Haven't I Been Telling you NOT to Register your Civil Marriage (which took place abroad, of course)?

If you've been following my blog, you should have caught on to the fact that I recommend against registering a civil marriage (which had to have taken place outside of Israel, since Israel does not have civil marriage) in Misrad HaPnim (Office of the Interior).  I'm sure I mentioned it several times (for example, here).  And, of course, that means that you might as well not bother with a civil marriage in, say, Cyprus.  I've explained that once a couple registers as married in Misrad HaPnim,  dissolution of the marriage would still be in the hands of the batei din.  The whole point of a civil marriage is, I would think, to manage your personal life without the intervention of the religious establishment in Israel.

In this post I will demonstrate my point by writing about a case that came before the Beit Din HaGadol (the highest rabbinic court in Israel) in Jerusalem earlier this year.  The decision for the case, 891549/1, is dated March 5, 2013.  What was before the Beit Din HaGadol was an appeal (by the woman) against a previous decision by the regional beit din in Tel Aviv from approximately a year earlier.  In that earlier decision the beit din ruled that within thirty days the woman must accept a get l'humra (גט לחומרה out of concern for the more stringent opinion), but if she does not accept the get within thirty days, considering that the couple was married civilly, but had no (Orthodox) religious wedding, the marriage would be released, which basically means that Misrad HaPnim would receive direction from the beit din to change the status of the two parties to single.

The couple was married in a civil marriage in China in 1987.  They each arrived in Israel in different years in the 1990s and each one converted, also at different times.  They lived together as a couple in Israel prior to completion of the conversions.  Though during the conversion process they declared that they wanted to marry according to Jewish law, they never did.

It was the man who sued for divorce.  At the outset, the beit din ruled that there should be a get l'humra.  The woman agreed to accept a divorce, once the matters of property and child support were decided in the (civil) family court.  However, she did not appear on the designated date for the divorce proceedings.  The woman changed her mind and said that she wants her husband to prove cause for divorce in the beit din.  A whole lot of back-and-forth, which I won't bother to summarize.  The result was as I stated above:  the woman was ordered to accept a get.  If she did not within thirty days, the marriage would be released.

However, the woman apparently decided she wanted to retain her  married status and remain married to this man.  Therefore, the appeal.  She did not want a divorce, nor did she want the single status that would be imposed upon her by the beit din even if she did not accept the get.  She did not want to lose whatever benefits or value she had from this relationship.  She wanted shalom bayit.  (Go figure - I never understand someone who insists that a relationship isn't over when one person so clearly wants "out" - and in this case the marriage was in such a shambles that, at some point in the series of appearances before the beit din, she requested that the husband be tested for STDs and AIDS before she would take him back!!)

The pesak din is rather long (28 pages), and most of it consists of a discussion of the reasons for being stringent in requiring a get to end a civil (or non-Jewish) marriage.  All this is pretty theoretical, and has nothing to do with the fact that the woman does not want the marriage ended in any manner - l'humra or otherwise.  The dayyanim appear to be using this pesak as a platform to reiterate their standing on terminating a civil marriage.  

This particular case has the added matter of the civil marriage taking place when both partners were not yet Jewish.  The simple ruling is found in the Rm"a (R. Moshe Isserles' glosses on the Shulhan Arukh), Even HaEzer 26:

עכו"ם שנשא עכו"ם, וכן מומר שנשא מומרת לעבודת כוכבים בנימוסיהן, ונתגיירו אח"כ, אין כאן חשש קידושין כלל ומותרת לצאת ממנו בלא גט, אף על פי ששהה עמה כמה שנים אינו אלא כזנות בעלמא.

[In the situation of] a gentile who married a gentile, and similarly an apostate who married an apostate, such that they were living in accordance with a gentile religion, but who then converted [to Judaism] after they married [according to gentile custom - there was no civil marriage in the Rm"a's time], there is no concern that there was qiddushin at all, and [the woman] is permitted to be released from him without a get.  Even though he lived with her for several years, [the relationship] is not anything more than promiscuity.

