New Approach in Israeli Agunah Cases

There’s a new tool in the kit available to women whose husbands refuse to grant them a Jewish divorce which, according to an Orthodox reading of Jewish law, only a man can give.

In Israel, women have begun to file damages claims against their estranged husbands in civil court, and it appears that the threat of being forced to pay their wives damages is enough to get many men to finally give them a Jewish divorce, or get.

The novel approach is being used by Susan Weiss of The Center for Women’s Justice in Jerusalem, who has filed more than 40 such claims on behalf of women tied to dead marriages by their estranged husbands, according to this story in Haaretz. Half those women were able to obtain their divorces within 14 months.

But might it be used in America? According to one authority on Jewish divorce, no. And that’s because of the difference between the way civil courts are regarded by rabbinic courts in Israel and in America. In Israel, even the civil courts are considered Jewish courts. As a result, any financial motivation they may employ is considered by most to be legitimate, said Rivka Haut, an agunah advocate.

In the U.S., “the rabbis are constantly afraid that pressure of any sort by a civil court will result in a get that’s not kosher,” said Haut. “If a Jewish court motivates a man to give a get it’s considered of his own free will. It could be argued that a civil suit like a damages claim constitutes pressure that results in an invalid get. That might be a deterrent here.”

It has become not unusual for an Orthodox man to withhold a get, either to get his estranged wife to make concessions on issues of finances, property distribution, custody and visitation, or out of spite. Cases can last for years and during that time the woman is not permitted to remarry or even date. A survey of agunot in North America from October 2011 found 462 cases over a five year period. According to that study, “there has been an increase in cases of Jewish women being refused a religious divorce by their husbands while the rate of case resolution has been on the decline.”

In one current ongoing case, that of Tamar Epstein, pressure is being brought to bear on the employer of the husband, who works for a member of the House of Representatives, to fire him. Though there has long been hope that rabbis will employ some of the kinds of pressure that in the past motivated recalcitrant men to grant their estranged wives a divorce — like shunning them from their religious communities — it doesn’t usually happen.

Monetary coercion is considered acceptable by many, though not all, Orthodox rabbis, Haut said.

Another approach to financially motivating men to give their wives a get is employed in New York State courts. A 1992 amendment to Equitable Distribution Act gives judges latitude, when dividing a couple’s assets, to take into account the inability of one party to improve herself economically in the future — by remarrying, for instance. “If there is no get and the woman can show that she demanded it, the judge may take into account the fact that her financial future is now impacted because she can’t remarry and improve herself financially. The judge is able to give her a greater share of the assets,” Haut said.

That is accepted by some Orthodox rabbis, often those in the more modern or centrist Orthodox camp, and not others, usually the more right-wing rabbis, she said.

Overall, however, the situation for Orthodox women trying to obtain a Jewish divorce is getting worse instead of better. Rabbinical courts are increasingly pressuring women to withdraw their divorce cases from civil courts and litigate it entirely in a beit din.

Haut sees this as a very dangerous thing for women because American civil courts have different standards and approaches than rabbinical courts, which are an all-male system, and tend to be fairer to women. When women are forced to litigate all aspects of their divorces in rabbinical courts, “they end up with less money and property,” she said.

“If the batei din worked the way they should they would be wonderful and far superior to civil courts. They can be very fast and nowhere as expensive. The pity is that they are so dysfunctional and some are so corrupt, and their guidelines are so damaging to women, that we are always encourage women to go to civil court,” she said. “Even in the right-wing communities women know now that they should go to civil courts first. The problem is they will end up with better conditions, but they might end up without a get.”

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