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Divorce, Israeli Style
by Susan Weiss

How much is your freedom worth? Would you give up custody of your child
to free yourself from an oppressive marriage? Can you set a price on your
child-bearing years?

These problems torment my clients daily. I am a divorce lawyer in the State
of Israel. I also happen to be an Orthodox Jew. Every time I represent
someone petitioning for divorce, my client must inevitably pay for his or her
freedom. Usually, the less integrity the spouse and his or her counsel have,
the higher the price. This axiom is mandated -- even encouraged -- by
Jewish law as applied by the judges who sit on the state rabbinical courts
and who have sole jurisdiction over marriage and divorce in Israel. Religious
law, as they interpret it, makes it virtually impossible for a couple to get a
divorce unless both spouses agree to it. Unfortunately, Israel's secular laws
and judicial rulings reinforce the reality of institutionally sanctioned extortion.

A few of my clients have bought their freedom at the cost of their children. I
once represented a woman whose husband refused to give her a get - a
Jewish divorce - unless she gave up custody of her son. After two years of
litigation, she relinquished custody in return for her get. The dayanim -
rabbinical judges - promised to return her son after the divorce. After she
received the get, the social workers wrote a report saying that her son's
best interests were served by being placed in his mother's custody. A
court-appointed psychologist determined that the father suffered from an
"antisocial disorder" (translation: he was a psychopath). But only one of
the three judges ruled that my client should regain custody. After two more
years of litigation, she gave up. She hasn't seen her son in years.

Was her freedom worth the price?

Most of the time, the cost of freedom is just money. Payment is usually in
installments, or in the waiver of rights that are not easily assigned value.
Many mothers, in the interest of a quick escape, compromise over the
amount of monthly child support they'll receive for their children. Sometimes,
they waive the right to sue for higher support payments after the divorce.
The Israeli Supreme Court has sanctioned such waivers, viewing the get as
an adequate quid pro quo.

Husbands who sue their wives for divorce may also encounter institutionally
sanctioned extortion. Their wives may hide unreasonable demands behind
their children's needs or their economic woes, or they may abuse their
custody rights to exact monetary benefits that the law would not give them.
A mother may refuse to accept the divorce unless the father agrees to cede
the house to her, or keep the children from him unless he increases child
support. One of my male clients bought his freedom by relinquishing all but
10 percent of the communal property. His generosity bought him swift relief
and he was able to remarry and have two children with his new wife. Was
his freedom worth the price?

Overall, though, the rules favor the husband. If a married woman has a
child by another man, the child is a mamzer, forbidden by Jewish law to
marry anyone but another mamzer. A woman trapped in marriage risks
never having children again unless she pays the price of a divorce -- any
price.

Why is this extortion sanctioned by the State of Israel? First, because the
dayanim are unwilling to wield their power under religious law, halakhah.
second, because the political balance in Israel does not allow the state to
provide civil courts with any powers that would compensate for the
weakness of dayanim.

Rabbinical courts almost never compel a husband to give a get or a wife to
accept one. I know of no occasion on which a rabbinical court has annulled
a marriage. The rabbis encourage the payment of money to solve problems
they have shown themselves impotent to resolve. Political concerns have
squelched reformers' efforts to amend secular law to change or compensate
for this situation. Religious parties have stymied legislation that would allow
for division of property before the formal divorce.

In fact, Halakhah gives dayanim the power to order someone to give or
accept a get, or even forcibly compel him or her to do so, or to annul a bad
marriage. Prenuptial contracts have been proposed by some prominent
rabbis and attorneys that would reduce significantly the possibility of
extortion, by requiring husbands to provide steep support payments after
separation and before divorce. The rabbinical court judges have refused to
avail themselves of such solutions, insisting that they "present halakhic
problems."

Such answers don't satisfy me. The religious public must demand solutions
from their rabbis. And secular laws must be enacted that will compensate
for the halakhic authorities' weakness -- and ultimately pressure them to seek
solutions. For instance, the law should allow civil courts to divide property
before the divorce is finalized. It should also allow the civil court to take into
account any get blackmail and compensate for it.

The price of one's freedom or one's womb must no longer be a factor in
divorce negotiations.

Susan Weiss made aliyah from the USA in 1980 and has maintained a
private Family Law practice in Jerusalem for over 10 years. She
teaches a course on Personal Status at Ohr Torah Stone's Women's
Advocate Program for the Rabbinical Courts. Weiss initiated the Ohr
Torah Stone'sLegal Aid Center and Hotline to serve clients who
cannot afford to retain the services of a Advocate. In addition, she
also lectures widely on the subject of prenuptial agreements and the
rights of an agunah. Weiss is married and the mother of 5 children.