If such is the Rm"a's ruling, why does the beit din prefer a get l'humra, and why do they need to write so many pages?  It is because there are dissenting views, cited in the pesak din, but which I will not include here, to keep the length of this post reasonable.  The dissenting views raise the possibility that this was not promiscuous, that the intimate relationship (following the conversions, in the case of this couple) was for the purpose of qiddushin, in which case a get would be necessary to end the marriage. (Check the first mishna in Qiddushin about the three ways to acquire a wife: by giving her something of monetary value, by a contract, or by sexual relations.)  The Sages were not very enthusiastic about qiddushin enacted by sexual relations, but it is a halakhic possibility, nonetheless, and it persists in being of concern in all discussions of dissolution of a non-halakhic marriage.

For this reason, every pesak din that deals with dissolving a civil marriage (regardless of whether or not partners were born Jewish) will go through the litany and quote all of the rishonim and aharonim who had anything to say about the intent of each of the parties when s/he engaged in sex with the other, and whether or not it was for the purpose of qiddushin or was a promiscuous relationship.  Never mind that many, many halakhic experts have already declared that in these modern times when a couple could easily have opted to marry according to Jewish law, but didn't, that clearly their intent was not for qiddushin.  Never mind that R. Moshe Feinstein did not require a get in cases of civil marriage, because he knew that by doing so it could increase the numbers of mamzerim; in the U.S., couples could get a civil divorce and ignore his ruling, if he were to insist on a get.

In Israel, couples have no such other option.  If the batei din would follow R. Feinstein's approach (and that of all the other authorities who provide reasons to be lenient) and rule a general decision that couples who do not have a halakhic wedding do not need a get, then the rabbinate would lose control over divorce in Israel.  The civil law would then have to provide a means for a couple who did not have a halakhic religious ceremony to change their status in the Misrad HaPnim without the intervention of the rabbinate.  Of course, if that were to happen, perhaps the batei din would have some time freed up to do more important things than deal with couples who don't really need a divorce, anyway.  But practical benefits should never interfere with power games, should they?    

So we get a lengthy discourse that includes all of the reasons to be lenient and all of the reasons to be stringent, including various analyses of the thinking behind the sexual relations of a couple who didn't marry halakhically.  Portions of the discussion are not particularly flattering to such a couple, to put it mildly.  Much of the cited material, being from centuries ago, is quite out of touch with reality (and then some rather modern stuff is also out of touch with reality).  And then the general conclusion, presented before getting to the case at hand:

לרוב ככל הפוסקים, אין לחשוש לקידושי ביאה בנישואין אזרחיים. אך גם החוששים לכך, זה רק כאשר בני הזוג יהודים נישאו בנישואין אזרחיים דאיכא הטעמים הנ"ל להחמיר, אבל כאשר בני זוג נישאו אזרחית בעודם גויים והתגיירו, ליכא לכל הני טעמי להחמיר.

According to just about all of the authorities there is no reason to be concerned about qiddushin by sexual relations in the case of a civil marriage.  But even those who are concerned [and therefore would obligate a get], it is only in the case when both partners are Jews who married in a civil marriage, because of the reasons given above to be stringent.  But when the partners married civilly while they were still gentile, and then converted, those reasons to be stringent are not relevant.

None of this really matters in the case of this particular couple.  What is important is that the appeal is dismissed because the wife did agree to divorce several times (and apparently changed her mind).  In fact, the higher beit din questions why the regional beit din required a get at all, given the lengthy discourse that was just provided by one of the dayyanim and its conclusion!  Therefore, even without a get, the marriage is to be dissolved.  I'd like to point out that this lenient attitude is specifically because the couple married civilly when they were not be Jewish.  Had it been a case of two people who were born Jewish, in spite of the fact that, as we saw in the conclusion, overwhelmingly the authorities are not concerned about qiddushin with a civil marriage, the batei din in Israel require a get l'humra.  (However, they will not consider a child born to a woman who was married in a civil marriage and did not receive a get a mamzer.)

