December 3, 2021

Let Your Wife Go!

By Rachel Putterman

For those who follow the cycle of the Jewish year, we’re about to wrap up the interim period between the Israelites’ redemption from slavery in Egypt that we commemorated at the Passover seder, and the paradigmatic moment of revelation at Mount Sinai that we will soon celebrate at Shavuot.  As we metaphorically complete our wandering in the desert and prepare to accept God’s law as a free people, it is worth taking a look at modern issues of slavery particularly within the Jewish world. In so doing, it’s hard not to be struck by the resiliency of the agunah issue. Despite years of activism on behalf of agunot, the issue remains a Gordian knot in our midst. Yet a recent civil court decision from the far-flung reaches of Australia signals that the perception of get refusal as domestic abuse is becoming axiomatic. Perhaps most inspiring, the decision demonstrates how civil courts and Beit Dins (Jewish religious courts) can work together to free women from dead marriages.

Under Jewish law, a man must voluntarily give a woman a Jewish divorce, and the woman must voluntarily accept it. The woman is the passive recipient of the man’s act of divorcing her, an act that the Beit Din merely facilitates. This is in stark contrast to U.S. civil law, where either party may initiate a divorce case, and it is the court that issues the final divorce judgment. Traditionally, an agunah was a woman whose husband was unable to give her a divorce either because he had disappeared or didn’t have the requisite mental or physical capacity. In the last 50 years or so, the term agunah has shifted to refer primarily to the situation where a man refuses to give his wife a get, despite being capable of doing so. Sometimes the husband simply doesn’t want his wife to be free to remarry, and other times he uses the threat of get refusal as a means of extorting concessions on other issues connected to the divorce case such as financial support, division of property or access to the children. In either situation, men are leveraging the power differential inherent in Jewish divorce to their advantage. Moreover, as was successfully argued in the Australian case, get refusal often is a continuation of a pattern of domestic abuse that has gone on throughout the marriage.

In response to the tireless activism on behalf of agunot, there have been some recent legal developments that bode well, of which the Australian case is but the latest. Following an Agunot Summit convened in New York in the summer of 2013, Orthodox feminist Blu Greenberg announced the formation of a new International Beit Din whose raison d’etre is the resolution of complicated get refusal cases. Another novel solution that has been gaining traction throughout the U.S. is the signing of the halachic prenuptial agreement, whereby the husband agrees that in the event of separation, he will pay his wife a certain amount for every day that he refuses to give her a get. In the wake of these high profile legal remedies within the U.S., the landmark decision from Australia shows that Jewish communities around the world are making strides in the struggle to free agunot.

Earlier this year, in a case involving a woman’s request for an extension of an order of protection, an Australian magistrate held that get refusal per se constitutes family violence as articulated by the applicable family law regulation. The woman seeking the order of protection had already been civilly divorced from her husband yet he was refusing to give her a get unless she paid him $200,000. The woman’s attorney argued that the order of protection should be granted at least in part due to the man’s refusal to give his wife a get. She crafted this argument in consultation with the Melbourne Beit Din to ensure the validity of any get her client would eventually receive. The Magistrate granted the extension of the order of protection, and explicitly found that the man’s “refusal to finally release her from a violent marriage [was] the ultimate exercise of dominance and control.” Acknowledging the synergy between civil and religious authorities in this case, the head rabbi on the Melbourne Beit Din welcomed the decision and stated: “[t]his precedent would allow us another method of using the civil court system to help provide a gett [sic] from a recalcitrant husband.”

Not only does this Australian case provide the first legal finding that get refusal constitutes domestic abuse, it also exemplifies the effectiveness of religious and civil courts working together to send the message that get refusal is a violation of law that will not be sanctioned. In other words, all authorities agree that women should not continue to be enslaved in marriages that they want to be free of, and hence it’s time for all recalcitrant husbands to heed the call: Let Your Wife Go!

rachel_puttermanRachel Putterman is a Helen Gartner Hammer Scholar-in-Residence and a rabbinical student at Hebrew College.

 

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