Yehiel S. Kaplan

Yehiel S. Kaplan

Enforcement of Divorce Judgments in Jewish Courts: The Interaction between Religious Law and Constitutional Law inIsrael

1 Introduction

In the State of Israel, rabbinical courts are granted sole jurisdiction in the adjudication of marriage and divorce involving Jews. Divorces are affected by means of a get, the Jewish divorce document presented by the husband to his wife on the occasion of their divorce. Although there are ideological disputes between proponents of this legal system and reformists, two Basic Lawsenacted in 1992—Basic Law: Human Dignity and Freedom, and Basic Law: Freedom of Occupation—preserve the current system.

When Jews sue for divorce inrabbinicalcourts in Israel, the courts occasionallydetermine that the man has to grant his wife a get or that the wife has to accept the getgranted to her by her husband. Sometimes one spouse disobeys the ruling. The primary law in Israel used to assist the husband or wife of the recalcitrant spouse is the Rabbinical Courts Law (Enforcement of Divorce Judgments)5755-1995[henceforth: the Rabbinical Courts Law]. It enables the rabbinicalcourts to impose various sanctions on the recalcitrant spouse. Although the rabbinicalcourts occasionally impose sanctions, they are usually reluctant to do so since they grant significant weight to thestringent view of some decisors of Jewish law concerning a coerced divorce (getme’useh). They delay the imposition of sanctions out of concern that inappropriate coercion measures invalidate the get, rendering the couple still legally married.This policy can be counterproductive in that the adoption of a less conservative policy, also represented in Jewish legal texts, would more readily induce the recalcitrant spouse to give or receive the desired get,thereby alleviating the suffering of the non-recalcitrant spouse and allowing him or her to remarry and start a new family.

In this sphere, the balancebetween the rights and obligations of the husband and wife, in light of the principles of constitutional law of Israel, is not presented in a clear and detailed manner in decisions of the Supreme Court of Israel, neither before[1] nor after[2] the enactment of the 1992 Basic Laws. Moreover, sometimes the result of hard cases is bad law. In the aforementioned cases, the Supreme Court had to decide about the appropriate implementation of a severe and harshsanction: imprisonment. However, in these cases recalcitrant husbands caused unnecessary agony to the wife over the course pf many years, and imprisonment was the last resort. Therefore, the Supreme Court of Israel avoided the issue of the appropriate constitutional policy. The use of the harsh and extreme measure was justified in the particular instance, but there was no attempt to implement a general formula of balancing between the rights and obligations of the husband and the wife. Since the behavior of the husband in these cases was certainly cruel, severe, and unjustified, the court felt the definition of a constitutional formula regarding the appropriate constitutional balance was not necessary. The court explained that the prison keys are in the hands of the recalcitrant spouse, who may at any time release himself or herself from incarceration. [3]

I believe that this explanation is appropriate only in extreme cases and in many other cases, when sanctions are imposed against the recalcitrant spouse, the rights and obligations of the husband and wife should be balanced in an appropriate manner. This is an essential policy, especially after the enactment of the 1992 Basic Laws.

The implementation of the principles of these Basic Laws to sanctions imposed against a recalcitrant spouse is evident in the Sabag case. In the Sabag case, the rabbinicalcourt had exercised its authority to prevent arecalcitrant husband from leaving the country, as a means of pressuring him to grant his wife a get. The majority opinion was that although refusal to grant a get is a grave problem and painful for the spouse, the solution to this problem should not include imposing the jurisdiction of therabbinicalcourt on an individual lacking sufficient connection to the country, especially when preventingthe husband’s egress to his permanent place of residence severely violates his constitutional right to freedom of movement: "the appropriate solution cannot be in conflict with the fundamental principles governing the propriety of legal proceedings, and these are not commensurate with the resolution of disputes by means of coercion and pressure that lack any legal basis, notwithstanding the gravity of the disputes."[4]

In addition, since the Rabbinical Courts Law states that jurisdiction is granted to these courts only when that the partieshave connection to Israel,in the Ploni case[5], Supreme Court Justice Arbel decided about the issue of imposing the jurisdiction of a rabbinicalcourt on an individual who claimed he lacks the connection to Israel required in the law. Again the husband claimed that the prevention of his exit to his permanent place of residence in another country severely violated his constitutional right to freedom of movement. He also claimed that the linkage between the deposit of a get at a rabbinical court in Israel and the removal of the court order preventing his exit from Israel is unconstitutional, since it is not in spirit of the Basic Law: Human Dignity and Freedom. On the other hand, the wife claimed that the policy of the rabbinical court in this case was in the spirit of the constitutional principles, including the principle of proportionality. Justice Arbel stated that in this case the territorial connection of the husband to Israel is strong and therefore he is subjected to the regular jurisdiction of the rabbinical courts in Israel. She took into consideration the suffering and agony of the wife of the recalcitrant spouse. In Arbel’s view, in the circumstances of this case the right of this woman to release herself from the chains of an undesirable marriage—implied by her constitutional right to human dignity and freedom and her right to autonomy and regular, normal family life—is more important than the husband’s constitutional freedom of movement. She also stated that the key to his release from the undesirable situation is in his hands.

