What's Good for the Goose is Not Good Enough for the Gander

About a month ago my post was about an aguna whose husband was in New Jersey, and the beit din imposed sanctions on him.  We won't know the result of the sanctions - all published piskei din have the names deleted - unless we see a pesak din with the exact same details and some additional development, so that we can reasonably assume it is the same case.

We'll now consider a similar case (7874/4 from 23/4/13).  In fact, it appears to be worse, as it is dragging on for more time.  And, more severe, because the couple's child was snatched and taken by one of the spouses to the United States, on the pretense that the trip was to visit parents.  The other spouse filed a complaint according to the Hague convention.

But the important difference between the cases is that here the get-refuser is a woman who refuses to accept her get (we don't learn why) and the refused is her husband.  He tried to arrange a get by messenger, but she was not compliant.  They already had an agreement worked out in the US (though we don't know from when).  It turns out that the wife will have custody of the child and the husband will have visitation and twice-weekly phone calls (so I guess the wife was not found guilty under the Hague convention).

Trust me, I tried to write a brief summary of the details that we learn in the pesak, but I gave up. Some of them contradict one another - they don't know where she lives, they found out where she lives, her parents (by the way, her father is a rabbi) don't know where she is and have lost connection, her mother has taken her for psychiatric treatment because she is paranoid, etc., etc.  And, the details are dry.  Oh, except maybe for the husband's claim that the wife's former brother-in-law reported that she is now married to a gentile.

We learn in the course of the presentation of the details that presently the husband has another woman with whom he lives and that he wants permission to marry her because they will be undergoing fertility treatments together. That's how it is with a mesurav get!  Just imagine the situation if it were a mesurevet get who wants to have another child!  As a matter of fact, these upcoming fertility treatments seem to be the stimulus for the urgency of the husband's request, because at some point we are told that he abandoned his request for a while, but has now renewed it.

The main point in the pesak is that the dayyanim determine that the husband, who is of Ashkenazi descent (and therefore subject to the Herem of Rabbenu Gershom), should be permitted to take a second wife, for the following reasons:

1) The Rm"a (Rabbi Moshe Isserles) in his gloss on the Shulhan Arukh Even HaEzer 82:2 ruled that if a man wants to divorce a rebellious wife, she must be forced to accept the get, or he is permitted to marry another woman, because a woman does not have the power to keep him chained forever.  Numerous other sources are provided, and they note that there are latter decisors who don't even require the agreement of one hundred rabbis.

The second reason is something that I didn't know before.  Live and learn.
2) If the couple has a civil divorce, the Herem of Rabbenu Gershom does not apply.   For this reason, too, there lots of citations.

They bring two more reasons that do not really enlighten us much - they just strengthen their case.  They also discuss whether the 100 signatures are required, and take the stringent view that they are.
They conclude (unanimous decision):
1) The man is permitted to marry another woman.
2) The man has provided a divorce for his wife, but that doesn't mean she can remarry (presumably until she would come to the beit din and accept it, or accept it by messenger).
3) This ruling requires the approval of the Chief Sephardi Rabbi, Rabbi Amar, who is the head of the highest rabbinic court.
4) The permission to take another wife is final when Rabbi Amar and 100 rabbis agree.

Before writing the conclusion, they also state that if there is a hearing in the future about the woman's ketuba, she would be denied her ketuba.

To sum up, the woman has a get - she just needs to take it.  She has no ketuba.  He has a new woman in his life, he can have kids that are not mamzerim.  Again, just switch the roles.  A mesurevet get and a recalcitrant husband.   צדק צדק תרדוף.  Justice, justice shall you pursue! (Deuteronomy 16:20)

You'll find a bit more detail in my Hebrew blog.

Heroes of the Beit Din Save the Damsel in Distress from the Clutches of King Kong

In this post I'd like to comment on an article written by Yehuda Yifrah that was published this past weekend (21-6-2012) in Makor Rishon (a newspaper that caters to the National Religious sector in Israel), in its Tzedek (justice) section, entitled "A New Era is Beginning".

When I read about the French woman Ella (fictitious name), who was a mesurevet get and her violent get-refusing husband, it brought to mind this image from the original 1933 King Kong movie.  (It might be hard to see, but King Kong is holding Ann in his left hand.)

Ella's story is a nightmare.  She was married for 11 years and suffered "a decade of torture and suffering."  Beating and other physical abuse, curses, threats like "I'm going to slaughter you," while he is holding a knife in his hand. Finally, Ella sued for divorce.  (For those who ask "why do we need feminism?", one answer is: we need feminism to reassure women that they should have zero tolerance for violence.)  And the husband's response to the request?  "Over my dead body."  When he didn't show up at the appointed time at the beit din in Paris, they said that there is nothing they can do to help her.  In fact, outside of Israel, that is true to some extent - the beit din cannot impose any sanctions like they can in Israel, such as taking away a driver's license or a professional license.  But they could have put him in herem in his Chabad community.  They didn't.  Ella said that the Chabad rabbis there apparently believe in Catholic marriage.  They told her that for the sake of holding the family together, she has to suffer in silence.  She said that in a different Chabad community in France, a woman (mother of nine children) was murdered by her husband.

