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Monday, January 03, 2011

Is there an excuse for not giving a "get"?

The question of whether there can be any excuse for not giving a get has been in the news lately with the publicity of the Friedman-Epstein case in the NY Times. Mr. Friedman, who was civilly divorced from Ms. Epstein since April 2009, has still not given her a get because, it seems, he does not like the court-ordered visitation arrangements with his daughter.   

At the Center for Women's Justice we have had to deal with the question of 'excuse,' 'defense' or 'contributory negligence' in many cases in which husbands do not give their wives a get. Often, when we sue husbands for damages, they argue that they should not pay, and indeed did not even have to give their wives a get,  since the wives – did not let them see the kids, sued in the secular courts, wasted the family assets, were collecting child support that was too high, have not waived their interest in his high tech options etc., etc,… Indeed, we are now waiting for a decision of the District Court (our first appeal of one of our tort cases) in which a husband argued that  he has not given his wife a get for a good reason—she prevented him from seeing their child. In this case, the couple lived together for  only 3 months before the wife left the marital home, pregnant. The husband  has not given his wife a get for 13 years. (When I want to use black humor, I joke that he'll give the get when the child reaches 18 and is no longer a child over whom visitation claims can be made…).

On appeal, we have argued that there is no excuse, defense, or contributory negligence  in cases in which a man has not given a get. Not giving a get is not a religious right of a husband but a civil wrong – a tort—that entitles women to damages. Not given a get  is an intentional act  meant to cause great harm and emotional damages. The ability to withhold a get is an almost unfettered power that the halakha gives a man over his wife and such power, as we know, is often wielded abusively causing emotional distress and great damage and cannot be allowed under any circumstance. Can you imagine a man saying: I beat my wife because she  annoyed me, burnt my supper, hid all the family assets, did not let me see the kids. Beating your wife is inexcusable. So is not giving her a get.

If the husband has a claim against his wife, he has the right and should sue for those claims. If he does not like what the court has decided, he can appeal. He cannot hit his wife, or refuse to give her a get in response. Even if a husband's claims are supported by the facts—the wife actually did dissipate assets, burn his supper, or not let him see the kid, or is even in contempt of court for same—none of this is an excuse or defense for abuse.


Wednesday, January 27, 2010

Men's Justice too, from the Center for Women's Justice

A few months ago CWJ filed a tort claim against a woman for not accepting a get from her husband.

We debated long and hard before filing this lawsuit. Mostly, because we know that the problem is not mutual. Women suffer much more. Let’s face it. The halakha is gender-biased. It gives men almost unfettered power to determine their wives’ destiny, recognizes little grounds for divorce, and exercises almost no force over recalcitrant men, and when it does, it is often too little, too late. The rule invalidating the forced divorce (ha’get hameuseh) reins. If women dare to ignore these rules and to have children with men who are not their husband, their children and their children’s children suffer for it and are deemed mamzerim who cannot marry other Jews. This stigma is so great that we’d venture to say that most secular Israelis shudder at the possibility. We know women who carried perfectly healthy mamzerim in their wombs who were advised to abort them. Some did.

We also know that Rabbenu Gershom deemed somewhere in the year 1,000 AD that men cannot get divorced without their wives agreeing to accept the get. But this rule is only from the rabbis (de-rabbanan) and not from the Torah (de-oryata). The rule that only men give the get , and that they must give the get of their own free will is from the Torah (derived from Deuteronomy 224:1). Rabbinic rules can be bypassed. Torah rules cannot. Men can be allowed to take second wives by obtaining dispensation from 100 rabbis (heter meah rabbanim); some say that the time-frame on Rabbi Gershom’s rule has lapsed; and still others claim that the rule never applied to men of Sephardic origin. More important, rogue men who choose to ignore the rule and to have children with unmarried women are not penalized. Their children are not mamzerim.

