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Gender, Multiculturalism and Dialogue: The Case of Jewish Divorce

Published online by Cambridge University Press:  20 July 2015

Lisa Fishbayn
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Can the law act as a catalyst to change minority practices that discriminate against women? Can civil law merely impose remedies from outside the minority culture or can legal mechanisms be devised which spur internal change? Theorists of gender and multiculturalism have argued that civil law can play a role in creating the conditions which allow, and indeed compel, cultural communities to engage in internal dialogue to transform their norms into more egalitarian ones. This article explores this thesis through considering the development of Canadian civil family law remedies to alleviate the plight of women whose husbands use their power to withhold divorce under Jewish law to extort advantages in civil divorce settlements. It considers whether the process of negotiating, drafting and implementing amendments to the Divorce Act has supported the renegotiation of norms in the Canadian Orthodox Jewish community regarding the issuance of divorce decrees, the development of novel solutions or the re-invigoration of traditional forms of religious legal authority. In particular, the article evaluates whether these civil law strategies have had the effect of generating the sort of transformative dialogue about norms envisioned by theorists of multiculturalism and gender.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 21 , Issue 1 , January 2008 , pp. 71 - 96
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Copyright © Canadian Journal of Law and Jurisprudence 2008

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References

An earlier version of this paper was awarded the Pi Sigma Alpha Prize for Best Paper at the 2006 Annual Meeting of the Northeastern Political Science Association. I owe a debt of gratitude to some of central figures involved in the agunah struggle in Canada who generously shared their time and insights with me: Professor Norma Baumel Joseph, Evelyn Brook and John Syrtash, esq. Thanks also to Michal Frenkl, Sigal Landesberg, Sylvia Barack Fishman, Shula Reinharz, Sylvia Neil, Rachel Gober, Susan Aranoff, Rabbi David Lerner, Tracey Levy, Bridgette Sheridan, Christine Cooper and Oonagh Reitman for helpful comments and conversations. I am grateful to Becca Wasser and Shayna Weiss for able research assistance.

1. Parekh, B., Rethinking Multiculturalism: Cultural Diversity in Political Theory (London: MacMillan Press, 2000) at 267.Google Scholar

2. Halakha or Jewish Law is not recognized or enforced as law by the Canadian state. Rather, it binds adherents who choose to be subject to its strictures and to submit to the jurisdiction of Batei Din (Jewish Rabbinical Courts). It may be possible, however, for parties to use rabbinical courts and religious law in order to arbitrate their private disputes. The different movements within Judaism hold diverse views about the binding nature of halakha and its interpretation. The issues discussed in this paper largely impact upon the adherents to Orthodoxy.

3. In Hebrew, literally “anchored women”—women denied a divorce by their husbands. Traditionally the term agunah referred only to a woman whose husband had disappeared through abandonment or misadventure. The popular use of the term has now expanded to include women who are unable to remarry because their husbands refuse to divorce them. Some authorities refer to these women as mesurevet get, women who have been refused a get. While Talmudic law has developed a range of lenient remedial strategies to deal with women whose husbands have disappeared these leniencies do not apply to women whose husbands’ whereabouts are known. The distinction in these terms and the distinct remedies available to these categories of women helps to explain the difficulty in pinning down the numbers of agunot. Activists estimate the numbers in the tens of thousands in the US alone while Orthodox authorities argue that there are very few. This is because Orthodox authorities view only the women whose husbands have disappeared as agunot; all others are mesurevet gittin) subjects of get refusal) who are in the process of negotiating a divorce, even where these negotiations drag on for decades.

4. For an expanded discussion of the women’s role as cultural defenders and cultural symbols, see Fishbayn, Lisa, “Culture, Gender and the Law, Recent Thinking and Practical Strategies” in Johnson, T., ed., Gender and Human Rights In The Commonwealth (London: Commonwealth Secretariat, 2004) at 40–42 Google Scholar.

5. This power was not unlimited however. The state could invoke the repugnancy clause to invalidate local rules which it viewed as contrary to public policy For example, in Southern Africa the clause was invoked to prohibit the infanticide of twins, trial by ordeal and slavery. Bennett, T.W., “Conflict of Laws—the Application of Customary Law and the Common Law in Zimbabwe” (1981) 30 Int. and Comp. L. Q. 59 at 83CrossRefGoogle Scholar. It has also been used to bar controversial family law practices which are the subject of controversy in many jurisdictions today, such as levirate marriage, (in which a widow marries her husband’s surviving brother), sororate marriage (“seed raiser unions” in which a woman is compelled to marry the widower of another woman in her family as her replacement), child betrothal, and marriages contracted without the consent of the bride. N.S. Peart, “Section 11(1) of the Black Administration Act No. 38 of 1927: The Application of the Repugnancy Clause” (1982) Acta Juridica 99 at 111. See also, Kaganas, F. & Murray, C., “Law, Women and the Family: The Question of Polygyny in a New South Africa” (1991) Acta Juridica 116 at 120Google Scholar.

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8. This emphasis on the role of women as mothers stresses the importance of ensuring that their reproduction occurs within communally sanctioned relationships, that their mothering is performed correctly and that women have the opportunity to take on the role of mothers. All these tropes appear in the agunah debate. The great wrong women may commit if not permitted to remarry legitimately is the reproduction of mamzerim, bastards whose illegitimate birth condemns them to a form of ostracism. The harm done to women who remain agunot and do not have mamz-erim is that of being denied the opportunity for a fulfilling life that involves bearing children. I was once discussing the agunah problem, framing it as an infringement upon the autonomy of women to plan and conduct their post-marital lives. An Orthodox woman I was speaking with saw it a different way. For her, the tragedy lay in all the nefeshim trapped in bashamayim (souls trapped in heaven) waiting to be born, who could not arrive because their mothers could not remarry to bear them legitimately For this woman, and perhaps many more in the Orthodox community, solving the problem of agunot is a means of further embedding themselves in practices such as childbearing and rearing that are central to an Orthodox life, rather than exit from this life. John Syrtash also movingly describes the success of Canada’s get law in terms of enabling women to remarry and bear children. He describes a woman approaching him in a restaurant, a baby in her arms and telling him “if it were not for your Get law, I could never have remarried and this baby would never have been born.” Syrtash, J., “Celebrating the Success of Canada’s “Get” Legislation and Its Possible Impact on Israel,” paper delivered at the Conference on Resolving Get Refusal In Civil Laws and the Corresponding Halachic Approaches, (Bar Ilan University, September 13, 2005) at 3 Google Scholar.