But Ella had two strokes of luck going for her:

1) Her husband went to Israel for a family event.

2) The couple emigrated from Israel, so they are Israeli citizens, giving the batei din in Israel the authority to rule in such cases and to impose sanctions. Thus they were able to impose an order to prevent the husband from leaving Israel, which forced him to come to the beit din.

So, like the squadron of bi-planes (the outdatedness of the planes is a good metaphor, I think) arrives to save Ann, or perhaps like Superman, the dayyanim in the Tel Aviv beit din, headed by Rav Shtasman, swooped in to save the captive woman.

Yifrah paints a picture of this beit din as being representative of a "new era" of batei din with a "new generation of young dayyanim ... who are leading a revolution in the level of service that is provided currently by the batei din to the public."  The woman's lawyer (a woman) also praised the beit din: "I feel like we received the get as a gift!"  (Gift?!!  She, too, is speaking like an abused woman.  "Oh, thank you, thank you so much for not beating me.") "This man could have easily evaded [giving a get], and only the determination of Rav Shtasman and the other dayyanim  brought about the desired result.  I felt awakening in me a respect for the beit din, which became a user-friendly place, and finally there is someone to work with."

The quoted spokesperson - a close contact of Rav Shtasman, also praised the Tel Aviv beit din: "They don't disparage the importance of guarding the family unit and the value of shalom bayit (reconciliation) in situations when it is sensible and feasible," (by the way, Ella's husband also requested shalom bayit when he appeared - because  of the order not to leave the country - before the Tel Aviv beit din) "but when they identify a broken relationship that cannot be repaired, they act quickly."

But just a moment!  What was holding this woman captive?  It is the halakhic system of marriage that was holding her captive!  Halakha that the batei din have faith in, support and rely on.  So these "heroes" are coming to save her from a system that they are a part of, that they are compliant with.  Keep in mind, she had no trouble getting a civil divorce in France.

But in the halakhic system, a woman's freedom is dependent upon men - her husband and the beit din.

כִּי הִנֵּה כַּהֶגֶה בְּיַד הַמַּלָּח בִּרְצוֹתוֹ אוֹחֵז וּבִרְצוֹתוֹ שִׁלַּח

"As the helm in the hand of the seaman, who holds it at will or casts it at will"  (from a piyyut in the Yom Kippur evening service)

When I began this blog, I described it (as you can see above) as "a blog about halakha, women and Judaism, Jewish family law, agunot."  I explained in my first post that "My primary focus is to discuss Jewish family law, through examination of recent piskei din (judgments) from the Israeli batei din (Jewish courts of law).  I explained that there is not "a vast difference between application of Jewish family law in the Israeli system of batei din and application of this law in any other Orthodox beit din, wherever Jews reside.   ... There are differences between Israel and outside of Israel as to how this application of Jewish family law interacts or interferes with the secular courts, how much power of enforcement the dayyanim have, and the options before a Jewish couple, at least one of whom wishes to dissolve the marriage.  In each case – being in Israel vs. outside of Israel – there are some more difficult aspects and some less difficult aspects."  My aim with this blog is to enlighten the readers: what does (halakhic) Jewish marriage entail?  What are the obligations that one is agreeing to when entering such an arrangement?  What is a ketuba and what does it entail?

I wrote in that first post that "we find a system that is bogged down in antiquated law and outdated concepts that have outlived their relevance to the way people live their lives today.  We find a sincere, often well-meaning, attempt to regulate modern lives with an inappropriate set of tools.  We find a system in which the power lies solely in the hands of men, even though, by sheer coincidence, I suppose, half of the people involved in marriage and divorce happen to be women."

My aim in writing this critique of Yifrah's article is to put out a warning.  Don't be deluded by the idea that friendlier batei din will solve the problem of agunot, or that it will convert the halakhic marriage into something that is appropriate for our generation.  We don't need to reach a level of violence to want a divorce.  We don't need to be so desperate as to regard a get as a "gift." Every woman - and man - is entitled to have control over his or her life.  It should not be the beit din's decision, no matter how "friendly" the beit din is, to decide if shalom bayit is desired or even feasible.  Only you know what it would mean to continue living with this person whom you once loved, but has become intolerable for you.

The correction has to be at the "root" of the problem - Jewish marriage laws. This is not just a matter for those couples who come to the beit din to divorce. It is a matter for every happy couple.  The marriage laws must be appropriate for the types of relationships that couples have in this era, and not those of a thousand or two thousand years ago.

A Hebrew version of this post can be found here.

Report and Comments about the Conference on Qinyan and Qiddushin at the Rackman Center, Bar Ilan University

This past Wednesday, the Rackman Center for the Advancement of the Status of Women held a conference on "The Necessity of the Component of 'Acquisition' in Halakhic Marriage."  They called it "The Necessity of the Property Component in Halachic Marriage," but I'm not pleased with the translation of the word qinyan to "property".  A qinyan is an acquisition, or an act of acquisition.  Property is what is acquired, and there are many types of property and many types of acquisition in Jewish law.  Just to give one example, qinyan of a slave does not give you the same rights as qinyan of an animal. You may slaughter the animal, but you may not slaughter the slave, even though you own him.

