IT wasn’t until 1975 that Australian couples could access a ‘no-fault divorce’. Prior to 1975, Australian couples had to prove to a court that one of the spouses’ behaviour met the grounds to entitle them to end their marriage. This situation meant costly, invasive and humiliating divorce proceedings.
In Judaism we have the guidelines for divorce already in Deuteronomy. Indeed Judaism sets out the procedure for divorce even before prescribing the rituals for marriage. Jewish divorce, just like Jewish marriage, is an institution that is entered into by two consenting adults. If the spouses choose to end their marriage there is no need to prove who was at fault, there is no need to seek the permission of a rabbinic court, rather there is autonomy for the couple. Just as they entered into their marriage with mutual consent, so too they can end their marriage by mutual consent.
For millennia this was a progressive system that recognised individual rights regarding personal status. The flip side of this system is that just as spouses, not a court, have control over ending their marriage – similarly a single spouse can prevent a Jewish divorce from progressing. Since the takkanot (ordinances) of Rabbeinu Gershom 1000 years ago, Jewish divorce requires both the husband and the wife’s consent. If either party refuses, also known as gett (divorce writ) recalcitrance, it can be very difficult for the other spouse to exit the marriage. There are halachic options to address this issue but they are utilised only in the most dire of circumstances.
The vulnerability of spouses to gett recalcitrance can be highlighted from two recent cases overseas.
In Israel, Tzviya Gorodetsky, applied for her divorce in the beth din (rabbinic court) in 1995 after experiencing significant family violence, including a horrific assault while nine months pregnant resulting in a stillbirth. To this day, almost 25 years later, Tzviya’s husband has still not consented to the divorce and has not given her a gett. In 2000 the beth din ordered that her husband be arrested and incarcerated for his refusal to give his wife a gett. Even after the beth din exerted additional pressure on him such as placing him in solitary confinement and Tzviya undergoing a hunger strike, he continued to refuse to give his wife a gett. This extreme case highlights the vulnerability of a system dependent on mutual consent without a beth din willing to annul her marriage. For 19 years Tzviya’s husband sat in jail and Tzviya remained an agunah (a chained wife). Without a divorce she could never remarry and move on with her life and he could continue to exert control and abuse over her.
Fortunately for Tzviya, with the assistance of the Centre for Women’s Justice and a private beth din convened by Rabbi Professor Daniel Sperber, Tzviya’s marriage was annulled in 2018 and she is today a free woman. The rabbis who annulled her marriage did so in recognition that gett recalcitrance is a significant chillul Hashem – desecration of God’s name – and risks allowing halachah to be a source of abuse instead of a divine system of justice defending the rights of the vulnerable.
In Australia, a beth din does not have the authority to order the incarceration of recalcitrant spouses; however, a recent case from the UK presents alternative solutions. A woman in London recently brought a private prosecution of her ex-husband for his gett refusal under laws criminalising controlling and coercive conduct brought in 2015. The man was due to face a criminal trial in July this year and if found guilty he could have faced up to five years in jail. Fortunately for this woman, her husband agreed to give her a gett without having to go through the ordeal of a criminal trial.
In 2015 a Melbourne magistrate agreed to extend a family violence intervention order after finding that the ex-husband’s refusal to grant his ex-wife a gett is a form of Family Violence as it is emotionally and psychologically abusive behaviour. Breach of an intervention order is a criminal offence that risks a two-year term of imprisonment. In this case too the husband agreed to give the gett before he would have had to face any criminal charges. Indeed we are yet to see Victoria Police bring criminal charges against a spouse who is exerting controlling and abusive behaviour with gett refusal.
The challenge to Australian Jewry is: Do we want to be pragmatic and rely on civil courts to address this issue or should we expect Jewish law to be able to ensure that all Jewish spouses are able to leave abusive marriages with dignity and respect?
Rabbanit Ellyse Borghi is a member of the Unchain My Heart committee and a lawyer.