Releasing Israeli Agunot from the Chains of Marriage

In the movie Gett: The Trial of Viviane Amsalem, the late actress Ronit Elkabetz plays Vivian Amsalem, an Israeli woman who wishes to divorce her husband because she does not love him anymore. Without his consent to deliver a get (גט, a Jewish writ of divorce) to her however, her marriage cannot be dissolved and she is seen as agunah (עגונה, “chained woman”; עגונות, agunot in plural).

While the husband’s inability to deliver a get under Jewish law generally prevents him from remarrying, the consequences of the wife’s inability to receive a get are much harsher. In addition to not being able to remarry, Jewish law considers any child born to her but not fathered by her husband a mamzer (a bastard), who is prohibited from marrying another Jew.

The inability of the agunah to receive her get may arise from the disappearance of her husband without proof of his death; the husband’s lack of legal capacity to give a get; or from his refusal to grant her a get. The husband’s refusal may be based on a variety of reasons, including disagreement on monetary or custody matters, or simply his wish to have eternal control over his wife. Such a wish became the condition for granting a get in the human drama played out in Gett: The Trial of Viviane Amsalem, where the husband agreed to divorce his wife only if she promised never to be with another man, a promise that was not legally binding.

This post highlights some of the recent legal developments designed to alleviate the agunah problem in Israel.

Substantive Law

Israeli law does not generally recognize civil marriage and divorce. Under Israeli law, matters of marriage and divorce of Jews, citizens, and residents of Israel, are within the exclusive jurisdiction of the rabbinical courts. These courts adjudicate in accordance with Jewish law (Rabbinical Courts Jurisdiction (Marriage and Divorce), 5713-1953, §§ 1–2, SH No. 134 p. 165, as amended).

While rabbinical courts may issue decisions recognizing that the parties must divorce, they do not have the authority to dissolve a marriage. To constitute a divorce under Jewish law, the consensual transfer of a get from the husband to the wife and her consensual receipt of it must take place. Special rules govern the text of the get and the evidence necessary to prove its validity.

As the basis of the validity of a divorce is the voluntary action of giving and receiving the get by the parties, serious challenges arise when one of the parties is either not legally capable, as in the case where he/she is mentally sick or comatose, or if a party refuses to comply with a judgment requiring him/her to divorce the other party.

Enforcement of Divorce Judgments

The implementation of rabbinical courts’ rulings in Israel is governed by the Religious Courts (Forcing Compliance and Hearing Procedures) Law, 5716-1956, SH No. 200 p. 40, and the Rabbinical Courts (Enforcement of Divorce Decisions) Law 5755-1995, SH No. 1507 p. 139 (RC Law), (both as amended).

These laws authorize various measures against noncompliant defendants. Such measures include issuing injunctions to prevent defendants from leaving the country, seizing their property, and blocking Israeli passports from being issued to them. Other measures include prohibitions against receiving, possessing, and renewing a driver’s license, being appointed to government positions; operating a licensed business; and opening or possessing bank accounts. Imprisonment for a period of five years, which may be extended periodically to up to ten years, and solitary confinement may also apply.

The sanctions authorized by these laws may sometimes, however, be insufficient, as in the case of defendants who found a way to leave the country or who simply persist in their non-compliance regardless of any measures. In an effort to address the agunot problem both the Knesset (Israeli parliament) and the judiciary have recently taken actions to resolve or at least mitigate the situation.

The following are highlights of these developments. Please note that the Law Library of Congress has published a number of articles discussing these developments in its Legal Reports and on the Global Legal Monitor webpage. To access relevant articles, click on the hyperlinks in the text below.

Legislative Expansion of Sanctions on Get– Deniers

On April 3, 2017, the Knesset (Israel’s parliament) passed the Rabbinical Courts (Enforcement of Divorce Judgements) (Amendment No. 8) Law, 5777-2017 (Amendment Law), SH 2627 p. 593. The Amendment Law provides the rabbinical courts with additional enforcement authorities to limit get-refusing prisoners from participating in any prison organized educational activities; subject to some requirements, receiving food that complies with special Jewish dietary laws; staying in a special place in prison that is designated for religious prisoners; and wearing personal clothes (Amendment Law § 1, adding subsections 10-13 to § 2(a)(7) of the RC Law).

The Amendment Law further provides that a rabbinical court that has ordered the placement of a person in solitary confinement may also order that the prisoner may not be permitted to have any phone contact or have any writing or reading materials except for a prayer book. (Amendment Law § 2, adding subsection (f) to §3 A of the RC Law).

Blocking Further Review of Get Arranged and Delivered with Rabbinical Court’s Approval 

On March 30, 2017, Israel’s Supreme Court, sitting as a High Court of Justice, accepted an appeal against a Rabbinical Court of Appeals decision to review an appeal submitted by an unrelated third party against the legitimacy of a get. The get was arranged and delivered to the petitioner by a person appointed by the regional rabbinical court as her comatose husband’s agent, with the husband’s guardian announcing that under the special circumstances of the case he found no reason to object. (HJC 9261/16 Anonymous v. Rabbinical Court of Appeals (Mar. 30, 2017), TAKDIN LEGAL DATABASE (by subscription, in Hebrew).)

The significance of this decision is in the Supreme Court’s prevention of the re-opening of a case by the Rabbinical Court of Appeals that might have re-subjected the petitioner to an endless marriage as agunah with all the consequences associated with this status.

Recognition of “Recommendation” of Extrajudicial Sanctions

In its February 28, 2017 split decision, Israel’s Supreme Court, sitting as a High Court of Justice, set a precedent by rejecting an appeal lodged by two Jewish husbands against (separate) rulings by rabbinical courts to subject the men to the application of 12^th century social/religious sanctions not expressly authorized under Israeli law. (HCJ 5185/13 Anonymous and Gez v. the Great Rabbinical Court in Jerusalem (decision rendered Feb. 28, 2017).

The sanctions, known as Rabeinu Tam’s Distancing Rules (RTDR), were originally proposed by Rabbi Yaakov Ben Meir as a way to pressure Jewish husbands, when ordered by a rabbinical court to divorce, to present their wives with a get. (Jacob ben Meir Tam, 1100-1171, Sefer ha-yashar (Vienna: Gedruḳṭ bei G. Hroshontsḳie, [1811]).

According to the majority opinion, application of the RTDR was merely “recommended” rather than required and therefore did not contradict enforcement authorities provided under law. The majority opinion was opposed by two justices based on constitutional grounds and possible implications on implementation of other laws.