Opinion: Their day in (moot) court

Due to conflicts over economic matters, Gets are often 'purchased' from a recalcitrant spouse.

agunot 88 298 (photo credit: Illustrative)
agunot 88 298
(photo credit: Illustrative)
Although in recent years there has been increasing exposure to happenings in the rabbinic courts, as they apply to divorce, it still remains a largely closed-door institution. Thanks to Kolech, a religious feminist organization, and Mavoi Satum, an agunot (women whose husbands have refused to grant them a divorce) advocacy group, an audience was able to witness transactions of a moot court at the Kolech Conference held last week at the Pavillion Convention Center. In her introduction Yardena Kopf-Yosef explained that there are two major differences between the procedures we were about to see and those in an actual rabbinic court. First, this was a controlled, esthetic setting that would not bring out the emotions and "messiness" an actual case does. In fact, the "husband" and "wife" were not even present. We saw and heard only their legal representatives. Second, the entire time frame was collapsed here into one session, and it was conducted according to strict time limits, enforced by the moderator, Dr. Aviad Hacohen, dean of Shaarei Mishpat College. Within these limitations, though, the salient factors that could be decisive in a case of get refusal - when one partner refuses to have a bill of divorced issued or accepted - were addressed. Judging the case were leading rabbis in the national religious world: Haifa Chief Rabbi She'ar Yishuv Cohen, Ma'aleh Adumim hesder yeshiva head Rabbi Prof. Nachum Rabinovitz and Yeshivat Ma'aleh Gilboa head Rabbi David Bigman. The lawyers, who gave extremely learned presentations, were Batya Kahana-Dror, for the wife who was pursuing a get, and rabbinic advocate Gittit Nachliel for the husband who refused to grant it. Between them it sounded like they cited nearly every major classical and modern commentator on the subject. This case involved a relatively young couple with two children, who had married 10 years earlier but had been separated for the past five years. The heart of their conflict lay in their opposing social dispositions; she was active in their children's school and in the community in general, while he was extremely withdrawn. She discovered that he had been on anti-depressants well before their marriage, but she only learned of it later. He berated her for neglecting the home, was verbally abusive and disparaged her in front of the children. Although they spent two years in couple's counseling, the wife felt the situation actually worsened. She filed for divorce, and the husband filed for "shalom bayit" (a stable, peaceful home). She felt it was impossible to be his wife, and he said he would never give her a get. The issue of the get per se was the sole item before the court. All other matters associated with high conflict divorce, such as child support, division of property, custody and visitation had been resolved in family court. This sounds like a very singular case - to have the subject of the issuance of the get the only point of dispute. Since get refusal is the prime issue that Mavoi Satum handles, it is understandable that they created this particular simulation. In real life, however, divorce can be much more complicated, involving multiple issues. Get refusal is frequently associated with conflicts over economic matters in particular, such that a get is often "purchased" from a recalcitrant spouse. Considering the issue of get refusal in isolation may have prevented the audience from suspending disbelief. But to the credit of the organizers and the presenters, this model focused the discourse . Similarly, they are to be commended for creating a case of marital discord that wasn't overdramatic. There are two common reasons for get refusal, according to Joanne Zack-Pakes, a social worker with Mavoi Satum. When it is not for exploitation or economic gain, then often it is simply to maintain control. In The Shame Borne in Silence: Spouse Abuse in the Jewish Community, Rabbi Avraham J. Twerski, MD, contends that get refusal may follow the breakup of a marriage that had been marked by violence, and is another form of abuse. Therefore it's noteworthy that in delineating the failed marital relationship before this mock court, there were no claims of physical or sexual abuse, no descriptions of the police being called, nor suggestions of a threat to life and limb. The participants did not go after the easy shock value of traumatic scenarios; they sought only an exposition of the relevant halachic sources in the case of a recalcitrant spouse. The wife's attorney presented two possible solutions for this marriage's dissolution within Halacha: for the judges to insist that the husband grant the get on the basis of "he is repulsive to me," (i.e., "I cannot be his wife any longer"), or an annulment on the basis of "mistaken marriage" (i.e., "Had I known that he was mentally ill, I wouldn't have married him" ). Cohen, who gave the first, fullest and most decisive rabbinic response, laid out his reasons for accepting "he is repulsive to me" as sufficient reason to force the husband to grant the get. He acknowledged that there is a question, raised by Nachliel, that a get might later not be considered kosher if not given freely. Cohen countered, however, with a quote from Maimonides, that a man really wants to do what the rabbis expect of him, and when he doesn't do so it is his yetzer hara (evil inclination) speaking. So we presume that when he finally relents, after having been forced by the rabbis, that he is really doing what he wants to do - to give the get. A rabbinic-imposed get is therefore kosher. Cohen's most pertinent argument, though, was not in splitting commentators' hairs. The couple had been separated for five years - that, he said, was untenable. Divorce is not to be taken lightly, but the question every judge must ask is: "Does this marriage have any chance at all?" After a separation of 18 months, he would judge certainly not. A five-year separation is well beyond any normal considerations; it is not healthy for the husband or the wife to remain separated for so long without a get. As to the argument of "mistaken marriage," Cohen said it is rarely used, only in the most extreme of cases, and not when there are children, as in this case, since that might bring their legitimacy into question. Cohen said he would return the case to the regional rabbinic court with the recommendation that they reconsider and impose the get. Rabinovitz, after questioning the whole concept of "moot court," granted that a preventative for this type of situation would be a pre-nuptial agreement, which he strongly supports. For this statement he received a warm round of applause from the audience. All the presenters, organizers and supporters of this event are to be congratulated. The writer is working on a book about divorce.