A fortnight ago Israel’s Supreme Court took the highly unusual step of interfering in a decision of Israel’s Supreme Rabbinic Court, when it imposed an interim order to prohibit a rabbinic court from hearing an appeal in a truly tragic divorce case.
This issue had already occupied the conversation in the great yeshivot and batei din of Israel but was now on the front pages of the country’s secular press and headline news on the country’s primetime TV news broadcasts.
The two legal institutions normally operate in separate domains; the Supreme Rabbinic Court (as distinct from the secular Supreme Court), acting under the Israeli Chief Rabbinate, regulates the work of regional batei Din, particularly in cases of divorce, which is considered their exclusive realm. Despite this longstanding demarcation, we now have an instance of the secular Supreme Court over-ruling the work of the rabbinic courts in a divorce of great halachic significance and immense public interest.
The Supreme Rabbinic Court had agreed to hear an appeal against a lower court decision. However, the appeal was not being brought by a party to the original dispute but by a third party. The Supreme Court justified its intervention on procedural grounds, ruling that only parties to the original dispute can bring an appeal to the higher court.
As I watched the anger of the aggressive protagonists on both sides invading the erstwhile calm of my Jerusalem hotel bedroom via my TV, I was taken back to my own earlier encounter with this very same tragic case.
The wife was advised by doctors her husband would never regain consciousness
Some four years ago, as was the tradition on the retirement of past Chief Rabbis, plans for a commemorative volume in honour of Rabbi Lord Sacks were set in place by the London Beth Din. The co-editors were to be Dayan Shmuel Simons of the Beth Din and me. Articles from around the Jewish world, articles from many of the most prominent rabbinic leaders of world Jewry made their way to my desk in both Hebrew and English.
We were particularly excited to receive a teshuvah, a rabbinic responsum, from Rav Yitzchak Yosef, Sephardi Chief Rabbi of Israel, on a matter which was engaging Torah scholars around the world at the very moment we were ready to go to press. In 2007 a husband physically survived a horrific motorbike crash only to be cerebrally entombed in a deep coma. After five years, his wife, advised by the doctors that her husband would never regain consciousness, approached the Safed Bet Din to grant her a divorce.
After taking medical advice that the man was in a permanent vegetative state, the Safed Bet Din, led by Rabbi Uri Lavie, ruled she should be granted a get. Rav Yosef felt that the regional bet din had ruled incorrectly in establishing such a radical precedent by allowing a non-consensual divorce.
Our delight in receiving such an eminent and timely contribution was swiftly dulled by intense lobbying from both sides of the argument. We were offered articles critical of Rav Yosef, learned tomes which were critical of those critiques and incessant calls suggesting rather forcibly which articles to print and which to ignore. It was clear this issue was already incendiary and likely to run with neither side compromising.
At the heart of the halachic argument is the question of get zikui, a bill of divorce granted in favour of a husband who is unable to actually consent when it is clear such a divorce is of benefit to him.
Jewish law recognises a bet din should act to the benefit of any party unable to access the legal system themselves. This is called zachin le’adam shelo bfanav — we act to benefit anyone unable to appear before us (see Encylopedia Talmudit 12:135-197).
The issue here is the application of that principle to the realm of divorce law. Is the divorce really a benefit to this husband? For the rabbis of Safed, as he lies in his deep coma he is still accruing financial responsibilities to his wife, which he is unable to fulfil and is therefore better off with a divorce.
For Rav Yosef, he is incapable of fulfilling those obligations, owing to circumstances beyond his control and so he is absolved of those responsibilities without the need for divorce. The divorce is therefore not to his benefit.
Housed in a much admired complex overlooking the Knesset, the new building of the Supreme Court symbolises Israel’s secular vision of a democracy regulated by justice. Such a vision is not shared by the large majority of Israel’s religious public, who cannot accept that their lives should be regulated by laws made without the imprimatur of the divine will.
Sandwiched between these two irreconcilable forces is an unfortunate woman whose life has already been blighted by one tragedy and is now facing a seemingly endless process of legal warfare before she can return to some form of normality.
Rabbi Pollak is co-editor of Morasha Kehillat Yaakov (essays in honour of Emeritus Chief Rabbi Lord Sacks) volumes 1 &2, Koren Press
