Suing for their freedom

Once, women whose husbands refused to grant them a religious divorce had little hope of escaping bad marriages. Today, many are discovering that damages suits can provide a way out

Haaretz, Israel/April 24, 2011

"I will not forget the day I got my divorce at the rabbinate. I wore pants and a T-shirt, I tied a big kitchen apron and a few more schmatta rags over them and put an Australian cowboy hat on my head. Could anyone say now that I wasn't modest enough? ... I sat in the corridor and waited. At the other end of the corridor sat my [soon-to-be ex-] husband, a yeshiva student with a thick beard and dressed in black. The rabbinical judges couldn't figure out where the woman was from whom he was seeking a divorce, and when they understood the caricature - that it was me - they gave him a look as if to say, 'You fool. You don't want to get divorced from her?'"

Today, with all this behind her, she can laugh a bit. Because today, Ramit Alon, 42, is a free woman. For six years, though, she waited for her divorce papers. What eventually made her husband change his mind, and brought him to the rabbinical court, was NIS 180,000.

"I was saved by a damages claim," she explains. "The legal battle was mentally tough for both of us, and for me it was an economic burden as well. But after the damages claim . . . . I suddenly got the divorce."

"Damages claims" are two words on the lips these days of many agunot - women whose husbands have abandoned them, disappeared or refuse to divorce them, and who, therefore, cannot obtain a religious divorce (a get ) and cannot remarry. The idea that they can now sue their husbands for damages is almost revolutionary.

The precedent was set in 2004, when Judge Menachem Hacohen of the Jerusalem Family Court ordered damages totaling NIS 425,000 to be paid to an ultra-Orthodox woman who had been denied a divorce for eight years. In the wake of that precedent, an organization called the Center for Women's Justice filed more than 40 similar claims on behalf of women who could not obtain divorces. In half of these cases, the divorce came through within 14 months. Of the remaining cases, four are still awaiting a court verdict.

Advocacy groups that help women who cannot obtain divorces are convinced the lawsuits have a clear and proven advantage over the sanctions imposed by the rabbinical courts and that the threat of a damages claim serves to motivate recalcitrant husbands. Even men who had doggedly refused to grant their wives divorces for years have already backed down out of fear that they would be forced to pay huge sums.

Sole jurisdiction

Joel Yaakov Katzin, an attorney who handles family lawsuits, estimates that in the past four years his office has dealt with about 15 such claims and that the numbers are increasing. In half the cases, the husband backed down even before the court hearings began. "I welcome the damages claims, which in most cases speed up the divorce agreement," he says. "These suits came into existence because the rabbinical court does not do its job, so they are, actually, a way to prevent the phenomenon of refusing a divorce."

But as in many other aspects of Jewish religious law, the issue is complex and there are many contradictory views. Sometimes the rabbinical courts order the women to drop the damages claims on the grounds that halakha bans forced divorces, which they say renders the woman an agunah. When the rabbinical court takes such a position, the woman must choose between withdrawing the claim or carrying on until her husband yields.

The problem is thousands of years old. According to Jewish religious law, a woman whose husband refuses to grant her a divorce cannot remarry and any child she might have with another man is considered a mamzer ("bastard," a status that will prevent him or her from being able to marry within the Jewish community ). Marriage and divorce issues are currently under the sole jurisdiction of the rabbinical courts, and many advocacy groups have been established in recent years with the declared mission of assisting women in this situation. At the forefront is the Center for Women's Justice, a voluntary association headed by Jerusalem attorney Susan Weiss.

Weiss sits in her tastefully designed living room, at her side a copy of the Bible, which she refers to several times during the course of an interview in order to prove a point. She is assertive and sharp and knows exactly what she wants: precedents that will change the system. "Most organizations provide legal aid and their goal is to get their clients a divorce," says the 57-year-old American-born lawyer. "I look beyond the divorce."