9. McClintock, Anne, Imperial Leather: Race, Gender and Sexuality in the Colonial Context (New York: Routledge, 1995) at 359.Google Scholar

10. Okin, supra note 7 at 22-23. In her later work, Okin emphasized her preference for solutions which allow women a voice in identifying the significance of impugned cultural practices and using this information to ensure that multicultural accommodation does not become a pretext for perpetuating unequal intra-group social power. Okin, S., “Multiculturalism and Feminism: No Simple Questions, No Simple Answers” in Eisenberg, A. & Spinner-Halev, J., eds., Minorities Within Minorities: Equality, Rights and Diversity (Cambridge: Cambridge University Press, 2005) 67 at 72-75CrossRefGoogle Scholar.

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12. Kymlicka, W., Liberalism, Community and Culture (Oxford: Oxford University Press, 1989) at 164–65 Google Scholar.

13. Ibid. at 198.

14. Kymlicka, supra note 6 at 169-70. It is unclear how Orthodox Jews fit into Kymlicka’s framework. He draws a distinction between national minorities and immigrant ethnics based on their mode of integration into the state. Where a state was formed through the alliance of national groups into a federation, those national minorities ought to enjoy rights akin to sovereignty. Ibid. However, where people are integrated into a state through individual migration, they can neither expect nor demand to reproduce the mode of life they pursued in their homeland. Ibid. at 77. Canadian Orthodox Jews practice a highly integrated form of life with its own language, institutions, rituals and ideals, but most Canadian Jews immigrated from Europe or North Africa, where they were neither a national minority nor a particularly well-tolerated ethnic group. The community is an atypical ethnic immigrant minority in that its way of life is not integrally linked to any particular European homeland members are permitted a certain degree of self-government on personal law issues in a number of source jurisdictions and adherents do expect to practice their tradition in a comprehensive way regardless of the nation in which they are domiciled.

15. The recommendation to immunize minority communities from state intervention to redress discrimination against female community members may be softened by a requirement that dissenting women have an opportunity to exit the community. If exit is understood in social and geographic terms, it may be difficult for a woman embedded in a traditional community to imagine, let alone achieve. Such exit may come at the cost of losing custody of her children, access to her home and relationships with friends, family and community. Okin, S.M., “‘Mistresses of Their Own Destiny’: Group Rights, Gender and Realistic Rights of Exit” (2002) 112 Ethics 205 CrossRefGoogle Scholar. If exit is understood in legal terms, from one regime of personal law to another, it may have greater utility but may also carry great personal costs. Shachar, A., Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge: Cambridge University Press, 2001) at 122–23 CrossRefGoogle Scholar. Exit, however, may not be what women want at all:

If they cannot get a Get, and if the law is difficult for them, or too patriarchal, and they don’t like the authority of the male rabbis, let them leave.” But that, of course, misses the point—both of Orthodoxy and of feminism. Orthodox Jews are Orthodox because they believe in Orthodoxy. They believe in the halakha; they believe in the integrity of the system. Women choose to remain Orthodox because they believe in it and accept and find it meaningful. They do not wish to abandon their beliefs, their heritage, and their community, no matter how they feel about a particular item, and no matter that at times they feel abandoned by that system. They have chosen to be Orthodox Jews. Their choice! And feminism is about choice. It’s about the ability of a woman to choose to stay where she is, and perhaps to want to renovate from within.

Baumel Joseph, N., “ Agunot and the Powers that Be,” presentation at Jewish Orthodox Feminist Alliance Conference, Choosing Limits/Limiting Choices: Women’s Status and Religious Life, March 13-14, 2005 Google Scholar. See also, O. Reitman, “On Exit” in Eisenberg & Spinner-Halev, supra note 10 at 191; and Fagan, A., “Challenging the Right of Exit ‘Remedy’” in Political Theory of Cultural Diversity in (2006) 7 Essays in Philosophy, available online at http://www.humboldt.edu/essays/fagan.html Google Scholar. For a defence of the exit principle in spite of these limitations, see Kukathas, C., “Exit, Freedom and Gender” (manuscript: 2006) http://www.princeton.edu/values/whatsnew/Kukathas.pdf Google Scholar.

16. See Tully, J., Strange Multiplicity: Constitutionalism in the Age of Diversity (Cambridge: Cambridge University Press, 1995)CrossRefGoogle Scholar; Young, I.M., “Communication and the Other: Beyond Deliberative Democracy” in Benhabib, S., ed., Democracy and Difference: Contesting The Boundaries of the Political (Princeton, NJ: Princeton University Press, 1995)Google Scholar; Nussbaum, M., Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000) at 217 CrossRefGoogle Scholar; An-Na’im, A., “State Responsibility Under International Human Rights Law to Change Religious and Customary Laws” in Cook, R., ed., Human Rights of Women (Philadelphia: University of Pennsylvania Press, 1994)Google Scholar; Shachar, A., supra note 15; and “Religion, State and the Problem of Gender: New Modes of Citizenship and Governance in Diverse Societies” (2005) 50 McGill L. J. 49 at 71Google Scholar; Benhabib, S., “ ‘ Nous’ et ‘Les Autres’: the Politics of Complex Cultural Dialogue in a Global Civilization” in Joppke, C. & Lukes, S., eds., Multicultural Questions (Oxford: Oxford University Press, 1999)Google Scholar; Minow, M., “About Women, About Culture, About Them, About Us” in Shweder, R et al., eds., Engaging Cultural Differences: The Multicultural Challenge in Liberal Democracies (New York: Russell Sage, 2002)Google Scholar; Fishbayn, L., “Litigating the Right to Culture: Family Law in the New South Africa”(1999) 13 Int. J. Law, Policy and the Family 147 CrossRefGoogle Scholar.

