Halachic tools to free ‘agunot’

The author argues that rabbinical judges should find solutions for women whose husbands refuse to grant them a divorce.

May 6, 2017 21:30
4 minute read.
File photo: Divorce.

File photo: Divorce.. (photo credit: REUTERS)


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On March 30, the Supreme Court handed down a major decision in the case of the “Agunah from Safed.” This case involved a woman whose husband who was involved in a motorcycle accident in 2007 which left him in a coma. The couple married in 2002 and had one young daughter. The woman visited her husband regularly, but his condition did not change. In 2012, after five years, she filed for divorce in the Safed religious court. The court appointed a guardian to represent the husband and the dayanim, or religious court judges, visited the hospital. Declaring the husband legally incompetent, they decided that the court was unable to release the woman from the marriage.

She appealed the decision to the Supreme Rabbinical Court, but Chief Rabbi Yitzhak Yosef referred the case back to the Safed court.

On March 13, 2014, the Safed court freed the wife to remarry by applying a very creative halachic tool known as a “get zikkui.” While the get zikkui has been used historically by a number of leading rabbis, it is considered controversial by a number of Orthodox rabbis, including Chief Rabbi Yosef. Basically, the concept is that if the husband were aware of his wife’s terrible predicament of being married to a man in a coma, he would give her a get, or Jewish writ of divorce. Therefore, the court, acting on his behalf, delivers the get and frees her.

Chief Rabbi Yosef and many of his colleagues strongly oppose the use of the get zikkui and discussed publicly the need to appeal the Safed court’s decision.

The problem was, who would appeal? Obviously the wife would not appeal the decision. The husband’s court-appointed guardian and his family supported the decision. On May 20, 2014, the Safed court published a 93-page opinion, citing Jewish Law sources in support of its decision, including two major decisors: Hachazon Ish and Rabbi Zvi Pesach Frank, chief rabbi of Jerusalem during the Mandate.

A month later, in June, 2014, a man who had no connection to the case and claimed he was unaware of the circumstances surrounding the decision filed an appeal to the Supreme Religious Court. The wife appealed three times to the court for the man’s appeal to be rejected, on the grounds that it had no jurisdiction to hear the appeal. Nonetheless, on November 5, 2016, Chief Rabbi Yosef decided to accept the appeal and set a date for a hearing before all the court’s dayanim.

At this point the woman petitioned the High Court, arguing that the Supreme Religious Court could not accept an appeal from a man on the street with no connection to the case, and therefore its decision to accept the appeal should be overturned. The attorney-general published an opinion supporting the woman’s petition.

On January 10, 2017 the Supreme Court asked the attorney-general to try to resolve the dispute with the chief rabbi, but on February 1 he announced that he had failed. Therefore, the Supreme Court heard the case, and rendered its decision on March 30.

Writing for a unanimous three-judge bench, Supreme Court Justice Elyakim Rubenstein declared that the religious court did not have jurisdiction to hear the appeal and therefore the 2014 decision was final and the “Agunah from Safed” was free to remarry.

In a respectful but firm manner, Justice Rubenstein gave the chief rabbi and his colleagues a lesson in basic law. He carefully and methodically described the reasons behind the rule of “standing” a concept taught to all first-year law students. Patiently, using easily understandable language, Rubenstein explained why an individual who has no connection to a case cannot appeal a court decision because he does not have “standing.” If such a person were able to appeal, no court decision would ever be final. The parties to a case must be able to rely on a final court decision and end the judicial process. This is just common sense, according to the court, and rabbinical courts have the same rules as civil courts when it comes to the right of appeal. Citing Jewish law as well as civil law sources, Rubenstein reminded the dayanim that it is an iron rule that only the parties or someone directly injured by a decision has the right to appeal.

Rubenstein went on to teach a lesson in compassion to the chief rabbi and his colleagues. Citing a tradition among leading rabbis to go out of their way to search for halachic tools to free agunot, especially former chief rabbi Ovadia Yosef, the justice chastised the current chief rabbi (the son of Ovadia) for seeking to overturn a three-year-old decision. Instead of seeking to free this young woman from a non-existent marriage, the current chief rabbi, said Rubenstein, seemed to be seeking to cancel her get retroactively, thus returning her to agunah status. Rubenstein reminded the dayanim that by canceling the get retroactively, he placed any children born since the get of 2014 in jeopardy of being mamzerim, a fate which rabbis try to prevent.

Finally, Rubenstein eloquently taught us all the meaning of freedom as we prepared to celebrate Passover, the Festival of Freedom. The attempt of the Supreme Religious Court to make this woman an agunah again would be an infringement of her human dignity, restrict her freedom to remarry and deny her the basic right to a family.

In this important decision on the eve of Passover, the Supreme Court freed the “Agunah of Safed” at last! Hopefully this decision will be required reading for our chief rabbis as well as all sitting dayanim and candidates to become dayanim.

The author is a women’s rights lawyer based in Jerusalem who has represented hundreds of agunot in the rabbinical courts of Israel for almost 40 years. sshenhav@zahav.net.il.

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