In rare ruling, rabbis uphold woman’s divorce, but consider her ex still married

In a highly irregular and seemingly contradictory ruling, the Jerusalem rabbinical court upheld the validity of a ‘chained’ former wife’s divorce from her ex-husband last week, but determined he would still be considered married because he maintained that he deliberately missed their divorce ceremony in an attempt to cancel it.

Furthermore, the judges found that by wrongfully disparaging their divorce proceedings, he was in contempt of court and sentenced him to seven days in jail. They gave him the option of avoiding jail time if he recanted, but he refused.

Defenders of so-called “chained” women, or agunot, whose husbands refuse to grant them a divorce, or a to have as it is known in Hebrew, hailed the court’s landmark decision, calling it a significant, potentially precedent-setting step in addressing the issue.

“This decision of the rabbinical court makes it even clearer to have-the refusals that they do not have the right to play on both sides of the field – on the one hand by issuing a to have to avoid punishment, while continuing their reluctance in public,” said lawyer Dina Raitchik, of the Yad La’isha organization, who represented the woman.

For confidentiality reasons, neither the man nor the woman’s name has been released, nor the court decision itself.

According to the Chief Rabbinate’s interpretation of Jewish law, there is no way to dissolve a legally valid marriage without the husband’s consent. Rabbinical courts can impose penalties, including prison terms, on husbands found to be refusing to give a to havebut they cannot force them to give one.

This practice of refusing to give a to have has been recognized in Israel and some other countries as a form of domestic violence. Women who are denied a to have cannot remarry, they may even face penalties for having romantic relationships with other men while waiting to receive a divorce. Any kids they have with other men while they’re still technically married to their to have– the refusing husband will carry the strongly stigmatized designation of mamzer, which would effectively prevent these descendants from marrying in Israel. And more.

In this case, the man and woman got married in 2006 and had five children together. In 2017, she leaves him and asks him for a divorce, which he refuses.

After more than two years of waiting to obtain a divorce from her husband, the rabbinical court in Jerusalem recognized her request as legitimate and ordered her husband to grant the divorce or face “social sanctions”, which aim to ostracize to have-refusals from their communities, according to Yad La’Isha, a Modern Orthodox organization that provides legal assistance to “chained” women.

Women’s rights activists hold a rally outside the Rabbinical Court in Jerusalem on March 8, 2021, International Women’s Day, to protest their inability to divorce. (Yonatan Sindel/Flash90)

When these “social sanctions” failed, in part because the religious seminary where he studied refused to respect them, Raitchik requested that the court order the husband’s landlord not to renew his lease and to call all landlords of the country to do the same, and the judges approved the measure. This too was apparently a precedent.

However, she also failed, leading the courts to threaten to imprison the husband — the heaviest penalty that could be imposed in such cases — if he persisted in refusing to give his wife a to have“At this time earlier this year, he finally agreed to release his wife,” Yad La’Isha said in a statement.

The man indeed provided his wife with a divorce document during a ritual in front of a rabbinical court a few weeks ago. However, according to Raitchik, who attended the ceremony, the man repeatedly tried to sabotage the ritual, saying the wrong words throughout.

“It was very difficult during the to have ceremony,” she told The Times of Israel on Monday.

Eventually, however, every line was said to the satisfaction of the court and the divorce was approved by the judges.

But finding that his repeated mistakes were an intentional attempt to invalidate the divorce, the court later warned him that if he tried to publicly deny the legality of the to havehe would be found in contempt of court.

Shortly after the ceremony, the man indeed began telling people that he had deliberately botched the ritual by incorrectly pronouncing some of the words, which he claimed nullified the divorce, and insisted that he was therefore still technically married to the woman.

Following his remarks, the Jerusalem rabbinical court last week called on the man and woman to look into the matter.

At the same time, the judges held that the original divorce was still considered valid. The woman was therefore still to be considered legally divorced, meaning she could remarry freely.

Amber Adler, left, and Heshy Tischler, candidates for New York City Council, attend a rally in Brooklyn, March 21, 2021. The rally was part of a movement to free a woman whose husband refused to grant her Jewish divorce. (Anna Rathkopf/via JTA)

The man, however, was another story. The judges ruled that due to his persistent claims that the divorce was not valid, he would still be considered married until he granted his ex-wife another divorce, which is known in Aramaic under the name of “get l’chumra”.

This seemingly impossible situation – he still being married, while she is still divorced – stems from a new application of a concept of Jewish law known in Aramaic as Shavyeh Anafsheh Haticha D’Issura. This Talmudic principle states that in some cases, if a person truly believes something to be true, they should treat it as true, regardless of its actual truthfulness. The idea originally came from a case in which a person was steadfastly convinced that a piece of meat was not kosher. According to this concept, that person is forbidden to eat that piece of meat, even though it is actually kosher. Such subjective prohibitions are limited only to the person having the unshakeable belief; it does not apply to anyone else.

“If you’re convinced something is forbidden, it’s forbidden,” said Rabbi Zev Farber, editor of thetorah.com, a website that publishes Bible reviews.

“But I’ve never heard that applied in a case like this,” he said.

Farber was not involved in this case, nor did he review the decision, but as a rabbinical judge, or dayan, he was able to explain the central concept on which the court relied in rendering this decree.

In the Talmud, this concept of Shavyeh Anafsheh Haticha D’Issura applies not to a unilateral marriage, but indeed to a unilateral divorce. The Talmud considers the case of a man who is totally convinced that his wife cheated on him, despite the lack of evidence. If there was evidence of infidelity, the couple would be required to divorce. In a case of Shavyeh Anafsheh Haticha D’Issurahowever, since there is no evidence of adultery, the couple is not required to divorce, but due to the husband’s unshakable belief that infidelity has occurred, he is required to refrain from divorce. having sex with his wife.

Farber said this seemingly first-ever application of this concept to a divorce case had a certain dose of humor.

“There, summoning him is kind of ironic because they think he’s got plenty,” Farber said.

That is, the judges don’t necessarily believe the man is sincere in his belief that the divorce was fraudulent, but they hold him anyway.

“They’re making him pay for his attitude,” Farber guessed.

Raitchik said his client was more than willing to accept the supplement to have of her ex-husband. This is mainly because she doesn’t want there to be any question about the legality of her marriage or the status of her future children if she chooses to remarry.

“Of course she will accept to have. She won’t cause any problems,” Raitchik said.

Yad La’isha and its parent organization, Ohr Torah Stone, hailed the historic decision.

“This is an outstanding example of how rabbinical judges should aspire to act, and a model that the Committee for the Appointment of Rabbinical Court Judges should offer them when installing the next round of judges: courageous people who are not afraid to act. bravely release agunot,” said Pnina Omer, director of Yad La’isha.

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