17. Raz, J., The Morality Of Freedom (Oxford: Oxford University Press, 1986) at 408.Google Scholar While comprehensive liberals see value in religious liberty as an expression of individual autonomy, Martha Nussbaum cautions that “given their views that autonomous lives are better than hierarchically ordered lives, they are bound to play favorites among the religions, using the state and its persuasive apparatus to wean people away from religions that do not foster personal autonomy….” M. Nussbaum, “A Plea for Difficulty” in Okin, supra note 7 at 108-09. Raz holds that cultural toleration is based on and limited by the capacity of cultural and religious communities, what he calls “social forms,” to be a resource for living a meaningful, autonomous life. Where the cultural or religious group seeks to deny the autonomy of some members, the state may intervene to abolish these practices. Accommodation should not be accorded to groups which “survive as a dwindling community through the forceful stand of some of their members who sometimes combine with misguided liberal and conservatives to condemn many of the young in such communities to an impoverished unrewarding life by denying them the education and the opportunities to thrive outside the community. In such cases, assimilationist policies may well be the only humane course, even if implemented by force of law.” Ibid. at 424. See also, Raz, J., “Multiculturalism: A Liberal Perspective” in Ethics in the Public Domain: Essays in the Morality of Law and Politics , rev. ed (Oxford: Oxford University Press, Revised Edition, 1995) at 177–78 Google Scholar.

18. Idanna Goldberg described the dynamic as it applies to women grappling with their position under Jewish law this way: “In 1866, when Eastern European Jews were first experiencing their own encounter with modernity, the poet Judah Leib Gordon suggested that Jews should be men in the streets and Jews in their home. For these Orthodox women this dictum now reads: “Be feminist in the streets and Jews at home.” “Is Jewish Orthodox Life Threatened by Changing Gender Roles,” Choosing Limits/Limiting Choices: Women’s Status and Religious Life, supra note 15.

19. Rawls worries that democracy which operates by simply allowing diverse parties to have their voices heard but which then decides based on majority opinion rather than on some unified set of reasons will not be stable. The instability will manifest itself in a lack of commitment to the political compromise because it is too dissonant with the comprehensive doctrines to which individuals are committed in their private lives. As a result of this limited commitment to and understanding of the political conception, people may lack the facility with public reason to be able to resolve conflicts as they arise in the future. See Political Liberalism (New York: Columbia University Press, 1993) at 143-48. Amy Gutmann and Dennis Thompson would take the limits on public reason even farther, excluding arguments which are based on self-interested, strategic perspectives rather than perspectives rooted in moral argument. Gutmann, A. & Thompson, D., Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996) at 192–205 Google Scholar.

20. Cohen, J., “Deliberative Democracy” in Hamlin, A. & Pettit, P., eds., The Good Polity: Normative Analysis of the State (New York: Basil Blackwell, 1989) at 24.Google Scholar

21. M. Deveaux, “A Deliberative Approach to Conflicts of Culture” in Eisenberg & Spinner-Halev, supra note 10 at 346-47.

22. Tully, supra note 16 at 133.

23. See Deveaux, supra note 21 at 344-53 and Deveaux, M., Cultural Pluralism and the Dilemmas of Justice (Ithaca, NY: Cornell University Press, 2000).Google Scholar

24. Ibid. at 348. Deveaux also urges the adoption of procedural protections which would minimize opportunities for manipulative dialogue. This would include prohibiting coercion and ensuring equal rights to participate to all interested members.

25. J. Mansbridge, “Using Power/Fighting Power: The Polity” in Benhabib (1999), supra note 16 at 56-57.

26. Deveaux, supra note 21 at 351.

27. Nussbaum, supra note 16 at 8; An-Na’im, A., Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (Syracuse, NY: Syracuse University Press, 1990) at 162.Google Scholar

28. See Shachar, supra note 15.

29. Lord Hardwicke’s Marriage Act of 1753 established that English marriages could only be contracted through participation in a sacrament of the Anglican Church. However, Jews and Quakers were exempted from this requirement and were entitled to solemnize marriages under their own religious norms. Hamilton, C., Family, Law and Religion, (London: Sweet & Maxwell, 1995) at 43.Google Scholar The British Marriage Act of 1836 extended this right to adherents of other Christian denominations. Section 20 of the Ontario Marriage Act is to the same effect. When dissolution by divorce became possible in 1857, the civil aspect could be terminated and resolved in accordance with civil law. The Jewish marriage, however, can only be dissolved by a religious court. The parties are free to resolve questions of ancillary relief in accordance with civil law procedures, religious law norms or any other criteria they might elect in settlement negotiations.

30. A purely religious marriage will not be recognized as valid in civil law, unless the parties entered into it in good faith, believing that they were thereby creating a valid civil marriage. See Friedman v. Smookler, 43 DLR (2d) 210 (1963) (Ont. H. C.)Google Scholar. The wife sued for a declaration that her halakhic marriage to her late husband had created a valid marriage which entitled her to inherit his estate. A recent immigrant, she had relied on her rabbi husband’s assurances that religious marriages were recognized by the state in Canada.

31. This formally applies only to members of the Orthodox and Conservative movements within Judaism. The Reform movement abolished the get requirement in 1869 and views the religious marriage as coterminous with the civil one. However, Reform clergy may urge their congregants to secure a get so that their divorce will be recognized by the other branches of Judaism. Reitman, supra note 15 at 201. The New York Supreme Court has held that withholding a get to dissolve a marriage solemnized by clergy of the Reform movement constitutes refusal to remove an impermissible barrier to remarriage and may be taken into account in determining property redistribution and maintenance awards. Megibow v. Megibow 612 NYS. 2d. 758 (1994) (Supreme Court of New York)Google Scholar.

