Supreme Injustice

A number of months ago I attended a conference at Tel Aviv University Law School, sponsored by the Public Interest Law Program.

One of the speakers presented an analysis of Supreme Court decisions involving issues of discrimination against Israeli Arabs, and made the claim that most Supreme Court decisions in this realm deal with justice for the individuals involved and not what he called transformative justice. Specifically, decisions fail to take the broader issue of discrimination into account and do not reflect a judicial policy that seeks to transform existing inequalities.

My thought at the time was that this was not unique to cases involving discrimination against minorities, and could be applied to any number of Supreme Court rulings against decisions of the Beit Din. In other words, they deal with the particular case in front of them, and view it with a narrow legal prism that seeks to redress the wrong, if any, in this unique case. Both the rhetoric and substance of most Supreme Court decisions of this sort neither recognize nor attack fundamental problems of the system or underlying inequalities of the get process.

My observation then was recently validated by a Supreme Court decision from May of this year. The facts as they emerge from the published decision:

A married couple were involved in lengthy legal proceedings since 1996, including in the Rabbinic Court (Beit Din). In 2000 the Beit Din rejected the woman’s suit for divorce, claiming that there were no grounds to order a divorce. At some point the husband filed in the Beit Din what is known as a claim for Shalom Bayit, for marital reconciliation. This too was rejected.

Again in 2002 the wife filed for divorce in the Beit Din, a suit in which she indicated that she and her husband had been separated already for five years. In 2003 the Beit Din in Tel Aviv brought the parties to an agreement by which they would divorce, and the Beit Din would be allowed to decide if the husband is entitled to any compensation for having agreed to give the get, and for how much. This agreement would be the cause of much grief for the woman, and ultimately brought her to the Supreme Court.

Finally, after more than five years, the woman received her get.

Shortly thereafter, the Beit Din ruled that based on the material in the file, the husband was entitled to compensation for his (ready for this?)…. agreement to divorce immediately (yes, after years of litigation that is actually the word they used), despite the position which he expressed during hearings.

With that, the Beit Din ordered her to pay him 60,000 shekels, and ordered her to withdraw a monetary suit which she had filed against the ex-husband in the Family Court.

The Rabbinic Appeals Court upheld this decision upon appeal. In its decision, the Appeals Court ruled that the lower Beit Din had grounds for making its decision because of the agreement between the parties. The compensation paid for the ex-husband was in consideration for his having give the get by which he relinquished his right to perpetuate the marriage.

In other words, pay for your divorce lady.

This, continued the Appeals Court, not despite, but actually because the lower Beit Din had rejected the husband’s suit for Shalom Bayit, as it had rejected the wife’s divorce suit. In that case, the dayanim reasoned, from a legal perspective, the husband had a right to continue the marriage. He relinquished this right in exchange for the right to receive compensation. Thus, the Rabbinic Appeals Court admonished:

The Parties need to know that when they commit themselves to something in order to obtain a get, this obligation has significance and can’t be cast off once the get is in the past.

From here the woman filed an administrative petition against these decisions to the Supreme Court, sitting as a High Court of Justice.

Not only did this move not help her, but it actually created a dangerous binding precedent which one can only hope will be overturned by another panel of judges in the Supreme Court in the not too distant future.  Frankly, I was flabbergasted by how the decision ignored systemic problems in the Beit Din, and the inherent imbalance in the pursuit of a divorce according to Jewish Law.

The petition to the Supreme Court argued that the decision of the Beit Din created a new category, unknown in Jewish Law, whereby a husband is actually entitled to a “prize” for his agreement to give a get.

Many times spouses hold out for some or other such “prize” in negotiations, but to have a Beit Din actually award it, and not an insignificant sum, is the real danger here.

At a preliminary stage of the proceedings, the Supreme Court asked the Attorney-General’s Office for its opinion on the case, and on the recommendation of the Attorney-General’s Office, the Rabbinic Appeals Court submitted a supplementary decision further elucidating the grounds for rejecting the woman’s appeal. In that supplementary decision, it was made clear that the compensation was not for damages, but rather, as stated earlier, for the husband’s agreement to divorce. The basis in Jewish Law for the ruling was the fact that the woman agreed in the divorce agreement that the Beit Din would rule on compensation. Astonishingly, one of the dayanim actually wrote in the supplementary decision that the husband was not required to divorce, and:

“At the demand of the wife, he loses his marriage for the sake of her enjoyment at being released from the bonds of marriage, despite the fact that the divorce from this marriage was not in reality necessary.”

After studying the responses of the parties to the supplementary decision, the Supreme Court summarized the question before it as follows:

Did the woman agree that the Beit Din would order a sum to be paid to the husband for the get based purely on its discretion, or did the woman agree that the Beit Din would rule if Jewish Law entitled the husband to compensation?

Rather than understanding that rejecting this petition  and upholding the compensation ruling will result in disastrous consequences not only for the woman involved, but for all women seeking a divorce where they husband is holding up the divorce despite the fact that there is no love lost between the parties, the Supreme Court – sitting as a High Court of Justice, let’s remember – decided that it had no grounds to intervene in the decisions of either instance of the Rabbinical Court.

As is its practice in numerous other cases dealing with Family Law and the Beit Din, the Supreme Court then referred to the normal principles of contract law to interpret the agreement made between the wife and husband so that the wife could finally receive her get. At the same time, they used a principle of Jewish Law called קבלת קניין which most lawyers don’t understand, in order to support the Beit Din’s interpretation of the agreement.

It also turned out that both the ex-husband and the legal counsel for the Beit Din informed the Supreme Court that if their interpretation of the agreement were rejected, they would make the claim that the divorce itself was void, since it was given in error.

One would hope for yells and screams from the honorable panel of the Supreme Court upon hearing such a threat. No such thing. Even the patently scandalous breach of jurisdiction in ordering the woman to close her file at the Family Court didn’t rate minor indignation. It was sufficient for the Supreme Court to note that the file had been rejected by the Family Court, so they didn’t need to relate to that particular issue.

Shockingly, they went on to say that once the Beit Din found there were no grounds for divorce (separation of more than seven years?), the only option they had was to order compensation.

And, in a move of judicial bravery:

“With all of the discomfort from the idea of purchasing a get with money, it appears that unfortunately, this is an act which happens one way or another every day.”

And therefore? The High Court of Justice sanctions the sanction given to the practice by the Rabbinical Courts?

But there is more, more which shows how sometimes the Court can be a tower divorced from the realities of litigation and conflict:

“…Usually the party who wants the divorce more is the party who is hurt, the one who buys his freedom. It’s unfortunate that this is so. On the face of things one might expect people whose marriage has fallen apart to finish the failed marriage with decency without begrudging the other side. This difficulty is sharpened given the difficulties with halachic grounds for divorce, and unfortunately, the Court does not have magic solutions to this.”

Not magic, but solutions there are.

Thus, for example, if the Supreme Court in fact felt compelled to say that the Beit Din did have jurisdiction to rule that the husband be paid compensation, then the least it should have done was to say that the amount ordered was unreasonable under the circumstances.

Think of the impact if the Supreme Court had ordered the woman to pay something symbolic, say one shekel. That would send a message to spouses who are holding out for money not coming to them, and would send a message to the Beit Din as well.

Unfortunately, a radically different message has been sent, one that sends the hopes of meaningful transformation back several years.

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