Jewish Studies At The University
of Divorce Judgments in Israel:
Imprisonment an Answer?
Human freedom and dignity are important values in the opinion of both philosophers and the Sages of Jewish law. The Sages of the Talmud remind us that a person is not completely free, for we are subject to the commandments issued by the Creator, but it is inappropriate for one to subjugate himself or herself to another person. The perception of human freedom and dignity even led the Rabbis to the conclusion that imprisonment in general and the physical subjugation of the bodies of debtors by imprisonment in particular are not desirable. When, however, there was no choice, owing to societal needs, imprisonment was at times imposed.
Jewish scholars held that a balance has to be found between individual freedom and other important values. In the appropriate circumstances, restrictions on individual freedom are justified.
According to ancient Jewish law (halakhah), it is the husband who has to initiate the divorce with the issuance of a written bill of divorcement. The Talmud discusses what happens if a husband refuses to issue this document, known as a get. Different types of force may be exerted until the husband agrees to issue the bill of divorcement. The wife’s passive role in the proceedings later changed, with post-talmudic sources indicating that the husband was prohibited in some Jewish communities from divorcing his wife without her consent.
Today, it is widely accepted that the prohibition against a man’s divorcing his wife against her will applies in the State of Israel—which has no civil marriage/divorce procedures—to all Jews, irrespective of their community of origin. In the State of Israel, the status of married women in regard to consenting to a divorce has to a large extent been made equal to the status of husbands in the Mishnaic-Talmudic period. Both may be divorced against their will when grounds for divorce exist that allow for the use of coercive measures to force the husband to give or the wife to accept a get.
Just as there are exceptions to the general ruled prohibiting a husband to divorce his wife against her will—for instance, if she became an apostate or committed adultery—there are grounds in certain well-defined cases to allow the husband to contract an additional marriage.
Full equality between spouses, however, does not exist. In certain situations—for example, if the husband cannot be located—the wife becomes an agunah, anchored to her missing husband and, therefore, not allowed to remarry. In similar circumstances, the husband can obtain allowance to contract another marriage. Often, too, it is made more difficult for the woman to prove that grounds for divorce allowing for compulsion do exist.
Nevertheless, it is clear that usually the get has to be freely issued and accepted. On the other hand, the Talmud does speak of means of “motivating” a man to give a get. The use of sanctions to convince one to accept or give a divorce must, though, meet the basic principles of Jewish law pertaining to these sanctions. An unfit sanction—something too severe—might cause the divorce to be effected not of one’s own free will. Such a forced divorce is not valid.
What is the view of Jewish law scholars concerning imprisonment as a means of carrying out the religious court verdict of a divorce in the mirror of these basic principles? Exerting force as a means of coercing a person into motivating the issuance/acceptance of a get (divorce), particularly the use of severe means of coercion, such as imprisonment, isolation, or denying a prisoner’s rights, in order to achieve this result, affects a person’s freedom. Jewish scholars hold that there should be a correlation: the more severe the means of enforcement and/or constraint exerted on the parties to the divorce in order to motivate them to give/accept the get, the more serious consideration should be given to whether its use is justified in light of the proper balance between harming the refuser’s freedom and harming the other party’s freedom.
In this writer’s opinion, the principles of Jewish law in regard to
forced divorce and the principles of Israeli legislative laws, in particular the
principles formulated in the new Basic Laws, obligate acting cautiously and
moderately when it comes to imposing severe sanctions for the purpose of
carrying out Jewish divorce laws.
A gradual system should be developed: First, a relatively light sanction should be given; only later, when it becomes clear that this will not motivate the husband to give or the wife to accept the divorce writ, will it be justified to take stricter means that are more injurious to the person’s freedom. The latter, of course, intensify the fear that the get will be considered illegally forced, and therefore invalid.
Imprisonment is a severe means of enforcement that greatly affects a person’s freedom. The prisoner cannot go about freely, cannot realize his many wishes, and cannot function and develop normally. It is entirely possible that there is no permission to use this means when there are no special circumstances that justify forcing a divorce. Therefore, imprisonment or isolation of the prisoner should be the last resort, the last, severest means of enforcement. Use should be made of it only after other means, considered less severe on a graduated scale of means, have been tried, but the distress of the other party has not been solved, since the get was not granted or received. Denying a prisoner’s rights, too, is a severe sanction, and use should be made of it only after other, less severe means have first been tried.
There should be an exact examination in every case of the proper balance that will enable, to the extent possible, a realization of the desires and rights of every side in the matter, if only partially. The distress of the other party is difficult, especially when it is a woman who is refused a divorce. While a man whose wife refuses to accept the get can solve his problem through permission to marry, a woman whose husband refuses to issue the get cannot employ this means to solve her problem. Thus, it would seem desirable for rabbinical courts in Israel to consider seriously the application of appropriate means in justified circumstances that could solve this problem. There should be greater exercise of less severe injunctions affecting the free will to divorce and harming a person’s human rights to a lesser extent than that caused by the use of imprisonment to enforce divorce judgments.
In Jewish law, there is generally no explicit discussion of the issue of
a clash of individual rights of the husband and wife in divorce proceedings.
There is, though, a need for constraint and caution in imposing sanctions so
that the divorce writ, the get, will be freely given and accepted. In the
reality of today’s permissive society, there is the fear that the parties to a
divorce that is being delayed because of a refusal will start living with a
person of the opposite sex before the knot is untied and they are released by
religious law from their marriage bonds. (Jewish law does not accept a civil
divorce.) This may have adverse implications for the religious status of
children of such unions. The rabbis
are aware of the importance of freeing a refused party from the chains of a
refuser. The principles of both Jewish law and Israeli law would,
then, be well served by introducing a scale of sanctions that would do less harm
to the free will and individual rights of the refuser, on the one hand, and
solve the problem of the husband or wife who wants to end the bond of marriage,
on the other.
Yechiel Kaplan, a Lecturer in the Faculty of Law, specializes in Jewish law
(mishpat Ivri), family law, and the history of law (ancient and medieval Roman
and Canon law.