“Let her/him go!”

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.”

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.

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3 Responses to ““Let her/him go!”” Subscribe

  1. Eliyahu April 24, 2009 at 9:40 am #

    As I have not read the case, nor do I have knowledge of Israeli law, I would appreciate some clarification.

    As I understand it, the husband owes the wife support and that court order has not been challenged. What has been challenged is the Israeli Rabbinical Court’s jurisdiction to prevent him from leaving Israel because of his status as a non-resident and non-citizen. Thus as the husband is not attempting to leave Israel to evade payment of a debt but only to return to his residence, he is not an absconding debtor. If I understand correctly, an Israeli Civil Court when faced with a similar situation regarding, let us say, a judgment arising from a loan, would also not be able to prevent the judgment-debtor from leaving the jurisdiction. Is that correct?

    If the above understanding is correct, then would it be possible to obtain a civil judgment for support that would be recognized by Conflict of Law rules in other countries such as Monaco and then bring an action in the Monaco courts for recognition of that judgment and for its enforcement?

  2. Eliyahu April 24, 2009 at 10:09 am #

    One further question.
    Is the wife a resident of Israel? If not then did the majority of the court panel, unfortunately, see this case as an ordinary Conflict of Law case dealing with the proper forum as to where to determine issues?

  3. Rachel Levmore April 26, 2009 at 12:04 pm #

    Please note that the couple had a civil divorce in Monaco where all the issues of child support and alimony were settled in a final ruling.

    The lower Rabbinical Court ruled in this case that unfortunately the Israeli Rabbinical Court did not have jurisdiction to rule on the divorce suit submitted by the wife, since neither spouse was a resident or citizen of Israel. However, they did rule that jurisdiction fell upon them in the separate suit for wife-support (without connection to divorce) since that did not require by law that either one be an Israeli resident. In that suit the restraining order was issued. Following appeals, the Israeli Supreme court ruled that with no personal or territorial link to the State of Israel, the Israeli Rabbinical court could not have jurisdcition over this case in either of its suits–since each one was clearly intended to bring the husband to give the Get. As such, the wife-support suit did not qualify under Israeli law for jurisdiction since it was not purely meant to arrange for wife-support. The Supreme Court ruled that for this particular couple, the Israeli Rabbinical courts did not have jurisdiction. This allowed the husband to ignore please from Rabbinical Courts all over the world to give his wife a Get, and to leave Israel freely.

    If you would like to read the ruling yourself, its number is: Bagatz 6751/04.

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