Haim Shapira is Professor of Law at Bar-Ilan University (Israel)
In a recent case in the UK, a Jewish woman was able to obtain a get (bill of religious divorce) from her husband by launching a private prosecution against him for controlling or coercive behavior. This has been described as a landmark case in the struggle of Jewish women to obtain religious divorces from uncooperative husbands. In this short post I explain the problem of aguna (“chained” wife), review recent developments in this area, and explain why this last case is truly groundbreaking.
According to Jewish law (halakhah), divorce is a private matter performed by the parties. In practice, divorce takes place in rabbinical court (bet-din), which oversees the procedure and confirms that it is done lawfully. But the actual act of divorce is the husband’s grant of a bill of divorce (get) to his wife in front of two witnesses. According to ancient Torah law, this act must reflect the husband’s will alone. Then in the Middle Ages, an ordinance was issued that prohibited divorce without the wife’s consent (this ordinance is attributed to Rabbenu Gershom, Germany circa 1000). Since then, Jewish law requires the consent of both husband and wife.
The idea that divorce is based on mutual consent is, at first glance, nice and fair: just as the marriage took place under mutual consent, so too is it terminated. In practice, however, this requirement generates a few problems.
Sometimes divorce is initiated by one party. In most cases, the non-moving party would eventually accept it and enter negotiations on the terms of divorce. But in some cases, the non-moving party embraces a different approach of recalcitrance. This approach might be taken for tactical purposes to achieve better results in the negotiation, but it also might be motivated by “ideological” purposes to prevent the divorce.
In any case, this approach leaves the parties in an awkward position. If one party uses this approach tactically, the other is essentially blackmailed, and if one party uses it for an “ideological” purpose, then the other is stuck in the marriage.
The problem is more severe when the recalcitrant party is the husband. In this case the wife is not be able to remarry or to have children and remains “chained” to her husband. Therefore, a wife whose husband denies a divorce is called aguna or “chained” wife.
In the past, the term aguna was used for a wife whose husband disappeared during wartime or in the course of a long journey that ended mysteriously. If there was no evidence that the husband was dead, then she was “chained” to her husband without being able to remarry. Rabbis and legal authorities worked hard to find evidence and legal reasoning that would release “chained” wives. In modern times, the term is used where the husband’s whereabouts are known but he refuses to the divorce, therefore leaving his wife “chained.”
Solutions within Jewish law
Currently, the primary solution for this painful problem is to pressure the husband to consent to divorce. The Talmudic law acknowledges a list of grounds for divorce in which the court may order the husband to grant a get to his wife. If the case falls under one of these grounds, then a rabbinical court may coerce the husband. There are, however, two main issues with this path.
First, not all cases of recalcitrance fall under one of these grounds. Moreover, rabbinical courts are very cautious in ordering coercion because the husband’s consent is an essential element in a divorce. It is justified to coerce the husband (against his will) only for a legitimate reason; otherwise, the get would be invalid. This fear that a get could later be proved invalid has a chilling effect on the court’s willingness to coerce the husband.
The second problem is practical—in all countries besides Israel, rabbinical courts have no power to coerce husbands; they operate as arbitration tribunals. In Israel, rabbinical courts are state courts that have power to enforce their rulings. Specific statutes grant these tribunals the power to constrain individuals who refuse to obey official verdicts, such as restricting a defendant’s ability to leave the country, obtain or maintain a passport or driver’s license, open or maintain a bank account, and serve in a profession regulated by law (physicians, lawyers, psychologists, etc.). Rabbinical courts may even order imprisonment.
Thus, in Israel rabbinical courts have the legal tools they need, even though they are reluctant to take these measures as explained above. In recent years, rabbinical courts have imposed these restrictions more frequently than in the past, but still they do so only in clear or severe cases.
Possible Solutions within the State Legal System
Remedies to the aguna problem should not, therefore, remain within the confines of rabbinical courts. Women must be able to find aid in the civil legal system.
An action that can prevent most problems in advance is signing a prenuptial agreement. Prenuptial agreements include stipulations that impose financial pressure on a party that refuses to cooperate with a request to divorce after a certain period of time. This agreement is usually sufficient to motivate a recalcitrant party to grant the get. If a husband refuses to follow a prenuptial agreement, then a wife may bring suit to enforce it in civil court. Though prenuptial agreements are common practice in some countries and many rabbinical organizations recommend them, these are not prevalent everywhere, and there must be other solutions available.
In some places, legislation or judicial policy restricts state authorities from granting civil divorces when the parties’ religion requires a religious act to terminate the marriage. For example, if a husband wishes to legally end his marriage, he would first have to grant a get to his wife. But one issue with these polices is that if the husband is prepared to remain civilly married but separated, then this policy does not encourage him to give the get.
A legal path that was developed in recent years is initiating civil tort suits against recalcitrant husbands. Civil courts in several countries began to recognize denial of divorce as a civil wrong usually under negligence. Initiating a civil suit against the husband pushes him to grant the get; otherwise he would have to compensate his wife.
The recent case in the UK paves a new and effective legal path for dealing with recalcitrant husbands. Until this case, a denial of divorce was not recognized as a criminal offense (to the best of my knowledge in any country). In this case, under the Serious Crime Act 2015, which created a new offense forbidding “controlling or coercive behavior” in family relationships, a Jewish wife who sought get and was denied by her husband later launched a private prosecution against him.
I will conclude this blog by stating that some rabbinical courts have already begun to consider a new direction in resolving the aguna problem. These rabbinical courts seek annulment rather than divorce by implementing into the marriage agreement an implied condition that if the husband misbehaves or abuses his wife, then the marriage is terminated. This innovative approach opens a new road for terminating marriages without religious divorce and without a recalcitrant party’s cooperation. But for these same reasons, this solution is controversial and has been adopted so far only by a few rabbinical courts.
All of the above-mentioned solutions, both religious and secular, significantly taper the aguna problem, but for many “chained” women, this problem still exists and challenges the laws of divorce in Jewish law.