A VICTORIAN magistrate’s decision could have an important impact on the granting of a gett (Jewish bill of divorce) if a husband refuses to do so.
In Orthodox Jewish tradition, a woman who does not receive a gett cannot remarry within the Jewish community and is considered an “agunah”, a woman “chained” to her marriage. While Australian figures are not available, there have been 462 recorded cases of gett refusal in North America in the past five years.
In a Victorian court last week, a magistrate broke new ground when she accepted a legal argument that withholding a gett constituted unlawful “psychological and emotional abuse”.
The magistrate made the legal interpretation in the case of a woman whose husband has refused to grant her a gett in the Melbourne Beth Din (MBD) unless she paid him “a substantial amount of money”, according to family lawyer Talya Faigenbaum, who represented the woman.
Faigenbaum told The AJN the couple had separated some years ago and had been through Family Court proceedings and were given final orders. In the case before the magistrate, the woman had applied for an extension of an intervention order, and gave the husband’s refusal to grant a gett as a ground for the extension. Privacy laws prohibit publication of the applicant’s name, the court’s locality and the name of the magistrate.
The court heard that despite a request from the MBD and negotiations through a rabbi, the husband insisted that the sum of money was paid in exchange for even considering granting the divorce bill.
Faigenbaum, who was handed the case by the MBD which she represents when difficult Jewish marriage issues become secular law disputes, said she decided to argue that gett refusal, as “psychological and emotional abuse”, is a form of family violence.
“This was an argument that had not been put before the Magistrates Court before,” she said of the landmark ruling. “It’s created quite a bit of excitement amongst legal circles.”
Rabbinical Council of Victoria president Rabbi Mordechai Gutnick, a senior dayan (judge) of the MBD, this week welcomed the ruling. “This precedent would allow us another method of using the civil court system to help provide a gett from a recalcitrant husband.”
But he cautioned that “the involvement of the civil courts needs to be carefully applied so that it does not interfere with the requirement that a gett only be mandated and enforced by a duly constituted Beth Din”.
MBD registrar Rabbi Ian Goodhardt said the court’s ruling should instil confidence “that the Melbourne Beth Din will not sit idly by and allow people to linger without a gett without energetically pursuing all options to achieve a satisfactory resolution.”
He added, “Secondly, the option of identifying the behaviour of a spouse who is refusing to cooperate with a gett as infringing the law against domestic violence should now be considered by people in that situation, who may find that it is appropriate in their particular circumstances.”
Rabbi Mordechai Gutnick.