The Victorian Magistrates’ Court recently accepted an argument that a husband withholding a Gett (Jewish Bill of Divorce) was a form of “psychological and emotional abuse”.
According to Jewish Law, a husband must issue a Gett, and his wife must accept it, before the parties can divorce, and marry again within the Jewish community.
The recent decision may pave the way for such victims (known in Hebrew as an Agunah) to apply for Intervention Orders (to cease the abuse) on the basis of the recalcitrance to give a gett. However the decision will likely stir-up further debate on the role of the courts and our law makers on religious matters.
The decision has been welcomed by Rabbi Mordechai Gutnick, a senior Dayan (Judge) of the Melbourne Beth Din (the Jewish Court of law in Melbourne) who said the decision “would allow us another method of using the civil court system to help provide a Gett from a recalcitrant husband.” At the same time Gutnick cautioned that any involvement by civil courts should be constrained so as “not to interfere with the requirement that a Gett only be mandated and enforced by a duly constituted Beth Din”.
Whilst a breakthrough for victims of such abuse, it is important to note that, at this stage, the decision is limited in its practical application. Intervention Orders are proscriptive rather than prescriptive – the terms of an Intervention Order can restrict a person from engaging in certain conduct, but not compel a person to do anything. In other words, whilst a continued breach of an Intervention Order can lead to severe criminal sanctions, including imprisonment, a recalcitrant spouse can continue to refuse to grant, or accept a Gett, notwithstanding an Intervention Order prohibiting further psychological or emotional abuse against the victim.
To stamp out Gett refusal, our law makers would need to consider legislation empowering the Courts to compel a recalcitrant spouse to grant or accept a Gett. If they do, they should do so cautiously, and with extensive consultation with effected communities. No doubt such legislation will raise questions and stir-up further debate in the Jewish, and broader community, on the Courts’ and legislature’s involvement in religious matters, potentially usurping the role of certain religious institutions (like the Beth Din).
For now, the real opportunity for further action to prevent Get Refusal lies with the Jewish community and the Beth Din. The Beth Din can issue various directions including (in extreme cases) a community direction to ostracize a recalcitrant spouse, or have them named in a community newspaper or in a sermon. Whilst community action can be effective, extreme restraint needs to be exercised as the effect of such directions could impact on an individual’s livelihood and reputation, and itself could give rise for legal action against the institution or individual giving the direction.
Gett refusal remains a serious issue in the Jewish community and continued discussion is required to find the balance between community and legal solutions to protect victims from this ongoing and severe abuse.