All that said, men still suffer from the current way that the halakha allows for the dissolution of failed marriages. Thanks to Rabbenu Gershom, they too can be held hostage to their wives. Religious men, and even men who are not religious, want closure. They want to get on with their lives, correct mistakes, find new love. Sometimes the rabbis in Israel, bending backwards to prove that the halakha is mutual, will refuse to issue any order whatsoever against recalcitrant women. The husbands of these women, like the wives we represent at CWJ, can spend their entire lives in the rabbinic courts.

So we debated for about 6 months whether or not to represent a man in his claim for damages against his wife. Finally we took the case and filed it 2 months ago. At the pretrial hearing, the wife agreed to accept the get and the parties were divorced last week.

At about the same time that out client got divorce, Judge HaCohen --who gave CWJ its first damage award against a get recalcitrant in the amount of 425,000 NIS -- issued the attached decision (in Hebrew) that also awarded damages to an 83 year old man (not our client) whose wife refused to accept a get.

Bottom line: The halakhic divorce regime does not work. Certainly not for women, and not really for men. We need to be able to have a third party declare a failed marriage over if the parties, for whatever not very healthy reason, are not able to.

Sunday, December 27, 2009

Beit Din Stories: Savta BiKorta Tells All

Savta Bikorta is a fictional character created by the Center for Women's Justice to help the public understand just what happens behind the closed doors of the Rabbinic courts. Please visit Savta's page on our website:
http://www.cwj.org.il/our-projects/savta-bikorta

Hear her chilling tales, featured in 5 YouTubes:
The Never-ending Story — how a woman hired a detective to find her husband, found him, brought him to the rabbinic court, and how the court let him go and 9 years have passed without remedy or relief. (English with Hebrew subtitles) http://www.cwj.org.il/our-projects/savta-bikorta

From the Beginning — how marital property issues are reopened in the rabbinic courts at the request of the husband, leaving both the wife’s personal status and property at the mercy of the husband and court. (Hebrew with English subtitles)
http://sites.google.com/site/cwjhebrew/savta-bekorta

Taking Testimony in the Rabbinic Courts — how the rabbinic courts are clueless when it comes to evaluating the weight of evidence, and the near impossibility of proving domestic violence. (Hebrew with English subtitles)
http://www.youtube.com/watch?v=YkesLzoq6yg&feature=related

Oops, You’re not a Jew — how the rabbinic court can undo a conversion of many years with sleight of hand, and when you’re not even expecting it and thought you were just going for a get. (Hebrew with English subtitles)
http://www.youtube.com/watch?v=uqp-3CoyuQI&feature=related

No Fault — how no fault of the husband is grounds for divorce. Even when a husband has molested his own child, the rabbinic courts do not view this as ground for divorce. (Hebrew with English subtitles)
http://www.youtube.com/watch?v=-NJi9S4zOCc&feature=related

Tuesday, December 23, 2008

700,000 NIS: Latest Award to Woman Whose Husband Refused to Give Her A Get

On December 14, 2008, Judge Tova Sivan of the Tel Aviv Family Court accepted our petition for damages (700,000 NIS) in compensation for the pain and suffering that our client endured because her husband refused to give her a get. Justice Sivan rendered this decision despite the fact that the rabbinic court had not ordered the husband to divorce his wife. In fact, the rabbinic court had denied her request for such an order.



The woman was married in 1997. After only 3 months (!) of marriage, she ran away from her husband who had subjected her to severe physical violence. For the past 11 years (!), the parties have been in litigation in the rabbinic courts. Despite the long period of separation, and the harsh allegations that the wife has made against the husband, the rabbinic court did not order the husband to give a get, but has merely maintained that it was his "moral obligation" to do so (a mitvah).

CWJ argued before the Family Court that withholding the get is tantamount to the intentional infliction of emotional distress; prevents a woman from going forward with her life in a reasonable and orderly manner; is an unconscionable use of religious power; and is a severe infringement on our client's liberty.

The Hon. Tova Sivan rejected the defendant's defense that he should not be obligated to pay damages so long as there is no rabbinic order that he must give the get; and that should such damages be awarded, they would serve as the basis for invalidating the get under Jewish law (the invalid forced divorce-- get meuseh) . She held that the wife's damage claim is a tort irrespective of any rabbinic order, and without regard to the question of the 'forced divorce.'