She came up with the idea of filing damages claims for the mental and physical harm suffered after reading some academic literature and learning about the success of such claims in divorce cases in France. In the 1990s, experts from Tel Aviv University warned her that it would be impossible to prove a case for damages. But Weiss persisted and proved them wrong. Her office handles some of the most difficult cases today, and her success has resonated far and wide.

"There are husbands who misuse the power that halakha gives them," she notes. "Some of them tell their wives, 'If you won't exempt me from paying alimony, I won't give you a divorce.' Even if the woman is able to prove to the dayanim [rabbinical judges] that her husband hit her or betrayed her, as far as they're concerned, this is not grounds for divorce. The suffering of these women is indescribable. An ultra-Orthodox woman cannot even go out and have coffee with a man unless she has a divorce. It's important to know that secular women feel that way, too. In our office, in fact, we deal with more cases involving secular women than ultra-Orthodox ones."

The option of being able to file a damages claim, she says, has created a new reality. "Today, when a man tries to use the unlimited power the halakha gives him, his lawyer will caution him that his spouse could file for damages if he refuses to divorce her. It's a huge thing."

No magical solution

She is aware, however, that it is not a magic solution. "There are those who drop the damages claim because of family pressure. And then you have a client whose husband is disdainful [of the law] and won't divorce her because he keeps his money hidden underneath the floor tiles. Other times, the men have no money and they live under the burden of debt. Then you have the woman whose husband prefers to spend years in jail rather than give her a divorce. In the first case we had [the 2004 precedent], in which damages of NIS 425,000 were set, the husband paid all the money but refused to give his wife a divorce. The power is still in his hands."

Weiss believes that ultimately, the rabbinate will lose state protection. She likens the rabbinical courts to the Sorcerer's Apprentice, the magician's broom that obtained a life of its own and ran amuck. For this reason, she finds it important to stress that the problem is not limited only to women who cannot get divorces, but affects all women in Israel. "The minute you are married under Jewish law, without a prenuptial agreement, you have a problem," she says. "But it doesn't have to be that way."

Ramit Alon, who obtained her divorce dressed in an apron and a cowboy hat, met her former spouse in the army. They were married, became newly religious, had three children and after 12 years of being together, she decided she wanted a divorce because the relationship had failed. "But the only way to leave the ultra-Orthodox world is to run away," she explains, "and what happened from that moment on is like a science fiction story. He would say there was no way I would get a divorce, that he loved me unto death. I obtained an injunction that forbade him from getting near me. Before I heard about damages claims, at the height of my innocence, I actually went to the rabbinical court without a lawyer. I thought of telling them simply that I could not be compelled [to stay married to him] and while there, I discovered something interesting: They do not pay attention to what a woman has to say. It was incomprehensible."

After having paid a lawyer NIS 100,000 to represent her in a prolonged battle that eventually failed, she discovered on the Internet a nonprofit organization in Jerusalem called Mavoi Satum (literally, Dead End ) that helps women in her situation. From there, she found Weiss and the Center for Women's Justice. "I paid them a tiny sum just to cover their travel expenses," she says.

"The damages claim is something so new that no one could promise me what would happen next or support what they were saying with precedents," she says. "Susan and her wonderful team promised to go with me all the way to the High Court of Justice, but there was no need to do that because the damages claim broke my ex-husband."

Today Alon is about to remarry. Her 17-year-old son is an ultra-Orthodox yeshiva student who lives with his father but remains in constant touch with her. Her daughters, who are 14 and 15, live with her in Moshav Hayogev and visit their father once a month.

World war

Two important cases are now sitting on Weiss' desk. One of them has earned the nickname of the "world war" from the beit din (rabbinical court ) before which it is now pending. It is the story of D., a secular woman in her 50s who lives in central Israel. D. has been seeking a divorce from her husband for 11 years. "I am being sacrificed," she says angrily. "I no longer have confidence, neither in the regular court system nor in the rabbinical court. I suffered from violence for years, until I asked for a divorce and stayed with my four children. My husband is out of my life, completely, and does not pay me alimony. Finally, I decided to file a damages claim. He brought four children into the world, so let him pay. I am also claiming damages for the years in which I did not remarry, the years in which I could not get any help from a spouse and the years during which I was prevented from having a baby."

