Confusing developments in Israel’s rabbinical courts

Published: NOVEMBER 21, 2016 21:28

A still from the film 'Gett,’ which examines Jewish divorce laws (photo credit: PR) — A still from the film 'Gett,’ which examines Jewish divorce laws

(photo credit: PR)

Can legally divorced people ever feel and act in accordance with their new personal status, or are they wedded to the rabbinical courts forever, in unending anticipation of its reversal of their status?

Over just a few days Israeli rabbinical courts made headlines in connection with two distinct issues. Both are predicated on the agunah problem, in which a woman is “chained” to an unwanted marriage, either as a victim of get-refusal, i.e. due to her husband’s refusal to give her a writ of Jewish divorce – a get, or due to her husband’s inability to give the get due to incapacitation or disappearance.

The basis for both developments is Israeli law, which awards sole jurisdiction to the state rabbinical courts in matters of personal status of Jews, meaning marriage and divorce. Nevertheless, despite their jurisdiction the rabbinical courts themselves cannot issue a decree of divorce and dissolve a marriage.

Divorce in Israel is arranged solely by the mutual consent of both spouses to arrange the giving of a get by the husband to the wife. While the judges have various tools at their disposal, such as the levying of sanctions, there are many cases of get-refusal. Many men simply refuse to heed the rulings of the rabbis.

In the first seemingly forward movement, the office of the state attorney issued a new directive allowing rabbinical courts to determine that a recalcitrant spouse can be tried in a criminal case for refusal to obey a ruling of a recognized rabbinical court. Although the director of the rabbinical courts explained that this is applicable to only 10 to 15 cases of get-refusal each year, since the judges limit themselves to applying the directive solely to cases where the most severe ruling of “coercion” has been issued, each agunah is deserving of all efforts to secure her freedom.

Indeed, a new dimension has been added to the not-always-effective arsenal of the rabbinical courts in the battle against get-refusal.

Until now even those incarcerated by order of a rabbinical court for refusal to give a get were considered “civil” offenders – considered to have harmed only a private individual. As a result of this new directive, those get-refusers already incarcerated by a rabbinical court may additionally be tried as criminals and have criminal sentences added to the years already served, reflecting the State of Israel’s understanding that get-refusal is a crime against society, and not merely a private matter.

This is an ethical statement befitting the Jewish-democratic state. Hopefully this will bring serve as a deterrent to get-refusal and act as a vehicle for extradition of those recalcitrant husbands who flee the country.

Many organizations, such as the rabbinic Beit Hillel and the International Young Israel Movement, call upon rabbinical court judges not to restrict themselves to solely those cases where a ruling of coercion on the get is handed down, but to apply this directive liberally, in the more common cases of get-refusal.

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Moreover, at the same time Israeli society lauds this development, the people still expect rabbinical court judges and the Chief Rabbinate not only to depend on the assistance of the State but to live up to the authority awarded them when appointed by the public by implementing solutions to the agunah problem from within Jewish law – the Halacha. Some are easily implemented, such as encouraging marrying couples to sign a halachic prenuptial agreement for the prevention of get-refusal, while some are much more complex – dissolving the tragic marriage of an agunah.

In short, the new directive can be viewed in one of two manners. On the one hand the new regulation is an expression of cooperation between authorities of the State to relieve the oppression of citizens one against the other; a blessed synergy of civil and halachic law as an admirable realization of the dual principles of the Jewish-democratic State.

On the other hand, this new civil regulation, sought after as a tool by the rabbinical court judges, can be viewed as the shirking of their essential responsibility: to act as true halachic decisors for their generation, realizing the powers invested in the rabbis appointed by the people to protect their lives by utilizing Jewish law; maximizing the full potential of the jurisdiction over Jewish law in marriage and divorce awarded to them by the public trust placed both individually and collectively in each of the rabbinical judges.

This brings us to the second headline-grabbing act of the High Rabbinical Court. As reported, the president of the High Rabbinical Court will convene the court to rule on a two-and-a-half-year-old appeal. This is no ordinary appeal or ordinary convening of the court.

At the crux of the matter lies a 2014 ruling by the Safed regional rabbinic court, headed by Judge Rabbi Uriel Lavie. In this decision, the court, in a brilliant and innovative interpretation of Talmudic and rabbinic sources, awarded the wife of a seven-year-comatose accident victim a get.

The court explained that it was acting as the husband’s proxy, thereby benefiting him as he would be relieved of a husband’s duties, such as supporting his wife, which he was unable to fulfill. In the 93-page ruling, the rabbis explained that the ability of medical science to maintain the life of an individual in a permanent vegetative state created a new halachic reality, and thus arranged a “get zikkui” – the delivery of a get for the husband’s benefit. The tragedy of the young agunah was alleviated with this divorce.