This is the first time that the Family Court has awarded damages for get recalcitrance to a woman whose petition to order her husband to give her a get was denied. This decision is yet another example of how the legal discourse in the Israeli courts is changing; and is a clear statement from our civil courts that get refusal is a tortious act that Israeli society will not tolerate.

Wednesday, December 10, 2008

The great and equivocal vanishing trick of Israeli women

Below is an op-ed piece that I wrote in today's Jerusalem Post. Among other things, I describe how the Jerusalem Labor Court (November 28, 2008) accepted CWJ's motion to dismiss a discriminatory employment tender for "legal assistants" to rabbinic judges.


The Labor Court's decision is an important milestone in CWJ's relentless insistence that the rights of women, as well as their presence, be considered, recognized, and affirmed in Israeli rabbinic courts. Unfortunately, as described below, the various arms of the Israeli state are not consistant in their protection of the rights of women.


The great and equivocal vanishing trick of Israeli women
Dec. 9, 2008Susan Weiss , THE JERUSALEM POST


Last August my husband and I spent 10 days in Istanbul. For the weekend, we took a ferry to the island of Büyükada, the Turkish equivalent of Martha's Vineyard. There tourists of all persuasions stand in line for the horse-and-buggy ride up to the top of the island and rub shoulders in the town square to take family pictures.


Time and again, we saw Muslim men wearing jeans, sneakers and baseball caps, mugging for the camera with their multiple wives clad in identical, formless chadors with only their eyes peeping through the endless folds of cloth. How, we wondered, could they possibly tell one wife apart from the next when they got home? The women were one big, black, indistinguishable, polyester blur - veiled and virtually invisible.


The great vanishing trick of Muslim women behind the weight of the chador is a bit heavy-handed and obvious. We in Israel are much more subtle. We eliminate our women with élan, delicacy - and equivocation.


For example: The High Court of Justice has held that it is okay for state-subsidized buses to operate lines that require women to sit in the back of the bus - out of sight's way - to accommodate the "religious sensibilities" of the haredi population. Thus the State of Israel allows its women to vanish in sophisticated deference to multiculturalism.


For example: State laws and taxpayer money support rabbinic courts that do not allow women to sit on the bench. Taking express reservation to article 7(b) of the Convention on the Elimination of Discrimination Against Women, Israel defends its purge of women judges from the rabbinic courts as follows: "[T]he appointment of women to serve as judges of religious courts is prohibited by the laws of any of the religious communities in Israel." Thus the State of Israel allows its women to vanish in the name of religious laws.


For example: Aside from being precluded from acting as rabbinic judges, women have virtually disappeared from inside the rabbinic courts. There's only one female court reporter in all of the rabbinic courts; there are no women bailiffs. And until recently, there were no women clerks at all in Petah Tikva. The secretary of the Petah Tikva rabbinic court is quoted as saying: "It has been our custom in Petah Tikva that the clerks are all men, and we should not break down that long-held barrier to employ a woman in any position in our rabbinic court." Thus the State of Israel allows its women to vanish by custom.


THOUGH THE state has become rather adept at its erudite elimination of women, it does not engage in its great magic act of the disappearing Israeli woman without equivocation.


Thus when Egged recently refused to run bus ads with the pictures of women who were candidates for Jerusalem city council citing "religious sensibilities," the High Court did not think this was okay. It accepted the Reform Movement's motion to force the publication of those ads. And when the executive office of the rabbinic courts and the Civil Service Commission published tenders for the position of legal advisers to rabbinic judges in 2007, and again in 2008, effectively marking the position with an asterisk that gave preference to those applicants who had qualified as rabbinic judges (men), the Jerusalem Labor Court balked at the affront.


