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The Agunah Problem and Israel's Law of the Land

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The Agunah Problem and Israel's Law of the Land The Agunah Problem and SHMA.COM Israel’s Law of the Land DIANA VILLA srael is both a Jewish state and a democ- are expected to rule in a just way, with total racy. It is governed by civil and religious law impartiality.3 I(especially Jewish and Muslim law, which For example, when a marriage has ended, govern areas pertaining to family law). when the couple has not lived together for an Although there is no constitution, eleven extended period of time, dayanim should use basic laws with constitutional status have been appropriate halakhic resources to prevent a passed over the years. The Basic Law: Human woman from being hostage to unreasonable de- Dignity and Liberty, was passed in 1992. Among mands; those demands infringe not only on other things, it establishes that a person’s phys- Jewish law, but also on the law of the land — ical and moral wellbeing, as well as the integrity dina de-malkhuta dina — as defined in The of his or her property, are protected by law. Basic Law: Human Dignity and Liberty. Israeli society views the failure to expedite a divorce in Israelis should be incensed not only by the fact that these rulings such circumstances as an infringement of the contradict the principles of justice and impartiality that are required tenets of democracy (to not discriminate be- by Torah law, but also by the rulings’ affront to Israeli democracy. cause of religion, race, or sex) as well as Israel’s Declaration of Independence. Jewish family law applies to Israel’s Jewish One phenomenon that surfaces in rabbinic citizens, who can only get married and divorced court rulings is the dayanim’s acquiescence to under the auspices of the state rabbinic courts on conditions stipulated by the husband — mainly the basis of religious law. Rabbinic law recognizes regarding issues related to the children or to the laws of the land, dina de-malkhuta dina, a common property, even if these are unreason- ruling attributed to Samuel, the first generation able. Some dayanim are misusing the respon- Rabbi Diana Villa, a amora (talmudic sage) and head of a rabbinic sum of the Maharshdam (R. Samuel of Medina, Conservative rabbi, lectures at academy in Babylonia, in the third century C.E.1 Salonika, 1506–1580), who ruled that when a the Schechter Rabbinical Seminary in Jerusalem, is a While the scope of this law has been debated condition is practically impossible to fulfill (for 2 senior researcher at the Center by the rabbis over the centuries, its basic thrust example, if the husband stipulates that after the for Women in Jewish Law at the is that the king (or, today, the state) has author- divorce his wife will no longer be able to visit Schechter Institute, and ity to legislate — as long as it does not contradict her father’s home), a husband can be com- represents the Schechter Jewish law — so that peace in the land is kept. pelled to divorce his wife without her agreeing Institute at ICAR (International While couples getting divorced in Israel can to the condition he stipulated. However, when Coalition for Agunah Rights). She is the co-author of Za’akat settle all related issues, such as property and a condition is easy to fulfill, the wife is expected Dalot: Halakhic Solutions for child custody, in family court, the divorce itself to agree to it as a condition for the divorce and the Agunot of Our Time must be arranged in rabbinic court. Jewish law the rabbinic court will not, then, compel the (Jerusalem 2006) and a requires that a husband give a get (Jewish writ husband to grant the divorce.4 forthcoming book based on of divorce) of his own free will. Therefore, if the Other rulings that continue to disturb a the Schechter “Ask the Rabbi” husband refuses, the wife is chained to him sense of justice are that some rabbinic courts online column. (agunah) and cannot remarry. Any children she have accepted demands by husbands, even has from another man will be considered some who were violent and had been incarcer- 1 Babylonian Talmud, Baba Kama mamzerim (bastards according to Jewish law), ated by civil courts. Very often, the financial 113a-b and parallel sources and the marriage possibilities of those children rights of the wife according to Israeli civil law 2 See Talmudic Encyclopedia, Vol. 7, pp. 295-308, s.v. dina de- will be severely limited. Recalcitrant husbands are denied by dayanim because of Torah law. A malkhuta dina. sometimes resort to extortion and demand child husband might also demand that the decisions 3 Leviticus 19:16, Rashi ad. loc., custody or property, even if these issues have of the family court be rescinded and that