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Give and take - and finally, get
By Yair Sheleg
Each year, thousands of women who want a divorce face obstacles in the rabbinical courts - even if their husbands beat them or are unfaithful. Attorney Susan Weiss tries to find solutions in Jewish law.

The case that changed the life of attorney Susan Weiss was particularly galling. Five years ago, after 13 years as a private lawyer specializing in the troubles of women involved in divorce proceedings, Weiss decided to establish a non-profit association to handle the problems of women whose husbands refuse to give them a get, a Jewish bill of divorce.

"The woman complained that her husband beat her, raped her and moved in with another woman," says Weiss. "Even at the regional court, where the case was heard, he was verbally abusive toward her, and the dayanim [religious judges] decided to force him to give her a get. But then he appealed to the High Rabbinical Court, and won.

"It was one of the most shocking rulings I'd ever heard. They claimed I hadn't proved that he was unfaithful, although we had a tape of him confessing. The court said the confession was not a statement but a question ("I cheated on my wife?"). They also ruled that even if he had been unfaithful or violent, they couldn't force him to give a get because he had not been forewarned [according to Jewish law, a person can be punished only if he has been warned by two witnesses - Y.S.]. Since we were talking about the High Rabbinical Court, there was no other forum for me to appeal to. The woman petitioned the High Court, but the justices said they couldn't interfere in the decisions of the rabbinical court."

In September 1997, Weiss, with the assistance of Rabbi Shlomo Riskin of Efrat, founded Yad L'isha, to aid women whose husbands refuse to give them a get. Today, Yad L'isha, which operates under the auspices of Rabbi Riskin's Ohr Torah network, has seven female rabbinical pleaders - Weiss herself is not a rabbinical pleader - who represent the women in court free of charge or for a nominal fee. "My idea was to help women who are the most badly off by pairing them up with the most powerful women in the religious world today," says Weiss.

It is not clear how many women today are waiting for recalcitrant husbands to give them a get. Yad L'isha handles more than 100 cases every year, but the hard data resides in the files of the rabbinical courts. In a past interview with Haaretz, Rabbi Eli Ben-Dahan, director of the rabbinical courts, said that only 200 husbands in Israel refused to give their wives a get in 2002.

Ben-Dahan, however, is speaking only about cases in which the court ruled in favor of coercing the husband to comply and he still refuses. His figures do not include women who have been waiting for many years - and continue to wait - because the court does not want to impose its will on their husbands. "Thousands of women want a divorce every year and end up with nothing," says Weiss.

Avoiding coercion

The problem that creates this bottleneck is the halakhic (Jewish legal) requirement that the husband release the wife from the marriage of his own free will. According to halakha, it is permissible to put pressure on recalcitrant husbands and impose sanctions on them, but in the end, the husband is expected to agree of his own accord. Otherwise, it is deemed a "get me'useh" or "forced get," and declared invalid.

Fear of a get me'useh leads many dayanim to drag their feet and avoid issuing a coercion order even in cases where the husband is violent, and to hesitate even more before imposing sanctions. "Many dayanim just let the case drag on - anything so they won't end up with a get me'useh," says Weiss. "So first of all, I insist that they reach a decision."

Some dayanim are particularly strict and will only accept the grounds for divorce mentioned in the Talmud. Weiss recalls one case in which a man went to live with another woman in Europe and even had a child with her, but the dayanim still asked "Where are the grounds for divorce?" In another case, it turned out that a husband who beat his wife suffered from bad breath - which does appear in the Talmud as grounds for divorce - and the dayanim ruled in the wife's favor.

An even bigger problem is that many husbands take advantage of the situation and set conditions for their compliance. That way, they avoid being labeled recalcitrant husbands. "We're not refusing her a get," they say. "She's the one who won't compromise." They know the dayanim will jump at the opportunity to avoid a get me'useh. "The upshot," says Weiss," is that women are forced to give up many of the rights that are coming to them, on issues like child custody or schooling. Very often, the husband blackmails the woman into surrendering some or all of her property, or demands that a jointly purchased apartment be signed over to him. There are husbands who agree to give their wives a get only if they waive alimony.

"Unfortunately, many dayanim go along with this sort of thing and encourage the women to give in. `What do you care?' they say. `Instead of alimony you'll get an income supplement from the state.' [A woman who receives alimony is not entitled to an income supplement - Y.S.] They are spared having to coerce the husband, and `only' the state coffers suffer.

"According to the National Insurance Institute, the state paid out NIS 833 million in income supplements to divorced women in 2001. Husbands promise to pay alimony and then they don't, so National Insurance lays out the money and demands repayment from the husbands. In 2001, National Insurance paid NIS 110 million in alimony and managed to collect only NIS 45 million."

Weiss's most infuriating disclosure is that sometimes the court itself pays recalcitrant husbands, using the taxpayers' money, in order to get them to agree to a divorce. "I still have vivid memories of one case in which the husband demanded $20,000 to hand over the get," says Weiss. "In the end, he settled for $10,000. The court paid $5,000 and we raised another $5,000."

The source of the money paid out by the rabbinical courts is not clear. It hides beneath the general rubric of the "Agunot Fund," which provides funding for solving the problems of agunot - women whose husbands have disappeared without giving them a get. Most of the money is spent on sending rabbis overseas in search of these missing husbands, in order to liberate women from their "chained" state. When a lawyer from Weiss's office recently inquired how much money is paid directly to recalcitrant husbands, the assistant director of the rabbinical court replied that he could not give her figures because these sums "are not a formal sub-clause of the budget."