However in the Sabag and the Ploni cases the Israeli Supreme Court did not articulate the general desirable balancing formula that should be implemented when sanctions are imposed against a recalcitrant spouse.

In the Ploni case, the court stated that when sanctions are imposed upon a recalcitrant spouse the High Court of Justice should intervene and invalidate the decision of the rabbinical court when the latter does not act in light of the principles of natural justice or the directives in the legislation of the State of Israel. It also stated that in this case the rabbinical court did take into consideration the principle of proportionality and did not impose the severe sanction—imprisonment—upon the recalcitrant spouse. Although the wife requested the imposition of imprisonment, the court was careful and adopted a gradual policy of imposition of sanctions against the husband.[6] This policy was presented as an implementation of the policy articulated earlier, in the Plonit case, in which the court justified a policy of a balanced and gradual imposition of sanctions upon a recalcitrant spouse by the rabbinical courts.[7]

Yet these are general guidelines. A detailed analysis of the policy of imposition of sanctions against a recalcitrant spouse by rabbinical courts in Israel, in light of the relevant principles of Jewish law, case law in Israel, and Israeli legislation, has not yet been undertaken. The aim of this paper is to present the appropriate formula pertaining to the imposition of sanctions against the recalcitrant spouse in light of the principles of constitutional law. Moreover, I believe that the resulting formula is applicable in other countries as well, especially those, such as Canada, with similar constitutional legislation. A similar policy should be implemented concerning the appropriate application of coercive measures against recalcitrant spouses in Jewish divorce proceedings in rabbinical courts in other countries, such as the United States of America and Canada. In these countries as well.In these countries the parties can choose to approach a rabbinical courts and request that it will assist them in their divorce dispute.In addition in these countries sometimes staes or provinces or the state sometimes enact legislation in an attempt to assist Jewish husband or wife who desire to receive their get from a recalcitrant spouse.When the legislator acts in this manner the courts should implement the legislation in light of principles of human rightsincluding the principle of proportionality.

The main conclusion of this paper is that the policy of imposing sanctions against a recalcitrant spouse should be defined in a clear manner in light of guiding principles derived from Jewish law as well as Israeli law, including those stated in the aforementioned 1992 Basic Laws. These latter laws state that certain basic human rights—such as freedom of movement, freedom of occupation, and human dignity and liberty—are important constitutional rights. Sanctions imposed by rabbinicalcourts in an attempt to induce the recalcitrant spouse to give or receive a getare sometimes severe: Imprisonment, severe limitation of the freedom of occupation, etc. Therefore, the imposition of these sanctions in light of the limitations in Jewish law concerning coerced divorce and the limitations in Israeli law pertaining to the enforcement of divorce judgments and the principle of proportionality is very important. When these sanctions are imposed, the court should grant due weight to the rights and obligations of the husband and wife, in Jewish law and constitutional law of the State of Israel, and implement an appropriate balancing formula regarding these rights and obligations. The choice of a specific sanction, imposed upon the recalcitrant spouse, should also be the result of careful examination of the circumstances of each divorce case. In addition, the sanctions should be imposed in a gradual process. Only after less severe sanctions provedineffective should more severe sanctions be imposed. This policy is in the spirit of the “values of the Jewish and democratic state” mentioned in the 1992 Basic Laws.

2Enforced Get(Get Me’useh) in Jewish Law

2. 1Compelling the Husband to Give aGetwhen there are Grounds for Divorce that Justify Compulsion

Early sources of Jewishlaw indicate that, originally, a woman could be divorced against her will. In ancient times, when a husband did not wish to divorce his wife, a court decision in favor of divorce did not suffice on its own; his cooperation was required as well.[8] After the husband agreed of his own free will to divorce his wifeand gave her a get, the woman was divorced. Later, a change occurred with respect to the wife’s consent to receive a get. The cooperation of both the husband and the wife was required, and without it the get was invalid.[9]

According to classical Jewish sources, the gap between the capacities of the husband and the wife to sever their marital bond is narrowed by the principle in Jewish law that de facto entitles a woman to receive a get against the will of her husband. In prescribed circumstances, the husband may be coerced ("kofin oto") to give his wife a get.[10]The court’s methods of compelling the recalcitrant husband to grant a divorce included flogging.[11] The practical result of these harsh coercive measures is that the husband does not divorce his wife purely of his own volition.