The conference had two sessions, the first addressing the question of the value of the qinyan in a Jewish marriage.  The question posed for the session made the assumption that there is in fact an element of qinyan in halakhic marriage. Though this is an assumption that I agree with (the first mishna in Qiddushin is a good place to start), there are many who will disagree, and there is a never-ending debate between those who recognize that there is a qinyan and those who attempt to reinterpret the use of the language and who try to claim that there is no qinyan, perhaps just an act of qinyan, but only as something symbolic, a remnant of ancient times.  (All apologetics, to me.)  Thus, the first session was primarily a series of presentations by the various speakers (the chair of the session Dr. and Rabbinic Court Advocate Rachel Levmore, Rabbi David Bigman, and Rabbi Elyashiv Knohl of Tzohar) who explained why they thought that there really isn't a qinyan, and those who maintain that there is (Rabbi Dov Linzer speaking in English via a video hookup and Professor Zvi Zohar).  

Rabbinic Court Advocate Rivka Lubitch (from now on, Rivka) suggested that the qinyan is no longer relevant or effective, because people today (in Western society) do not think that people can be owned.  She focused on the problems of mamzerim and ways to alleviate the difficulties of those who are on the list of mamzerim maintained (wrongfully) by the Rabbinic courts.  Unfortunately, none of her suggestions (not presented here in her order) are realistic.  A child resulting from the union of a male mamzer and a gentile woman (or a female slave) is not a mamzer, but a gentile (or a slave).  The resulting child can then convert to Judaism (and the slave can be freed, becoming a full Jew), so that the child does not carry the taint of mamzerut.  Sorry, no equivalent solution for a female mamzeret.  Why anyone who has to suffer the stigma of mamzerut would want his child to join this warm and inclusive religion is beyond me.  

But I came up with an idea: a JDate website for male mamzerim to meet women whose conversions are revoked or who have difficulty converting in the batei din.  Just think how much they have in common, starting with anger towards their treatment by the batei din!  The website could also allow agunot to meet men with conversion problems (so they are gentile).  After all, a child resulting from such a union is NOT a mamzer!!  The aguna doesn't have to wait forever for the SoB to give her a get.  She can meet a guy who would have liked to be Jewish and get on with her life.  A free weekend holiday will be given to the first couple to meet on this website!

Another of Rivka's suggestions was that the batei din should not accept any testimony about mamzerut (this is the approach of the Conservative batei din, from what I understand).  This is a fine idea (won't solve anything for those already named), but I don't believe the Orthodox batei din - not in Israel or outside of Israel - will buy it.  And, besides, there will be certain communities of Jews that will keep their own lists (there are such websites, already).  Only if enough Jews, even observant ones, pay no attention to the yihus of potential spouses for their children would this work.  The same is so for the idea that it can be statistically shown that all of us are actually tainted - we are all mamzerim, similar to the idea that Sanherib mixed up all the nations so that we don't know who the descendants of Amalek are.  (You can read about this idea in Hebrew, here.)  If most Jews, in particular those who are observant, really don't care, then the problem will go away.  But so long as there are significant numbers of Jews who feel the need to check someone's bloodline, the problem won't go away.  

Her last suggestion (I presented them out of order) is to accept the halakhic opinion that children conceived by in vitro fertilization are not mamzerim, even if one or both of their parents are.  Even assuming the batei din in Israel would agree to this halakhic opinion, what does it actually mean you would be telling a mamzer (or mamzeret) to do?  To have a relationship with someone whom they can't marry legally in Israel and then go through what is a difficult, demanding, unpleasant - to say the least - medical procedure if they want to have a baby, so it will not be tainted?  Wow, such a kind religion!  Where do I sign up?

Rivka's concerns about mamzerut actually bring us to the real point of the conference.  It really doesn't matter whether you think there is or isn't a qinyan in Jewish marriage.  Sure, the idea of the qinyan is offensive to feminists; even if it were true that it is just symbolic, merely the language used in so much of our rabbinic literature is offensive.  But putting that aside, bottom line - it is the difficulty of getting out of a marriage (and all the related aspects that I have been pointing to in my blog) that must be dealt with.  The organizers of the conference seem to think that if only the qinyan could be taken out of the qiddushin (an idea that makes no sense, given the obligatory elements of halakhic marriage), then there would be no problems of agunot and mamzerut (which, Rivka tells us, these days is almost always the result of women who are denied a get giving up waiting).  So the real point of the conference was addressed in the second session, in which the question posed was: "It possible to have a halakhic marriage without a qinyan, and if so, how could this be done while keeping most of the familiar ceremony intact?"

Since it really isn't possible to have a halakhic marriage without a qinyan (unless you already think there is no qinyan, but then why do the problems still exist?), what we did hear in the second session were suggestions from the speakers for alternative marriage ceremonies.

