“Technical issues” cited as reason for turning down a
husband’s request to have his appeal heard by the Supreme Court on the issue of
damages owed for get refusal.While the case won’t receive a hearing, Supreme Court Justice Neal
Hendel offers strong rebuke to recalcitrant husband and unabashed support for
this case’s prior judgments in both family and district courts that awarded and
upheld an NIS 700,000 award for his long-suffering wife.
S’s life hasn’t been pretty. At 24, this young Iranian
immigrant, having just arrived in Israel, married and hoped for a bright
future. But her husband’s intensive physical abuse began two days after the
wedding. After three months, pregnant and frightened, S left the marital
home.
Despite the severe threat to S and her child, for 11 years,
Israeli rabbinic courts refused to mandate a get (religious divorce). With no relief on the horizon, in 2005, S turned
to the Center for Women's Justice (CWJ) for help.CWJ petitioned Tel Aviv family court on her behalf suing her
recalcitrant husband for damages to compensate for the many years of anguish
and lost opportunity.
In 2008, the court ruled in S’s favor, ordering her husband
to pay NIS 700,000 in damages.He
appealed the ruling in Tel Aviv District Court, but in early 2011, the family
court decision was upheld. Undeterred, the husband went on to request an appeal in the
Supreme Court. This week, the Supreme Court handed down its decision – it
turned down the husband’s request to hear the case.
Justice Neal Hendel states that although the issue raised –
whether damage claims regarding get
refusal can be addressed in a civil, family court framework – is of grave
importance, because these issues were not adequately addressed in lower courts,
this case cannot be heard in the Supreme Court.
To the petitioner’s claim that the damages were set too high
or that S's behavior could in any way justify the get refusal and de facto
"imprisonment,” Judge Hendel declares:
“Based on the facts of this case,
the sum awarded is not too high. The wife was 24 when the couple married and
they lived together for all of three months until she was forced to flee for
her life because of the husband’s violent and abusive behavior. Today, the wife
is over 40 and her husband still refuses to grant her a get. I see no reason to
intervene in the District Court ruling which stated, ‘[by not granting the get]
the appellant deprived his wife of her right to a life of personal fulfillment,
deprived her of her right to remarry, and deprived her of her right to have
additional children.’I will allow
myself to add that any actions taken by the wife do not in any way justify the
petitioner’s resolve to keep his wife chained as an aguna – not from a legal
perspective and not from a halachik
perspective.
Attorney Susan Weiss, CWJ founder and Executive Director,
added: “Though theSupreme Court
of Israel has not yet given its full stamp of approval of the damage claims brought against recalcitrant husbands, the latest
decision confirms that the Court views get recalcitrance as reprehensible and
worthyof compensation. CWJ
applauds the decision.”
posted Feb 9, 2012 9:23 AM by Center for Women's Justice Israel
Should
publicly funded mikvahs (ritual baths) in Israel be open to all women who want
to use them?
Does the Chief Rabbinate have the right to set terms for mikvah use that
effectively invades the privacy of women?
Do women in Israel have the right to choose how to live their lives as Jews?
The
Center for Women’s Justice raises these questions in a petition to the Supreme
Court on behalf of two unmarried women who wish to immerse themselves in a
mikvah – but are barred from doing so by the Rabbinate’s regulations that
mikvahs are for married women only.
posted Aug 17, 2011 2:52 AM by Center for Women's Justice Israel
[
updated Aug 17, 2011 4:03 AM
]
You can tell from my parent’s wedding album that they got married in 1975. Between my grandmothers’ floor-length lace and purple gowns, the plethora of tortoiseshells and my father’s, well, bangs, there’s no room for doubt. I used to enjoy looking through the album as a child, the pictorial narrative of the origins of my family slowly coming together. First, a shot of the invitation, set tables, some bridesmaids getting ready, and my beautiful young mother in her gown. Then some pictures of my father, parents and brother, some of my mother, parents and brother, separate families still. Eventually the group comes together, two families becoming one. Later, more relatives appear, allowing me to play the game of picking out cousins as their shrunken child-sized selves, great-grandmothers I never met, and male relatives I never imagined once had a full head of hair. Finally, somewhere in-between all the family portraits and awkward table shots, the moment that made it all count, my father’s father, my mother’s father, the brothers, uncles and several first and second degree male cousins from both sides, all surrounding my father seated at a table, holding a pen and smiling, signing the Ketubah*, the Jewish marriage contract. And then on the next page, my mother’s mother, my father’s mother, grandmothers, aunts, female relatives from both sides, all surrounding my mother, seated at the table smiling, holding the pen, signing the Ketubah.
