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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.