the Midrash Tannaim on Deuteronomy already been resolved in family court as condi- rabbinic court decide on all issues, or refuse to 16:18, etc. tions for giving the get. pay the child support as ruled in family court.5 4 Maharshdam Responsa, Even Ha’ezer 41. Rabbinic courts should apply the halakhic These conditions seem to run contrary to 5 See Rabbi Shlomo Dichovsky’s (Jewish legal) tools at their disposal to resolve the original intention of the Maharshdam, who class on “Compelling Divorce and these issues in a fair and timely manner, en- recognized a husband’s right to place a condi- Us” as recorded by his students at http://www.etzion.org.il/dk/5768/ suring that a husband cannot extort his wife in tion on the divorce as long as the condition was 1136mamar1.html this fashion. Dayanim (rabbinic court judges) easy to fulfill. [4] DECEMBER 2009 | KISLEV 5770 Israelis who are concerned with civil law imply discrimination against women, which is should be incensed not only by the fact that repudiated by the Declaration of Independence these rulings contradict the principles of justice and rejected by the Basic Law: Human Dignity and impartiality that are implicit in Torah law, and Liberty, according to which all citizens, SHMA.COM but also by the rulings’ affront to Israeli democ- male and female alike, are ensured that they racy that these rulings imply, since all Jews are will be free to live in dignity as long as they bound by dina de-malkhuta dina. The rulings abide by the rule of law. FREE After Madoff: An Rx for Communal Health Sh’ma E-Letter SHMARYA ROSENBERG Take advantage of our FREE Sh’ma e-letter. s the scope of Bernard Madoff’s massive leading ultra-Orthodox rabbis. Every month, you’ll ● Ponzi scheme became clear, a friend An ultra-Orthodox woman in New York receive updates on Awho holds a PhD in finance tried to cope whose product diversion scam allegedly featured essays, with the enormity of it all the way Jews have fleeced major corporations around the exclusive bulk copy often coped with bad news. Like the apocryphal U.S. out of hundreds of millions of dollars. offers, unique ● Jew reading Der Stürmer for the good news — New Jersey and Brooklyn-based Syrian rab- opportunities for “we” own the banks, “we” control the media, bis accused of money laundering, and the subscribers, and “we” are rich and powerful and in control — Hasidic rabbi in Brooklyn arrested with much more! my friend quipped that the one good thing them who was accused of organ trafficking. ● Sign up now at about what Madoff did is that it can’t get worse. Ultra-Orthodox child rapists and abusers shma.com Unfortunately, it can and probably will, un- — more than 20 in Brooklyn alone — and less we act to stop it. an even larger number of rabbis and com- To be sure, every ethnic group and religion munal leaders who enable them. has its criminals — from petty thieves and killers to big-time swindlers and mass murderers. As Enable them? we all should have learned long ago but still As Dov Hikind, an Orthodox New York State haven’t, religion doesn’t provide immunity from Assemblyman from Brooklyn recently noted, “If criminal impulses. In fact, what it often does — you’re a child molester, the best community to and what it did in Madoff’s case — is provide come to [are the ultra-Orthodox communities of] easy access to a large pool of trusting victims. Borough Park, Flatbush, Lakewood, or Monroe. As I write this, there is an alleged South African Your chances of being arrested are much smaller Madoff, an alleged Florida Madoff, and even an because people don’t press charges. Even if a alleged Israeli ultra-Orthodox Madoff, and this rabbi gets kicked out of a yeshiva for doing brief list is by no means complete. Each preyed things, he goes to another yeshiva. No one does on — and prayed with — many of his victims. anything about it.” But these Madoffs aren’t alone. Here’s an Two common threads run through many abridged list of a few very identifiably Jewish cases from the Orthodox community. The first is Jews currently in trouble with the law: a Jewish law that prohibits speaking badly of an- other Jew, even if what is said is true. The sec- ● A Hasidic kosher meat provider convicted ond is another Jewish law that prohibits turning on 86 counts of bank, wire, and mail over a Jewish criminal to secular authorities. fraud, as well as money laundering and While some writers may claim that Jewish law aiding and abetting, who is still facing im- doesn’t prohibit turning in a Madoff or a moles- migration law charges. He, his father, and ter, or point to cases in which a Madoff or a mo- others also stand accused of more than lester was turned in, these cases are exceptions 9,000 counts of child labor violations.
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