32. Wegner, J.R., “The Status of Women in Jewish and Islamic Marriage and Divorce Law” (1982) 1 Harv. Women’s L. J. 1 at 12Google Scholar.

33. The Mishnah states that “a woman is acquired is three ways and buys herself [back] in two ways. She is bought by money, a document or sexual intercourse…. And she buys herself back with a get or by means of the death of her husband. (M Kiddushin 1:1) This tractate goes on to discuss processes for legitimately acquiring property such as slaves, goods and land. Judith Romney Wegner reads this text as treating a wife as a form of chattel and the marriage contract as “the formal sale and purchase of a woman’s sexual function,” Wegner, J.R., Chattel Or Person? The Status of Women In The Mishnah (Oxford: Oxford University Press, 1988) at 42.Google Scholar Judith Hauptman stresses the ways in which the acquisition of a wife differs from that of a slave. She notes, for example, that the consideration for the marriage contract, (usually the ring) is presented to the woman herself, rather than to a 3rd party from whom she has been acquired. Moreover, the title to the tractate, Kiddushin, refers to rendering things holy or setting them apart. Marriage, she argues, is “an arrangement in which a man sets aside a woman to be his wife…. It is neither a purchase of chattel nor a relationship between equals. It is somewhere in the middle.” Hauptman, J., Rereading The Rabbis: A Woman’s Voice (Boulder, CO: Westview Press, 1998) at 68–69 Google Scholar. In the ketubah, the husband states that he will “work, honor, support and maintain” the wife. This is interpreted to mean that he will provide her with food clothing and sexual intercourse. In return, the husband acquires rights to the property the wife brings with her into the marriage, acquires during the marriage or leaves behind upon her death. The contract provides a standard amount of maintenance to be paid upon divorce, 200 zuzim, apparently enough to support a family for a year. Kahan, L.S., “Jewish Divorce and Secular Courts: The Promise of Avitzur” (1984) 73 Georgetown L. J. 193, at 198 Google Scholar. A recent survey of those New York area batei din that collect ketubah money set the current value at between $5,000 and $10,000. Jewish Orthodox Feminist Alliance, Guide to Jewish Divorce and the Beit Din System (New York: JOFA, 2005)Google Scholar.

34. The doctrine of kiddushei ta-ut (error in the creation of a marriage) permits the annulment of marriages on the basis that a significant defect existed at the time of its inception, the defect was unknown to the other spouse and the defect was not condoned by the spouse once she became aware of it. The highly respected authority, Rabbi Moshe Feinstein, defined the grounds for annulment on this basis to include apostasy, homosexuality, impotence, and insanity. Some commentators would extend this doctrine to cover a propensity to domestic violence and to withhold a get out of spite. Hacohen, A., The Tears of the Op Pressed: An Examination of the Agunah Problem: Background and Halakhic Sources (Jersey City, NJ: Ktav Publishing House, 2004) at 46 and 93-97Google Scholar. These latter grounds have been employed by the Beit Din L’Inyanei Agunot founded in 1996 by Rabbi Emanuel Rackman in collaboration with the activist group Agunah International, but are the subject of significant controversy in the Orthodox community. See Broyde, M.J., “An Unsuccessful Defense of the Beit Din of Emanuel Rackman: The Tears of the Op Pressed by Hacohen, Aviad” (5765/2004) 4:2 The Edah Journal, and responses by Aronoff et alGoogle Scholar. in the same volume.

35. Being in Aramaic likely made its terms more accessible, particularly to women who were not taught Hebrew. Feldman, M., “Jewish Women and Secular Courts: Helping a Jewish Woman Obtain a Get” (1989/90) 5 Berkeley Women’s L. J. 139 at 141-42Google Scholar.

36. The procedure is inspired by a single reference to what appears to be a pre-existing tradition of divorce mentioned in Devarim (Deuteronomy) 24:1.

A man takes a wife and possesses her. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house; she leaves his household and becomes the wife of another man; this latter man rejects her, writes her a bill of divorcement, hands it to her, and sends her away from his house; or the man who married her last dies. Then the first husband who divorced her shall not take her to wife again, since she has been defiled—for that would be abhorrent to the LORD. You must not bring sin upon the land that the LORD your G-d is giving you as a heritage.

Tanakh: A New Translation of the Holy Scriptures According to the Traditional Hebrew Text(Philadelphia, PA: Jewish Publication Society, 1985) at 311.

37. The get procedure entails that the husband instruct a scribe to prepare the bill of divorcement in the presence of two legitimate witnesses. In theory, this is all that is required, but in practice, this is always done in the presence of a rabbinical court which will attest to his having followed all requisite procedures. Such attestation may be necessary to the get being considered valid in the future for the remarriage of the parties. The scribe writes out a boilerplate statement that the get is given and received freely. It is signed by the witnesses and delivered in their presence. The husband drops it into the wife’s cupped hands and states, “This is your get and you are divorced from me and permitted to marry any other man.” The wife accepts it and steps away. She then hands it to the Rabbi who makes a tear in it (so that it cannot be reused by other parties) and places it on file in the court archive. See, Israel, Steve, The Jewish Life Cycle, 5D Getting a Get—A Precise Procedure at http://www.jafi.org.il/education/lifecycle/jewishlc/05-5d.html Google Scholar. The wife then receives a document called a ptur which declares her status as a divorcee and her eligibility for remarriage. It is this document which will allow her to remarry. Bleich, J.D., “Jewish Divorce: Judicial Misconceptions and Possible Means of Civil Enforcement” (1984) 16 Conn. L. R. 201 at 234Google Scholar. These formalities were put in place for the protection of women in order to provide a disincentive to resort to divorce without careful deliberation. Hauptman, supra note 33.

38. “… A forced bill of divorce—[if executed] by a Jewish [court], it is valid; by a non-Jewish court, it is invalid. And in a non-Jewish court they may beat him and say, do what the Jewish court asks of you, and it [i.e. the get] is valid.” Babylonian Talmud Gittin 9:8, as translated in Hauptman, supra note 33 at 114 (Hebrew parentheses omitted, italics added).