What are my readers to get out of this?  That even in a case of a marriage that is in shambles and should be terminated swiftly, without mudslinging, without long drawn out proceedings in the beit din, once the marriage is registered in Misrad HaPnim, there is no escaping the batei din, even when a get is not halakhically required.  In this case, it appears that the correct result was eventually achieved.  But at what cost - to the two estranged parties who paid lawyers for all of the appearances in the beit din over the course of several years, to the taxpayers for the services of the dayyanim, to the other citizens whom the dayyanim could have served instead - for more pressing needs?  And, let's not forget the guy who first sued for divorce approximately 2 1/2 years before the final decision from the highest beit din.  I have no idea who was really at fault in the marital breakdown.  I don't care.  Remember, I support no-fault divorce.  Two and a half years is way too long a process if someone wants to move on with his or her life.  

"Halakhic" Prenup Agreements - A Summary of my Objections

For the past couple of months I've been writing about various prenuptial agreements.  In the title above, I used the word "halakhic" to refer to those agreements that are intended to be used by couples who choose to marry in an Orthodox ceremony, particularly via the Israeli Rabbinate (including Tzohar rabbis), but any Orthodox ceremony is relevant.

That doesn't mean that other prenuptial agreements that deal with finances, child care, devotion to one another, etc. are not halakhic.  Indeed, they most likely are.  But I am not concerned with them, so long as a couple does not delude themselves and think that they then can proceed safely to marry in a standard Orthodox ceremony.  I am concerned with those prenups that are specifically aimed at preventing women from becoming agunot (or men from becoming agunim).  This is a summary of my main concerns.  I will put the fundamental patriarchal nature of the Orthodox marriage aside (though this is something that I oppose vehemently).  It is a different topic. Though I keep referring to "women", the same applies to a man whose wife might refuse to accept a get, except that he is no where in as difficult a situation as a woman whose husband refuses to give her a get, and so I've chosen to refer to women.

1) Before I would tell women to "rest assured" that they are protected by any of these prenups (read all my posts from July until the last one - you'll see which ones are more commonly used), I would want to see documented evidence of women who had to go to civil court to enforce it, then received their gittin in the beit din without a glitch.  Such documented evidence must include rulings from batei din in Israel.  I have so far heard a personal story of a woman who was told by certain dayyanim that if they knew there was such an agreement (not even enforced in a civil court), they would declare a get that follows as invalid.  It is not enough that certain rabbis have co-authored one agreement or another.  The rabbis involved in formulating the agreements tend to be on the more "liberal" side of the spectrum, and do not represent the dayyanim who serve in the batei din.  The prenup that would most likely be accepted by the batei din is one for which I have significant critique - it is the one that I discussed in my last post, and it has gained no public awareness, to the best of my knowledge.  And, it is also one that is most likely to have difficulties in the civil courts (I explain why in that post).

2) All of the prenups that are based on "enhanced" monthly support payments (and that pretty much covers them all, except for conditional marriage), so that the recalcitrant spouse will not want to prolong the recalcitrance, will not be effective if the recalcitrant spouse is very poor (because s/he won't have from what to pay, anyway) or very rich (because $1500/month won't put a dent in a spiteful guy who earns tens of thousands of dollars a month).

3) None of the prenups based on "enhanced"monthly support payments will help if the recalcitrant spouse leaves the country.  A case of a husband who absconded with the wedding gifts and left the country just two days after his wedding recently made headlines when a private beit din annulled the marriage.  None of these prenups would have helped this woman.  (Nor did the 40,000 NIS bribe that the State beit din paid the extortionist husband out of State funds, i.e., taxpayers' money.  Why should taxpayers have to foot the bill for the problems that result from an archaic, injust halakhic system?) And, we need to hear the results of a court case to see if the State will recognize the decision of this private beit din.  In two previous posts, I wrote about cases in which the recalcitrant spouse - one time the women, one time the  man - left the country.  You can read them here and here.