I’m just kidding. The second picture doesn’t exist. Because of course, as everyone surely knows, at least in 1975, in a Conservative synagogue, a Jewish woman didn’t sign her own marriage contract.
Despite my childhood sense of the ominous nature of my mother’s absence from the Ketubah picture, I can’t say I’ve spent a whole lot of time thinking about the feminist implications of the Jewish marriage contract between then and coming to work for CWJ this summer. And in learning about the arcane reasoning of the Rabbinic courts that marrying or divorcing Israeli Jews are subject to, it can be really easy to assign the blame on the lack of separation of Rabbinate and state in Israel. Civil marriage for everyone, we can say, problem solved, people who still want religious sanction for their marriage or divorce can choose to subject themselves to whoever’s antiquated rulings they choose, or not.
While I believe it’s essential to provide secular jurisdiction over all aspects of Israeli family law starting yesterday, we can’t pretend that the Israeli Agunah* crisis arose out of a vacuum. We can’t say that it’s all due to a tiny little error of judgement Ben Gurion made 63 years ago, or that the Israeli problem is unrelated or wholly different in nature from the Agunah problem that continues to exist in the free Jewish world outside Israel. Agunot have existed for thousands of years. The problem of the Agunah has been one of the most intractable legal and ethical conundrums in the Jewish community for ages. Temple destroyed? No worries, we’ll just focus on the book. Can’t sacrifice animals anymore? We’ll pray instead. In perpetual exile? That’s ok, we can always celebrate holidays for two days instead of one. It says in Deuteronomy that should he find some unseemly thing in her, he writeth her a bill of divorcement…? Uh oh. And 2000 years later, it seems as if all most of us are doing is still shrugging our shoulders and saying, uh oh.
It turns out my mother’s presence wasn’t the only unnecessary one for the Ketubah signing. “Traditionally” the only signatures required are two male Jewish witnesses, unrelated to the bride and groom. Husband, wife, Rabbi, all completely superfluous. In fact, the Ketubah isn’t even technically a marriage contract, per se, it’s an ancient prenuptual agreement, originally intended to protect the wife in the event of a divorce. In ancient times, a Jewish husband made a payment to his wife or her parents upon engagment/marriage, which served as compensation to her if he should die or decide to divorce her. The Rabbis introduced the Ketubah as a solution both to the problem of young men who could not afford to pay the sum at the time of marriage, thus delaying the payment until the time of actual injury done to the wife, and secondly in order to provide a financial disincentive for men considering divorce. This was of course in a time when women were so inherently dependent on men socially, legally and financially that staying married was seen as being in her interest, at any personal or emotional cost.
Of course today, the Ketubah is the least of the financial disincentives a man faces in granting his wife a divorce. Women, as partners in a marriage, have rights to property and child support that their ancient counterparts couldn’t have dreamed of. Sometimes a man literally feels he can’t afford to let his wife divorce him, and this along with the authority granted him under Jewish/Israeli law, has led to the widespread practice of financially extorting women in exchange for the get*. This is what makes the Tort of Get Refusal* such an effective strategy; winning a substantial reward of financial damages against the husband works to negate the financial incentive he has in withholding the get.
So, sign a halachicly* valid prenuptual agreement, you might say. And this is one of the “solutions” being promoted by many, if not all of the Agunah advocacy organizations out there, including CWJ. If a Jewish couple is going to get married in a Jewish ceremony under the laws of Moses and/or the modern state of Israel, they should absolutely sign a halachic pre-nup, hands down. They work. They are effective at preventing the possibility of get refusal should the marriage indeed end.