Dr. Ariel Picard's suggestion that we should marry according to Noahide law, because this is something that exists in our rabbinic sources, and so is an authentic halakhic alternative, is odd.  Civil marriage is also a form of "Noahide law", so it seems to me that the fact that he has a halakhic term to pin it on makes him feel better.

Rabbanit Malka Piotrkowski suggested amending the ketuba to obligate a man who does not give his wife a get to go to prison.  "If she is imprisoned, so should he be."  We know that there are men who are willing to sit in prison rather than to give their wives a get.  This suggestion focuses on just one of the set of very complex problems with Jewish family law.  And, we can simply say the old cliche "two wrongs don't make a right."  Malka (please forgive me for leaving out the full title and name) admitted that Prof. Ruth Halperin-Kadari (of the Rackman Center) was not enthused with her idea.  The most important thing that I think that Malka said was her critique of the Tzohar rabbis, because many of them do not support and encourage use of the prenup (discussed in a previous post).

Professor Noam Zohar offered three suggestion, in order from least preferred to most preferred.  His suggestions are basically identical to what I have said in various places.

1) A lot of people still will want a traditional marriage, but the least that they should do is to sign the prenup.

2) A better option would be conditional marriage (also described briefly in that post).

3) The best option would be not to have any kind of valid qiddushin.  You can make a ceremony look a lot like a traditional one, but changing the "formula" of what the groom says to the bride, for example, would invalidate it.

The first option is quite practical, but limited in its value, and addresses only one problem with halakhic marriage and divorce.  The third option is also very practical - do whatever ceremony you like, but DO NOT have a civil marriage (such as in Cyprus) and then register in the Misrad HaPnim (Office of the Interior), because once you register in Misrad HaPnim as a married couple,  dissolution of the marriage would still be in the hands of the batei din.  No mention was made of a Reform ceremony, but when I tell people these same three options, I suggest that as a possibility for option 3.  "Reform" is not a dirty word in my vocabulary.  Reform rabbis know how to make meaningful life-cycle events with Jewish content, and yet there will not be qiddushin.

The second option actually has something very appealing for those who like to work within the halakhic framework, and recognize that halakha always had many solutions for "creative compliance".  A properly written set of conditions can solve all of the problems of halakhic marriage, while still being a halakhic marriage, so long as it is in effect, and null and void, if it is not.  It does not solve the problems of the patriarchal model in the ceremony itself (Noam Zohar mentioned that he will not say "amen" to the first blessing, which addresses men: "... Who forbad us the betrothed and permitted us those who are married to us"  - "us" are the men.)  It does not eliminate the qinyan.  But the biggest hurdle is finding people who are well-versed in the intricacies of drawing up such a document and who are willing to conduct such weddings. This solution is for those who are willing to do their homework and find the appropriate mesader (or mesaderet) qiddushin.

The question to ponder, following this conference, is: are there people out there who can continue on the path of Rabbi Rackman, for whom the center is named?  (One place to learn about Rabbi Rackman's work in the matter of freeing agunot is Aviad HaKohen's book Tears of the Oppressed - An Examination of the Agunah Problem: Background and Halakhic Sources.)

For the Hebrew-readers among you, you will find a more detailed write-up in my Hebrew post.
The Center stated that all of the lectures will be available for viewing on their website. 

Shameful Acts and a Shameful Interrogation

A technical note: For this post, I'm trying an experiment.  I wrote the post in Hebrew first and will now present a more condensed version in English, without the quotations and translations from Hebrew.  On one hand, for those English-speakers who can read some short excerpts in Hebrew, I thought it would be nice to have those quotations and translations.  But I want to see which way I reach a wider audience (and also don't overtax myself with writing this blog).  I think I was not addressing the needs of the Israeli audience enough, and the focus really is batei din in Israel, though they reflect, to a large extent, halakha everywhere.

If you like to see some Hebrew, you can always read the English version and then try the Hebrew one.  If you can read Hebrew, the English version should help you follow the Hebrew one.

I'd be happy to get feedback letting me know whether this works for you.

Now to the post:

Case 860977/1, pesak dated 20.5.2013

The case is horrifying, but the proceedings should be short and clear.  One would think.

The case concerns a man who was found guilty of six counts of sexual misconduct with his 15 year old daughter.  He was sentenced to 8 years of actual time in prison, and several other shorter times under various conditions, unnecessary to mention here.  He was also ordered to pay 75,000 NIS damages to his daughter.  And, by the way, following her inability to talk for a number of months, when she finally did speak, she said he committed many more horrible acts than the six he was convicted of.

No surprise, then, that the wife sued for divorce.  It should be an open and shut case.  Husband should be ordered to divorce his wife, and she should also be awarded her ketuba and tosefet ketuba (see my earlier posts on these terms).  After all, she certainly has adequate grounds for divorce, the fault is his, and therefore the ketuba is hers.  A pesak of several lines is all that is necessary.  Right?  That's all that remains is to decide what kind of sanctions would work for a guy in jail, in the event that he is not cooperative about giving the get.

