On Nov. 29, 2004 the Supreme Court of Israel issued a ruling, indicative of the uneasy balance between Religion and State in the Jewish state. In a majority decision, the judges determined that the plaintiff was free to leave the country, nullifying the State Rabbinical Court’s restraining order prohibiting him from exiting it. The Rabbinical Court did so in order to review the issue of spousal support as long as the plaintiff was married in the eyes of Jewish law, that is until he would give his wife a get—a Jewish writ of divorce. In the words of Justice Ayala Procaccia: “This appeal raises the question of the Israeli Rabbinical Courts’ boundaries of jurisdiction regarding Jewish spouses who have no association by way of citizenship or residency with Israel.” The determination that the Rabbinical Court has no such jurisdiction, has far-reaching implications for Jewish women living outside the boundaries of Israel. Though they may turn to the Jewish state for redress of their grievances, the Rabbinical Courts of Israel are legally prohibited from providing religious remedy. In this particular case, the man and woman had been married civilly and in accordance with halacha—Jewish law. Although there was a civil divorce decree in Monaco in the year 2000, the husband has not given his wife a get. Until he does so, the woman is prohibited from remarrying according to the halacha, since she is still bonded in marriage to the man from whom she is civilly divorced. He insisted on Shalom Bayit—marital reunification, after seven years (!) of separation and a civil divorce in the interim. Note that the “husband” preferred to engage both his “wife” and the Israeli Rabbinical Courts in battle, taking them to the Supreme Court, rather then simply give his “wife” a get.
Not only is this a common occurrence in the Diaspora, the phenomenon of get –refusal exists in the State of Israel where there is no civil divorce. The halacha, is the determining factor in the civil recognition of marriage or divorce. The civil courts, including the State Family Court, have no jurisdiction by law over matters of personal status. A Jewish person wishing to avail himself of State provided services of marriage and divorce, falls under the authority of the Rabbinical Court. However, even at the point where the Rabbinical Court has ruled that the husband is obligated to divorce his wife, the husband has to give the get. Not the Rabbi. That being the case, the husband can make demands, outrageous or otherwise, which must be met by the wife in order to secure his compliance to divorce. He can even simply refuse to give a get. A Rabbinical Court may have jurisdiction in Israel and far-reaching powers over Israelis, but neither it nor its counterpart in the Diaspora has the power to issue a divorce decree in the husband’s stead.
Thus a woman who has agreed to bind herself to her husband through a religious Jewish ceremony, does not have the power to separate herself freely from that sanctified union. She remains married to her spouse in the eyes of the halacha until he agrees to free her. This woman can be termed a modern-day “aguna”—a chained woman. The tragic situation of get -refusal has become widespread in the past century or so. (It can even rear its head in the reverse situation—a man can also be a victim of get-refusal. Notwithstanding, those circumstances are less common and less devastating.) Modernism and mobility have contributed to the creation of a problem which is a world-wide phenomenon. The strands of democracy and halakha have intertwined, at times strengthening each other, at times limiting. That precarious equilibrium is in danger of being breached.
While we are witness in individual cases of earnest attempts to reach a resolution in the form of a get, the tragedies seem to multiply themselves, crying out for resolution. “Technical unfairness”, in the Diaspora Rabbinical Courts and in Israel alike, of litigants’ failure to appear, months or years of deliberations, postponements of court sessions and the like are only the surface of the problem. What is needed is a deep, sensitive, honest and persistent evaluation by the Rabbinic establishment of this untenable situation, contending with it as a broad phenomenon. Following that must come a variety of solutions—the establishment of principles effecting the resolution of existing cases as well as preventative measures—deeply rooted in the halacha, developed by those men and women most committed to the halacha. Rabbis of all schools of thought, of diverse communities or countries, of various stations, must put aside their differences in a united effort to end this abuse of matrimonial sanctification.
In the Monaco case, the Justices added their pleas to those of Rabbis in France and in Israel, asking the man to free his wife. We have reached a point in Jewish history where pleas alone, no matter how justified or anguished, do not suffice. Even stern rulings of the Rabbinical or Israeli Supreme Courts do not resolve the deep problem. Justice Elyakim Rubinstein (the minority opinion), laid out an overview of proposed solutions from within the halacha —ranging from methods of annulment after the fact, to prenuptial agreements for the prevention of get-refusal. Perhaps that reference will capture the attention of the Rabbinic establishment, worldwide. Unfortunately for the agunah of Monaco, the Supreme Court’s decision to let him go ensured that he would not let her go.