4) These agreements do not address problems that occur less frequently, but are still very severe when they occur: iggun due to disappearance of a spouse, perhaps for innocent reasons on the spouse's part, iggun of a widow who is waiting for halitza (the quite degrading ceremony that must be performed so that levirate marriage is not required; sometimes the yabbam extorts, and sometimes he is simply too young), iggun of a woman whose husband has lost the mental capacity to give a get.  These types of cases might be rare these days (once they were not rare at all and various halakhic methods were commonly used to try to prevent their occurrence), but they are tragic when they do occur, and they are indicative of the basic problems of qiddushin.  People don't discuss these much - they really are an embarrassment to Jewish law.

5) The above problems all compound and give cause to my main and all-encompassing objection: these prenups mislead couples into thinking that a halakhic marriage is fine and dandy so long as they sign one of these agreements.  It allows people to continue to hide their heads in the sand instead of facing the truth about qiddushin and what it truly entails.  The foundational problems will not be fixed with such an approach.

That's a shame.

See you at the Kolech conference, where I'll be speaking about the meaning and value of a ketuba today.  

A Prenup Agreement for Mediation

I've got one last prenup to talk about - this at a reader's request in a comment. This agreement was written by Rabbi David Mescheloff, and you can see information about him, the documents (one for the man, one for the woman), explanations, and an article - all in Hebrew (except for an English bio of R. Mescheloff) - here.

Before I even explain this agreement and give my opinion, I will point out something interesting.  This agreement is found on the website of the Jerusalem College of Technology.  Why not on the site of a rabbinic organization?  How about Tzohar, so popular for providing mesadrei qiddushin and in whose journal R. Mescheloff's shorter paper was published? (His lengthy paper was published in the journal T'humin 21.)  In fact, in his opening paragraph in the version that appeared in Tzohar's periodical, he starts out by inviting the Tzohar rabbis to offer this agreement to couples about to marry.  Didn't happen.   Why not the Israeli Rabbinate?  Why not Itim?  How are couples supposed to learn about it?

R. Mescheloff actually provides an answer to these questions.  Among the halakhic authorities to whom he presented this agreement for approval was the renowned R. Yosef Elyashiv.  R. Elyashiv stated that there is nothing that is not permissible in the agreement, but he had some concerns about making it public, for general use.  His concerns are actually relevant to every prenup agreement, and are consistent with some of my own concerns and comments about any of the agreements that I have discussed in all of my posts about prenups:  Some organization might decide to push for this agreement to become standard, for everyone to sign, and then couples would end up signing it without even understanding what they were signing.  If a time comes when the agreement needs to be implemented, one of the parties might claim that s/he didn't know what s/he was signing.

This concern is true for every agreement, which is why I've been recommending for every agreement that I discussed that a couple consult with legal and halakhic authorities.  As a result of R. Elyashiv's concern, R. Mescheloff himself, when preparing a couple for their wedding, spends an hour and a half explaining the agreement to the couple.

I totally, totally agree that any agreement that a couple agree to should be explained to them very carefully.  Why isn't this done with a ketuba?  Didn't the ketuba become the standard that R. Elyashiv is so concerned about, that it would just be presented for "signature," without explaining it?!!  How many couples who marry actually understand what is in the ketuba and what they are agreeing to - the man by giving it to the woman, and the woman by accepting qiddushin and the ketuba?  A lot of what they are actually agreeing to is not even written in the ketuba!!  It is written in Jewish codes of law that, by virtue of enacting qiddushin, both parties are bound by, without knowing what they have accepted!  (Somehow, I don't think it would work for someone to claim that the qinyan is not binding because she didn't know what she was agreeing to.)  So my response to this concern is:

אתה נאה דורש ואין נאה מקיים (יבמות סג:) 

Loosely translated, this means "practice what you preach" (but the Hebrew is closer to "you preach nicely but don't do it nicely").  I quoted the Hebrew from Yevamot (it appears in some other places in the Talmud, too), where the Sages said this to Ben Azzai after he said that one who does not engage in procreation is like one who spills blood and reduces the image of God.  He did not marry and had no kids himself.  (Well, actually, there is a story that he did marry with not such a good outcome, but getting into that would really be off-topic.)

