A form of torture

One does not have to be a woman to realize the injustice done to women by divorce in general, and by Israeli/Jewish divorce in particular.

By RUTH HALPERIN-KADDARI
March 7, 2011 23:25
4 minute read.
Protest against agunot in Jerusalem

Protest against agunot in Jerusalem 311. (photo credit: Ariel Jerozolimski)

 
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With the introduction of civil marriages in late 19th-century Europe, Jewish men discovered the option of civilly divorcing and remarrying, knowing that their wives would suffer severe halachic repercussions if they did the same. Thus the ugly abuse of the power to withhold a get started. Rabbinical authorities (possibly more worried about the proliferation of mamzerut than the aguna problem) attempted, and failed, to eliminate this phenomenon by circumventing the husband’s control and enabling the termination of a marriage without the need for the man to issue a get.

Modern-day attempts and proposed legislation to deal with the question have similarly failed. The present rabbinical establishment bars any attempt to think – not to mention act – outside the conventional halachic “box.”

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Divorce is a particularly intense war-zone here that feeds on the battle over jurisdiction between the civil-secularmostly- liberal and the religious-traditional-patriarchal systems. Women and children pay the price of the confrontation when women are extorted to give up the rights guaranteed by the civil system. A fairly recent legislative measure, the Rabbinical Courts (Enforcement of Divorce Decrees) Law – 1995, popularly known as the “sanctions law,” promised to eliminate all cases of recalcitrant husbands, but has proven far from effective.

Rabbinical courts are increasingly using the doomsday weapon of inserting intolerable conditions into the get, and of retroactive invalidation of a get in cases where such conditions have allegedly been breached. This often takes place as part of the more general jurisdictional struggle between the rabbinical courts and the civil courts: A wife who has matters of property, child custody and support adjudicated in secular family court is requested by the husband and the rabbinical court to transfer these matters to the rabbinical court as a condition for her get; a man turns to the rabbinical court requesting the invalidation of the get following a perfectly legitimate child-support application by the woman to the civil family court, claiming he delivered the get on the assumption that the child-support payments previously determined by the rabbinical court would remain minimal.

In contrast, the civil system claims to promote equality and egalitarianism, but easily falls into the trap of “formal equality” – a simplistic notion of treating everybody equally, as if there are no inherent differences or underlying context.

It is possible that the civil judiciary has, in a way, accepted and internalized the religious/discriminatory rules of divorce to such an extent that they have become an axiom upon which all other rules are built. The basic disadvantage of women under the law is so taken for granted that it is no longer seen as affecting negotiations leading to divorce. The gendered nature of rabbinic law is such an integral element of divorce practice that it virtually disappears in the day-to-day attempts to achieve a settlement.

The basic asymmetry of power with respect to the get is a given, as the courts skip to “let’s look into those financial issues.”



Women are not seen as the weaker party in divorce mediation and negotiations because their lower status is taken for granted in a system that provides different standards for the behavior of men and women, and where women are seen as supplicants seeking to take what the men must give.

It is not a question of gender; it is a question of gender- awareness, of gender sensitivity. One does not have to be a woman to realize the injustice done to women by divorce in general, and by Israeli/Jewish divorce in particular.

ORTHODOX FEMINISTS, especially those active in this tragic field of agunot and mesoravot get, have to realize that people outside the field see things differently.

Such feminists have the task of collecting and communicating their own Jewish divorce stories – many of them horror stories – in an intense and organized way, and to convey them to as many audiences as possible, including the institutions responsible for the education and training of rabbis, educators, social workers and political leaders. We have not yet reached the stage where the mission is to promote the knowledge of all existing solutions. Of course that is our mission too – it always is – but we are not there yet; a much more pressing problem is the lack of awareness.

A well-known commentary by the Maharsha (Rabbi Shmuel Eideles, 1555-1631) explains why tractate Yevamot ends with “Torah scholars [talmidei hachamim] increase peace in the world”: God grants the courage to be lenient in divorce matters, since there is no peace if a woman becomes an aguna.

We must hope and pray that our community and its leaders reach this degree of awareness!

The writer is chair of the Ruth and Emanuel Rackman Center for the Advancement of the Status of Women at Bar-Ilan University, and former vice president of the UN Convention on the Elimination of All Forms of Discrimination against Women experts committee.

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