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Jewish Divorce and the Recalcitrant Husband—Refusal to Give a Get as Intentional Infliction of Emotional Distress

Published online by Cambridge University Press:  24 April 2015

David M. Cobin
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Since the giving of the law on Mount Sinai more than three thousand years ago, a distinct legal system has governed the Jewish people. One of the areas included in Jewish law is domestic relations. As a result, when an American Jewish couple marries in a Jewish ceremony two distinct legal systems recognize the marriage: American civil law and Jewish law. If the marital relationship breaks down and one or both parties want a divorce American law requires that the moving party brings an action in a court of law. Assuming proper grounds exist, the court will order a divorce and American law will consider the marriage terminated. Jewish law, however, will consider the parties still married until such time as distinct Jewish legal procedures are performed. Jewish law requires that the husband give his wife a bill of divorcement, known as a get. If the husband refuses to give his wife a get, she cannot remarry in accordance with Jewish law. Such a woman, in Jewish terminology, is an Agunah, a chained woman.

With the increase of divorces in American Jewish society has come an increased number of Agunot. A further result has been legal activity, in courts and at least one legislature, to encourage or even force a recalcitrant husband to give his wife a get.

Type
Articles
Information
Journal of Law and Religion , Volume 4 , Issue 2 , 1986 , pp. 405 - 430
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1986

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References

1. Deuteronomy 24:1 (Jewish Publication Society (1985))Google Scholar.

2. An English translation of the text of a get is as follows:

On the——day of the week, the——day of the month of——, in the year——from the creation of the world according to the calendar reckoning we are accustomed to count here in the city——(which is also known as——) which is located on the river——(and on the river——) and situated near wells of water, I——(also known as——) the son of——(also known as——) who today am present in the city—— (which is also known as——) which is located on the river——(and on the river——) and situated near wells of water, do willingly consent, being under no restraint, to release, to set free and put aside thee, my wife——(also known as——) daughter of——(also known as——) who is today in the city of—— (which is also known as——) which is located on the river——(and on the river——) and situated near wells of water, who has been my wife from before. Thus, I do set free, release thee, and put thee aside, in order that thou may have permission and the authority over thyself to go and marry any man thou may desire. No person may hinder thee from this day onward, and thou art permitted to every man. This shall be for thee from me a bill of dismissal, a letter of release, and a document of freedom, in accordance with the laws of Moses and Israel.

——the son of——, witness

——the son of——, witness

From I. Haut, Divorce in Jewish Law and Life [hereinafter Haut], 17–18 (1983)Google Scholar.

3. For a description of the procedure generally followed today for preparing and giving a get, see Haut, id. at 31-41.

4. Rabbenu Gershom Ben Judah Me'or HaGolah (Our Rabbi Gershom son of Judah Light of the Exile) lived approximately 960-1028 C.E. in Mainz, Germany. He is credited with many takkanot (enactments), including a ban forbidding the unauthorized reading of private letters and a ban against reminding Jews who had returned to Judaism after forceful conversions of their prior transgression. The decree giving women the right to refuse a get is attributed to him by Rabbi Meir of Rothenburg (c. 1215-1293), himself a great German Jewish scholar. Modern scholarship questions Gershom's authorship of many decrees. See, e.g., Falk, Z.W., Jewish Matrimonial Law in the Middle Ages (1966)Google Scholar. For more information, see Encyclopedia Judaica Vol. 7, 511–13 (1972)Google Scholar and sources cited therein.

5. See Haut, supra note 2 at 56 and authorities cited therein.

6. The Babylonian Talmud, Gittin, (Soncino, ed., 1977)Google Scholar.

7. The Code of Maimonides, Book Four, the Book of Women 178 (Yale Judaica Series, 1972)Google Scholar.

8. “In terms of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, matters of marriage and divorce between Jews, citizens or residents of the state, fall within the exclusive jurisdiction of the rabbinical courts, which jurisdiction extends to any matter connected with the suit for divorce, including maintenance for the wife and for the children of the couple, [sec. 3(1)]. Divorce for Jews is performed in accordance with Jewish law [sec. 2]. Elon, M., Principles of Jewish Law 423 (1974)Google Scholar [hereinafter Elon].

While courts in Israel today do not lash a husband until he gives his wife a get, other methods are available. J. David Bleich writes:

In Israel, where rabbinic tribunals have jurisdiction over domestic matters, the husband can be held liable for the support of his wife until such time as he executes a bill of divorce. A decree ordering the husband to provide for the sustenance of his estranged wife will, in most cases, effect a change of heart in even the most recalcitrant of husbands.