I will attempt to summarize the essence of the agreement, rather than go through what would be very lengthy, if I explained each of the nineteen (!) paragraphs.  Even its author wrote that one of its drawbacks is its sheer length. R. Mescheloff wrote in his explanation of this agreement that it is based on halakhic agreements that have been used in the past, approved by halakhic authorities, all presented thoroughly in his article in T'humin.  Indeed, the structure and language of the agreement is far more in keeping with halakhic contracts than any of the other agreements discussed.  After presenting a summary of the agreement, I will explain why this is so.

The purpose of the agreement is to bring a couple - one of whom wishes to divorce - to mediation (gishur; גישור).  If marital therapy can save the marriage, the mediator would direct the couple to marital therapy.  If marital therapy would not succeed, then divorce mediation would be the next step, so that the couple can reach a divorce agreement and proceed with a divorce. R. Mescheloff claims that in 95% of cases of divorce, there is no justification for the beit din to order a divorce, and that mediation would save everyone a lot of time, money, aggravation, and the nasty proceedings that often precede eventual settlement.  Mediation does not determine who is "at fault", but is intended for each party to find ways that they can compromise and reach an agreement.

I agree with everything that R. Mescheloff wrote about this (I merely briefly presented his approach), and his willingness to recognize that no one needs to be determined as the "winner" or that no one should be made "to pay" for his/her contribution to the breakdown in the marriage is admirable.  I contrast his responsible and realistic view of marital breakdown with that expressed by R. Eliezer Melamed, which I referred to in a previous post. Only the concluding sentence in the section that presents the benefits of mediation is troubling to me.  I will paste the Hebrew sentence here and translate it:

ההסכם לגישור יקטין את סבלם של הרוב המכריע של המתגרשים, כי יאפשר לכל אחד מבני הזוג להשתמש לטובתו בזכות הסירוב שההלכה מעניקה לו, בלי לנצל אותה לניגוח חברו ולמטרות לא הוגנות.

The Agreement for Mediation will reduce the suffering of the overwhelming majority of those who divorce, because it will permit each one of the couple to use to his/her benefit the right to refuse [divorce] that is granted by the halakha, without using it to abuse the other or for unfair purposes.

I do not think any one should have a "right to refuse divorce".  It is this premise that is the undoing, in my opinion, of the value of this agreement.  A person's basic human right is to have the freedom to choose with whom to share one's life and to terminate such a relationship if it is not satisfactory.  No one should have a "right" to refuse this wish to dissolve the relationship. Someone has the "right" to feel unhappy, even devastated, that his/her spouse wants out, but does not have the right to refuse.

The essential element in this agreement, like others that we have seen, is to have a "monetary incentive" for the recalcitrant spouse to cooperate, in this case, to cooperate in mediation so as to reach an agreement that will enable them to proceed to divorce.  But the main difference is that this "monetary" incentive is not monthly support payments (in the event of recalcitrance) but rather is the forgiving of a purported debt (when there isn't recalcitrance).  The mechanism of odita (אודיתא) is used, by which someone admits that s/he owes someone a certain amount of money acquired in a loan from the other, in this case a large sum.  Each spouse's document is admission of such a "debt" to the other.  So long as the marriage is good, payment of the "debt" is deferred.  If one party wants to divorce, so long as s/he cooperates first in marital therapy, the debt is deferred.  And if the therapy isn't successful, then so long as the one who didn't want to divorce cooperates in mediation, his/her debt is deferred.  If a divorce agreement is reached and divorce takes place, then the debts are forgiven.  There are time frames specified for each stage in dissolution of the marriage.  In a nutshell, that is the mechanism.

