The Agunah Problem and Israel’s Law of the Land

Reprinted with permission from Sh’ma: A Journal of Jewish Responsibility, shma.com, December 2009.

Israel is both a Jewish State and a democracy. It is governed by civil and religious law (especially Jewish and Muslim Law, that govern areas pertaining to family law).

Although there is no constitution, eleven basic laws with constitutional status have been passed over the years. The Basic Law: Human Dignity and Liberty, was passed in 1992. Among other things it establishes that a person’s physical and moral wellbeing, as well as the integrity of his or her property, are protected by law.

Jewish family law applies to Israel’s Jewish citizens, who can only get married and divorced under the auspices of the state rabbinic courts on the basis of religious law. Rabbinic law recognizes the laws of the land, dina de-malkhuta dina, a ruling attributed to Samuel, the first generation amora (talmudic sage) and head of a rabbinic academy in Nahardea, Babylonia, in the third century C.E. (Babylonian Talmud, Baba Kama 113a-b and parallel sources).

While the scope of this law has been debated by the rabbis over the centuries, (See Talmudic Encyclopedia, Vol. 7, pp. 295-308, s.v. dina demalkhuta dina) its basic thrust is that the king (or, today, the State) has authority to legislate – as long as it does not contradict Jewish law – so that peace in the land is kept.

While couples getting divorced in Israel can settle all related issues, such as property and child custody, in family court, the divorce itself must be arranged in rabbinic court. Jewish law requires that a husband give a get (Jewish writ of divorce) of his own free will. Therefore, if the husband refuses, the wife is chained to him (agunah) and cannot remarry. Any children she has from another man will be considered mamzerim (bastards according to Jewish law), and the marriage possibilities of those children will be severely limited.  Recalcitrant husbands sometimes resort to extortion and demand child custody or property, even if these issues have already been resolved in family court, as conditions for giving the get.

Rabbinic courts should apply the halakhic (Jewish legal) tools at their disposal to resolve these issues in a fair and timely manner, ensuring that a husband cannot extort his wife in this fashion.Dayanim (rabbinic court judges) are expected to rule in a just way, with total impartiality (Leviticus 19:16, Rashi ad. loc., Midrash Tannaim on Deuteronomy 16:18, etc).

For example, when a marriage has ended, when the couple has not lived together for an extended period of time, dayanim should use appropriate halakhic resources to prevent a woman from being hostage to unreasonable demands; those demands infringe not only on Jewish law, but also on the law of the land – dina de-malkhuta dina –  as defined in The Basic Law: Human Dignity and Liberty. Israeli society views the failure to expedite a divorce in such circumstances as an infringement of the tenets of democracy (to not discriminate because of religion, race or sex) as well as Israel’s Declaration of Independence.

One phenomenon that surfaces in rabbinic court rulings is thedayanim’s acquiescence to conditions stipulated by the husband – mainly regarding issues related to the children or to common property, even if these are unreasonable. Some dayanim are misusing the responsum of the Maharshdam (R. Samuel of Medina, Salonika, 1506-1580) who ruled that when a condition is practically impossible to fulfill (for example if the husband stipulates that after the divorce his wife will no longer be able to visit her father’s home), a husband can be compelled to divorce his wife without her agreeing to the condition as stipulated. However, when a condition is easy to fulfill, the wife is expected to agree to it as a condition for the divorce and the rabbinic court will not, then, compel the husband to grant the divorce (Maharshdam Responsa, Even Ha’ezer 41).

Other rulings that continue to disturb a sense of justice are that some Rabbinic Courts have accepted demands by husbands, even some who were violent and had been incarcerated by civil courts. Very often, the financial rights of the wife according to Israeli civil law, are denied by dayanim because of Torah law.  A husband might also demand that the decisions of a family court be rescinded and the rabbinic court should decide on all issues, or refuse to pay the child support as ruled in family court (See Rabbi Dichovsky’s class on “Compelling Divorce and Us” as recorded by his students athttp://www.etzion.org.il/dk/5768/1136mamar1.html).

These conditions seem to run contrary to the original intention of the Maharshdam, who recognized a husband’s right to place a condition on the divorce as long as the condition was easy to fulfill.

Israelis who are concerned with civil law, we should be incensed not only by the fact that these rulings contradict the principles of justice and impartiality that are implicit in Torah law, but also  by the rulings’ affront to Israeli democracy that these rulings imply, since all Jews are bound by dina de-malkhuta dina. The rulings imply discrimination against women, which is repudiated by the Declaration of Independence and rejected by the Basic Law: Human Dignity and Liberty, according to which all citizens, male and female alike, are ensured that they will be free to live in dignity as long as they abide by the rule of law.

Rabbi Diana Villa is a Conservative rabbi. She lectures at the Schechter Rabbinical School and is a senior researcher at the Center for Women in Jewish Law at the Schechter Institute. She represents the Schechter Institute at I.C.A.R. (International Coalition for Agunah Rights) and is the coauthor of “Za’akat Dalot- Halakhic Solutions for the Agunot of Our Times” (Jerusalem 2006) and of an upcoming book based on the Schechter Ask the Rabbi column online.

Photo: Jewish Law Watch, a Schechter Center for Women in Jewish Law publication which offers alternative opinions to those of the Orthodox rabbinic courts regarding agunot.