Under Jewish law, marriage is a contract willingly entered into by a man and a woman, with the marriage contract (“Ketubah“) defining each one’s rights and obligations. Jewish divorce, however, is accomplished only unilaterally: by the man writing a Get. If her husband refuses to write a Get, the consequences for a woman can be life-altering.
By Alexandra Leichter, Family Lawyer
As any family law litigator can attest, divorces can be extremely contentious. But when a marriage is created via an Orthodox Jewish wedding, the conflict is magnified. That is because Orthodox Jewish law requires a marriage to be terminated not only by a civil divorce, but also by a Jewish divorce, called a “Get.” Without a Get, parties are not considered divorced, and the consequences, especially for a woman, are life-altering.
Under Jewish law, marriage is a contract willingly entered into by a man and a woman, with the marriage contract (called a “ketubah”) defining each one’s rights and obligations (there are other ceremonial requirements, but the ketubah is a key ingredient). Jewish marriage is not a creature of the state, and no state action, state involvement,1 or state ceremony is mandated. Divorce, however, is accomplished only unilaterally: by the man writing a Get. Even if the divorce is done by agreement, the Get is still written only by the man (and accepted by the woman).
Jewish Divorce and Family Law: Origins of the Ketubah and the Get
Tracing its origins to the Bible, Jewish law states that only the husband gives the wife a Get. A woman has no power to divorce her husband — and so long as he fails to write the Get, she remains married to him. Under Orthodox tradition, because a woman is “acquired” by her husband in marriage via the marriage contract, the contract cannot be broken or terminated by anyone except her husband. Not even the rabbi has the power to terminate a Jewish marriage.2
The Ketubah: a Jewish Marriage Contract
The ketubah is at least 2,000 years old, and is one of the most ancient documents still in use today. While not all ketubot (plural of ketubah) are identical, they came into use historically as a remedy for the wife in the event a husband wished to unilaterally divorce her. Since husbands had the unfettered right to divorce their wives, and since in ancient times women couldn’t simply seek work to support themselves, the ketubah was created to ensure the wife that in the event of a divorce or her husband’s death, she would not become penniless. The ketubah also states the husband’s obligation during marriage to support the wife, provide her with conjugal relations, and treat her in accordance with the rights a wife is entitled to under Jewish law. Indeed, the ketubah states that the groom “consecrates (the bride) onto (himself) in accordance with the laws of Moses and Israel.” These words are backed by thousands of years of Jewish Talmudic scholarship defining rights and obligations of husbands and wives. Several tractates of the Talmud are devoted to defining such obligations and rights the wife may claim as a result of her marriage and the ketubah.
The development of Jewish law is hierarchical. The “Torah” (the first five books of the Hebrew Bible), over 3,000 years old, is deemed to be the supreme word of God, as told to Moses and written down on Mount Sinai; the Mishnah (the written version of the “oral law”) was only written down in approximately 200 C.E., and the Gemarah (aka “Talmud”) was written about 500 C.E. The Mishnah and the Gemarah are rabbinic disputations and scholarship that expounded upon the Torah, explained the oral law, and formed the basis of Jewish laws – all of which have their grounding in the words of the Torah. Subsequently, numerous rabbis through the ages expounded on those laws written in the Talmud. That scholarship continues to today. The basic rule, however, is that no rabbinic interpretation can contradict the Torah – it can only construe it to accommodate the needs of the age or current events, but the words of the Torah are supreme.
Historically, and during Biblical times, Jewish men were allowed to practice polygamy (the Biblical Jakob had two wives and two concubines, while King Solomon had 300 wives and some 700 concubines), but Jewish women were only allowed one husband at a time, and were forbidden to marry another until their current husband either gave them a Get or died. Among Ashkenazic3 Jews, however, a rabbinic decree issued more than 1,000 years ago forbade polygamy; and to prevent indiscriminate divorces by husbands, this rabbi also decreed that no woman may be divorced against her will. As a result, for over 1,000 years, Ashkenazic Jewish men were required to obtain their wives’ consent to divorce (“acceptance” of a Get) before it could be valid. (This decree did not affect Sephardic Jews, who continued to practice polygamy until the formation of the State of Israel, in the middle of the 20th century, when Israeli law forbade all Jews from having more than one wife at a time. However, to this day, some Sephardic rabbis outside Israel maintain that a wife’s consent to a divorce is not needed to make a Get valid.)