I have two problems with calling this a solution. Firstly, the prenup does nothing to protect people who are already married without one. And secondly, I cannot figure out why I should have to sign a prenup to protect me from the results of another prenup, the Ketubah. By “signing” or at least consenting to the Ketubah, would I not be freely submitting myself to a system of authority which does not recognize my equality as a human being? Within Judaism women have the right, authority, agency to consent or refuse marriage. Despite the symbolism of her signature being unnecessary, she does have to verbally consent to the marriage and Ketubah, at least in modern times, for the marriage to be valid. But once she gives that consent, she no longer has any say over her marital status, she has handed that agency over to her husband, under the authority of the Jewish/Israeli religious courts, of her own free will. After that, if things should ever go south in the marriage, she may get lucky in having a mentsch of an ex-husband or she may spend decades in and out of Rabbinical courts pleading for her freedom. The Ketubah is a woman’s last moment of choice, and I wonder why more of us don’t make a different one. After all, how many self-proclaimed Jewish feminists march, donate, and agitate for global women’s rights at every opportunity, while at the same time proudly displaying their Ketubah as a work of art in their home? Is the choice to participate in the system that creates Agunahs really one to be proud of?
Of course it’s simple for me (as a relatively young, single person, who’s never entertained serious proposals of marriage and is not expecting to do so in the near future), to proclaim that knowing what I now know, I wouldn’t touch a Ketubah with a 10-foot pole. These questions are hypothetical for me, I’m only just beginning to ask them, I don’t claim to have the answers.
And that, dear reader, is where you come in:
If marriage is either a looming possibility or your official relationship status,
did/will you have a Jewish wedding? Who signed/will sign the Ketubah? Do you know what it says in your Ketubah? How much did you know about women’s status in the Jewish divorce process before you got married? What, if anything did your Rabbi tell you about the rules of Jewish divorce before you got married? If you had reservations, did you still choose to have a religious marriage anyway? Why, or why not? What made up your mind?
tbc...
*Agunah: woman trapped in a dead marriage according to Jewish religious law, because her husband is either dead, unconscious, insane, missing, hiding or “recalcitrant” i.e. simply refuses to grant her a divorce of his own free will
*Ketubah: Jewish marrige “contract”
*Get: Jewish bill of divorce
*Tort of Get Refusal: the legal strategy pioneered by Center for Women’s Justice, of suing a spouse who refuses to grant a Jewish divorce for financial damages in Israeli civil courts.
*Halacha: Jewish talmudic law, and in Israel, state marriage/divorce law
Caryn Noveck, an undergraduate student at Columbia University during the year, is interning at CWJ for the summer. She is studying all manner of interesting things, and when she does indeed have an official declared major, promises that the CWJ blog reading audience will be among the very first to hear about it.
posted Jul 27, 2011 3:21 AM by Center for Women's Justice Israel
[
updated Jul 27, 2011 7:32 AM
]
In
continuation of my disillusionment, through law school I was taught about
halachic prenuptial agreements. I learnt about them both in a course on family
law and another course specifically on solutions to the problems of agunot.
What I
learnt was very disappointing.
Where a
regular prenuptial agreement is designed to protect property owned by one of
the parties from before the marriage from being divided during a divorce, a
halachic pre-nup is created to ensure the delivery or acceptance of a Get.
There
are many ways that these agreements can work. The basic level is simply a civil
contract that says that should one of the parties file for divorce and the Get
is not given within a year (or another specified period of time) then every day
after that, the recalcitrant party owes the other money. A self-imposed
financial penalty for Get refusal. These agreements are binding in civil
courts.
Another
clause that could be added to these agreements is a more halacha based
solution. Where the spouses sign that in the event that a year has passed and
the matter is still unresolved that the rabbinic court is authorised to appoint
an emissary (shaliach) to give/accept the divorce on the unco-operative
spouse’s behalf.
An
additional clause can also be added to these agreements which is even more
halachically complex. This clause stipulates that the marriage is entered on
the condition that if one of the parties files for divorce, the Get will be
given or received within one year. If this condition is broken then the
marriage become’s retroactively annulled because the condition upon which the
marriage was based did not eventuate. A bit tricky right?
Tricky
or not, these are some of the options available for halachic pre-nups.
Now some
may say that it’s very unromantic to sign a pre-nuptial agreement. Others may
say that you are jinxing your marriage on your wedding day. But ultimately a
Ketuba is another prenuptial agreement, but it has become so standard and
accepted that it is no longer viewed that way.