Now that I explained the mechanism, I can explain why such a mechanism is used.  It is because the very nature of Jewish contract law is quite enigmatic. While Jewish law is quite explicit about transfer and acquisition of property, whether through a sale or a gift, and about monetary debts, such as loans, the fundamental law does not allow for contractual obligations, whether to transfer property in the future, or to perform an act.  Without getting too technical (or legal), obligatory contracts - and in the case of the prenups that are based on "generous" support payments, conditional obligatory contracts - fall in the realm of what is called qinyan devarim, which is roughly translated as an “acquisition of words,” which is not binding.  For a qinyan to be binding, it must be relating to a concrete object, and words have no substance (even if they are written).  (A contract between an employer and a worker who will be paid for his services is an exception to this rule.  Employment of salaried workers has its own distinct set of regulations.)

A legal system without an instrument for obligatory contracts would be difficult to maintain, and the non-binding nature of a qinyan devarim is circumvented in Jewish law by several methods, one of which is odita, used in this prenuptial agreement.  Each circumvention method has its proponents and opponents among Jewish legal authorities, and each one is considered more appropriate for some specific circumstances and less appropriate for others, but in this framework we can only touch on the fact that there are, indeed, methods to grapple with the inherent limitations of Jewish contract law, so as to render an enforceable (in a beit din, whatever enforceability means in a beit din) obligatory contract.

One can find on the Internet halakhic contracts that are promoted by various organizations that would like to see Jews using Jewish law rather than civil law even in matters of, for example, sale or rental of an apartment.  But such contracts are obligatory contracts, and to make them binding, the "gimmick" of odita is commonly used - a party admits to owing a "loan", to be forgiven if, for example, transfer of the apartment is made on time.  (Here is not the place to discuss the application of situmta, which I won't explain, but mention for those who know about this stuff - I'm trying to preempt questions about what I write.)

I called odita a "gimmick", because it is that - there never was a loan, and yet the agreement states that the person signing acknowledges that s/he has in his/her hand a sum of money that his/her future spouse loaned to him/her and that s/he accepted it and is in debt for it, to be repaid according to the conditions specified in the document.  This is in essence what happens when one tries to apply two-thousand-year-old rabbinic law to modern society (and these problems already became acute as Jews became more and more involved in trade hundreds of years ago).  So, do we turn cartwheels in order to say we are being halakhic?  Or do we admit that the system is outdated and go with a legal system that is comfortable with obligatory contracts?

R. Mescheloff does admit that some people, including the Israeli Supreme Court, might have problems with people signing that they took a loan that never existed, that in fact, the whole agreement is based on a lie.  He further relates that some halakhic authorities expressed reservations about the method of odita, and have presented various explanations and justifications for its use.  He then states that it is not a lie but rather a "form of speech" that creates a loan that didn't exist before.

Personally, I look at this as a classic example of the way the halakhic system works - it is a system of creative compliance, using many "gimmicks" such as selling hametz (which I don't think individuals should do - they should eat it up or throw it out, but that is another topic), selling the land in Israel for shemita, or allowing the beit din to "distribute" the produce harvested during shemita, such that the payment for the produce is for the effort and not for the produce itself, heter iska (used to circumvent the prohibition to charge or pay interest), conditional divorces given by someone on his deathbed (not common any more, but once quite common, to avoid levirate marriage or halitza) etc., etc., etc.  Intellectually, I love these "gimmicks".  They are often clever and even subversive.  They demonstrate that there was always recognition that there were problems with halakha and that solutions had to be found.

On the other hand - on a different intellectual level - I feel that use of these "gimmicks" demonstrates the absurdity of trying to preserve what is clearly outdated law.  When turning cartwheels results in a herniated disc, it is time to scrap the law. And, there is the serious danger that to the vast majority of Israelis who are not well-versed in how these halakhic methods are used as a means to reach an end, Jewish law will seem absurd at best and a laughing-stock at worst.

