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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.

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