39. The Talmud states at Ketubot 77 that a husband may be forced to divorce where he is afflicted with a disease with repellant symptoms (boils or severe halitosis), or pursues a career which causes him to give off an offensive smell (gatherer of dog excrement, copper miner or tanner), unless the wife explicitly stated that she would tolerate these defects prior to the marriage. Wegner, supra note 33 at 83. Other authorities include impotence or sterility, physical or verbal abuse, husband forcing wife to violate religious law, husband becoming an apostate after marriage and habitual infidelity of the husband. Breitowitz, Rabbi Y., “Domestic Relations Law 236B: A Study in Communications Breakdown,” (http://www.jlaw.com/Articles/sec236b.html) at 4-5Google Scholar. Situations in which the husband is under a moral, but not legal, obligation to give a. get are more controversial and may include where the husband forbids the wife to wear jewelry, forbids her to visit her father, refuses to support her, refuses to cohabit with her, converts from Judaism but allows her to continue observing mitzvot (commandments), the wife has committed adultery, the husband has epilepsy or the wife finds him intolerable. Bleich, supra note 37 at 234, n. 104.

40. It is a far more serious matter to erroneously instruct another to violate biblical law than to be responsible for the violation of a rabbinic rule extrapolated from the biblical source. In theory, a judge ought not to refuse to rule for fear of divine punishment if he errs. A judge “must be guided by what he sees.” Roth, J., The Halakhic Process: A Systemic Analysis, Moreshet Series, Studies in Jewish History, Literature and Thought 13 (New York: The Jewish Theological Seminary of America, 1986) at 83 Google Scholar (Hebrew omitted).

41. In cases where a woman remarries after the disappearance of her first husband and the first husband re-appears, her second marriage will be invalid and her first husband will be compelled to divorce her because of her adultery. Biale, R., Women and Jewish Law: An Exploration of Women’s Issues In Halakhic Sources, (New York: Schocken Books, 1984) at 103.Google Scholar

42. “And similarly with bills of divorce: They exert force on him until he says, I wish to [write this get of my own free will].” Mishnah Arakhin 5:6, in Hauptman, supra note 33 at 116.

43. Bleich, supra note 37 at 234, note 104.

44. Ibid.

45. The ban was instituted by Rabbenu Gershom Me’or Ha-Golah, alongside the prohibition on polygyny. Biale, supra note 41 at 82.

46. In Hebrew, a heter mea harabonim. In theory, the permission might be granted when the first wife has remained barren for 10 years, in order to allow the husband to fulfill the superseding commandment to be fruitful and multiply, or where the first wife is insane and thus not competent to receive a get. Wegner, supra note 32 at 26-27. It might also be issued where the wife refuses to receive a get despite a court order that she do so because she had committed adultery or the marriage is otherwise prohibited. In Boronovsky v. Chief Rabbis of Israel (FH 10/69, 25 (1) PD 7, the Supreme Court of Israel held that a heter could be issued for any halachically valid purpose, including in order to place Pressure on a recalcitrant wife who refuses to receive a get. Schereschewsky, B. & Elon, M.0, “Bigamy and Polygamy” in Berenbaum, M. & Skolnik, F., eds., Encyclopaedia Judaica vol. 3, 2nd. ed. (Farmington Hills, MI: Thomson Gale, 2007) at 693–94 Google Scholar.

47. While polygamy was banned for Ashkenazi Jews living in Christendom by Rabbi Gershom in 1025 A.D., the ban did not apply to Sephardic communities. The Israeli rabbinate banned polygamy for all Jews in 1950. This ban was made the law of the Israeli state by the Personal Law Amendment (Bigamy) Law of 1959 in response to the immigration of polygamous Jews from the Arab world. Wegner, supra note 32 at 26-27. This ban does not however, render the second marriage invalid and it must still be dissolved through delivery of a get. Schereschewsky & Elon, supra note 46 at 693.

48. The events involved Luna and Hagay Batzri. Hagay is the son of Ezra Batzri, President of the Jerusalem Rabbinic Court which deals with many cases of get abuse. See Rotem, T. “Son of Jerusalem Court Head Remarries—Without a Get” Ha’aretz Online, February 22, 2006, www.haaretz.com/hasen/objects/pages/PrintArticleEn.jhtml?itemNo=685651—12k.Google Scholar I thank Michal Frenkel for bringing this incident to my attention.

49. JOFA, supra note 33 at 7. See also incidents described in the film in Untying The Bonds … Jewish Divorce (Canadian Coalition of Women for the Get, 1997).

50. John Syrtash, personal communication, March 7, 2006. A heter mea harabonim is a complicated difficult and expensive device which is frowned on in many communities and is not recognized in others, including by rabbinical courts in Israel. Refusal to receive a get in Israel is more problematic. The wife may have an incentive to refuse because she retains her entitlement to receive maintenance from the husband so long as the Jewish marriage subsists. John Syrtash, personal communication, December 16, 2006.

51. Babylonian Talmud Kiddushin, ch. 4.

52. “No one misbegotten shall be admitted into the congregation of the LORD, none of his descendents, even in the tenth generation, shall be admitted into the congregation of the LORD.” Devarim 23:3.

53. Wegner, supra note 33 at 65, citing Babylonian Talmud Gittin 8:5. “[The wife who remarried on the strength of the invalid get] must leave both men. [Her first husband must divorce her for her technical adultery, and her second “husband” now recognized as her paramour, must likewise send her away] [italics and bold in the original].

54. On the concept of bargaining endowments, see Mnookin, R & Kornhauser, L., “Bargaining in the Shadow of the Law: The Case of Divorce” (1979) 88 Yale L. J. 950CrossRefGoogle Scholar.

55. New York Domestic Relations Law s. 253 (McKinney 1986 & Supp. 1997).

56. Zornberg, L., “Beyond The Constitution: Is the New York Get Legislation Good Law?” (1995) 15 Pace L. R. 703 at 728-30Google Scholar.