Bleich, J. David, Contemporary Halakhic Problems 155 (1977)Google Scholar.

9. “In general it can be said that the [ban] has been accepted as binding among Ashkenazi communities, but not among Sephardi and most of the Oriental communities. This is apparently because in those countries where Askenazim formed the main part of the Jewish community, as in Europe, America, or Australia where European Jews migrated, polygamy was also forbidden by the dominant law. This was not the case in Oriental countries, as in Yemen, Iraq, and North Africa, polygamy being permitted in Islam.” 4 Encyclopedia Judaica 987 (1972)Google Scholar.

10. See Bleich, , Modern Day Agunot—A Proposed Remedy, in 4 The Jewish Law Annual 168 (1981)Google Scholar.

11. See Elon. supra note 8, at 367.

12. See 4 Encyclopedia Judaica 986 (1972)Google Scholar.

13. See Elon, supra note 8, at 435.

14. 16 Pa. D. & C. 290 (1932).

15. Id. at 291.

16. 42 D.L.R. 3d 550 (Manitoba Ct. App. 1973).

17. An English translation of the traditional Ketubah is as follows:

On the——day of——, thus did——, son of——, say unto——, daughter of——, never married bride: ‘Be unto me for a wife, according to the laws of Moses and Israel, and I will work, honor, support and maintain thee in accordance with the manner of Jewish men who work, honor, support and maintain their wives in faithfulness and I give thee bride price of——zuz which are due thee and thy food, clothing and needs, and shall come to thee according to the way of all the earth.’ And this is the dowry that she has brought from the house of in silver, gold, ornaments, articles of wear, utensils of dwelling, bedclothes; all has this bridegroom taken upon himself in refined pure silver, and this bridegroom has consented and added to it from his own another refined, pure silver corresponding to this, the sum total being refined pure silver. And thus did——this bridegroom say: ‘The responsibility of this ketubah, this dowry and this addition I take upon myself and on my heirs after me, to pay from all the best, desirable property and acquisitions that I have under all the heaven which I acquired or which I shall acquire in the future, property which has a guarantee or which does not have a guarantee, and all shall be guaranteed and assured to pay from this ketubah, this dowry and this addition, from me and even from the cloak on my shoulder, in my lifetime or after my death, from this day on forever!’ The guarantee and severity of this ketubah, this dowry and this addition, has——this bridegroom taken upon himself as the severity of all the documents of ketubah and additions which are customary for the daughters of Israel, which are made according to the ordinances of our sages, their memory be a blessing.

From Haut, supra note 2, at 8 & 9. See also In re Morris and Morris, 42 D.L.R. 3d at 565-66.

18. Morris, 42 D.L.R. 3d at 568, (Guy, J.A., with Monnin, J.A. concurring).

19. Id. at 573, 575 (Matas, J.A., concurring).

20. 42 A.D.2d 517 (N.Y. App. Div.), 344 N.Y.S.2d 482 (1973).

21. 344 N.Y.S.2d at 484.

22. Id.

23. Id.

24. 5 Fam. L. Rep. (BNA) 2810 (1979).

25. 180 N.J. Super 260, 434 A.2d 665 (N. J. Super. Ct. 1981).

26. Stern, 5 Fam. L. Rep. (BNA) at 2811.

27. Minkin, 434 A.2d at 666.

28. Stern, 5 Fam. L. Rep. at 2811; Minkin, 434 A.2d at 668.

29. Stern, 5 Farn. L. Rep. at 2811; Minkin, 434 A.2d at 668.

30. 58 N.Y.2d 108, 459 N.Y.S.2d 572, 446 N.E.2d 136 (Ct. of App. 1983), cert, denied, 464 U.S. 817 (1983).

31. A Beth Din, literally a House of Law, consists of a panel of rabbis, generally numbering three, who are empowered to render judgments under Jewish law.

32. Avitzur, 459 N.Y.S.2d at 573.

33. Avitzur v. Avitzur, 86 A.D.2d 133, 449 N.Y.S.2d 83 (App. Div. 1982).

34. Avitzur, 459 N.Y.S.2d at 574. For a more complete discussion of cases involving Jewish divorce, including English cases not included in this aritcle, see Bleich, , Jewish Divorce: Judicial Misconceptions and Possible Means of Civil Enforcement, 16 Conn. L. Rev. 201 (1984)Google Scholar. See also Friedell, , The First Amendment and Jewish Divorce: A Comment on Stern v. Stern, 18 J. Fam. L. 525 (1979–1980)Google Scholar; Glenn, , Where Heavens Meet: The Compelling of Religious Divorces, Amer. J. Comp. L. (1980)Google Scholar; Note, Civil Enforcement of the Jewish Marriage Contract, 9 Fam. L. 425 (1970)Google Scholar. Cf. Note, Recognition of Nonjudicial Divorces, 43 Mod. L. Rev. 202 (03 1980)Google Scholar.