In this context, great importance is ascribed to the discretion of the court. Even when there are grounds for compelling divorce, flogging and other harsh measures are only permitted after a rabbinicalcourt rules that the husband mustbe compelled to give a get. A get that was given after the exercise of a coercive measure, without an explicit judicial ruling of a Jewish court that grounds exist for compelling divorce, is considered an unlawfully (shelo kadin) enforced get (get me’useh).[12]

Although many medieval authorities regarded the list of cases of cases where divorce is compelled to be closed,[13] the legitimacy of applying the rule of the compelled get to cases more severe than those explicitly mentioned in the classical literaturewas assumed.[14] The list of cases of “compelled” divorce was expanded to include other cases that shared a rationale identical or similar to the grounds for divorce mentioned in the early literature.[15] However, this was not done as a manner of course. In many cases, Jewish authorities refrained from ruling in favor of compelling divorce because they hesitated to rule against those who maintained that the list of cases where a get may be coerced should not be expanded.[16] Even in cases where opinions differed, many refrained from relying on those who ruled in favor of compulsion.[17]

2. 2Sanctions Against a Husband or Wife who Refuses to Give or Receive a Get

2. 2 1Matching the Level of Enforcement with the Appropriate Sanction

The medieval authorities distinguished between two levels of enforcement with respect to divorce judgments: (1) kofin le-garesh — compelling divorce; and (2) hiyuv le-garesh — obligating divorce.[18]R. Hananel and subsequent authorities devised a lexical taxonomy for distinguishing between cases of obligation and compulsion.[19] These early authorities did not distinguish two other categories, “recommended divorce” and “mitzva to divorce,” newer categories used today in the judgments of Israeli rabbinicalcourts in Israel. These latter categories are not to be confused with situations in which there was a religious obligation to divorce—such as when the “evil” wife causes her husband to sin—which are treated as cases of compelled divorce.[20]

2. 3R. Tam’sisolating measures

A possible remedy, used primarily when a judgment is issued obligating divorce, and certainly in the case of a ruling compelling divorce, is the exercise of R. Tam’s isolating measures (harhakot). Due to the significance of these measures in Israeli law, we shall devote a separatediscussion to them.

R. Tam’s isolating measuresare first mentioned in the twelfth century, in a responsum by R. Tam—R. Jacob b. Meir—in his Sefer Ha-yashar.[21] He writes: “If we all agree, you may issue a decree with a severe curse [for violators of the decree]. This decree will state that every man and woman of the house of Israel... is forbidden to speak with him [the husband], to do business with him, to host him, to give him food or drink, to escort him, or to visit him when he is ill.”

R. Tam lists specific measures of social isolation that may be inflicted on the husband, but adds that the list of measures mentioned in his responsum is not closed, and other indirect measures, similar to those mentioned, may also be inflicted: “And they may add stringent measures as they please, [to be imposed] on anyone, if that man does not divorce and release this girl [his wife], for there is no compulsion in this, for if he wishes, he will comply, and he will not suffer in his body on account of this ban, but rather, we separate ourselves from him.”[22]

Here and elsewhere,[23] R. Tam distinguishes between direct sanctions, such as flogging and excommunication (herem) and voluntary communal separation or withholding of benefit. In contrast to excommunication, when these isolating measures are applied, they have no direct effect on the “body”[24] of the recalcitrant husband and they do not stigmatize him with the status of one who was excommunicated.[25] Moreover, R. Tam’s isolating measures are not a universal sanction, because they only apply in a specified locale. The sanctioned party may free himself from their burden by simply movingto another community. Thus, by remaining in his community, the isolated party tacitly accepts the onus of the isolating measures. Thus, some explain that when the party remains in the locale where the measures have been imposed, they are regarded as a sanction that the individual has brought on himself, and the resultant divorce is not tainted by compulsion or duress.[26]

However, we should also consider the weakness of the distinction between a direct action, inflicted upon a person’s “body,”[27] and R. Tam’s indirect isolating measures. One main argument against the validity of this distinction in contemporary society might be that it does not adequately take into account the effects of the sanction on a recalcitrant non-religious spouse, especially the husband, with regard to his/her free will. An action that in a formal sense is direct might have less effect on the husband’s will than an indirect action that is of greater significance from the husband’s perspective and has greater effect on his free will. This may be the case if the social effects of excommunication are less severe than those of R. Tam’s isolating measures. When the isolating measures are implemented, the isolated party may agree to divorce his spouse in order to free him/herself from the oppressive feeling of social isolation, which in contemporary society might sometimes be significantly greater than the social isolation experienced by someone placed under excommunication. The heavy social pressure brought to bear on a recalcitrant husband when R. Tam’s isolating measures are imposed impacts on his/her will to give/receive a get.[28]