57. Ibid. at 729.

58. After first being introduced as part of an ill-fated broader divorce reform in 1996, the Divorce (Religious Marriages) Act 2001 came into effect in July 2002. It amends the divorce provisions of the Matrimonial Causes Act 1973, by adding s. 10A. This allows a court to withhold a decree absolute in divorce proceedings where one party has failed to cooperate in the dissolution of the marriage in accordance with “the usages of the Jews” or any other prescribed religious usage. This bill was passed with the support of the Chief Rabbi, Jonathan Sacks, who commented that “[w]ithout Get legislation, our efforts have lacked the force which, in the modern state, belongs to the civil courts alone. The new law greatly strengthens our efforts….” Office of the Chief Rabbi, Divorce Bill to Become Law (Press Release, 22 July 2002). The resort to legislation was lamented in a moving speech in the House of Lords by Baroness Miller of Hendon, the sister of Gloria Proops, who was one of the leaders of the Agunot Campaign in the United Kingdom. She cautioned that the legislation allowed the British Rabbinate to persist in their refusal to find a solution to the agunah problem. HANSARD, (House of Lords, June 30, 2000) The British rabbinate takes the position that it cannot innovate without consensus among rabbinic authorities around the globe. Such a conference is proving difficult to organize. One was to be convened by Rabbi Shlomo Amar, Sephardi Chief Rabbi of Israel, in November 2006. However, under Pressure from leading Ashkenazi rabbis in Israel, he cancelled the conference four days before it was to take place. See T. Rotem, “All in the (Jewish) Family” Ha’aretz Online, November 9, 2006 http://www haaretz.com/hasen/spages/785115.html. The British Chief Rabbi has rejected the efforts of Rabbi Moshe Morgenstern to annul the marriages of agunot and has warned his members that such divorces will not be recognized by his courts or any recognized beit din. Office of the Chief Rabbi, Morgenstern Adding to Agunah Anguish (Press Release, June 22, 1999)Google Scholar.

59. N.Y. Dom. Rel. Law 236(B) (McKinney 1986 & Supp. 1997.)

60. Breitowitz, supra note 39 at 4-5. See Zwiebel, C. D., “Tragedy Compounded: The Agunah Problem and New York’s Controversial New ‘Get Law’” in Nusan Porter, J., ed., Women In Chains: A Sourcebook on the Agunah (Northvale, NJ: Jason Aronson, 1995) 141 at 146-50Google Scholar. Zwiebel, who was counsel to Agudath Israel during this period, notes that while the 1983 legislation was preceded by years of analysis by rabbinic authorities, no such procedure was followed with respect to the 1992 law.

61. Schwartz v. Schwartz, 153 Misc 2nd 789 (NY) 1992. The decision denied Mrs. Schwartz’s motion to refuse all equitable distribution to her husband because he was withholding the get, but found that the court would take this factor into account when deciding equitable distribution on the merits at trial. At trial, the court ultimately held that his delay in issuing the get caused him to forfeit a portion of his interests in the marital property. See “Husband’s Delay in Granting ‘Get’ Affects Equitable Distribution’” Schwartz v. Schwartz, Supreme Court, Matrimonial Part 5, Rigler, Justice, New York Law Journal (12 October 1994) 21 Google Scholar.

62. In a strongly worded judgment, Judge Gartenstein found that in order to “recognize the ravaging of the plaintiff committed by her husband first by coercing this grossly unfair ‘ agreement’ and then, after reaping its benefits, by depriving her of eight years of her life simply out of spite,” he extinguished all the husband’s rights in the marital property and awarded her everything. See “Agreement to Deliver a ‘Get’ is Null, Void; Wife’s Suffering May be Redressed by Award” Giahn v. Giahn, New York Law Journal (13 April 2000) 25 Google Scholar.

63. Bleich, supra note 37 at 274-75.

64. Malinowitz, Rabbi C., “The New York State Get Bill and Its Halachic Ramifications” http://www.jlaw.com/Articles/getart1.html Google Scholar.

65. Ibid.

66. Bleich, supra note 37 at 274.

67. [1969] 1 W.L.R. 487.

68. In support of this position, see also Broyde, Rabbi M., “The New York Get Law: An Exchange” http://www.jlaw.com/Articles/get_exchange2.html Google Scholar.

69. Woman is awarded Secular Divorce, Husband Withheld Religious One; Izsak v. Izsak, Supreme Court, IA Part JHO, Judicial Hearing Officer Gartenstein, New York Law Journal, October 12, 1996.Google Scholar

70. “Wife Was Denied Jewish Get; Court Awards Her $500 Per Week Maintenance” Gindi v. Gindi, New York Law. Journal (7 May 2001) 21 Google Scholar.

71. Malinowitz argues that Jewish law limits the wife’s property claim to her ketubah money and prohibits the payment of post-divorce maintenance. However, the Brett approach only provides for enhanced maintenance unless and until the Jewish divorce is delivered. Halachic authority is clear that the husband is liable to maintain the wife so long as the Jewish marriage subsists. Supra note 64.

72. Who is affected by this problem? As in the USA, Jews constitute around 1% of the population of Canada, some 370,000 out of a population of 30 million. 40% are Orthodox, 40% are Conservative and 20% Reform. World Jewish Congress, World Jewish Communities, Canada http://www.worldjewishcongress.org/communities/comm_reg_nrtham.html#. In the USA, only 10% identify as Orthodox, 26% are Conservative, 35% are Reform, and 2% are Reconstructionist. The rest do not identify with a movement. The Conservative movement convenes its own beit din and uses its power to annul the marriages of get refusers in extreme cases. Couples married in the Conservative movement sign a pre-nuptual agreement (tennaim) in which they agree to refer disputes over the granting of the get to the beit din. Should a husband refuse to abide by their advice as to his obligations under Jewish law, the beit din view him as having repudiated the fundamental term of the ketubah, that he enters the marriage in accordance with the laws of Moses and Israel. If they cannot persuade him to give the get, they will treat the marriage as a nullity, obviating the wife’s need for a get. While many Orthodox rabbis will accept a conservative get in the USA, (personal communication, Rabbi David Lerner), I have personal knowledge of a situation in which the Orthodox beit din of Johannesburg has refused to accept an uncoerced get supervised by the conservative beit din of Toronto.

