A few months ago the Netanya District Rabbinic Court gave a decision that created waves in the media and the community of Family Law lawyers. To my mind however, the decision simply (or not so simply) incorporates longstanding policy in the Beit Din, and provides a comprehensive analysis and response of the growing trend to file tort cases in Family Court against recalcitrant spouses – generally husbands – who won’t give (or in the case of a wife, accept) a get, a Jewish bill of divorce.
The decision can be found here: Netanya Beit Din – Torts
For those of you unaware of this trend in Family Law in Israel, a little background. A number of years ago, my colleague, Susan Weiss, through the Center for Women’s Justice, initiated tort actions against recalcitrant husbands. This practice has expanded over the years to include tort actions against wives who refuse to accept a get, and recently, we collaborated on a case where a woman filed for damages five years after she actually received the get, for damages incurred to her during the five years previous, during which the husband refused to give a get. You can find more information about this on their website, here.
There are rabbinic authorities who object to the practice, saying that the fact that a tort suit is pending against the husband creates a kind of duress, so that if he gives a get under those circumstances, it becomes what is called in Jewish legal terminology, a גט מעושה (get meusheh), a get given under coercion, and therefore invalid. That is, since a get must be given as a deliberate act of the husband, of his own free will.
Since this “tortfare” began, many rabbinic authorities have opposed it, and the declared policy of the administration of the Beit Din is to refuse to hear divorce suits in which there is a pending tort case. Up until now I don’t think that each and every dayan in the system followed that directive, but the Netanya ruling might make it more difficult for an individual dayan to buck the system.
So, what was this decision that made headlines?
First, the facts of the case.
To make the synopsis as brief as possible:
– In 2001 the wife filed for divorce and the husband filed for Shalom Bayit (domestic reconciliation). In 2002 the Beit Din denied the suit for Shalom Bayit and continued to hear the divorce suit.
– The file was closed in 2003 when the wife failed to appear for a hearing.
– Over a year later, in spring 2004 she once again filed for divorce. One dayan ruled that she did not have grounds for divorce, another dayan recommended divorce (sufficient to allow the beit Din to impose sanctions for not complying with the recommendation) and the third dayan ruled that he must give a get, but did not order sanctions be imposed on the husband.
– A hearing was set for the delivery of the get, however, the husband failed to appear.
– Following this, in 2005, there were a number of hearings in the Beit Din regarding property issues, until the Beit Din wrote what can only be described as a classic Beit Din decision, which I’ll quote: לאחר שהצדדים יגיעו להסכמה בעניני הרכוש או ינתן פסקיה, יקבע מועד לסידור גט
Meaning: “once the parties reach an agreement or a judgment is delivered in matters of property, a date for the divorce will be set.”
Classic, in that it’s a decision which isn’t really a decision; rather than ordering a division of property, they did their favorite move, which is to make a decision that the parties should reach agreement. Guess how well that works?
– Finally, in 2007, the parties appeared in the Beit Din with a divorce agreement, which had apparently been ratified by the Family Court (this particular tribunal couldn’t bring itself to actually write the words “Family Court” so the Beit Din decision actually says: “…with a divorce agreement that had been ratified beyond the walls of the Beit Din.” That which shall not be named.)
– During that hearing in 2007, the husband informed the Beit Din that the wife had filed a tort case against him in the Family Court due to his failure to give the get. As a result, the Beit Din refused to arrange the divorce, until such time as the wife withdrew her tort suit from the Family Court.
– Six months later there was a hearing in the Beit Din for the divorce, and at that point the Beit Din was made aware that the couple had two agreements; one was a divorce agreement in which the tort case was dismissed, the second, a “secret” agreement which said that if the husband didn’t actually give the divorce, the tort case could be reinstated.
– It seems there were no more hearings in the Beit Din until 2010, when the husband petitioned the Beit Din to declare him not to be a “recalcitrant husband”, that is, a husband unlawfully withholding a get from his wife.
This last petition is the basis for the decision of the Beit Din, in which the dayanim lash out at the Family Court judge for infringing on their jurisdiction for daring to have an opinion on whether or not the husband should give the get.
Where the decision become even more difficult to digest however, is in the reasoning they use to make the victim the perpetrator. Which is to say – they now say that the husband was never ordered by them to give the get, and the woman is really preventing her own personal freedom, since she is not surrendering to the dictates of the husband with regard to marital property. In other words, she doesn’t need their rulings, she doesn’t need a tort case, all she needs to do is to give in to his property demands, relinquish her legal rights, and then she’ll have her get.
That’s the way it works around here sometimes.
And a couple of the observations I had about this decision – and the palpable anger of the dayanim that their territory is being infringed upon – were the following:
The Dayanim need courage and need to start making real decisions. They could have finished this case in 2004 when it was clear to at least two of the three dayanim that this marriage was over and there were reasons to obligate the husband to give a divorce. Were they a bit more gutsy in finishing these divorces in a timely fashion, tort cases wouldn’t have become a necessity, and certainly wouldn’t be as popular as they are.
Second, stop giving decisions that aren’t decisions. For example, I have decisions in two different cases I’m handling in which the Beit Din ordered that the property should be divided and the parties should reach an agreement as to how. The paper is basically useless. If the parties could manage to put their acrimony aside and divide their property by agreement, they wouldn’t have needed to spend money on lawyers, and expend emotional energy in frustrating court appearances.
So, on the eve of Pesach, a festival of redemption both personal and national, all we can do is hope that those who need to – including lawyers who make their living by exploiting the dysfunctions of the system – break free of the kinds of bonds that keep them chained to patterns of behavior that only undermine their own authority.