But, actually, this is not my main objection to this agreement, and that is because I do appreciate the legal elegance and halakhic language that was used to write the agreement.  It is so far better written than the other agreements, even if in an antiquated style - I am a student and admirer of halakhic literature, and this fits right in.

My main objection - and R. Mescheloff did mention that the "womens's organizations" that assist women who are waiting for a get (why am I bothered by this?  is it only women who care about the problem of iggun?!) expressed this concern - is that "enforcement" of the agreement and any ultimate authority is placed in the hands of the beit din, rather than the civil courts. But the beit din has no power of enforcement!  They were given the authority by the Israeli government to impose penalties on a recalcitrant spouse (and can agree to a heter me'a rabbanim - agreement of one hundred rabbis - if the wife is recalcitrant), but they have no power to enforce payment of this fictitious debt if one party does not abide by what is expected for the debt to be forgiven or deferred.  Suppose one spouse refuses to go to therapy or go to the mediator.  Then what?  Summon him/her to the beit din for a hearing.  And if s/he doesn't show up?  If it were a hearing about a divorce, the beit din does have the authority to ask for a police escort, for example.  But the beit din does not have the power to force someone to a hearing about an unpaid "loan", or about any of the conditions by which the loan would be forgiven.  So the most the beit din could do would be to tell a community to excommunicate someone - those tools that were so common in the 16th century don't work so well today.  We know this.  They don't work for get refusers and they wouldn't work for people who ignore their halakhic prenup.

The other problem with giving all authority to the beit din is that they have a different set of values from mine.  I think this paragraph from R. Mescheloff's article (the shorter one) reflects the values and ideas that I dispute and would be wary to rely on: 

ברוב רובם של המקרים של הבאים להתגרש בימינו ההלכה קובעת כי כשם שיצרו בני הזוג את זיקת הקידושין והנישואין שביניהם מתוך רצון והסכמה הדדיים, כך ינתקו את הזיקה, בגט, רק בהסכמה. זו דרישה הגיונית וצודקת. היא גם שומרת על "הזכות האזרחית" של כל פרט לקבוע בעצמו את מעמדו האישי, בלי שגוף חברתי זה או אחר יתערב מכוח הממסד בחייו הפרטיים. הצורך בהסכמת שני בני הזוג לגירושין גם מאפשר לכל אחד מבני הזוג להגן על האינטרסים שלו לפי מיטב הבנתו, בלי שמישהו אחר יעריך במקומו מה הם האינטרסים שלו ובאיזו עוצמה עליו להרגיש שנפגע.

In the overwhelming majority of the cases of those who divorce these days, the halakha determines that just as they created the marital bond with mutual desire and agreement, so they should break the bond, with a get, only by agreement.  This is a reasonable and just requirement.  It also maintains the "civil right" of each individual to determine his own personal status, without any societal body intervening in the individual's private life, by the power vested in it by the establishment [i.e., government].  The requirement of agreement by both parties to divorce also permits each of them to protect his/her own interests according to his/her understanding, without someone else determining what his/her interests are, and how great the damages s/he perceives.

I'm going to put aside the fact that halakha actually permits a marital bond without mutual agreement:  A father can, halakhically, marry off his minor daughter without her agreement (and don't fall into the common mistake of citing mi'un מיאון - this is only for a minor whose brother and/or mother married her off!!).  Levirate marriage (yibbum) is also marriage without mutual agreement.  Fortunately, neither of these are acceptable in today's society, but halakha does permit them.

But, I'll put that aside.  What R. Mescheloff neglects to consider when promoting mutual agreement to divorce is that women do not have the solution of a heter me'a rabbanim.  Men do.  And men who have extra-marital relations do not have the cloud of mamzerut hanging over any possible children.  Any thought that the "right to refuse divorce" is a legitimate right does not consider the injustice of the system.

R. Mescheloff is looking for symmetry in an asymmetric situation.  Two people might fall in love, but it only takes one to fall out of love for the marriage to be over.  I would not want to rely on a system that does not recognize that.