August 6, 2020

Agunot Turn to Civil Courts for Remedies

By Lisa Fishbayn Joffe

A recent case in England relies on a new legal strategy, using laws designed to protect victims of domestic violence to address the agunah problem and shows promise in bringing the law of the state to bear on behalf of women.

Today, International Agunah Day(#gettfreedom)  and the Fast of Esther, is a time for the community to reflect and act in solidarity with women placed in legal and social limbo by Jewish laws of divorce.

An agunah (literally, a chained woman) is chained to a dead marriage by the whim of her husband.  Jewish law places sole discretion to grant a divorce (a get) in the hands of the husband and provides few effective remedies should he choose not to do so.  As Jewish law has been slow to find remedies that help agunot, many are turning creatively to the civil courts.

A husband might withhold a divorce out of spite, a desire to manipulate and control his wife or as a bargaining tactic in negotiations over financial or custody matters. A woman who has not divorced Jewishly cannot remarry under Jewish law and any children she might have with a new partner would have the status of “mamzer”, subject to ostracism and themselves unable to marry in the Jewish community.

Because Jewish legal authorities have lacked the will to provide halakhic remedies for this imbalance of power under Jewish family law, women have turned to the civil courts for help.  New York State, Canada, the United Kingdom and South Africa have all passed “get laws” that allow a civil court to attach financial consequences to failure to cooperate in a religious divorce.  France, Canada and the civil courts in Israel allow women to sue for damages for breach of contract or for negligent infliction of emotional harm.

Advocates for women subjected to domestic abuse describe this conduct as rooted in a desire to exercise power and control over the wife.  Advocates for agunot have come to see get refusal through this lens, describing it as a distinctly Jewish form of domestic violence. Strategies developed to assist victims of domestic violence can be deployed to help agunot.

In a case begun in January, 2020, a British agunah invoked a  2015 law passed by Parliament that recognizes that domestic violence involves more than physical abuse.  The law makes controlling or coercive behavior towards a spouse or intimate partner a criminal offence, punishable by up to five years in prison.  The law defines this behavior to include:

 “a range of acts designed to make a person subordinate and /or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behavior.”

In this new agunah case, the parties (whose identities have not been disclosed) had married in Israel before moving to the United Kingdom. They soon separated and had been living apart for five years.  While they had been divorced in the English courts, the husband told the wife that he would only grant her a religious divorce if she cooperated in revoking a non-molestation order put in place by the English court to protect her and if she then left the country.  She argued that this refusal to release her from their Jewish marriage met the threshold test of causing her “serious alarm or distress which has a substantial adverse effect” on her life. Her counsel told journalists:

“The defendant was well aware that by refusing to provide a get, the victim would be isolated, prevented from forming a future relationship or having children, and unable to lead an Orthodox Jewish life in the community of her choice”.

The wife initially asked the Crown Prosecution service to lay charges against her husband for engaging in coercive and controlling behavior in violation of the law.  The state declined to bring this novel case. However, with the support of the domestic violence advocacy group, Jewish Women’s Aid, and case support staff at the London Beit Din, she hired counsel and brought a private prosecution case against him.  Facing criminal charges, the husband delivered the get on the courthouse steps and the criminal case was withdrawn.

It is unfortunate that Jewish women must turn to the civil courts for leverage to address the gender imbalance under Jewish family law.  But unless and until Jewish law offers effective remedies that allow women to secure their freedom, innovative approaches such as this will have to do.

Lisa Fishbayn Joffe is the Shulamit Reinharz Director of the Hadassah-Brandeis Institute and a co-founder of the Boston Agunah Task Force, devoted to advice, education and support for women going through the Jewish divorce process.  

 

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