35. McKinney's Session Laws of New York, Chapter 945 (1984).

36. See, e.g., N.Y.L.J., October 27, 1983, for arguments that the law is unconstitutional and N.Y.L.J., November 16, 1983, for arguments in defense of its constitutionality.

37. Cohen, , The Right to a Get in Dutch Law, 32 Bull., Int'l Assoc. of Jewish Lawyers and Jurists 10 (Winter 1983–1984)Google Scholar, referring to Hoge Raad der Nederlanden [HR] 1982, 1982 NJ 489. 1982 Nederlandse Jurisprudence [NJ] 489.

38. 1982 NJ 489 at 1694 and 1695. The author wishes to express thanks to Ms. Linda Rakia of Jerusalem, Israel for translating this court opinion from Dutch into English.

39. See Niddam, , The Position Taken by the French Civil Courts in Suits for a Jewish Divorce Against Recalcitrant Husbands, 10–11 Dine Israel 385 (1981–1983)Google Scholar.

40. N. Y.L.J. May 4, 1978, 7, col.4; see Meislin, B., Pursuit of the Wife's Right to a ‘Get’ in United States and Canadian Courts, 4 Jew. L. Annual 250, 270 (1981)Google Scholar.

41. Id.

42. 42 A.D.2d 517 (N.Y. App. Div. 1973).

43. B v. B, supra note 40, at 10.

44. 1 Restatement (Second) of Torts 2d, at 73 (1965)Google Scholar.

45. Givelber, , The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Colum. L. Rev. 42, 46–47 (1982)CrossRefGoogle Scholar [herinafter Givelber].

46. 2 Q.B. 57 (1897).

47. 2 K.B. 316 (1919).

48. 167 Minn. 203, 208 N.W. 653 (1926).

49. See Keeton, W., Dobbs, D., Keeton, R., and Owen, D., Prosser & Keeton on Torts 62–63 (5th ed. 1984)Google Scholar.

50. 133 Wash. 134, 233 P. 299 (1925).

51. 53 Ga. App. 44 (1936).

52. Bleitz, 233 P., at 300.

53. Givelber, supra note 45, at 63. See also W. Keeton, et.al, supra note 49, at 61.

54. Givelber, supra note 45, at 63.

55. Haut, supra note 2, at 8-9.

56. See Avitzur, 450 N.Y.S.2d at 573.

57. W. Keeton, et. al, supra note 49, at 27.

58. See Minzer, M., Damages in Tort Actions, § 6.12(1) (1985)Google Scholar.

59. Id. at § 6.31.

60. Even in jurisdictions where intention to harm must be demonstrated, the severe distress caused by the status of an Agunah, coupled with its foreseeability, may well justify a finding of intent to harm whenever the husband evinces an intention never to give his wife a get.

61. But see Hassing v. Wortman, 214 Neb. 154, 333 N.W.2d 765 (1983)(liability was denied because plaintiff could not prove that she had suffered emotional distress so severe that no reasonable person could have been expected to endure it).

62. For a discussion of the problems of a forced get, see Gartner, Rabbi Tzvi, Problems of a Forced Get, in 9 J. Halacha & Contemp. Soc. (1985)Google Scholar. See also Bleich, J. David, 2 Contemporary Halakhic Problems 93–100 (1983)Google Scholar. Bleich quotes from the earliest rabbinic responsa concerning this form of indirect coercion, the thirteenth century work, IV Teshovot ha-Rashba, no. 40:

Question: Reuben, the husband of Leah, and the relatives of Leah entered into an agreement requiring Reuben to divorce his wife, Leah. They agreed to a penalty of 1,000 dinari [upon failure] to execute a divorce by a specified time. Subsequently, Reuben retracted and refused [to execute a divorce]; whereupon, the others warned him concerning the penalty. … Because of this fear Reuben divorced [his wife]. … Shall we rule this to be a coerced gef? Answer: It appears to me that this get is coerced and invalid ….