The Get has become a tool to extort huge sums of money from the wife and/or her family, or to force the wife to forego civil property rights and support, or to force her to cede custody of her children.
However, the decree preventing men from being able to divorce their wives without the wives’ consent, is not as “hard and fast” as it sounds, nor is it much of a preventative measure. That is because Torah law is considered supreme over all subsequently issued rabbinic-devised laws. Because the Torah permitted polygamy, the man’s remarriage without giving his wife a Get or without obtaining his wife’s consent to the divorce does not induce the same penalties for the husband that are imposed upon a married woman who fails to obtain a Get before she remarries. Additionally, the rabbis also permit a man to divorce his wife without her consent if he obtains the consent of 100 rabbis4 (or as is most often practiced in Israel, with the consent of only six rabbis). No parallel option is available to a woman to divorce without her husband’s consent – her only options out of a marriage are the Get or her husband’s death.
Even After a Civil Divorce, Without a Get, the Woman is Still Married. The Man, Not So Much.
Until a woman obtains a Get from her husband (or until her husband dies, whichever first occurs), she is considered still married to her husband and has no ability to remarry or to have children from another relationship. If she violates this law, she is considered an adulteress, and a child born to her from that subsequent relationship is deemed a mamzer.5 A mamzer is forbidden to marry another Jew, and also may not marry a Gentile, as he/she is still deemed to be a Jew. A mamzer is permitted to marry only another mamzer. Furthermore, descendants of mamzerim (plural of mamzer) are also mamzerim for all subsequent generations, and they, too, are forbidden to marry anyone other than mamzerim. This stigma is so severe, that a woman who has a child with another man without having received a Get might as well stick a huge scarlet letter “M” on the forehead of all her offspring and condemn them to live on the sidelines of Judaism. Thus, observant Jewish women cannot and will not remarry, or even date, without having first obtained a Get from their husband.
In contrast, because men were permitted more than one wife in Biblical times, and only rabbinic decree (or civil law) now forbid polygamy, children of a man’s subsequent relationship (even if he hadn’t given his wife a Get) are not mamzerim (unless his subsequent partner was still married to someone else).
Because a Get is the only lifeline for a married woman who wants out of her marriage, and because only the husband may give it to her, it has become a tool to extort huge sums of money from the wife and/or her family, or to force the wife to forego civil property rights and support, or to force her to cede custody of the children. In egregious cases, husbands may refuse to give a Get out of sheer vengeance, blithely going on with their own lives, and even remarrying, while leaving their wives in limbo.6 A woman who cannot obtain a Get is loosely termed an Agunah7 (chained). While a woman may also wield her power to refuse to accept the Get, and may even try to extort a price for her “acceptance,” that power is, in many cases, illusory. Because a man may freely remarry without a Get and without consequences to his progeny, and may also avail himself of the 100-rabbi rule to get rabbinic authority to remarry, the wife’s refusal of the Get will not get her very far.
There are many, very technical, rules about when, how, and where the husband can or should give the Get. In general, however, it must be given “of his own free will” – to wit, without “coercion.”8
Rabbinic courts are permitted, according to Jewish law, to beat a man or imprison him, take away his driver’s license and professional license (as they are authorized to do in Israel) until he “willingly” gives his wife a Get, and this type of inducement is not deemed by Jewish law, to be “coercive.” However, if a civil court imposes an order on a husband to give his wife a Get and impliedly threatens him with jail or monetary sanction if he disobeys that order, the Get is deemed to be “coercive” and therefore invalid.
Notwithstanding the apparent gender inequity inherent in Jewish divorce laws, Orthodox Jews do adhere to such laws if they wish to remain traditional or observant, to maintain the family relationship within Jewish tradition, and to be accepted within the Orthodox Jewish community.
Additionally, American Jews have developed increasingly strong ties with Israel, where all laws relating to birth, death, marriage, and divorce are strictly interpreted, governed, and enforced by the Orthodox rabbinate (and primarily by the ultra-Orthodox). For example, a Jewish couple may not marry in Israel, regardless of their affiliation as Orthodox, Conservative, Reform, Reconstructionist,9 or even non-affiliated, unless the Rabbinate is provided proof that neither one is a mamzer or mamzeret (female mamzer).10
Thus, Jewish women all over the world who seek to protect their children from being excluded from Jewish society in Israel will adhere to these laws at all cost to their own personal freedom and happiness, even if they no longer consider themselves Orthodox. The potential stigma of a mamzer label that may be attached to children and subsequent progeny is much too great.
