What Is Refusal to Grant a Divorce?
The issue of refusal to grant a divorce is discussed in the media often, and naturally, in a negative context. The Hebrew term:”Sarbanut Get” is the refusal of the husband (in most cases) to give his wife a divorce. By not divorcing her, the wife is left as an “Agunah” which is the Jewish religious term for chained to/in her marriage, and cannot re-marry. What are the implications? What does the law say? To find out read ahead.
Marriage and divorce, in practice
In order to understand about divorce refusal you first need to understand the origin, i.e. the Israeli law regarding marriage and divorce. In most developed countries in the world, marriage and divorce are usually a process that is held in the municipality or a governmental office. The couple register as married (and may have a ceremony) and later, register as divorced, if they so choose. In Israel, however, the process is much more complex due to the fact that civil marriage is not possible in the state of Israel. The legal situation is that the sole authority regarding marriage and divorce is in the “hands” of the Rabbinic court. This applies to Jewish people.
To elaborate: in Israel marriage and divorce are regulated by the Jewish law (Halacha), which has permissions and prohibitions in this matter. For example: the Jewish law forbids marriage between and Cohen and a divorcee, marriage to a bastard or same-sex couples. In addition, an “Aguna” – a woman whose husband has disappeared or refuses to divorce her, is also not permitted to marry.
When a couple want to divorce they need to approach the Rabbinic court with a claim for divorce. This claim requires proof for the reason to divorce such as infidelity, deficiency, refusal to have intercourse etc. if the spouse who wants the divorce manages to prove the reason for divorce, they have to perform the divorce ceremony. If one of the couple refuse to grant the divorce, then is could come to a standstill. This “standstill” is referred to as Divorce refusal. In this short article I’ll refer to the divorce refusal form men to their wives.
What is divorce refusal?
As implied, divorce refusal is a situation where a husband will not grant a divorce to his wife, by that, he hinders her possibility to divorce and re-marry. A wife in this situation is considered, according to the Jewish law, as an “Agunah” – anchored to her marriage and still married to her husband. The main implications of this situation are as follows:
Prohibition to marry: an “Agunah” cannot marry. She is considered as a wife, i.e. still married to her husband, although she is not living with him or having intercourse with him.
Prohibition to have intercourse: an “Agunah” cannot have intercourse with another man since she is considered married to her husband. If she has intercourse with someone else she will be considered as an adulteress and will lose the right for her Ketuba (payment of the amount written in the Ketuba) and alimony.
Danger of bastardy: according to the Halacha, a wife who has intercourse with another man and has his children, these children will be considered bastards, i.e. children who cannot marry. This situation is absurd since the woman is not residing with her husband but is still forbidden to have intercourse with someone else.
Can sanction be imposed due to divorce refusal?
The answer to this question is Yes. The Rabbinic court has the authority that enables it to impose sanctions on a husband who refuses to grand his wife a divorce. However, the religious view is to reduce, as much as possible, the use of sanctions. The religious source to these sanction is the Hebrew equivalent word to “compelling” him until he says I will. In the fast, this meant that the husband would be compelled, by torcher, to grant a divorce to his wife. However, in our modern days, compelling may be manifested by imposing fines, revocation of driving license, incarceration etc.
As an “Agunah” – what can I do?
If G-d forbid you are in a position where you are refused a divorce, there are a number of ways to act:
Receiving legal advice: it is important not to cope with divorce refusal by yourselves, but get professional legal advice ASAP.
Approaching the Rabbinic court: it is advisable to approach the Rabbinic court ASAP (and if needed more than once) so as to have sanctions imposed on the husband, to try and speed the divorce process.
Civil lawsuit: the civil court recognizes divorce refusal as tort damages. So you can look into this option as extra leverage on the husband i.e. file a civil suit for a large sum of money.
Unfortunately, divorce refusal is a phenomenon existing in our reality. Although it is not a simple matter to handle, it is important to know that there are ways to fight it. I feel that the first thing to do, in cases of divorce refusal, is to consult with an expert lawyer in family law.