THE LAW ON GET AND WHY IT DISAPPOINTS
By Professor Michael Freeman
(From Wembley Shul Magazine)
Many have been delighted that Parliament this year passed Get (Jewish divorce) legislation. Once upon a time, I would have been delighted as well. Indeed, I spearheaded the Chief Rabbi’s committee to find reforms and was partly responsible for drafting what has now become part of English law.
But I changed my mind some years ago and remain firmly of the view that it is up to the halachic authorities to find solutions – and there is no doubt that they are there – and not expect the state to intervene.
It is the halachic authorities that created the problems, and unnecessarily so; they should solve them.
Rabbis created the agunah, for its biblical source in Deuteronomy 24, 1-4 is at best tenuous.
The passage of the new legislation will not encourage halachic authorities to seek halachic solutions. Instead, it will feed their complacency and nourish their belief that the problem has been solved. And if it does this, the 2002 legislation will put back the progress of women whose husbands deny them a Get and not advance it.
And this would be the case even if the legislation were good legislation – and I am sorry to say that it is rather poor in its design and execution.
First, it does nothing about existing agunot.
Second, it only applies to marriages in England and to marriages conducted by synagogues. So, women who married in Israel or Glasgow or Paris or New York and who divorce their husbands in England will not be able to make use of it. Nor will women who married in a register office (who also need a Get, should they wish to marry in a religious ceremony the next time).
Third, there is some doubt as to whether the Act will apply to marriages entered into before the introduction of the Act. I believe this will be resolved expensively and that such marriages will be held to come within the ambit of the legislation, but it is not beyond doubt and more careful drafting could have ensured that it was.
Fourth, the Act gives judges a discretion: the withholding of a civil divorce until a Get is given is not mandatory. We do not know, for example, whether the judges will refuse to exercise their discretion if the wife is at fault (perhaps where she has left her husband for another man) or if there is not a pre-nuptial agreement.
Fifth, the Act will not bite at all where the husband does not care whether he is divorced or not. Take the situation where the wife petitions for divorce and the husband is living happily with another woman. He has no intention of marrying the new woman (or of doing so in a synagogue). In this situation – and it may well be the commonest since most petitions are by wives and are on the adultery “fact” – the Act simply will not work at all.
Sixth, it is distinctly possible that the new legislation, though piloted by an acknowledged human-rights expert, is incompatible with the Human Right Act 1998. It is an interference with private and family life and may not be a justifiable interference under Article 8 (2). (I concede – indeed, I hope – that a husband denying a Get would be caught by Article 8 (2), but we cannot be certain.)
In addition, Jewish men are clearly discriminated against. This too is unlawful and if it can attach to another provision of the Act such as Article 8 (1), this may also lead to a legitimate attack on the new legislation.
So, don’t expect much of value to emerge from the Act. If anything, it may put back finding a real solution to the problem by years. And don’t be convinced by the dayanim that there is no halachic solution to the problem: one dayan denied his own wife a Get for some considerable time. You’ll only see the dayanim come up with a solution when a dayan’s daughter finds herself an agunah!
The Divorce (Religious Marriages) Bill
The Divorce (Religious Marriages) Bill passed its third reading through the House of Commons. The next step is for it to go through the House of Lords. It is hoped that will happen by the end of summer so that the bill will be fully in effect by about spring of next year.
The bill provides for the court, when it considers it appropriate, to order that a decree of divorce is not to be made absolute until a declaration is made by both parties that they have taken the necessary steps to obtain a religious divorce. After a religious [and civil] divorce each would be free to re-marry in a religious ceremony.
The Divorce (Religious Marriages) Bill has passed its final reading in the House of Lords and received the Royal Assent. It has now become law.