But here's what happened:  The husband says he wants to reconcile (shalom bayit)!!  The court agrees to his request that his wife come to prison to speak with him so he can try to convince her.  They make an agreement with the husband - they will arrange for her to come (and convince her to come) under the condition that if she still says she does not want to reconcile, then he will give the get.  He agrees.

I imagine that you are not surprised that she did not agree to reconcile. But now the husband says, fine, he'll give the get, if she relinquishes her ketuba and tosefet ketuba.  What should the beit din do?  They should say "no, way". You must give the get and the ketuba and we will pull out all of our ammunition to make sure you do so.

But they don't do that.  They set a date for further court proceedings, including an interrogation of the woman, because "the woman opposed relinquishing her ketuba."  What nerve she has! 

The pesak din first contains a recording of some questions posed to the woman by the dayyanim and then some of the questions (but not all - there are portions omitted, indicated by ellipses) posed by the husband's attorney.

For example, the dayyanim asked if she divorces tomorrow, would she then go and marry again.  She says she wouldn't be interested and can't even think about such a thing.  But what is this their business?  Now, you might think that they are trying to show the husband's lawyer how much she was emotionally damaged by her husband's behavior.  But I suspect another motive.  I suspect that they are trying to demonstrate that she has no ulterior, impure motive to wanting a divorce (this is giving the dayyanim any benefit of the doubt).

The husband's attorney then has his turn.  He wants to know, for example, why she can't forgive him if he is willing to go for psychological help.  After all, he already is paying his price by serving time.  She and her daughter are having psychological therapy and so is he, so why can't she forgive him? (Is he just doing his job, as disgusting as it is?  Or does he really not realize that there is a difference between the victims' need for psychological therapy and the pervert's need for therapy?)

But the most degrading of the lawyer's questions are: why does she want a divorce; perhaps she is looking to meet someone else?

Well, the wife won't agree to reconcile, and she won't agree to relinquish the ketuba.  So the dayyanim each write lengthy halakhic discourses (total of over sixty pages) to come to the conclusion that the husband is obligated to give the get and also obligated in paying the ketuba, though the latter's actual value is dependent upon the outcome of the division of property in the family court (where the husband sued for division of property, proving that he really did not want shalom bayit).

That might not sound so bad - if you saw my earlier posts, you'd realize that I do not see it as unjust to take the division of property into consideration when ruling on the ketuba.

What was so very distressing is the process that each of the dayyanim went through to reach this conclusion - and they disagree as to how firm the obligation to divorce must be and how immediately there must be sanctions if the husband does not cooperate.

See, performing inappropriate sexual behavior with your own daughter is not definitely clear grounds for a wife to be entitled to divorce, and certainly not clear grounds to be entitled to her ketuba, given that she is the one filing for divorce.  It is not one of the grounds for divorce listed in the halakhic codes. So the dayyanim must look at other reasons that she might be entitled to a divorce, among them:

1) He cannot fulfill his sexual obligations and "everyone knows why a bride goes under the canopy."

2) He cannot support his wife.

3) He is nauseating to her (ma'is alai)

But this is not enough.  One of the dayyanim discusses whether or not they can accept evidence of his guilt from the criminal court system, which does not apply the halakhic methods for testimony and evidence.  They question whether the shameful acts committed by the husband are as bad or worse than one who "sleeps around" (this ground for divorce is discussed in an earlier post) - that is a ground for divorce that is in the halakhic codes, so they can judge according to that.  They question if a long-term imprisonment is sufficient grounds for divorce.  They question if they can apply sanctions (forcing a get) even if the grounds for divorce are not one of those in the mishna that lists those grounds for which a man can be forced to divorce his wife.  They discuss under which circumstances the husband can be obligated to pay the ketuba, and if he is considered a rebellious husband, and under which circumstances they can request that the wife concede property in exchange for the get (called the approach of the Maharshada"m, the approach by which batei din sometimes tell a woman that it is her fault that she has no get, because she could concede the property that the husband asks for).  Over sixty pages of such questions and considerations, each one with numerous sources from rishonim and aharonim (pre-Spanish expulsion and post-Spanish expulsion halakhic authorities), codes and responsa literature.  And, by the way, there is very little citation of 21st century precedents from the Israeli batei din.

The very discussion itself is indicative of the mindset of those who officiate in the batei din.  Out of touch with reality.  Lack of sensitivity to the heinousness of the crime.  An insistence that the only way to examine such a case is via the lens of outdated texts, as irrelevant as they are to the case at hand.

We must keep in mind that though they "ordered" the husband to give a get, until the woman receives it, there is no get.  But the last point I'd like to make in this case is that even if the judgment is correct, the end does not justify the method by which it is reached.  The methods applied in the batei din are disgraceful, as displayed in this case.

A Sarvan Get and Sanctions - Would a Prenup Help this Case?

The batei din must have a PR department, among the goals of which is to publicize the tough actions they take to help agunot.  So the case that I'm going to write about today was written about in the Israeli press (and maybe made it to the Jewish media abroad).

I'll summarize the case and pesak din, and then add my two cents.

