The Jewish divorce controversy explained - The Jewish Chronicle

When the government agreed to recognise get refusal as a form of domestic abuse, it was welcomed in the Jewish community as an important step that could help free agunot trapped in a dead marriage. But nothing is quite that simple.

Over the past few weeks dayanim, women’s groups and civil servants have been holding talks in an effort to avert a potential clash between secular and Jewish law.

Rabbis fear that if a recalcitrant husband were prosecuted as an abuser and then he offered to give a get to save his skin, the get would be invalid because in the view of halachah it would have been offered under duress rather than freely given.

According to Jewish law, a get must be given by a man and accepted by a woman of their own volition.

There are exceptions – for an example where a husband has hit his wife – where a beth din will order him to give a get: and if he defies the rabbis, then they will sanction action against him. In Israel, where there is no civil marriage and batei din effectively act as an arm of the state, a man can be fined or jailed in such circumstances.

In other instances, where an Israeli beth din decides a man’s behaviour does not warrant such punitive measures but nonetheless it is wrong for him to withhold a get, they may approve the withdrawal of privileges such as not allowing him to travel abroad. Here, where a beth din does not have such powers, a man may be refused burial rights or a call-up to the Torah in synagogue.

According to the Talmud, a get cannot be enforced by a non-Jewish court unless it is acting in concert with a beth din, otherwise the get would be invalidated. Hence the batei din seek to ensure that agunot do not turn to the secular courts without securing their approval first. Otherwise, rather than helping a woman to obtain a get, the secular courts would have impeded her.

The inclusion of get refusal as “spiritual abuse” comes in draft statutory guidance for the new Domestic Abuse Act, passed in spring. The guidance – which is out for public consultation until September 14 - is not binding but will carry great weight with judges.

In theory, a man could take legal action against a woman who refused to accept a get.

But the stakes for men and women are not quite the same in Jewish law. If a married Jewish woman has a child with another Jewish man, the child bears the awful stigma of being a mamzer. But if a married Jewish man has a child with an unmarried Jewish woman, the child is not considered a mamzer. Also, in some cases the rabbis can free an agun (a chained man) to remarry in synagogue under a special dispensation known as a heter meah rabbanim (permit of 100 rabbis).

Over the past year and a half, a few British agunot have launched private prosecutions against their get-denying husbands, using a 2015 law against controlling and coercive behaviour. The new domestic abuse legislation will make it easier for the state itself to pursue prosecutions.

For the rabbis, one objective is to make sure that everyone is aware of the halachic implications of using the new legislation by including these in the new guidance.

Meanwhile, an option that is being floated by some of those involved in the current negotations would be for a judge, rather than jailing a get refuser in the first instance, instead to order him to attend a beth din.

However, some campaigners argue that the legislation would not infringe the halachic requirements. As one lawyer told me, a man still has free choice of whether to give a get or to risk prison – a view, however, that cuts little ice with the dayanim who believe this would be tantamount to duress.

Some also believe the rabbinical authorities are interpreting Jewish law too conservatively and they have more manoeuvre under halachah that they are currently willing to allow.

While negotiations continue, there is hope among participants that the guidance can be finessed in a way that satisfies most – though some are not so sure.

And there remains the question of what impact the new legislation might have if the guidance remains as it is. A get-refuser could be prosecuted for abuse but then a rabbinical court rule out a get on the grounds of undue pressure. What if the judge now considers that the rabbinical court is obstructing justice and the rabbis are putting themselves on the wrong side of the law?

The rabbinic authorities believe such a scenario unlikely. They argue they are not stopping the courts punishing abusers. But if a husband grants a get to avoid the penalties, that is coercion under halachah and would render a get null and void – and the validity or otherwise of a get is a matter for a religious, not a secular, court.