The Value of Autonomy

A story about the Family Court in the Krayot (outside of Haifa) ordering a woman who refused to accept a get from her husband to pay compensation made headlines today in Israeli papers.

For those interested in reading the actual court decision in Hebrew, you can find that here:

Meanwhile, for those who don’t read Hebrew, I’m posting the article which appeared in the Jerusalem Post, which summarizes the decision and cites a couple of experts in the field.

I’ve written elsewhere about the growing trend in Israeli Family Court of awarding damages to women whose husbands refuse to give them a get.

What many people may not be aware of is that men whose wives refuse to accept a get are also using this “tortfare” tool, and I suppose that’s why the case was picked up by so many papers.

  A judge in the Krayot Family Court ordered a woman on Sunday to pay her husband hefty compensation after she refused to accept a get, a Jewish divorce.

Judge Marina Levy ordered the woman to pay her husband NIS 200,000 in damages compensation: NIS 25,000 for each year she has refused to accept the get.

While disputes over refusals to grant a get are relatively common, most cases involve husbands who deny their wives a divorce.

It is far rarer – though not unheard of – for a woman to refuse to accept a get from her husband.

I have to take issue with the author of the article with regard to this claim.  I don’t have the statistics, but unfortunately, my professional experience is that it is not at all uncommon – and certainly not “far rarer“-  for a woman to refuse to accept a get for all the usual bad reasons men don’t give a get.

In this case, the wife – who cannot be named for legal reasons – had refused to accept a divorce since 2003, even though the Rabbinic Court had ruled to allow her husband to give her a get.

The couple, who were wed in 1978, have no children and although they have lived apart since 2003, they are still considered a married couple under Israeli and Jewish law.

The husband first filed for divorce in the Rabbinic Court in 1986, citing as reasons his wife’s inability to conceive and marital conflicts. However, at that time, the Rabbinic Court refused to allow him to divorce.

In 2003, the couple separated and the husband again turned to the Rabbinic Court for a get, on the grounds that his wife could not bear children.

On that occasion, the Rabbinic Court ruled that according to Jewish law, the woman should be given a get [Jewish divorce] after medical examinations of the couple revealed that the husband is capable of fathering children, but the woman could not bear children except via a life-endangering medical procedure.

The Rabbinic Court later rejected the woman’s appeal against the get, after she claimed her husband wanted to leave her for another woman.

However, the woman had still refused to accept the get.

The husband told the court on Sunday that the only reason the woman wanted to remain legally married to him was because as his spouse she is entitled to receive a third of his disability pension. He claimed her refusal to accept the divorce had caused him severe psychological damage, and denied him the opportunity to remarry and have children.

The woman denied this and claimed she had refused the divorce because she is still in love with her husband and wanted to reconcile. She told the court that under Jewish law, her husband was free to ask the Rabbinic Court for permission to marry another woman without first divorcing her. However, Levy ruled that the woman’s refusal to accept the get was not reasonable.

Citing an academic paper titled ‘I want to get a Divorce now!’ by family law expert Prof. Shahar Lifshitz, Levy said that the right to disengage from a relationship should be an integral part of society’s values.

“When a person wishes to end a marriage, and that desire is clear and consistent over time, the other party cannot refuse even if they would like to continue the relationship,” wrote the judge. “The refusal to give or receive a get usually intensifies the desire of the other side to leave the relationship, it deepens the rift between the two and instills feelings of anger, resentment and indignation.”

In ruling that the woman should pay her husband compensation, Levy said that in refusing to accept the get she had infringed on her husband’s autonomy. Levy pointed out that the same reasoning would apply in the case of a man refusing his wife a get.

Levy also ruled that the compensation ruling would not be canceled even if the woman now agreed to a divorce, and added that the husband could also sue for future damages if the woman continued to refuse to divorce.

Lifshiftz told The Jerusalem Post that the ruling was an important one.

“The ruling maintains a firm civil line which says that there is a price to be paid for allowing a person to shackle their partner to them and for exploiting the religious court, which requires that both sides agree to divorce,” said Lifshitz.

“The decision also reflects the concept of gender equality in which neither the man and woman are in charge of their partner.”

Lifshitz pointed out, however, that in terms of divorce there is not absolute equality between men and women, particularly in cases where the wife is financially dependent on the husband.

Batia Kahana Dror, leader of the nonprofit organization Mevoi Satum, which advocates for women denied a get, said she backed the court’s ruling.

“It’s good that the man will receive compensation. A get should not be used as a bargaining chip for a woman or a man,” she said.

However, Kahana Dror said that she did not agree with the level of compensation the woman was ordered to pay.

“When a man denies a woman a get, the damage to her is far greater than in cases like this where a woman refuses to divorce her husband,” she said. “Jewish law does not treat men and women equally in this respect, so the amount of compensation women must pay should be less.”

I am not sure that I agree with Kahana-Dror that the level of compensation should be different. Despite the disparate treatment of men and women in Jewish Law with regard to divorce, the compensation here is for the loss of personal autonomy, and the inability to move on and build a new life. The value of that loss of autonomy is a function of the individual before the court, and not the place to make up for gender differences in terms of property and earning power. As Prof. Lifshitz correctly points out, the idea is to create a firewall between issues around the get, and the civil issues of the divorce.

Missing from the article and the comments of the people interviewed, is the attitude of the Rabbinic Court system to tort cases, and the implications for men who file, as opposed to women.

The Rabbinic Court has basically declared war on these tort cases, claiming that they create a situation where the divorce may be invalid, since it is given under the pressure of the tort case. In that case, it’s what called a get me’useh and may invalidate the divorce. As I’ve discussed elsewhere, they currently have a policy not to continue hearing cases where the woman has filed a tort case.

This is not their policy regarding men who have filed a tort case against a wife who refuses to accept a divorce, since the problem of get meuseh, for reasons I won’t go into here, doesn’t apply when there is pressure on a woman to accept a divorce.

However, due to the refusal of the Rabbinic Court to hear cases of women who have filed tort case,  we now have an ironic situation in which a legal tool developed to give women a remedy against recalcitrant husbands, is now a tool which may more easily be used by men than by women.

Plus ca change?

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2 Responses to The Value of Autonomy

  1. This is the first case I’ve ever heard of where a woman refuses a get. I did not even know it was possible. Thank you for pointing this case out.

  2. shaananlaw says:

    It is possible, since an edict in the Middle Ages, accepted by Jewish communities, forbids divorcing a woman against her will.
    In extreme cases, particularly where a woman, for medical reasons, cannot express consent, there is a device known as ‘the disposition of 100 rabbis” which allows for 100 rabbis to allow a man to take a second wife, even though he hasn’t divorced. It has been used, rarely, where a woman won’t accept a divorce. In that case, the man in question must first deposit a get with the beit din for the woman to accept, should she change her mind.
    There are rabbis in the Rabbinic Court in Israel who like to say that there are more women than men who refuse to divorce. I don’t believe the statistic, this is something difficult to measure, and I think that anyone making claims in any direction is using anecdotal evidence.

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