Case 835157/7  (7/5/2013)
The husband was ordered by the beit din to give his wife (now 31 years old) a get on September 7, 2011.  But he has not done so; he has gone to the US and lives in New Jersey (he already left Israel in March, 2011).  Apparently, the beit din's order to give the get missed the boat.  Even though the husband is abroad, the beit din insists that because both spouses are citizens of Israel, the beit din has the authority to impose sanctions, which they did on February 8, 2012.

These sanctions included denial of Israeli consular services to the husband.  Of course, if he does not need to renew his Israeli passport, why would he need consular services?  How much of a sanction is this?  So, it didn't work, and later in 2012 (July), the wife requested of the beit din to impose additional sanctions on him.

Among the decisions reached by the beit din on 17 July, 2012 (and signed on 31/7/13) are the following:

ג.      הואיל והבעל מסרב לציית לפסק הדין, מותר לקרותו עבריין, ודינו מבואר בשולחן ערוך יורה דעה סימן שלד.
ד.      מצוה על כל מי שיכול לסייע להתיר את האשה מעגינותה, לפיכך יש להימנע מלעשות טובה לבעל ו/או לדבר עמו ו/או לצרף אותו למנין ו/או לישא וליתן עמו ו/או לקברו. כמבואר ברמ"א.
ה.       בית הדין נעתר לבקשת האשה ועל כן בית הדין מתיר לפרסם את שמו ופרטיו ותמונתו של הבעל [פלוני] בקהילה ב[...] ו/או בכל מקום שהוא ללא הגבלה, בצירוף הודעה כי כל היודע על מקום הימצאו ויש בידו לסייע להוציא מהבעל גט, הרי הוא מצווה ועומד לכך, ואילו כל המסייע לו להמשיך ולעגן את האשה, הרי הוא מסייע לדבר עבירה.
ו.      בית הדין מעביר העתק החלטה זו לידי הרב [...] – רב הקהילה לפי הכתובת הבאה: [...]
ז.      בית הדין מעביר החלטה זו למחלקת העגונות בהנהלת בתי הדין, לפעול באמצעים העומדים לרשותם לביצוע תוכן החלטה זו ובית הדין מורה לאגף עגונות בהנהלת בתי הדין לפנות לכל גורם רבני או אחר שיש בידיו להשפיע על הבעל לתת גט, לעשות זאת.

3) Considering that the husband refuses to abide by the ruling of the beit din, it is permissible to call him a transgressor, and the law regarding such a person is detailed in the Shulhan Arukh, Yo-re De'a 334.
4) It is incumbent upon anyone who can help to release this woman from her iggun. Therefore, one should refrain from doing any favors for the husband, and/or from talking with him, and/or to include him in a minyan, and/or to do business with him, and/or to bury him, as specified in the Rm"a. [Rabbi Moshe Isserles, glosses on the Shulhan Arukh]
5) The beit din grants the woman's request, and therefore permits publicizing the name, details, and photo of the husband so-and-so [but then why not publicize it here, in the pesak din?!!] in community such-and-such and/or in any place, without restriction, together with a notice that anyone who knows of his location and has the ability to help retrieve a get from the husband is hereby ordered to do so, while anyone who assists him to continue to chain his wife is aiding and abetting a crime.
6) The beit din is forwarding a copy of this decision to Rabbi so-and-so [actually inadvertently named later in the pesak], rabbi of the congregation according to such-and-such address.
7) The beit din is forwarding this decision to the division for agunot under the authority of the batei din, so that they will request of any rabbinic body or anyone else who can influence the husband to give the get, to do so.

Before continuing with the summary, I'd like to relate to the citation from the Shulhan Arukh (SA) and the Rm"a.  The chapter referred to contains the laws relating to those who are shunned or excommunicated.  Though this summary of points from the pesak din of July, 2012 does not use the word nidui or herem (shunning or excommunication - the latter being a stronger level, but I will not go into that detail here), that is actually what the decision entails.  In paragraph 43 of the cited chapter, the SA lists the twenty-four reasons that a person is shunned.  Reason number 6 is:

(ו) מי שלא קבל עליו את הדין, מנדין אותו עד שיתן 

One who doesn't accept [and carry out] the judgment of the beit din is shunned until he complies.
In item 4 above, the pesak refers to several sanctions that everyone is asked to impose on the husband:
a) not to do any favors - for the excommunicated (more severe than shunning), in paragraph 2 the SA states that:

וכן אסור להנותו יותר מכדי חייו  

Similarly, it is forbidden to grant any benefit to him, beyond what is necessary for him to live.
b) not to speak with him - again, in paragraph 2 it states that:

ומותר לדבר עם המנודה ועם המוחרם, אלא אם כן החמירו עליו בית דין בפירוש. הגה: ומ"מ לא ירבה עמו בדברים, ולא ידבר עמו אלא לצורך, כמו שמדבר עם האבל 

It is permitted to speak with the shunned and the excommunicated, unless the beit din specified to be more stringent with him.  The Rm"a adds in his gloss: But in any event, one should not converse much with him, and should only speak with him when necessary, as one who speaks with a mourner.
c) not to include him in a minyan (I don't know, these dayyanim never count me in a minyan - am I being shunned?) - again, in paragraph 2 regarding one who is shunned (and therefore even  more so one who is excommunicated):

ואין כוללין אותו לכל דבר שצריך עשרה. הגה: אבל אם לא נדוהו בפירוש, אף על גב שהוא עבריין ..., מצרפין אותו למנין י' להתפלל עמו. ואפילו מנודה ממש שאין מצרפין אותו למנין, מ"מ מותר להתפלל בעודו בב"ה.

