Get follies

July 16, 2021 by Jeremy Rosen
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We often witness the insensitivity and negativity of rabbis who seem unaware of the damage they can do when they claim to be upholding Jewish Law.

Jeremy Rosen

The most recent case concerns Jewish Divorce. In recent years civil courts in the UK ( and the USA) have legislated to help wives whose husbands refused to give them a religious divorce, a Get. The term used for a written bill of divorce is the Get.  It is an Aramaic word, nothing to do with get out of my house.

Without a Get a divorced woman cannot remarry religiously. This is one of the most pressing issues in Judaism today that must be resolved. A religious divorce has to be handled by Jewish Courts. The only reason the civil courts get involved is because many religious courts, even if they try to help, refuse to address problematic issues. Why should we expect civil courts to clear up our own mess? But why not use them to our advantage if we can?

The Bible specifically permits divorce. The Talmud devotes a whole tractate to it. This does not mean it approves of treating marriage casually. But relationships break down for a variety of reasons.  The Talmud tightened up the Biblical laws by insisting on a Ketubah, a kind of prenup that made financial provision for a woman both in terms of protecting her assets and providing for her in case of death or divorce. This is an integral part of the Jewish marriage ceremony to this day. And it often included provisions for divorce or widowhood. Yet it is clear that in earlier times the rabbis were more willing to use legal mechanisms to ameliorate difficult situations and to accept new reasons for divorce.

Although the Talmud opposes compulsion in divorce (a Get Meusah), they did use compulsion or heavy persuasion to get men (and women) to give ( or accept) divorces when the courts had decided the grounds were legitimate (Gitin 88b). The Talmud recommends financial penalties if a man refused to divorce after they have sanctioned it. The Beth Din could actually beat the recalcitrant until he agreed (Ketubot 63a and 77a) on the assumption that really he wanted to but his irrationality got in the way. The Talmud established a principle that whoever married, did so according to the rabbis, which meant that they had the right to grant and to annul a marriage if they saw good reason. They accepted additional grounds for divorce such as Maees Alai, literally, he revolts me.  Quite apart from all the other halachic devices they used to be creatively halachically in other areas. The claim “If I had known then what I know now I would not have agreed to the marriage in the first place.” Kofin Al Midat Sodom,” forcing people if they behave like someone from Sodom who is incapable of doing the right thing. Mishum Eyva, to avoid ill-feeling. Or Mipne Darkei Shalom for the sake of good human relations, for example.

The Gaonim in Babylon favoured physical coercion under several circumstances. So too did Rabbeynu Chananel, R.Yitzchak Alfasi, and Maimonides. It is the definition of persuasion as opposed to coercion that lies at the root of most of the problems in a Jewish divorce nowadays. In Israel since divorce is part of the Law of the Land, men who refuse to grant a divorce can find the weight of the law coming down heavily upon them including being sent to prison. This does not always solve every case, but it helps with pressure.

The crucial turning point in Western rabbinic opinion was when Rabbeynu Tam (1110- 1171) made an edict banning any kind of compulsion. Some argue this was a response to Christian pressure which was strongly opposed to divorce altogether. Whatever the reason this has been the excuse rabbis have used since then to declare that a Get coerced is invalid.

A married woman whose husband will not give her a Get becomes an Agunah, someone who cannot marry again forever. As is a married woman whose husband disappears without a trace. With regard to a husband who disappears or is missing ( 9/11 for example) rabbis have made use of all kinds of meta-halachic devices, such as suspending the requirement for two witnesses and scientific innovations like DNA to help an Agunah. However, when it comes to divorce, they disregard earlier opinions and alternative sources and are reluctant to make use of legitimate halachic processes like annulment. And they denigrate and disparage those few Orthodox rabbis willing to do something about it.

Yet compulsion is used today although they prefer to call it persuasion. In Israel because of the position and power of the rabbinate, men are persuaded if not coerced to give a Get by being sent to jail or fined. It all depends on how you understand coercion. The courts have no interest in fining or convicting. They look for settlement. But they see no reason not to hold the threat over the heads of abusive husbands (or wives).

You would have thought that the rabbis would be delighted that a way has been found to pressurize partners who use the Get as a bargaining tool. But no. Recently in the UK, Baroness Altmann, Baroness Deech, Lord Mendelsohn, and Lord Palmer proud and brilliant Jewish members of the Lords, helped craft amendments to the Domestic Abuse Act in order to help protect agunot suffering from abusive, coercive behavior by their husbands.  She said that “What the courts can do, is offer support to the woman this amendment to the earlier act of 2005, ensures that women who are abused have some support from the local authority and the Abuse Commissioner. That is very different from saying — and I certainly never would — that British courts can order a man to give a get. That was never in any way, an intention, and it is not possible.”

The Beis Din of the Federation of Synagogues (the United Synagogue spells it Beth Din), in London, objecting to this new law, found ways to make matters worse by sending a letter to their constituents saying that any court action to force the husband to give a Get constitutes compulsion and is unacceptable and a woman going to the civil courts will be denied a Get. The implication of this is that going to civil courts is against Jewish law whether over divorce or abuse. Do they mean that all previous attempts to encourage a husband to give a Get constitute coercion and be invalidated? The other religious courts of British Jewry have all rallied around to defend their patches and status.

Lady Altmannwho is a frum lady, responded “My heart breaks. I can only hope and assume that they have misunderstood the situation. What [the rabbis] seem to be saying is that a woman who is a victim of abuse can’t protect herself. And if she tries to protect herself in British law, she finds that the religious courts are on the side of the abuser. It’s not my idea of religion”.

I can understand that Jews should always go to the Jewish courts of law first on matters of a religious divorce. That’s the ideal. But to then say that going to a secular court for help when they are denied, will automatically prevent the possibility of a Get even if the husband finally capitulates, makes no sense. Or as a distinguished Jewish UK lawyer said “It isn’t the wife who prosecutes- she makes the complaint. It is up to the police/CPS to prosecute. The Beit Din is saying that a woman needs to clear it with the rabbis before making a criminal complaint, and that feels particularly oppressive. It’s one thing to exclude civil remedies until the Jewish system has been tried. But preventing a woman from making a criminal complaint is deeply troubling.”

This will certainly not get the rest of the world to say, in the words of Deuteronomy “ Only a wise and understanding nation which is close to God has such just and fair laws as these.” Instead of solving the issue through creative halacha, too many authorities are paralyzed by what I can only think is male chauvinism. I bet if the boot had been on the other foot and only women could give a Get, they would have solved it long ago. But of course, they will never admit it.

I want to make it clear that I am very fond of the Federation. My cousin is the impressive president. And a favorite pupil of mine is on the board. I love the Federation and what it stands for. This is not personal. My father Kopul Rosen זצ״ל was its fearless Principal Rabbi from 1945 to 1949. I wonder how he would have reacted.

PS. It does seem that there might be some progress ( ‘though I am not holding my breath)

Rabbi Jeremy Rosen lives in New York. He was born in Manchester. His writings are concerned with religion, culture, history and current affairs – anything he finds interesting or relevant. They are designed to entertain and to stimulate. Disagreement is always welcome.

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