in marital captivity.
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