For the last 75 years or so, Jewish feminists all over the world have successfully enlisted the help of legislatures and secular courts to ameliorate the “plight of the agunah”—the problem of Jewish women held in marital captivity by husbands who refuse to give them a religious divorce (a get). This maneuver has resulted in a virtual sea-change. Get-refusal is no longer seen as the unfortunate, but unavoidable, religious “privilege” of Jewish men. It is now being reframed all over the world, alternatively as: an act of “unclean hands;” a breach of contract; domestic violence; coercive control; the intentional infliction of emotional distress; the misuse of power; a tort. In short, a civil wrong—a blight on society
Legislatures in New York (1983), Canada (1985), Ontario (1990), South Africa (1996), England and Wales (2002), and Scotland (2005) have all passed “clean hands” statutes which direct courts to withhold a final civil divorce decree until all “barriers to remarry” are removed.1 The Ontario Family Law Act even allows courts to stay or dismiss any action brought in the context of a divorce if the moving party has not removed barriers to remarriage.2 Ontario also permits its courts to set aside parts, or all, of divorce agreements if made in consideration for removal of those barriers.3 A later amendment of the New York law (1992) authorizes family court judges to take into consideration a spouse’s refusal to remove barriers to remarriage when making awards of alimony or marital property.4
I began suing Israeli husbands in Family Courts in tort for holding wives in marital captivity—get-refusal.”
Even without specific legislation, secular courts have come to the aid of the agunah. Since the 1980s, New York courts have held that the failure to give a get as promised in a divorce agreement is an actionable breach of contract.5 British and Australian courts have awarded increased alimony to women whose husbands refuse to divorce them religiously.6 A Canadian Supreme Court upheld damages awarded against a man who breached his written agreement to give a get. 7 A British court recently threatened a man who refused to give his wife a get with imprisonment under the UK criminal “coercive control” statute.8 In that case, the agunah brought suit and her husband granted the get in order to avoid the possibility of a jail sentence. Similarly, a judge in California threatened to take away a man’s visitation rights using the domestic relations “coercive control” statute as grounds.9 And since the 1950s, French courts have held that get-refusal is a violation of the Civil Code with regard to intentional and unintentional wrongs—torts.10
It is in the spirit of those secular courts and laws which have reframed religious rights as civil wrongs, and from the privilege of having founded and headed Yad L’Isha and the Center for Women’s Justice, that my staff and I began suing Israeli husbands in Family Courts in tort for holding wives in marital captivity—get-refusal.11 In Israel this was, and to some extent remains, a particularly difficult legal challenge. First, because no specific civil law statute declares that get-refusal is a tort; and second, because of the Janus-faced nature of the state. On one hand, Israeli civil courts champion justice, fairness, and the redressing of harms, particularly intentional acts. On the other hand, its religious courts, with the imprimatur of the 1953 Marriage and Divorce Law (Rabbinic Courts), impose religious laws on all Israeli Jews. Those state-backed religious laws champion the rule of Jewish men over Jewish women, the purity of the Jewish family, and the integrity and formality of religious personal status laws, above all.
Despite these legal obstacles, my staff and I petitioned Family Courts all over Israel to award damages to Jewish women held in marital captivity. Since 2000, we have argued that get-refusal was a breach of the Israeli Tort Ordinance since it was a type of false imprisonment (Article 2) and a breach of various statutory duties, such as those set forth in the 1992 Basic Law of Autonomy and Dignity, the 1998 Prevention of Family Violence Law, and the 1977 Penal Law (prohibiting duress and extortion). We also argued that get-refusal is a breach of the ketubah, the marriage contract. Family Court judges all over the county agreed, though not all for the same reasons. Most held simply that marital captivity is an “unreasonable” act, especially when the rabbinic court has made a declaration that a man was in some way obligated to divorce his wife—and even when they did not.12
In response to these precedents, Israeli rabbinic courts unanimously and vociferously objected. They maintained that such awards violate the rules of Jewish law which give men the authority to determine if, and when, their wives are divorced.13 Yet despite their bluster, rabbinic courts have consistently overseen the get ceremony when recalcitrant husbands who were sued for damages finally consent to divorce.14 (Likewise, to the best of my knowledge, no Israeli rabbinic court has ever dared to challenge the legitimacy of religious divorces issued in foreign jurisdictions with get-refusal laws; to do so would result in the stigmatization of multitudes of Jews as mamzerim.) Tort precedents have become a mainstream tool in the arsenal of Israeli divorce lawyers, changing the legal landscape with respect to divorce in Israel.15
The Need for a Systemic Solution
One might argue, and I would agree, that neither the Israeli Family Law precedents nor any of the other secular international responses described above provide systemic solutions to what is essentially an internal problem of the halakhah. And, I would add, that it would be best if halakhic decisors would find and support such systemic solutions. But here is the very sad bottom line that I posit: Orthodox rabbis will NEVER find systemic solutions for women held in marital captivity.
Orthodox rabbis COULD reconfigure Jewish marriage so that it is fair and reciprocal. They COULD set up rabbinic courts which annul marriages, as done by the Rackman Beit Din,16 the International Beit Din,17 and the Sperber Beit Din.18 They COULD make it a condition of Jewish marriages that they will be retroactively dissolved if a couple has been separated for a long period of time, or has been secularly divorced.19 Indeed, it can be claimed, quoting Blu Greenberg, that “Where there is a Rabbinic Will there is a Halakhic Way.”20
But Orthodox rabbis have consistently refused to exercise that will. Why? First, I believe that it is a matter of distinction. Mainstream Orthodox rabbis feel a need to distinguish themselves from rabbis of the Conservative and Reform movements, as well as from secular society and its values. In the same vein, mainstream Orthodox rabbis feel compelled to follow the more “authentic” and fundamentally religious Jews; they feel that their social and cultural capital lies within the frum community, and not the secular one. Second, I posit that the Orthodox community believes that God has set the rules in stone and has established a clear hierarchical order of things in which God is to Man, as Man is to Woman. And finally, and perhaps more prosaically, I believe that the rabbis won’t bother finding systemic solutions because they have consistently marginalized the problem as not affecting that many women and, as such, not in need of their intervention.
Orthodox rabbis will never find systematic solutions for get-refusal.
To sum things up, the best we feminist advocates for Jewish women can do, even the Orthodox ones among us, is turn to the Gentiles. That’s what we’ve been doing for the last thousand years or so, and especially in the last few decades.21 By turning to the Gentiles, we rename a religious “right” and privilege of Jewish men into a civil “wrong” that harms women. And in doing so, we “societalize” the problem of Jewish women and divorce—i.e., make it a problem for society as a whole, and not just one for the Jewish community.22 Only in that way will things become just a little bit more equal and fair for Jewish women.