AMSTERDAM (JTA) — Sara’s marriage was dead, but she couldn’t end it herself.
As an Orthodox woman, Sara — not her real name, for privacy concerns — needed a “get,” or religious consent to divorce, from her husband to end the process. But he wouldn’t give her one, and rabbis couldn’t help.
Sara, a mother of one in her 40s who works as a buyer for large businesses, was what is called an agunah, or “chained woman.” The plight of these women
is seen as a major point of gender inequality in Orthodox Judaism, and
Orthodox rabbis have invested effort in recent years to address it.
In the end, Sara was helped
most by a nonreligious entity: the Dutch judicial system. The Dutch
judiciary is the only one in the world outside of Israel that punishes
husbands who refuse to give their wives a get — with significant fines.
Sara’s husband relented after a Dutch
judge threatened to slap him with a fine of nearly $30,000. Courts here
can impose a fine four times that amount on so-called recalcitrant
husbands and even issue arrest warrants against them, as per a 1982
precedent set by the Supreme Court of the Netherlands.
Last year, the Dutch jurisprudence was cemented in legislation: An amendment
to the marriage act empowers judges to order individuals to comply with
edicts of religious frameworks relevant to their marital bond.
Fines and warrants issued in the
Netherlands apply, in turn, across the European Union, giving these
husbands records — and chained wives a potentially powerful deterrent.
Dutch judges have employed these measures against several dozen
recalcitrant husbands since 1982, according to Herman Loonstein, a
Dutch-Jewish lawyer who has represented multiple chained wives before
Dutch courts.
Many of the cases heard in Dutch
courts in recent years have involved couples from Muslim communities, in
which women seeking a divorce face similar roadblocks. Millions of immigrants from the Middle East have arrived in Holland over the past decade or so.
Today, Sara has a new partner and is feeling “released from prison,” she told the Jewish Telegraphic Agency.
“You’re trapped, you can’t move
forward with your life and someone hostile has this power on you,” she
said of being an agunah. “It’s a terrible feeling.”
The Dutch judiciary’s willingness to
get involved in this issue is unusual because it contradicts the
separation of church and state principle, which is strongly observed in
Western Europe. The Dutch courts do not directly interfere with the
religious process, which usually involves a beit din, or rabbinical
court. But they do label the process of refusing to give a get as
“unlawful conduct,” Matthijs de
Blois, assistant professor at Utrecht University’s Institute of Legal
Theory of the Law Faculty, explained in a 2010 essay for the Utrecht Law Review.
The 1982 Supreme Court ruling
here overturned the rulings of two lower courts that had refused to
hear a case brought by a chained wife from Utrecht. She had sued her
husband in a civil court for refusing to grant her a get.
The District Court of Utrecht, near
Amsterdam, declined her lawsuit in 1979, stating that “only the civil
aspects of a marriage should be considered.” The woman lost an appeal in
1981.
The high court’s decision bypassed
the religious dimension altogether, reasoning that the husband “could be
in violation of a rule of unwritten law pertaining to proper social
conduct vis-à-vis his divorced wife,” de Blois wrote.
In Israel, which has no separation
between religion and state, family courts are also religious ones and
run by the Chief Rabbinate. The judges at those batei din belong to the
country’s judicial branch and are
empowered to fine and imprison
recalcitrant husbands, as well as confiscate their passports.
Amid an increased outcry in recent years, the Chief Rabbinate has cracked down significantly
on recalcitrant husbands. The pressure is showing results: The number
of women who have been unchained in Israel has risen for five
consecutive years. The largest increase occurred between 2015 and 2017 —
from 180 to 216 — according to the latest statistics on the issue.
The Netherlands is the only country
that comes close to that system. The Dutch Justice Ministry has not
replied to a request for comment on the matter by JTA.
In the United Kingdom, judges may
condition the finalization of a civil divorce on the finalization of a
religious one — an equation that is meant to place the recalcitrant
spouse in limbo for as long as they do the same to their chained spouse.
And in the United States, some Jewish couples sign halachic prenuptial agreements,
which stipulate that the spouses in a dissolving marriage must come
before a predetermined court of Jewish law or face heavy penalties. As a
contract, such agreements are enforceable in civil court.
New York state courts are empowered
to enforce rabbinical court edicts on chained spouses as per a landmark
1983 state Court of Appeals ruling.
But the enforcement has been limited thus far only to awarding the
chained wives higher amounts of alimony, according to Aryeh Ralbag, a former chief rabbi of Amsterdam and a major rabbinical arbiter and judge from New York.
Rabbi Pinchas Goldschmidt, the Switzerland-born president of the Conference of European Rabbis, has
been a key advocate of cracking down on recalcitrant husbands, but even
he “didn’t think we’d be able to bring about the same kind of
deterrence in Europe, with its strong separation of church and state, as
there exists in Israel.”
The issue of holding a recalcitrant
husband accountable has become more difficult over time, Ralbag said, as
Jewish communities have become less centralized.
“When Jewish life in the Diaspora was
more centered on community, a beit din could punish people severely for
such behavior, imposing a herem,” he said, using the Hebrew word for
excommunication or boycott. “Nowadays, many people who get a herem just
go to another synagogue, or don’t go to synagogue at all.”
The Dutch law has “restored deterrence,” Ralbag added.
Ralbag, Goldschmidt and Loonstein all
support the Dutch judiciary’s proactive approach, but they are also
mindful of the risks it poses at a time when Jewish communities —
including in the Netherlands — are fighting against government and
judicial interference in other religious customs.
All three have been at the forefront of the fight to keep kosher slaughter legal — it was banned but made legal again in 2012.
A similar debate is taking place across Europe about the legality of brit milah, the ritual nonmedical circumcision of boys.
“Am I concerned that this is creating
a precedent for interference? In some places, yes, I am,” Ralbag said.
“But I and every rabbi need to measure this against the pain and
suffering that is being visited on Jewish women right now. And right
now, this is what we can do to help them.”
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