73. Brook, Evelyn, presentation to the Jewish Orthodox Feminist Conference, Alliance, November 2002 Google Scholar.

74. John Syrtash, personal communication, December 13, 2006.

75. This coalition was distinctive in that it included many experienced senior executives from the major Jewish women’s organizations who had run successful campaigns in the past and with whom religious and governmental authorities may have had continuing collaborative relationships. Perhaps because of their visibility, expertise, connections and timeliness, this group, in collaboration with the efforts funded and led by B’nai Brith, was exceptionally effective in building support for the get legislation among religious and lay leaders in the Jewish community and members of the government. Personal communication with Evelyn Brook, former chair of the Coalition of Jewish Women for the Get, March 9, 2006. The groups involved in the coalition were Jewish Women International of Canada, Emunah Women of Canada, Hadassah-WIZO Organization of Canada, Na’amat Canada, Canadian ORT, and Women’s Federation of the Canadian Jewish Appeal. They were later joined by the National Council of Jewish Women of Canada, Status of Women Committee of Canadian Jewish Congress, Toronto Jewish Women’s Federation, and Women’s League of Conservative Judaism. Baumel Joseph, N., “Jewish Women in Canada: An Evolving Role” in Klein, R. & Dimant, F., eds., From Immigration to Integration, the Canadian Jewish Experience: A Millennium Edition (Toronto, ON: Institute for International Affairs B’nai Brith Canada, 2001) 182 at 187Google Scholar. Contrast this with the characterization of Agunah Inc., a leading agunah rights organization in the United States: “Haupt noted that the directors of AGUNAH consider themselves ‘Torah Feminists’ and are viewed by many in the Orthodox community as “bad girls” due to their high visibility in challenging the rabbinate.” Rivka Haupt, former director of Agunah Inc., as quoted in Zornberg, supra note 57 at 716.

76. Re Morris v. Morris 42 D.L.R. (3d) 550 (1973) (Man. CA.).

77. Syrtash, supra note 8 at 8. Legislation passed in South Africa in 1995 includes elements of both approaches. The Divorce Amendment Act No 95 of 1996 added s. 5A of the Divorce Act No. 70 of 1979. A court may refuse to grant a decree of divorce or make any other order it deems just unless the court is satisfied that a spouse who holds the power to remove barriers to remarriage or to dissolve a religious marriage has done so. Since passage of the Act, family law practitioners reported no cases of get refusal. The Johannesburg beit din reports that the number of get refusers has dropped significantly and generally involves wives who have failed to take advantage of the Act by accepting the civil divorce before seeking the get. Shenhav, S., “Human Rights, Jewish Women and Jewish Law” (1999) 21 Justice 28 at 37Google Scholar.

78. Syrtash, supra note 8 at 11.

79. The Ontario Act also addresses bribery to give a get which may have already occurred. A court may set aside a separation or settlement agreement, consent order, release, notice of discontinuance, or any other oral or written agreement, in part or in its entirety, when the court is satisfied that the removal by one spouse of barriers that would prevent the other spouse’s remarriage within that spouse’s faith was a consideration in the making of the agreement: S. 56(5), (6). This right cannot be bargained away or waived: S. 56(7).

80. S. 21.1, Divorce Act, R. S. C. 1985, c. 3 (2d Supp.). The Federal Act deals with the procedures for solemnization of the divorce itself as well as maintenance and child custody correlative to the divorce. The provinces have jurisdiction over redistribution of property. Both statutes may be pleaded to cover all aspects of the dissolution of the marriage where appropriate. In addition, s. 21.1 contains a conscience clause which allows a spouse who fails to comply with a request to remove barriers to remarriage to argue that there are genuine grounds of a religious or conscientious nature for refusing to remove the barriers: S. 21. 1 (4). A case recently decided by the Supreme Court of Canada involves a challenge to s. 21.1. Stephanie Brenda Bruker v. Jessel (Jason) Benjamin Marcovitz 2007 SCC 54 (December 14, 2007) involved a suit for damages by a woman who was denied a divorce for more than 15 years. The plaintiff wife was awarded damages for being restrained from marrying in her faith, being restricted in her ability to have children (she was an agunah from age 31 to 46), and the social stigma of being classified as an agunah. She did not receive a divorce until making an application under s. 21.1, but the matter was not adjudicated. The husband challenged s. 21.1 in the Quebec Court of Appeal on the grounds that it validated a conception of public policy as opposed to get refusal upon which the damage award was based. Absent s. 21.1, he argued, the suit would have lacked “a veneer of acceptability.” While the validity of s. 21.1 was challenged at trial as a violation of freedom of religion, counsel for the husband agreed to withdraw the Charter argument and this was not pleaded before the Supreme Court of Canada. In reversing the Quebec Court of Appeal to find in favour of the wife, Abellla J., writing for the majority, cited the provision as evidence that the removal of barriers to religious remarriage is consistent with a Canadian conception of public order (para. 63).

81. John Syrtash, personal communication, March 8, 2006. The doctrine of khul allows a woman to initiate a divorce by mutual consent under Islamic law, often by offering to forego all or part of the financial claims she might have against her husband. Esposito, J. & Delong-Bas, N., Women In Muslim Family Law, 2nd ed. (Syracuse, NY: Syracuse University Press, 2001) at 32.Google Scholar

82. S. 2(5), Family Law Act, R.S.O. 1990 Chapter F. 3.

83. Tanny v. Tanny [2000] O.T. c. 472 (Court of Ontario, Superior Court of Justice) June 28, 2000, holding that striking out pleadings under s. 21.1 did not create a res judicata and that parties struck out may re-file once their misconduct has been remedied.

84. See Divorce Act, s. 21.1(3),limiting remedies to dismissing an application of striking out pleadings. No remedies are available against those who choose not to file an application or a reply.