Bleich, supra at 95.

63. Funiak, W. de, Handbook of Modern Equity 15 (1956)Google Scholar. See also Dobbs, D., Remedies 105–06 (1973)Google Scholar [hereinafter Dobbs].

64. At one time courts distinguished between personal and property rights and limited injunctive relief to the protection of rights. This distinction stemmed from dicta in Gee v. Pritchard, 2 Swanston's Reports [Swanst.] 402, 36 Eng. Rep. 670 (Chancery 1818). This distinction is no longer made today and injunctive relief will be given for the protection of personal rights as well as property rights when appropriate. See Dobbs, supra note 63, at 113.

65. Rolls v. Miller. 15 Charles I [Car] (1639), Tothill's Rep. 144, 21 Eng Rep. 149 (1640).

66. 1 Equity Cases Abridged [Eq. Ca. Abr.] 399 (1716).

67. Lord Barnard gave Raby Castle to his son upon the son's marriage to Morgan Randall's daughter, retaining a life estate in himself. The reporter states,

The defendant, Lord Barnard, having taken some displeasure against his son, got two hundred workmen together, and of a sudden, in a few days, stript the castle of the lead, iron, glass doors, and boards, etc., to the value of 3000 pds.

Id.

68. The Babylonian Talmud, Gittin, Soncino Edition (1977)Google Scholar.

69. 204 U.S. 426 (1907).

70. Schwartz, , Administrative Law 484 (1976)Google Scholar [hereinafter Schwartz] (citing Far East Conference v. United States, 325 U.S. 570, 574 (1952)).

71. 352 U.S. 59 (1956).

72. Id. at 64. See Schwartz, supra note 70, at 488.

73. Schwartz, supra note 70, at 490-91, citing Far East Conference v. United States, 342 U.S. 570 (1952) and Apgar Travel Agency v. International Air Transport Assn., 107 F. Supp. 706, 712 (S.D.N.Y. 1952).

74. 350 N.Y.S.2d 703 (App. Div. 1973).

75. This is a term comparable to ‘Beth Din’ used in this article.

76. Berman v. Shatnes Laboratory, 350 N.Y.S.2d 203 at 704-05. See also, e.g., Berk v. Berk, 8 Misc. 2d 732, 171 N.Y.S.2d 593 (S. Ct. 1957); In re Fresh Meadows Jewish Center, Inc., 75 A.D.2d 814 (N.Y. App. Div.), 427 N.Y.S.2d 476 (1980); Friedman, , A Look at Rabbinical Arbitration, Arbitration and the Law, American Arbitration Association General Counsel's Annual Report (1983)Google Scholar.

77. 58 N.Y.2d 108.

78. 42 A.D.2d 517 (N.Y. App. Div. 1973).

79. Id.

80. Rapaue, S., A Treatise on Contempt 25 (1890)Google Scholar; see also Goldfarb, R., The Contempt Power 52 (1963)Google Scholar.

81. 248 Iowa 68, 78 N.W.2d 491 (1956).

82. Lynch v. Uhlenhopp, 78 N.W.2d at 493.

83. Id. at 496-97.

84. 319 U.S. 624 (1943).

85. Id. at 642.

86. Cf. Wisconsin v. Yoder, 406 U.S. 205 (1972).

87. Cf Lemon v. Kurtzman, 403 U.S. 602 (1971).

88. Stern. 5 Fam. L. Rep. (BNA) 2810; Minkin, 180 N.J. Super. 260.

89. See Mansfield, , The Religion Clauses of the First Amendment and the Philosophy of the Constitution, 72 Cal L. Rev. 847, 850 (1984)CrossRefGoogle Scholar for a discussion of how “nonreligion” has no protection under the Free Expression clause.

90. Cf, Lemon v. Kurtzman, 403 U.S. 602 (1971).

91. Minkin, 180 N.U. Super. 260.

92. Tribe, L., American Constitutional Law, 869 (1978)Google Scholar.

93. Id., citing Walz v. Tax Commission, 397 U.S. 664, 674 (1970).

94. Walz, 397 U.S. at 691 (Brennan J., concurring).

95. Id. at 698 (Harlan, J., concurring).

96. Jones v. Wolf, 443 U.S. 595 (1979). See also First Presbyterian Church v. United Presbyterian Church, 461 N.Y.S.2d (A.D. 3 Dept. 1983).

97. Lemon v. Kurtzman, 403 U.S. 602 (1971).

98. 374 U.S. 398 (1963).

99. Id. at 404.