It is this looming threat of the woman remaining in marital limbo even after a divorce is granted by the civil courts that has affected so much litigation and negotiation in civil divorce and custody matters involving observant Jewish women.
1 The exception is in Israel, but even there, it is not the state, but rather the rabbinate, that determines when, whom, and how one may marry.
2 Under Conservative Jewish law, the Ketubah authorizes the rabbinic court to dissolve the marriage in the event the husband refuses to do so. The Orthodox Ketubah does not contain such a clause. However, Conservative Jewish divorces are not recognized by many Orthodox rabbis or by the Israeli rabbinate, which controls all issues relating to marriage and divorce (as well as determining who is a Jew).
3 “Ashkenazic” Jews are descendants of German/ Eastern European Jews. “Sephardic” Jews are descendants of Spanish/Middle Eastern Jews. In many instances, Ashkenazic and Sephardic Jewish tradition diverged, although each follows laws laid out in the Torah (the Five Books of Moses in the Bible).
4 This method of consent for the husband to remarry is called a Heter Meah Rabbanim.
5 A mamzer is loosely translated to English as “illegitimate,” but it is far from it. In Jewish law, there is really no such thing as illegitimacy. An unmarried woman’s child is just as legitimate as a married woman’s child. A mamzer (masculine), mamzerim (plural), mamzeret (feminine) is more accurately translated as a child of an incestuous relationship, e.g. child of a union between brother and sister, or father and daughter, etc. Thus, being labeled a mamzer is far more odious than being labeled “illegitimate” in the 21st century.
6 Conservative Jewish marriages (as opposed to Orthodox), use a Ketubah that authorizes the rabbi to dissolve the marriage in the event the husband refuses to do so. The Orthodox Ketubah does not contain such a clause, and Orthodox rabbis have adamantly refused to allow the insertion of such a clause into the Ketubah. The differences between Orthodox and Conservative marriages and divorces, and the recognition by the Orthodox of Conservative marriages and divorces is beyond the scope of this article. Suffice it to know that where the Jewish couple is Conservative, the problem of the Get is a non-issue. And, Reform Judaism does not require a Get to remarry; therefore, the issues discussed in this article do not affect Reform Jewish couples either.
7 Technically, that term was applied to women whose husbands disappeared, and who, as a result, were never able to obtain a Get. There are other terms applied to women whose husbands refuse to give them a Get, but more recently the term Agunah (singular) or Agunot (plural) is almost universally used to denote women who are chained to a marriage because of Get-refusal.
8 Incidentally, it is the husband, not the rabbi, who gives the Get. But the rabbi supervises the procedure to assure it is correctly done and that the scrivener writes the Get properly, and to ascertain the qualifications of the two witnesses needed to aver that the husband gave the Get, and to provide proof of the Get to the parties while he retains the records of same in his files.
9 These are currently the four main branches of Judaism in the U.S. The Orthodox represent about 10% of Jews, while the Reform and Conservative represent the largest percentage of American Jews. The Reconstructionist movement represents the smallest percentage of American Jews.
10 There is no civil marriage in Israel. In Israel, Jews marry according to Jewish law, Muslims according to Muslim law, and Christians according to their respective Christian denominations. Similarly, there is no civil divorce in Israel. All divorce must be obtained through the respective religious institution. However, the civil court has co-equal jurisdiction with religious courts over issues of custody, support and property division, and it is often a race to the courthouse that determines whether it is a civil court or religious court that will decide those issues for the divorcing couple. It is possible, for example, that property, support, and custody issues are determined by the civil court, while the divorce or the Get is decided in the religious court.
Alexandra Leichter is a California State Bar Certified Family Law Specialist, a fellow of the American Academy of Matrimonial Lawyers (AAML), a fellow of the International Academy of Family Lawyers (IAFL), and an AAML Certified Family Law Arbitrator. A partner in the Beverly Hills family law firm of Leichter Leichter-Maroko, LLP, she has written and lectured widely on Jewish and Islamic divorce laws affecting civil divorces. www.llmfamilylaw.com
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A previous version of this article was published in the IAML Law Journal, Vol. 2 (Summer 2009). Copyright © 2009-2020 Alexandra Leichter. All rights reserved.