And he is not included in any matter that requires ten (i.e., a minyan).  The Rm"a adds in his gloss: but if they (the beit din) did not specify clearly that he is shunned, even though he is a transgressor, he is included in a minyan, to pray with him. But even one who is truly shunned, who is  not included in a minyan, in any event it is permitted to pray while he is still in the synagogue.  (That would mean that he is not kept out of the synagogue.)
d) not to do business with him - this one is interesting, because in paragraph 2, it states that it is forbidden to hire one who is excommunicated, or to be hired by him, but it does not say anything about a prohibition to do business.  The ruling in the SA there is very similar to Maimonides, Laws of the Study of Torah (Hilkhot Talmud Torah) 7:5, where it states that it is forbidden to hire the excommunicated, or to be hired by him, and it is forbidden to do business with him.  The SA clearly omitted this last prohibition, nor does the Rm"a add it in his gloss.  The beit din, in the case under discussion here, decided to include Maimonides' additional restriction.
e) not to bury him (a Jewish burial) - in paragraph 6 it states:

אם רצו בית דין למעט הנידוי מל' יום, או להוסיף, הרשות בידם. הגה: ויש רשות לבית דין להחמיר עליו שלא ימולו בניו, ושלא יקבר אם ימות, ולגרש את בניו מבית הספר ואשתו מבית הכנסת, עד שיקבל עליו הדין. 

If the beit din so wishes, they can reduce his shunning to less than 30 days, or add [days] - it is their prerogative.  The Rm"a adds in his gloss:  And the beit din has the option to be more stringent [and rule] that one should not circumcise his sons, nor bury him if he dies; his sons should be expelled from school, and his wife from the synagogue, until he complies with the judgement.

I went through this exercise for several reasons:  it is valuable to see the basis for the rulings of the beit din, by looking at these halakhot, we can see how the beit din attempted to be quite harsh on this get-refuser, and it never hurts to learn a little halakha just for the edification.

Let us return to the case.  These sanctions, as stated, were imposed back in July 2012.  In the latest iteration this past month, the husband protests (actually his lawyer does, on his behalf) these sanctions, claiming that these sanctions are not within the options available to batei din to impose, as specified in the Israeli law.  Further, the beit din has  no authority to restrict the husband outside of Israel.  These sanctions attack the sovereignty of the United States, because they are addressed to people (those who are supposed to shun him) who are not citizens of Israel.   And, lastly, the sanction to prohibit his burial is not valid, because after he dies, his wife is a widow and she no longer needs a get.  (Did he say "over my dead body"?)  Other claims along these lines were made by the husband's attorney.

The beit din rejects all of these claims, but one of them - the non-burial clause - is disputed among the dayyanim.  I wish to be brief regarding the rejections - I want to get to my "two cents".  The beit din claims that since it is a legal body in Israel, under the authority of the state, they certainly have every right to give an order any Israeli citizen (e.g., the husband).  As far as telling non-Israeli citizens how to behave - they have the authority to do that, as a religious beit din, enabling them to direct any Jew, anywhere, as to what they must do. They cite precedent to prove that they have a right to impose social sanctions (excommunication), even if it is not spelled out in so many words in the Israeli law.

On the other hand, the non-burial clause is problematic, according to the minority opinion:

יחד עם האמור, נראה שבהשתלשלות הדורות מנעו פוסקי ההלכה שימוש בהרחקה שלא למול בניו או שלא לקברו בנוגע לעבריין המנודה, היות שהאפקטיביות שלהן להשגת היעד המבוקש התבררה כלקויה, ואדרבה הן עלולות להרחיק את היעד הנכסף בשל תגובת הלוואי מהמורחק בדורות החופש והדרור. וכן נראה שעלולה היא להתנגש באופן כללי עם הוראות החוק המקומי. ועיין ספרים שונים, כמו יביע אומר וכדו' שהגבילו את השימוש בצעדים שבזמננו עומדים ביחס הפוך לתקווה המצופה מהם.

Along with what was stated, we see that in the course of the generations, adjudicators have refrained from using the sanctions not to circumcise his sons or not to bury the transgressor who is shunned, since their effectiveness in achieving the desired goal is defective.  On the contrary, they are likely to even delay the longed-for result, because of the accompanying reaction of the shunned in times of freedom and liberty.  It also is likely to conflict in a general manner with the local law.  Look in various books, such as Yabia Omer [one of R. Ovadya Yosef's collections of responsa] and the like, that have limited the application of these steps, that in our times bring the reverse of what we hope to achieve from them.

