‘If you will it – she is free!’

The obligation to release a woman from her aguna status – is one of the greatest, and in the spirit of the visionary of the state of the Jews, we will also say “if you will it – she is free!”

By AVIAD HACOHEN
May 20, 2018 21:55
‘If you will it – she is free!’

A woman waits . (photo credit: REUTERS)

The small group that gathered outside the large courtroom of the Supreme Court included a few men and women conversing in French. On one side stood an elegantly dressed man, who told those present that he felt like a “prisoner of Zion,” imprisoned in the Holy Land. According to him, he came to Israel for a brief visit in the summer, planning to return to France a few days later to manage his real estate empire. When he arrived at Ben Gurion Airport, he discovered that a rabbinic court had issued an order preventing him from leaving the country. This was the result of an action taken against him by his wife who – for more than four years – has been waging a persistent struggle to receive a get from him, a Jewish writ of divorce.

The husband did not believe even for a moment that rabbinic judges in Israel could take jurisdiction over matters between a couple, both of whom are French citizens, who married in France and lived there for most of their lives, and whose children reside in France.
On the other side of the entrance to the courtroom stood the wife and her relatives. They placed their hope in the justices.
The hearing was complicated. The justices posed questions as to how the rabbinic court in Israel could acquire jurisdiction over the affairs of a couple who are not residents of the country.

Three weeks later, the decision arrived. In spite of the justices’ hesitations, they decided to refrain from interfering with the decision of the rabbinic court. The husband, who could no longer bear the shame, gave in. That same evening, the husband notified the wife he would give her the get in exchange for vacating the order preventing him from leaving the country. The next morning, the wife received her get and went free. Finally, four-and-a-half years of aguna (“chained woman”) status; tears and torment had come to an end.

This decision demonstrates the importance of the State of Israel in resolving aguna-related issues in Jewish communities throughout the world.

It has become customary to accuse the rabbinic courts of not doing enough to release agunot. The rabbinic courts have certainly earned this criticism. Together with many defects in procedural rules, etc., there is also the grievance that the judges do not do enough to ease the desperation of women who have been refused gets.

Halacha, Jewish law, provides many tools that enable the rabbinic court, if it only wishes to do so, to release women from aguna status: compelling a get, imposition of sanctions and “the sanctions of Rabbeinu Tam.” This is what the great rabbis have done throughout the generations and this is what many of them are doing in our day as well.

I have been dealing with this painful and important issue for 30 years, both in its theoretical, halachic and legal aspects, and in its practical aspects, representing, pro bono, women who have been refused gets.

Over the years, I have often found myself in a serious confrontation with a rabbinic court that had exceeded its jurisdiction. Indeed, the reality of women who have been refused gets is not an individual problem. It is a challenge – perhaps the most important one – standing before halachic Judaism today. The failure to find a solution and the condemning of these women to “life imprisonment” is essentially an admission and declaration, Heaven forfend, that the Torah of Israel is not a Torah of life.

The new bill currently before the Knesset seeks to expand the jurisdiction of the rabbinic court to include Jews who are not citizens or residents of Israel and who have no real connection to Israel, but who are in Israel of their own volition.

Before it even came to a vote, the bill has come under focused and sharp criticism, including a main headline in one of the respected daily newspapers that protested “the subjection of all of the Jews of the world to the State of Israel against their will.”

With all due respect, there is no merit to this assertion. While specific details of the bill certainly need to be corrected, its main feature is not only legal and appropriate, but praiseworthy.

As opposed to assertions that have been voiced, no one forces any person, including a Jew, who is not a citizen of Israel, to obey the rulings of the rabbinic courts in Israel (were this to happen, it would also constitute a violation of the basic rules of international law). However, the State of Israel is certainly entitled – and even obligated – to prevent the entrance of criminals into its territory, including people who crassly violate basic human rights and haughtily and maliciously infringe upon the liberty of women.

A recalcitrant husband who prevents his wife from exercising her freedom in contravention of law and through false representations is like a criminal. He is illegally denying his wife her most basic right to freedom, her ability to turn a new page by establishing a family and having children. He condemns her to life imprisonment.

Beyond the moral aspect, the State of Israel is entitled – and in my opinion obligated – to say to such a person: “you are not worthy of entering the country.”

However, should you decide to visit Israel in spite of this, be advised that you will be liable to sanctions as long as you do not fulfill your obligation to grant your wife a get.

This is a proportional and reasonable limitation because – as the court stated – “the keys to the exit from the country – are in his hands.” Should he so desire, he can grant a get to his wife and leave the country immediately, and any sanctions imposed upon him would be voided.

Since its establishment, the State of Israel has not been merely a “Jewish and democratic state” but rather the “state of the Jewish people.”

The Jewish state is not to be recognized merely by the rights it grants to Jews throughout the world (e.g., the Law of Return), but also by the obligations that it places before them.

The obligation to release a woman from her aguna status – is one of the greatest, and in the spirit of the visionary of the state of the Jews, we will also say “if you will it – she is free!”

The author, a professor and president of The Academic Center for Law and Science, is an expert in Jewish law, constitutional law and state and religion relations.  His book, Tears of the Oppressed, which deals with the issue of get refusal and the means to resolve it, was published in New York in 2004.


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