By Heather A. Najman, J.D. Candidate, Benjamin N. Cardozo School of Law
In New York, statutes endorsing the withholding of a divorce decree until the delivery of a get, a divorce obtained in accordance with Jewish law (“halacha”), seem to be effective in limited circumstances, but more must be done for the most difficult cases of get refusal. Because a get may only be issued by the husband, where a get is withheld, the desperately desired document might be obtained through coercion. Unfortunately, coercion calls into question the validity of the marital status of the woman in possession of such a get.[1] In halachic terms, coercion generally means applying duress to the husband by taking something, such as the threat of a penalty for not issuing a get.[2] A get issued in anticipation of a benefit is not considered coercion.[3] Examples of benefits include removing financial penalties or granting the husband a civil divorce decree.
The New York “Get Law” 1983 version avoided the coercion trap and offered relief by requiring each party in a divorce to affirm through affidavit that he or she has taken steps “to remove any barrier to the defendant’s remarriage following the annulment or divorce” before a court may issue a divorce decree.[4] The statute defines “barrier” as “any religious or conscientious restraint or inhibition.”[5]
An addition to the law, “Get Law II,”[6] sought to offer further relief but created controversy in the Jewish community.[7] Per Get Law II, when deliberating on the division of assets and maintenance, the court may consider the withholding of a get as a factor for or against increasing distribution.[8] The argument that Get Law II is coercive focuses on correlating increased maintenance to a husband’s get refusal, a financially coercive penalty.[9]
A competent Beit Din could certainly tease out whether there is an actual need for a higher award of maintenance, situating the sum not as a penalty, but as necessary financial support.[10] Given the lack of a unified Beit Din for the Jewish diaspora, and the concomitant need for valid gittin that are recognized by most, if not all Batei Din, it makes sense that any external development influencing the internal framework for Jewish family law should include the input of recognized Batei Din in order to enjoy acceptance of most Jewish communities while not undermining the ability of its members to remarry. While changes to the Get Law made the law coercive from the perspective of halacha, the Jewish community can either lose an opportunity to help its families who desire to live halachic lives, or operate within the parameters of Get Law II in such a way so as not to conflict with halacha.
Statutory interventions still do little to affect a get refuser who simply does not care about Jewish law. Neither do laws affect the get-refuser who is apathetic about the “benefit” of receiving a civil divorce. Even while we hail the successful resolution of hundreds of get-refusal cases resolved in the U.S. per year,[11] we cannot forget the women behind the cases that are not favorably resolved.
[1] Yael C.B. Machtinger, A Socio-Legal Investigation of ‘Get’ Jewish Divorce Refusal in New York and Toronto: Agunot Unstitching the Ties That Bind, (2017), dissertation submitted to York U. (2017), https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/34525/Machtinger_Yael_CB_2017_PhD.pdf?sequence=2&isAllowed=y.
[2] J. David Bleich, A Proposal to Withhold Divorce Decrees on Grounds of Equity, 5 Int’l J. Juris. Fam. 215, 257, 287-289 (2014) (hereinafter Bleich, Proposal).
[3] Id.
[4] N.Y. Dom. Rel. L. art. 13, § 253(2)(i).
[5] Id. at (6).
[6] N.Y. Dom. Rel. L. art. 13, § 236(B)(5)(h) and (6)(d).
[7] Machtinger, supra note 1 at 75.
[8] N.Y. Dom. Rel. L. art. 13, § 236(B)(5)(h) and (6)(d).
[9] J. David Bleich, Jewish Divorce: Judicial Misconceptions and Possible Means of Civil Enforcement, 16 Conn. L. Rev. 201, 287-89 (1984) (hereinafter Bleich, Jewish Divorce).
[10] Bleich, Jewish Divorce, supra note 9 at 274-75.
[11] Organization for the Resolution of Agunot, The Prenup, ORA.org (2022), https://www.getora.org/prenup?petri_ovr=specs.ExcludeSiteFromSsr%3Atrue&ssrIndicator=false.