The success of a woman in obtaining a get after launching a private prosecution against her ex-husband in London could be a gamechanger, say her lawyers. While the use of new laws against controlling or coercive behaviour may not work against every get refuser, other men may now think twice about withholding a religious divorce from their wives.
In the event, the woman dropped the case before it came to trial because her ex-husband relented and granted the get rather than risk conviction and up to five years in jail.
It is perhaps the closest the UK is likely to get to Israel, where rabbinical courts themselves have the power to imprison recalcitrant husbands — though the sanction does not always produce the desired result: one man died after more than 30 years inside rather than choose to liberate his wife.
Until now, it was only civil law in England and Wales that could be used to help agunot, woman still chained to their husbands according to Jewish law because they have not been given a get. Under changes introduced in 2002, a judge has the discretion to delay the civil divorce if there is an impediment to religious remarriage.
Only last summer a Manchester businessman lost an appeal against a court order to keep paying his ex-wife maintenance until he gave her a get.
But while the use of the secular legal system to bring relief to some women may be welcome, the question remains: should not the plight of agunot be sorted out internally within the Jewish community by rabbinic courts?
There are few more troubling issues in halachah than that of the agunah. Particularly scandalous is the willingness of some men to hold their wives to ransom by making financial demands in return for a get.
If a divorcée without a get (who originally married in an Orthodox ceremony) has a child with another man, the child incurs the stigma of being a mamzer, prohibited from marriage with another Jew unless they are also a mamzer or a convert.
But it is not the same for men. While a man can be an agun — when his wife won’t accept a get — if he were to have a child with an unmarried Jewish woman, the child would not be a mamzer. Moreover, because the Bible permits multiple wives for men, there is a halachic mechanism which can allow a man to remarry even if his previous wife has refused a get.
While, according to halachah, a man must give and a woman receive a get of their own will, rabbis may apply pressure to “encourage” get refusers to do the decent thing, such as the threat of prison in Israel.
Some activists have even used violence on reluctant husbands. In 2015 a New York rabbi was jailed for heading a squad which took the law into its own hands: he was nicknamed the Prodfather after he was overheard suggesting the use of a cattle prod.
Batei Din in Britain have employed less drastic methods, for example urging synagogues to bar get deniers.
But what we have not seen is rabbinic courts adopting new procedures that would enable them to free agunot. One or two Orthodox rabbis have independently set up ad hoc batei din using measures they believe available within halachah to help women; but the risk remains that if their decisions are not accepted, the woman’s divorce may not be recognised by mainstream Orthodox authorities and any subsequent children she has may be regarded as mamzerim.
It is nine years since the Agunah Research Unit, set up under the umbrella of Manchester University’s Centre for Jewish Studies, delivered a 300-page report to help promote a halachic response. It examined in-depth rabbinic sources and legal concepts that could be deployed to prevent agunot.
It looked at precedents for rabbis annulling marriages or for conditional marriages ,where the breach of conditions agreed by the couple when they marry may constitute grounds for its dissolution.
It wanted Orthodox authorities across the Jewish world to consider ways to tackle the problem, while recognising there may not be a “one size fits all” solution.
Professor Bernard Jackson, the unit’s director, says he always regarded it as a “long-term project and never expected quick progress”. As a follow-up, a database is now being compiled of the attitudes of halachic attitudes of batei din on this issue.
But as the introduction to the unit’s report warned, “The problem will continue to plague us until and unless we find solutions which either prevent the situation of get-recalcitrance from arising at all or provide a set of completely effective remedies (with global application) when it does arise.”
see www.manchesterjewishstudies.org/agunah-research-unit/