Weiss, 49, is an American immigrant and an Orthodox woman herself. "I think I was born a feminist," she says. "When I was five, and I went with my parents to a `sholom zukher' [a festive meal on the Friday night between the birth and circumcision of a baby boy - Y.S.], I wanted to know why there wasn't such a thing for girls. Even when I was a kid, the inequality in dividing up the chores at home always bothered me. Maybe my sense of justice developed early because my biological mother died when I was two, and I had a lot of questions about why I was different from other kids."

Eighteen long, hard years of work in the rabbinical courts has left her angry - not at Jewish law but at the dayanim. "It's because I know halakha offers all kinds of solutions for these difficult problems, but the dayanim are afraid to use them," says Weiss. One solution, she says, is for dayanim to be more forceful in imposing sanctions on recalcitrant husbands, including sending them to jail (which is usually quite effective). "On the other hand, I can't say I'm happy to see some of these guys getting longer prison sentences than rapists."

Non-kosher witnesses

More successful, she feels, are preventive measures, like passing laws that enable the court to void a marriage in certain cases of assault or infidelity, or even when a couple stops living together for enough time to show that they have parted for good ("between a year and a year and a half"). Weiss notes that there are dayanim today who look for various technical reasons to annul a marriage, even without the enactment of sweeping laws. One strategy is to declare the witnesses invalid. According to halakha, only Sabbath-observers are kosher witnesses [quite a few rabbis deliberately arrange for secular witnesses, not so much to make it easier for the couple to divorce some day as to prevent the possibility of the woman giving birth to a `mamzer,' a bastard, if she commits adultery and becomes pregnant - Y.S.].

Weiss herself prefers a solution, also kosher from a halakhic standpoint, which obviates the need for the husband's consent. For example, adding a clause to the marriage document stipulating that if the couple stops living together for a certain period of time, the marriage is over. Alternately, a prenuptial agreement can be drawn up whereby the husband undertakes to pay a large fine for every day that he keeps his wife waiting for a get, in the event that she demands one ("although the dayanim want a ceiling on the fine, again to avoid the possibility of a get me'useh").

Although the work is difficult and frustrating, Weiss can also list accomplishments. "The courts are coercing more men to give their wives a get, and accepting a wider variety of grounds for divorce compared to when we first started," says Weiss. She is also proud of another legal precedent that she established: damage suits against recalcitrant husbands.

"Up to now, we've filed three such claims," says Weiss. One husband, hearing that the court was going to force him to cooperate, just picked up his heels and ran. I'll never forget how I chased him, together with a rabbinic pleader, from the courthouse on Koresh Street all the way down Jaffa Road to the marketplace.

"In all three cases, the husbands handed over the get in a jiffy. In principle, we can also sue recalcitrant husbands after they sign on the dotted line, but by then, most of the women just want to forget the whole business. Emotionally, they don't have the strength to go through another court battle. Now, for the first time, we're filing a suit on behalf of a woman who's prepared to sue even after receiving her get. Maybe we'll finally see a judgment that will put a price on the damage inflicted by recalcitrant husbands."

Rabbi Eli Ben-Dahan doesn't understand Weiss's criticism of the payments made by the rabbinical courts to recalcitrant husbands. "Maybe some criticisms are justified," he says, "but when we take action that goes beyond the call of duty to free these women from their husbands and make it possible for them to finally receive a get - for that, too, we deserve reproach?"

He doesn't remember the exact sum paid out each year to these husbands, but he claims it's not more than NIS 100,000. "A couple of thousand shekels at most in each case," he says. "The largest sum we've ever paid is something like NIS 15,000. Usually it has to do with a debt run up by the wife which the husband wants covered before giving the get. But she doesn't have the money, so the court steps in to help her. Sometimes the husbands make their cooperation contingent on a larger amount of financial assistance and we have to turn to private donors."

Ben-Dahan shares Weiss's criticism of dayanim who are lenient with recalcitrant husbands because they are afraid of being blamed for a get me'useh. "Yes, we do have dayanim whose judgments are on the timid side," he says, "but they're a small minority. The fact is, we now have 12 husbands sitting in jails around the country, and over the past five years, we've handed down 350 rulings imposing sanctions on such men. So there has definitely been an improvement in the system."

At the same time, he has harsh words for the committee that appoints dayanim (headed by the religious affairs minister and composed of the chief rabbis, representatives of the dayanim currently on the bench, and representatives of the Knesset, the government authorities and the Israel Bar Association). "They don't always do a thorough background check on the candidates and sometimes end up appointing the wrong people," says Ben-Dahan. "Just recently, the committee appointed a dayan who was fiercely opposed by the women's organizations. The committee should be looking not only at the candidate's legal portfolio and his attitude toward coercion of recalcitrant husbands, but at his conduct as a whole - things like whether he was habitually late when he studied at a kollel [yeshiva for married men]."

As for the halakhic solutions Weiss is talking about, Ben-Dahan approves of the idea of a prenuptial agreement. "The courts have already endorsed such agreements," he says. "But this depends less on the courts than on the marriage registrars, who need to inform prospective couples of this option ahead of time. Annulling a marriage, on the other hand, is a much more complicated business. In my estimation, over the whole of the last millennium, it's only happened once or twice. Our energies would be better spent pressuring the dayanim committee to elect people who are worthy of the job."

Susan Weiss: "I think I was born a feminist."
(Eyal Warshavsky)
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