Get refusal
‘Chained’ spouses and the partners who won’t grant a divorce
As a lawyer who has worked in the field of family law for 20 years, I often encounter couples whose marriages have ended but one of the partners refuses to dissolve the relationship. This leaves the other partner helplessly chained to the formal framework of the marriage and their future seriously harmed. There is no doubt that the recalcitrant partner is causing harm to his or her own life, too, but unfortunately there are people who are willing to put out another person’s eye at the cost of losing two eyes of their own.
According to Jewish law, marriages between Jewish partners may be ended only in a rabbinical court by means of a divorce proceeding that ends with the granting of a get (bill of divorce) by the husband to the wife, with both parties acting out of free will.
However, the process is not always conducted peaceably, since there are situations when the court issues a ruling obligating the husband to give a get and, correlatively, obligating the wife to accept it. In reality, however, the get is not executed because one of the parties refuses either to grant or to accept the get. This situation is known as sarvanut get or get refusal.
Frequently, the term aginut is used by the general public to describe a situation where there is lack of agreement in either giving or accepting a get. In fact, when the whereabouts of the spouse are known, this is sarvanut get, in which one side refuses to allow
the divorce, and not aginut.
Get refusal occurs when a married man refuses to formally terminate his marriage in a halachic manner, according to Jewish law. He is thereby preventing the other party from getting on with a normative life and marrying another partner.
Those who are refused divorces, for all intents and purposes, are considered married both under Jewish law and under the law of the land, although they do not live as a married couple.
Even the Tax Authority treats such couples as one-taxpayer households, and in the event of death, the spouse receives the full share of the inheritance.
When it comes to women, the implications of being refused a divorce are even more serious.
A married woman, including one who was refused a get, who has an intimate relationship with another partner, will be considered forbidden to both her husband and to her intimate partner.
Offspring born from the relations of a married woman with a man who is not her husband will be considered mamzerim, children born of a forbidden sexual union. This limits the possibility of their getting married according to Jewish law for 10 generations. In addition, such children will suffer from many other halachic restrictions.
A woman who is refused a get may lose the sum of money allocated to her in her ketubah (marriage contract). She might even lose her right to financial support if it turns out the husband had a solid halachic argument against the woman, such as her having committed an act of marital infidelity.
On the other hand, a man who is refused a divorce cannot marry. However, he can have children with another woman (an unmarried woman only), and their children will not be considered mamzerim.
There is, of course, a difference between aginut and sarvanut get, since aginut is a situation in which one spouse disappears and all traces of that person are lost. This could happen in a war, on a journey, or in any situation where a person disappears, as if the Earth has swallowed them up.
THE REASONS for get refusal may be varied:
• Love – A rare but possible case in which one side cannot envision a situation of being separated and still harbors love for a partner who no longer wants to be married.
• Envy – The refusal of either side to accept a situation where the other partner will transfer their affections to another.
• Revenge – One of the parties feels the other side has harmed him emotionally or economically, has disgraced or humiliated him, or caused him an injustice, and now wants to satisfy this seething desire for revenge.
• Economic extortion – An attempt to exploit the situation in order to achieve economic or other benefits to which the person is not entitled by law by exploiting the strong desire of the other party to be divorced.
Certainly it is not always possible to prepare in advance for a situation where we will be exposed to sarvanut get. However, it is important to know that in the State of Israel there are means by which this refusal can be brought to a halt, such as sanctions that can be imposed on recalcitrant spouses, inter alia, under the jurisdiction of the Rabbinical Courts (Marriage and Divorce, 5714-1953) and the Rabbinical Courts Law (Enforcement of Divorce Judgments, 5755-1995).
These laws allow a number of measures to be taken in such cases:
• Injunction against leaving the country, revoking or not renewing a passport, revoking or not renewing a driver’s license, preventing appointment to various positions, preventing employment in a profession when that profession is regulated by law (lawyer, accountant, etc.)
• Denying the possibility of opening a bank account and using checks.
• Actual prison time.
When the injured party is a woman, she can file a claim for support due to her status of being denied a get. This is the maintenance paid to a woman because of the husband’s refusal to allow her to get on with her life.
In some cases, a tort claim is also relevant because there are those who can be brought to understand only when they are made to pay.
It is important to note that the world has become a global village and Jews are living in many countries. It is therefore only natural that we may encounter sarvanut get abroad, whether one or both parties are living abroad. There is a real difficulty for Jews living in the larger world. Unlike Israel, which is a country where religion and state are intertwined, in European countries, the United States or elsewhere, rabbinical courts are not recognized by the state and have no effective power. As a result, the ability to impose sanctions on recalcitrant spouses in these cases is not available. Occasionally we hear accounts of those who send messengers to physically beat recalcitrant spouses.
Even if the couple who lives in a foreign country has been divorced under civil law, this does not make this couple (provided that both are Jews, of course) a divorced couple, and a halachic divorce should be obtained.
It is undisputed that the rabbinical courts in Israel have great power, as do the family courts. Good teamwork involves expanding the scope of the sanctions and possibilities available to those who are refused a halachic divorce. This will result in fewer cases of get refusal, as well as advance a legislative initiative that will turn get refusal into a criminal offense.
The writer is an attorney whose law firm deals with family law.