About four years ago, D. filed her first damages claim, but withdrew it on the advice of the court in order to strike a compromise deal and get a signed divorce agreement. When matters were about to be settled, she says, her husband returned to the court and told the rabbinical judges about the damages suit (which by then had been withdrawn ). The judges did not believe the suit had been dropped, they were concerned about the possibility of a forced divorce, and her husband refused to give her divorce papers.

She subsequently decided to renew the suit and is now awaiting a verdict in the family court. Her husband, meanwhile, created his own precedent when he recently filed a counterclaim for damages with the beit din on the grounds that she refused to grant him a divorce. This is the background to the battle that ultimately erupted between the rabbinical court and the secular courts, the so-called "world war."

Weiss cannot predict what its outcome will be, but consoles herself with the thought that "this is a fundamental struggle over values that will expose the disease and the violence."

'Why give up'

Yaacov Partush, the lawyer who represents D.'s husband, says her motive is purely financial. "Usually when a divorce is refused, it's conditional," he says. "In this case, the woman wants to improve her property situation. Unlike women who do not have children and are refused divorces, she already has four children and is not planning on having more, so her lifestyle was not harmed. She tells herself, 'If I can get rich through the court, why should I give up?'"

According to Partush, "At the root of the dispute is the fact that the rabbinical court is the husband's home court while the general court is the woman's home court. It is a hidden war that has been going on for years."

So as a result of this case, the war is no longer hidden.

"True. The damages claims are something new that Susan Weiss is backing, and I think it's a terrible thing. When a couple marries in a religious wedding, they know exactly what will happen when they seek a divorce, and the damages claims are an attempt to change the rules of the game because they contradict the halakha."

Attorney Abraham Weiss, who specializes in family law and is a rabbinical pleader, also strongly opposes the damages lawsuits. "It's very destructive for women in Israel," he says. "As long as the jurisdiction is in accordance with religious law, [damages claims] make women agunot, because a forced divorce is null and void."

So why do the religious courts fight the damages claims? Isn't there a common interest there?

"Contrary to the thesis of the women's organizations - and I represent more women than men - it's not true that the court perpetuates agunot and tries to help men only. The divorce has to be proper and in accordance with halakhic rulings. We cannot correct a divorce that is not kosher, and the witty tongues of the Center for Women's Justice will not help here. We believe that Jewish law does not change. You can say, 'Let's just shut down the beit din,' but you can't change the halakha. By the way, recently, the rabbinical court has changed course and is instructing more people to divorce, perhaps because of the pressure."

Data provided by the director of the office in charge of agunot at the rabbinical courts' administration, Rabbi Eli Maimon, appear to validate this. Three years ago, he estimates, 190 men and 180 women in Israel could not obtain a divorce; his hope today is to bring both figures down to under 100. "We are the only body in Israel that looks out for the litigant, and we do it on small budgets," he notes. "These are usually men who not only flee from the woman but also the gray market and the police. When we manage to solve such cases, there is a huge sense of satisfaction."

But the number of women who cannot get divorced is still high. If not damages claims, then what is the solution the rabbinical courts see?

"The solution is social. To educate in favor of family life, and at the same time encourage prenuptial agreements that are halakhically valid. It's a pity people don't know enough about this. You see it especially in second marriages, and it greatly reduces the number of women who are denied divorces. Today we have 10 people sitting in jail for refusing to grant divorces, and one of them has been there for 10 years already, just so that his wife remains an agunah. He hates her so much that he just wants to make her life miserable."

The spokesman of the rabbinical courts said he has no official figures on the number of men and women in Israel who cannot get divorces and that attorney Shimon Yaakobi, the courts' legal adviser, and Rabbi Shlomo Dichovsky, their director general, did not want to comment.

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