The reaction in ultra-Orthodox circles was swift, shrill and harsh. Although this decision was rendered by an autonomous, duly appointed and recognized rabbinic court, both in a civil sense and within Jewish law, Chief Rabbi Yitzhak Yosef came out against this decision in public. In a most unusual step, an outside party with no connection whatsoever to either the husband or the wife presented a request to the Safed court to be granted standing in the case.

The court rejected this request in a detailed, eight-page decision. Following the ruling, the outside party appealed it to the High Rabbinical Court, where the appeal lay dormant for almost two-and-a-half years.

On November 15, 2016, the president of the High Rabbinical Court, Rabbi Yosef, issued a decision that this appeal would be heard. Alongside the appeal on the technical issue – whether to overturn the Safed Court’s ruling to disallow any standing to the outside party – the High Rabbinical Court could enter into a discussion of whether the essential ruling of “get zikkui” freeing the agunah was halachically valid or not. This is to be accomplished, apparently for the first time in Israeli history, through the convening of the entire complement of judges. However to reach an odd number, the youngest judge will not be included.

On the face of it, this development appears to be the height of impropriety.

The admission of an outside party’s request to gain standing in this most private of tragic cases, for the purpose of challenging the Safed Court’s ruling, begs the question of to what end this is being done. If the High Rabbinical Court accepted the appeal of the outside party, which in and of itself was shocking, as was demonstrated by the appeal’s rejection by the Safed court, it should have adjudicated the technical question of standing immediately. No circumstances can justify the High Rabbinical Court reviving a years-dormant appeal in a case involving the personal status of real people living real lives.

Legally, the appeal presented to the High Rabbinical Court solely regards the technical point of awarding standing to the outside party. No appeal was submitted by either party to this case regarding the ruling dissolving the marriage.

Thus the convening of the High Rabbinical Court to discuss the primary ruling is at best questionable; the youngest member excluded from the discussion just happens to be Rabbi Zion Luz, who is known to be a religious-Zionist judge, as were the judges in the Safed court. Even if the convening of the High Rabbinical Court to rule on the primary decision is acceptable, it must be impartial. How can the panel voting on the validity of a ruling include judges who have already publicized their opinions against the ruling? Those judges who have already made their opinions known should recuse themselves – including the president of the High Rabbinical Court, Rabbi Yitzhak Yosef.

The undoing of the get delivered by the Safed court has the potential to destroy the life of the former agunah. For over two-and-a-half years she has known she is a divorced woman. She was free to enter into a new relationship and rebuild her life, to remarry, to bring children into the world. She placed her trust in the rabbinical courts of the State of Israel, who blessedly came to her rescue. Today all of that is being called into question – if she remarried that marriage may not only be deemed invalid, it would be deemed adultery. Any children born of a second marriage would be classified as mamzerim – unable to marry within the greater Jewish community.

Moreover, this is not only about one woman. These steps taken by the High Rabbinical Court have entered the realm of greater society. However, as opposed to the first case described above where the raising of the agunah issue on the societal level is laudable, this case of the High Rabbinical Court’s revisiting the ruling of the Safed court goes against the needs of all those who attend a court – a sense of closure due to the finality of the ruling.

Can legally divorced people ever feel and act in accordance with their new personal status, or are they wedded to the rabbinical courts forever, in unending anticipation of its reversal of their status? According to these actions, the authorities entrusted with registering marriages and keeping order are becoming the cause of disarray and insecurity among divorced individuals.

In this development of questioning the validity of the Safed court’s “get zikkui,” once again the downtrodden agunah must turn to the civil authorities of the state to prevent the High Rabbinical Court from reopening the decision that saved her life. How ironic that in this case the civil courts can provide for her rescue through opposing the actions of the High Rabbinical Court.

Additionally, once again the cry is raised from within the people: not only must solutions to the agunah problem be implemented from within Jewish law by our own rabbinical court judges, but once such a solution is developed and applied it is incomprehensible that rabbinical court judges strike it down, causing upheaval and ambiguity in the Jewish family unit – the sanctity of which they were entrusted with safeguarding.

Sadly, unless there is a reversal on the part of the High Rabbinical Court, it may very well assume the power to do so – thus endangering the respect of the public upon whose foundation it is built.

The writer is the director of the Agunah and Get-Refusal Prevention Project of the International Young Israel Movement in Israel and the Jewish Agency, holds a PhD in rabbinic law, is the first female rabbinical court advocate to sit on the Commission for the Appointment of Rabbinical Court Judges, and a member of Beit Hillel.