Fig Leaf

Israel has great legislation in many areas, and there are those who might even go so far as to say that we are legislatively promiscuous; whatever ails us, we think that the best solution is corrective legislation. What then happens is that there are laws on the books that aren’t always implemented – because they are not feasible, the budgets don’t exist, or they should have been in secondary legislation- but legislators feel good about themselves, press releases are sent out, and we can all breathe easy now that the problem has been addressed.

In other words, a fig leaf.

This was the sinking feeling I had when I read an article today in the Jerusalem Post about new proposed legislation aimed at enforcing already existing statutory sanctions against recalcitrant spouses.

The bill, proposed by MKs Otniel Schneller (Kadima) and Zvulun Orlev (Habayit Hayehudi), will require the courts to initiate a hearing within 30 days if the court had previously ordered the husband to give a get to his wife through a “obligatory” or “coercive” decree, and within 90 days for an order which “recommended” or “commanded” that the get be given.

The problem is, I don’t see how this is going to solve the problem.

The Law of Rabbinical Courts (Execution of Divorce Judgements) 5755-1995 is legislation which exists since 1995 which allows the Beit Din, after ruling that a man must give, or a woman must accept, a get, to impose a wide range of sanctions after failing to comply. There is even earlier legislation which allowed for sanctions – including imprisonment. The significance of the 1995 legislation is not only that it allowed for a broad range of sanctions to be applied (limiting bank accounts, non-renewal of passport etc.) but that it gave the Beit Din the power to do so not only where the ruling that the party must give or accept a get was based on the strictest legal ruling, but when it was was a suggestion, recommendation, or a “mitzva” a good deed.

The problem is, this existing law is barely implemented. And I am not talking about the sanctions alone. Rarely does the Beit Din give a judgement in which it uses the language that the parties must divorce; rarely does it get to the stage of actually delivering judgements in divorce cases, preferring to encourage the parties to reach an agreement.

What the new proposal seeks to do is enshrine in law the obligation of the Beit Din to have a hearing on sanctions within 30 days of delivering a judgement obligating divorce. But it’s hard to see how that is going to be effective when they rarely get around to ever delivering such a judgement.

In the proceedings of the Knesset Committee discussing the proposal in July of 2011, Prof. Ruth Halperin-Kedari of Bar Ilan University’s Rackman Center for the Advancement of Women’s Status,  brought some scary statistics. According to her, based on a study done by the Center, in only between 1-2% of cases where the Rabbinic Courts can implement the existing law, they do so, and there is an annual decrease in the number of cases in which they impose sanctions. So, for example, in 2003 there were 61 cases in which they imposed sanctions, and in 2008, only 36.

How will the new legislation help?

Chairman of the committee MK David Rotem (Israel Beiteinu) also welcomed the approval of the bill.
“The law is designed to solve the problem of men refusing to give a get,” he said “and to transfer the obligation of the imposition of sanctions on to the rabbinical courts, in hearings which will not require the presence of the man in question.”
Batya Kehana, director of Mavoi Satum who helped draft the bill, expressed hope that the bill will help accelerate the process for women to be granted a get.
“We hope that the bill will help shorten the period of abuse and blackmail that women who are denied a get experience, and put an end to the foot-dragging that characterizes the rabbinical courts,” she told The Jerusalem Post.
“Unlike the situation currently prevailing in the courts, in which nothing is done when a ruling granting a get is ignored by the husband, the courts will now be required to hold a follow-up hearing regarding the imposition of sanctions. This measure imposes an additional responsibility on the courts to ensure the enforcement of their rulings.”

Ostensibly, if and when the Beit Din rules that a husband should give a get the clock starts ticking and within 30 days there has to be concrete action. However, the proposal does not deal with the fundamental failure of the system, and ignores the main problem with the current situation – the Beit Din rarely give such rulings, making it impossible to move on to the sanction stage altogether.

Further, even if the only problem were imposing the sanctions swiftly and efficiently, I am skeptical that legislation is the key. As I stated in my opening remarks, good legislation doesn’t always solve the problem. For example, in the general, not rabbinic, court system, we have rules and laws about the number of days in which a judge has to deliver a judgement, about the contiguity of trial dates, and the reality is, these are ignored. Not due to bad intentions, or a disregard for the rule of law, but because the competing needs of the system make it unfeasible.

So, now that we have some nice legislation, where certain Knesset members and others involved in the proposal can now feel that something big has been done to solve the problem of agunot. If the Knesset Committee was really serious about tackling this problem, they would have done well to consult with lawyers on the ground, those of us who have to struggle for months and years to get that elusive judgement which says, give her a get.

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One Response to Fig Leaf

  1. Pingback: Legislative Saga | The Missing Peace

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