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.