Groundswell

Given the failure of the Rabbinic Court system to respond effectively to the problems with the divorce process with Jews in the State of Israel in general, and specifically with the problem of recalcitrant spouses – generally husbands – the discontent is creating responses. I would count the growing popularity of the trend to file tort cases against recalcitrant spouses as one such response.

Yet another response – to some extent far more radical – was discussed in an article this past Friday in the English edition of Haaretz. The article by Yair Ettinger, aptly titled “Without the rabbinate I’ll get a get“, describes a phenomenon which may be a growing trend:

…couples seeking an alternative to the state’s religious courts for the purposes of marriage and divorce. Even if it is hard to bypass the Chief Rabbinate’s authority altogether, more and more people are refraining from setting foot in its courts, opting instead for private ones. There they find the efficiency and creativity sometimes lacking in the rabbinical establishment.

But are they legal?

Israel’s Rabbinical Courts Jurisdiction Law says that matters of marriage and divorce of Jewish citizens or residents of the country fall under the sole jurisdiction of the state’s rabbinical courts. ..

Nonetheless, this hasn’t stopped Attali from taking out an ad, in a publication he himself publishes and distributes, announcing: “New! Religious court for family matters. All under one roof, comprising two dayanim and a lawyer who is an expert on family law.”

Attali says his court is ready and able to conduct divorce proceedings in accordance with the “Law of Moses and Israel,” to quote the words of the ceremony by which people wed. He even enlisted the services of sofrei stam, Hebrew scribes, to write out the bill of divorce. “All the procedural details are in place,” he says. Attali provides this service to couples that want “to divorce nicely.”

However many couples there are like that out there.

If private rabbinical courts are given the authority to arbitrate between spouses it will make things easier for the system as a whole, Attali maintains. But they would need to operate in cooperation with the state’s rabbinical courts, he adds. “That way, in a single day’s deliberations, we could handle a divorce arrangement covering everything: the children’s education, housing, division of property − up through the get.”

Not quite sure how this would solve anything, or why this would be different from negotiating a divorce settlement with a mediator, or set of lawyers. Once that is done – and it is done not infrequently – the agreement is ratified and the couple divorces fairly swiftly. For couples capable of doing this, the current Beit Din system more or less works fine.

The article then went on to discuss current practice with regard to private rabbinic courts, a practice which effectively discriminates between ultra-orthodox and “Zionist” courts, for wont of better terminology.

…Therefore it was decided that the state’s rabbinical courts would be the only ones allowed to conduct divorces in Israel − with an exception made for the ultra-Orthodox.

In the latter case, two private ultra-Orthodox rabbinical courts that deal with divorce are recognized fully by state authorities, even though they are not committed to upholding Israeli law. One, Badatz Ha’edah Haharedit ‏(badatz is a Hebrew acronym for “court of justice”‏), deals with registering marriage and divorce − a privilege not granted to any other private body in Israel. The other is Badatz Bnei Brak, led by Rabbi Nissim Karelitz, which handles divorce but not marriage.

Most of the people who come before the divorce judges at the badatz courts are Haredim, but religious Zionists also choose to go there, because they are faster and cheaper than the state’s rabbinical courts.

In response to this situation: 

Tzohar, an organization of religious Zionist rabbis, and Mavoi Satum ‏(“Dead End”‏), an advocacy group for women denied divorce, are preparing a draft bill of their own that would grant judicial powers to private batei din. Mavoi Satum is weighing a petition to the High Court of Justice asking it to give private rabbinical courts the same rights as those of Badatz Ha’edah Haharedit and Badatz Karelitz.

…“In the past few years we stopped trying to get into the system,” says the head of Eretz Hemdah, Rabbi Yosef Carmel. “The system employs methods that are unacceptable to us on many levels, and the energy we would have to invest to change this is too great in relation to the results it would achieve. The spiritual price is also heavy. Therefore we decided to go in the direction of an alternative system.”

The network set up a number of rabbinical courts in Israel that settle civil law cases and business disputes. Carmel thinks the time has come for these courts to deal with divorce cases as well, but he is quick to qualify that: “We don’t touch anything that is against the law, so we would not do what rumor has it that other rabbinical courts do.”

In contrast to the Haredi rabbinical courts, the batei din of Eretz Hemdah are not allowed to oversee issuance of a get. Under Israel’s arbitration law, they also have no authority to discuss sensitive matters like child custody.

And actually, neither do the Haredi rabbinical courts. If they do issue rulings regarding children, these decisions are not binding before governmental bodies.

Carmel believes he has the answer: His rabbinical court could advise on matters relating to children, even if these recommendations do not carry the force of a judicial ruling. His court does not have experience yet in divorce cases, but a decision has already been made in principle that its ruling would be handed to the couple in a sealed envelope, to be opened only after the get has been arranged at the official rabbinical court. The intention is to prevent the get being delayed by property and monetary issues.

When I read this idea, I initially thought it was a good one. It’s a little unrealistic however, since I can just imagine someone getting vindictive in the last minute, insisting on seeing the decision before giving the get, and things deteriorating from there.

What needs to be done instead is that the get is given, regardless of whether or not there have yet been rulings in other areas such as property or conflicts over children.

What is clear, is that until such time as the State Rabbinic Courts respond to the needs of the people they are meant to serve, we are going to see more and more initiatives – whether legal, social or a combination of the two – aimed at overcoming the shortcomings of the system.

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