85. See Syrtash, supra note 8 at 2-3.

86. Ibid. at 3 n. 4.

87. Rabbi Mordechai Ochs of the Toronto Beth Din for Divorce stated that the legislation has led to an 85% drop in the incidence of get-based extortion and get withholding, as quoted in Syrtash, supra note 8 at 3 n. 4. Feminist agunah activists also estimate that the legislation has solved 75% of the get refusal cases. See N. Baumel Joseph, “Agunot and the Powers that Be” from a panel discussion at Choosing Limits/Limiting Choices: Women’s Status and Religious Life, supra note 15.

88. In Rokach v. Rokach (1993) [unreported], Epstein J. stayed proceedings until the religious barriers were removed. In Levy v. Levy (1995) [unreported], Jennings J. made a consent order obligating the husband to obtain a get acceptable to the wife within eight months. In E.S. v. O.S. [1995] Q.J. No. 1263 (Que. Sup. Ct.) Tannenbaum J. dismissed the husband’s petition for divorce because of his failure to comply with s. 21.1. In Tanny v. Tanny, 2000. O.T.C. Lexis 3067, [2000] O.T.C. 472, Kitely J. used her discretion under s. 21.1 to strike out the pleadings of a wife who was refusing to receive a get. In Darel v. Darel, the court refused jurisdiction for unrelated reasons, but speculated that failure to deliver the get after a s. 21.1 application would itself be grounds to refuse to hear an applicant’s motion. 181 D.L.R. (4th) 360 (1999) at paras. 49-50. (Alta Q. B).

89. Judges ask Jewish parties whether a get has been delivered. The problem of get-based extortion is now included in the bar admission course. Syrtash, personal communication, March 8, 2006.

90. In this way, it is an excellent example of legislation which works with, rather than against, other pre-existing layers of social regulation. Sally Falk Moore notes that:

[Innovative legislation and other attempts to direct change often fail to achieve their intended purposes; and even when they succeed wholly or partially, they frequently carry with them unplanned or unexpected consequences. This is partly because new laws are thrust upon going social arrangements in which there are complexes of binding obligations already in existence.

Moore, S.F., “Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study” (1973) 7:4 Law & Soc. Rev. 719 at 723CrossRefGoogle Scholar.

91. Syrtash, supra note 8 at 10.

92. Rav Y. E. Henkin held in Eidut Leyisrael 46 that “one who withholds a get because of unjust monetary demands is a thief” and compared such behavior to murder. See Jachter, C., Gray Matter: Discourses in Contemporary Halachah, vol. 1 (Teaneck, NJ: Noble Book Press, 2001) at 17.Google Scholar

93. Norma Baumel Joseph, personal communication, March 9, 2006. Contrast this with the position taken by Agudah Israel, an American Orthodox group, in their amicus brief in the unsuccessful challenge to the constitutionality of the 1992 New York law in Becher v. Becher. They argued that the operation of the law made it impossible to accept a husband’s word that he gave a get voluntarily: “Having announced that he perceives a gun pointed at his head Mr. Becher would have a hard time persuading any Beth din that the gun has nothing to do with his decision to give a get.” Amicus Brief of Agundath Israel of America in Mina Becher v. Yehuda Becher, New York Supreme Court Appellate Division, Docket No. 97-03205. The appellate division declined to rule on the grounds that the wife had waived her rights to have the husband’s failure to deliver the Jewish divorce considered. 245 A.D. 2d 408; 667 N.Y.S. 2d 50; 1997 NY. App. Div

94. Evelyn Brook, personal communication, March 9, 2006.

95. Coalition of Jewish Women for the Get, What is Being Done in Our Community to Isolate Get Abusers? [undated pamphlet on file with author].

96. Brook, supra note 73.

97. Lipovenko, D., “The Ties that Continue to Bind” The Globe & Mail (28 January 1989) D2Google Scholar.

98. Coalition of Jewish Women for the Get, Added Meaning to Ta Anit Esther, (pamphlet, 1993 on file with the author). The day continues to be marked by agunah activists around the world and widely publicized in the Jewish Press.

99. This program is funded by Jewish federations and by the federal government through the Multiculturalism Programs of the Department of Canadian Heritage.

100. The South African Beit Din approved conditional gittin for soldiers going to serve in the Angolan war in the 1970s and 1980s. The soldiers left a Power of Attorney with the Beit Din of Johannesburg instructing that if they were missing in action for two years or more, their wives could be given a get on their behalf. Harris, A., “Assisting the Agunah—the South African Experience” (1999) 21 Justice 32 Google Scholar. It is unclear whether they were ever acted upon.

101. Evelyn Brook, personal communication March 9, 2006.

102. She describes a case in which the rabbis negotiated that the husband would deliver the get if the wife surrendered her share in the matrimonial home. The wife, however, needed the home to provide for the daughter of the marriage who was battling leukemia and had been abandoned by her father upon receiving the diagnosis. Baumel Joseph, supra note 15 at 29.

103. See, for example, the series, Jewish Law Watch, published bi-annually by the Center for Women in Jewish Law of the Schecter Institute of Jewish Studies, from 2000 onward. (available at www.schecter.edu/women/aguna.htm). The goal of the project is “to encourage rabbinical courts to use the halakhic tools which are at their disposal to free modern-day agunot.” See also Ha Din Ve Hadayan (The Law and its Decisor), selected cases published by Yad L’Isha in collaboration with the Rackman Centre for the Advancement of the Status of Women at Bar Ilan University (available at www.legalaid.org.il?bar_ilan.htm).

104. Zuria, A., Mekudeshet: Sentenced to Marriage (Israel: 2005)Google Scholar. The film followed the work of female rabbinical court advocates working on behalf of women through the Max Morrison Legal Aid Center of Ohr Torah Stone.

105. See supra note 33.

106. Baumel Joseph, supra note 15.

107. Breitowitz, supra note 36 at 4-5.

108. Norma Baumel Joseph, personal communication March 9, 2006.