That is
what the beit din in the city that I’m from is attempting to do. In Melbourne
they want to normalise the signing of a halachic pre-nup for all Jewish couples
marrying. Therefore, all Rabbis belonging to the Rabbinical Council of Victoria
recommend to couples that are set to marry, that they sign a suitable version
of these pre-nups. This way even if you know nothing about the matter you will
still be protected. This way even if you belong to the ultra-orthodox community
you will still be protected.
Sadly,
however the situation in Israel is very different. Not only are these
agreements not encouraged but they may actually be detrimental to the
situation. You see, a Get has to be given by the man of his own free will.
There cannot be any external factors compelling him to give this divorce.
Therefore, since the rabbinic courts in Israel not infrequently take a very
stringent stand on this requirement they interpret the prenuptial agreements as
being external pressure forcing him to give the Get thereby invalidating it.
Hence the agreement that was designed to protect you from being trapped in a
marriage could actually be the thing that keeps you stuck there! It’s simply
absurd!
It’s
completely ridiculous that these agreements that are upheld and even
recommended by rabbinic courts across the world are being rejected in Israel.
Is there a different Torah in Jerusalem? Absolutely not. The rabbinic courts in
Israel are rejecting these agreements because they move the jurisdiction away
from the beit din to the secular courts. The financial penalty contracts are
secular contracts binding in secular courts. It’s a power struggle, plain and
simple. But it’s a power struggle with people’s lives. With people’s families.
This
disparity between rabbinic rulings in Israel and in the rest of the world is
another one of the myriad of reasons for the privatisation of the beitei din
and the separation of religion and state in Israel. How much longer can this
absurd situation continue?
On an
unrelated note this will be my last blog for CWJ as I have returned to
Australia to finish my law degree. I would like to thank all the staff in
particular Susan and Elana for their patience and support and to commend them
publically for their untiring work to improve the family law system in Israel.
Keep up the inspiring work!
posted Jun 30, 2011 1:46 AM by Center for Women's Justice Israel
[
updated Jul 5, 2011 5:44 AM
]
This week I attended a
round-table meeting at the Shatil offices with many different womens
organisations to discuss issues relating to mikvaot in Israel. I learnt many
interesting things at this meeting. For example: that women who work in these
mikvaot (balanit - single, balaniot - plural) have no training and get paid
minimum wage. They have no days off because mikvaot need to be open every day
of the year (except for tisha b'av and yom kippur). Furthermore because they
only work at night, even if they work 5 hours every day of the week, they are
defined as part time workers and don't get full pension and healthcare
benefits. The majority of the women are sephardi, come from very low
socio-economic backgrounds, have low levels of education, have many children
and are generally the sole providers for their large families. They provide for
their households via this work. Furthermore these women are not unionised and
do not have a representative on the council's religious matters board. Indeed
when they sought help from rabbis for their working conditions, they were told
to leave the issue alone because their reward will be in the world to come. We
were informed by the women making the presentation and who had also conducted
this research of how unco-operative the head of the religious affairs committee
was and the balaniot as well. She explained how there is unchecked nepotism enabling
some women access to these jobs and then to more pay or having shabbatot and
chaggim off.
We also discussed (briefly
in the meeting but also outside of it) religious coercion in the mikvaot. All
Jewish women getting married have to visit the mikva before they are permitted
to marry in this country. This means that no matter if you have blue hair, a
million piercing and tattoos, eat bacon and eggs for breakfast and have already
3 children outside of marriage, if you want to get married in Israel you have
to go the mikva. What happened to freedom of conscience? This is problematic
enough but more than this, there are lots of different ways to go to the mikva.
There are different laws and practices regarding the preparation process. What
if you would like to keep one practice but the balanit would prefer if you
observed another? What if you'd prefer that she doesn't cut your nails for you?
Or insist that you shave your legs? Or file away the callouses on your feet? Perhaps
you'd prefer her to not watch you while you are naked at all? These are all
legitimate concerns affecting many brides and women in Israel. How can we
maintain their right to autonomy within this system where religion and state
are still not separated? For one woman's experience see this.