In 2007, the Center for Women's Justice appealed to the court to withdraw the tenders as discriminatory and the rabbinic courts and the Civil Service Commission immediately capitulated, agreeing to rewrite them. Last month, when the rewritten, new version of the tenders fell short, Judge Yaffa Stein heard the case and accepted CWJ's second petition, stating: "Giving preference to those who are qualified to be rabbinic judges is discriminatory and unreasonable given the fact that women can't achieve this preference, no matter how talented they may be."


If it's so clear to us modern-Westernized-Israeli world travelers that the chador chokes and obliterates Muslim women, it's time that we modern-Westernized-Israeli world travelers, as well as our state courts and institutions, observe and eliminate - without equivocation - our more sophisticated versions of the same.

Tuesday, July 29, 2008

Olmert sells his soul


for another day at the helm, once again. This time, at the cost of women, leaving democracy and religion at loggerheads, instead of trying to resolve between them.

For the past few years, ICAR (The International Coalition for Agunah Rights, made up of over 25 organizations) has been working to change the Marital Property (Balancing of Resources) Law of 1974. Women, and other sane people, have been trying to change this law from its inception. The law links the division of marital property to the get.

§ 5 of the Law states (my paraphrase): “The court will balance the resources of a marriage (read: divide up the marital property) at the time of the dissolution of the marriage (read: the get) .” This means that Israeli women can be “held up” both for the get, as well as for marital property, thus facilitating extortion in exchange for the get-- a sad but well known phenomenon. ICAR has proposed an amendment to the law that would allow for the division of marital property prior to the get: when the parties are living apart, for example.

(Almost) everyone agrees that this is a good idea-- Why facilitate extortion? Everyone, except for Shas. They too think that the suggested amendment to the law would cut down, if not eliminate, extortion. But Shas thinks -- hold on to your hats -- that the Bet Din needs tools of extortion in order to facilitate the get. So the existing law is good, reasons Shas, because it facilitates the extortion that is essential to divorce resolution!!! (So help me, it’s true).

ICAR, with the hard help of Robyn Shames (ICAR’s Executive Director), Batsheva Sherman-Shani (the head of ICAR’s legal department) and Marc Luria (a volunteer lobbyist-businessman) (among others) indeed succeeded in getting a majority of voting Knesset members to agree that Shas’ claim is nonsense. And they managed to get the proposed amendment passed through 2 readings. Usually the 3rd reading is a mere formality, and the bill gets passed. Unless the minority opposed to the bill somehow manages to call for a “Vote of Non-Confidence in the Government” that, when supported by the Prime Minister( !?) gets the vote on the bill pushed off for a week. Shas and Olmert (pictured) made a secret deal -- in direct opposition to the majority of the Knesset members, and in direct opposition to the position taken by Olmert’s Kadimah party—that Olmert would agree to push off the vote for a week. And a week, in this particular instance, means indefinitely. The Knesset goes on recess next week; and who knows what the Government is going to look like when it gets back to work. MK Menahem BenSasson, the head of the Law and Constitution Committee, is furious. He worked hard to get this passed. So did we all.

But Olmert, once again, has proved that no price is too dear for another day at the helm of the Government. And Shas, once again, has proved that no price is too dear to protect its constituents at the helm of the rabbinic courts.

Monday, July 28, 2008

Knock Out: Man Ordered to Pay 550,000 NIS in Damages for Refusing to Give a Get


July 21, 2008: Judge Benzion Greenberger of the Jerusalem Family Court awarded damages in the amount of 550,000 NIS against a man who refused to give his wife a get, without such award being contingent upon a rabbinic court ruling of any sort. This decision is the first of its kind. Prior to this decision, the family court had held that damages for get refusal were only payable subsequent to a rabbinic court order that a husband must give his wife a get (Judge HaCohen, 2004. Read his decision, in English). Such rabbinic court "orders" are rare and hard to come by.

This new decision celebrates and protects the autonomy and dignity of Jewish women. It is, in my opinion, an unequivocal statement that Israeli family courts will award damages for the harm that results when a man misuses the prerogatives given to him under religious law -- even when that law is the official law of the State of Israel. CWJ represented the woman.

Read Judge Greenberger's 2008 decision in Hebrew. English translation to follow.