Several interesting citations along these lines are quoted, and if I were giving a set of shiurim on the subject, they would be a fascinating example of how halakha changes.  The minority opinion is that all the sanctions, except the non-burial remain in place.

However, the other two dayyanim disagree.  The citations brought by the lone dissenter are not in cases of a man who holds his wive captive, but, for example, someone who does not keep Shabbat.  They cannot be compared. In the case at hand, the law should have required that the man be beaten with a whip so that he will agree to comply with the ruling, but since today that is not done, the beit din must be stringent with him so that he will release his wife.  Thus, the husband lost his appeal, and the sanctions are in place.  

Will he give the get?  We don't know.  He could decide to refuse until he is on his deathbed, and then he'll give it so that he will be buried properly.  Why, he could even give it now, effective at a future time: this is your divorce, effective the day before I die.  That is halakhic, too. 

Now for my thoughts on this.  Some people might say "bravo" to the beit din for being so tough.  Given the situation, they did just about as much as they can do, except for hafqa'at qiddushin - annulment - which batei din in Israel won't do (nor will Orthodox batei din anywhere else).  Indeed, given the mindset of the beit din, and the four cubits of halakha within which they work, they were tough.  But rather than to criticize the beit din, it is those four cubits of halakha that are unsatisfactory.  A woman's right to be freed of a marriage should not depend upon sanctions and how stubborn her husband will be.  She should have the right to say "I want out" and then be able to be a free woman.

Perhaps some of you are wondering:  would a prenuptial agreement have helped such a situation?  Or, perhaps some of you are thinking: "it wouldn't happen to me - we've signed a prenup".

As I imagine most of my readers know, in the US, the RCA (Rabbinical Council of America) declared that its member rabbis should not officiate at a wedding unless the couple signs a prenuptial agreement, as a method to prevent problems of get-refusal.  I don't know to what extent this is enforced, but it is considered by many to be a valuable step that was taken to prevent the problem of agunot.  If you are not familiar with this prenup and how it works, just Google "RCA prenuptial" and you'll find loads of  relevant links.

There has been a similar attempt in Israel to promote use of a prenuptial agreement, the most popular one being the heskem l'khavod hadadi - the agreement for mutual respect.  You can look at material on the website of either The Center for Women's Justice   (there is a link to the Hebrew site, too) or of Kolech (the link provided is to the English site - the Hebrew one is here) to find information about the prenups in Israel.  So far, their use in Israel is not widespread, but several organizations have been campaigning to increase awareness (and signing) of these agreements.

I certainly urge anyone who marries within the Orthodox framework to sign such an agreement.  It is better than nothing, and might even be effective enough to avoid many cases that would otherwise result in get-refusal.  You are not signing it for yourself - you've got the perfect relationship.  You are signing it so that it will become the norm, just as the ketuba is.

However, these agreements have not been used for a long-enough time nor are they widespread enough to be able to determine, yet, how effective they really are.  It might be a self-selected population who signs them - the type of people who in any event would not be so obstinate if their spouse said that s/he no longer loves him/her.  And, though I will not expand upon this thought right now, I will just state here that the prenup does not do anything to address the inherent paternalistic model of traditional Jewish marriage, whereby a man acquires his wife with a qinyan (an act of acquisition), and all that goes with that model (some of which I mentioned in an earlier post).

But in this case, would a prenup help?  The prenup states - in a nutshell -  that if either party wants "out", after a set period of attempted reconciliation with marital counseling, the reluctant party must pay a monthly support payment of $1500 or 50% of that person's income, whichever is larger (this is the amount in Israel; check the RCA version for the US) until the get is granted/accepted (whichever is relevant).  This monthly payment is intended to be enough to "encourage" the reluctant party without forcing him/her, which would invalidate the divorce.  There are several clear situations in which it won't work:  if the reluctant party is so poor that they wouldn't be able to pay, anyway; if the reluctant party is so rich that it won't bother him/her to keep paying in spite; if the reluctant party is so stubborn that s/he would rather sit in prison (which might happen in Israel); or the reluctant party is overseas, in which case there is no way to enforce the monthly payments (as a case in point, the husband in the case we saw was not paying the mezonot that he must pay his wife until he divorces her).  One last situation: it won't work if either party is no longer mentally competent.

So what would be better?  If you insist on a halakhic marriage, do qiddushin al tenai - conditional betrothal (for all intents and purposes, conditional marriage).  No, the rabbinate won't agree to it, but if one of the conditions is that if you are not longer living together, say, for a year, then the marriage is null and void, and you are set free - you were never married to the rat to begin with.

There have been some attempts to revisit the idea of a conditional marriage. (As one example, view this paper - and yes, I am aware of the scandal that surrounded the author of it, but we can learn from all sources of knowledge. For the truly serious, read Eliezer Berkovitz's book תנאי בנישואין ובגט.)  And a handful of renegade young couples in Israel are doing just that - a conditional marriage that is not registered with the rabbinate.  May there be more like them!