There was one woman who
made a presentation about how she is attempting to fix the problem. She is a
Rebbetzin in Tzfat and has established a course for Balaniot. At present
anybody could become a balanit without any training at all. So this course is important
whether they are just starting out or have been working in the area for a
number of decades already. This course taught them the laws relating to ritual
immersion but also other really vital skills. They were taught how to be
personable, how to talk to people and make them comfortable. Also significantly,
they were taught how to pick up signs and recognise domestic violence or other
forms of abuse and how to deal with such situations. The course also enabled a
sharing of stories and information for the women in the area who otherwise are
very isolated in their work. It allowed for camaraderie which is sometimes
difficult to engineer in women’s lives.
Ultimately, I left the
meeting realising how much work there is yet to be done. The mikvaot need to be
safe places for women, free from religious coercion. The women who work there
need to be trained and given dignitary in their employment conditions. Most
importantly visiting the mikva needs to be a woman’s choice. The state should
have no say in whether or not she participates in these very personal rituals.
But to my deepening frustration this cannot happen while there is no separation
of religion and state in Israel.
Ellyse Borghi is currently a second year law student in Jerusalem. She volunteers with CWJ and teaches informal Jewish education on the side. She loves every type of cheese and would like very much to travel in Eastern Europe.
posted Jun 19, 2011 7:04 AM by Center for Women's Justice Israel
[
updated Jun 19, 2011 7:10 AM
]
How did
rabbinic judges manage to convince us all of new law – that it is
possible to cancel conversion? This campaign of intimidation must be
stopped. Sarit contacted me a while ago. She told me she had converted a few years ago, married, and has three children. Now she's been separated from her husband for three years, and he's urging her to finalize their divorce.
But she's worried that if she asks a rabbinic court to arrange the get, the judges will cancel her conversion. This would mean, of course, that her children who were born years after her conversion would also be declared not Jewish.
"I said to my husband, 'What do you need the piece of paper for? Let's just each of us go and live our lives without a divorce!'" Sarit told me, almost in tears. "But he insisted on the divorce and doesn't seem to care that this will blacklist our children and prevent them from marrying!"
Sarit even recruited her father-in-law in her support, who like her, was worried that his grandchildren may be put on the blacklist of those who cannot marry (pesulei-hitun). But her husband kept insisting that she agree to a get.
During our conversation, we considered a number of options should the rabbis ask Sarit about her religious observance in the event she did agree to go to court. Sarit suggested the possibility of the "lie."
I told her that I could not support this approach, and besides, I explained to her, it's not so easy to lie and claim that one keeps the Commandments when one does not. It's pretty easy to see through these types of lies.
We suggested that Sarit simply refuse to answer questions posed by the rabbinic judges. "I'll just tell them that I came for a get, and I don't intend to answer questions relating to my lifestyle. What's that got to do with my divorce?"
posted Jun 13, 2011 4:01 AM by Center for Women's Justice Israel
[
updated Jun 13, 2011 9:22 AM
]
As a law student I’ve been shocked to discover what is being taught in our
academic institutions.
My expectation from universities is that they would not only teach the law
but would also educate their students to better the legal system and to
practice their profession with dignity and compassion.
In reality however, I was taught how to exploit the system even at the
expense of people’s families and children.
In a course on family law we were not advised to sue recalcitrant husbands
for damages when they refuse to give a get. We were simply told to file for
divorce as quickly as possible in the family law courts and hope for the best.
If that doesn’t work and you are representing the woman, you can use your right
to spousal maintenance as leverage for the Get. If that still doesn't work, you
can use your custody of the kids to limit visitation rights of your spouse as
leverage to receive your Get.
In a course on divorce agreements I was taught how to write up clauses that
rob women of their property rights in exchange for a Get. I was taught to
create clauses that free men of their obligations for child maintenance
payments. I was taught that if a woman wants to change these contracts, I could
apply to have her Get retroactively annulled. When students protested saying that these
contracts were not fair, we were told that our job as lawyers is “not to be
fair, but to be smart.”
We were not taught how to negotiate with both parties to have a quick and
fair outcome. We were not taught to refuse with dignity to participate in the
wrongs of the system. We were not taught to limit the damage and trauma to the
parties. We were not taught compassion or empathy.
If this is what we are being taught, the problems for families in Israeli
courts will only continue.
We need a new generation of lawyers who will practice their profession with
the ideals of justice, fairness and equality.
Ellyse Borghi is currently a second year law
student in Israel. She volunteers with CWJ and teaches informal Jewish education
on the side. She loves every type of cheese and French movies very much.
