All too commonly, we read about a man who refuses to grant his wife a Jewish writ of divorce (a “get”). We are told her story, culminating in her demand for a get and a plea to help pressure the recalcitrant husband to grant it. As for the man’s version of events – they do not matter; according to the approach promoted by the Organization for the Resolution of Agunot (“agunah” refers to a woman chained to a failed marriage by a husband unable or unwilling to grant her a get) and numerous others, it is never justified for a man to withhold a get as leverage during the divorce settlement.

The zero-tolerance attitude toward get-withholding is an adaptation of Jewish law to a relatively new social reality. This in itself does not make it wrong; on the contrary, new circumstances demand that the application of halachic norms be reconsidered. Yet this attitude implicitly adopts certain core attitudes toward marriage and divorce that are largely alien to Jewish tradition. It behooves us to consider whether it is possible to retain the traditional system but tweaking it to prevent abuse, instead of adopting the regnant divorce paradigms relegating the get to a mere religious technicality.

A thousand years ago, the rabbis of Germany limited the husband’s power over his wife by granting her the power to withhold divorce. As later by Rabbi Asher ben Yechiel (13th century) in a responsum (42:1):

Now that Rabbi Gershom has enacted that she must not be divorced against her will… because he saw the promiscuity of the generation, that they would demean the daughters of Israel by throwing them a get, he remedied this by equalizing the power of the woman with the power of the man: just as a man does not divorce unless he is willing, so too a woman is not divorced unless she is willing.

This was but one among many rabbinic enactments to protect women within Jewish marriage, but it had an additional effect: it established that mutual consent to divorce was almost always required. This right was not limited to cases where there is still hope of restoring marital harmony. Even if both sides agree that the marriage has failed, they each remain entitled to withhold divorce until a mutually agreeable settlement is found. This is because, in Jewish law, marriage is multifaceted – it is at once a financial arrangement, a social and legal status, and a sexual/romantic relationship (signified by the three ways in which Jewish marriage can be effected: through an object of monetary value, a legal document, or sexual intercourse). The termination of marriage means the dissolution and division of all aspects of a shared life, not simply the formal recognition of love lost.

Mutual consent implies, by definition, the ability to withhold consent, which is inherently a form of leverage within divorce negotiation. This sort of leverage is present in many negotiations and works against the party most eager to reach an agreement; a thirsty man is willing to pay a higher price for a bottle of Coca Cola. Of course, there is a point at which leverage becomes extortion, and that point must be defined, but we must take care not to treat leverage as though it is extortion.

The mutual-consent paradigm seems reasonable in principle, but in practice the traditional system of Jewish divorce has become unacceptable. Despite the best efforts of the medieval rabbis, the playing field is not really level. The deck is stacked against women in several ways. This imbalance has become a central issue as awareness of it has grown and demands for an equality in divorce have become almost universal.

Another reason for the turn against traditional norms of Jewish divorce is the adoption of a unilateral divorce paradigm. This has shifted perceptions about the nature of marriage and the process of its dissolution. The marriage is deemed over once one spouse deems the differences between the spouses unbridgeable. Under this paradigm, withholding a divorce is perceived as a denial of one’s basic rights and freedoms, and if the purpose is withholding is to negotiate a more favorable division of the marital pie, it becomes extortion. The same act that is a legitimate tool of negotiation under the mutual-consent paradigm is a weapon under the unilateral paradigm.

Tough Choices

It seems, then, that halachic policy can proceed in one of two directions: it can attempt to retrofit Jewish divorce to the unilateral paradigm, or it can try to maintain the traditional mutual-consent paradigm while taking measures to limit or eliminate structural imbalances that favor the men. Adopting the unilateral approach would indeed level the playing field, but it would also be tantamount to the complete surrender of Jewish law and its principles in favor of contemporary norms. A get would be nothing more than a religious stamp of approval on an entirely civil process.

Sacrificing Jewish marriage and divorce norms should be regarded as an absolute last resort, when it has been determined that there is no way to level the playing field by refining the existing system. But Jewish law of marriage and divorce has historically shown the ability to address injustices and inequalities without jettisoning the entire institution. Our tradition has maintained its distinctiveness no matter the prevailing norms – Christian, Muslim, or secular. It has addressed lacunae and inequalities without sacrificing its autonomy.

Thus, before adopting the unilateral paradigm, we should make an effort to preserve the traditional mutual-consent paradigm, but with modifications that accomplish two primary goals:

1. Clearly defining the point at which withholding divorce ceases to be a legitimate tool for negotiation and becomes an illegitimate weapon of extortion.

2. Ensuring that the totality of rights and powers within Jewish divorce does not systematically favor one side.

To accomplish these goals, several mechanisms can be put into play. It is important to note that the goal of these mechanisms is not to ensure than no man ever withholds a get from his wife, but to ensure that the parameters within which either party can withhold consent is defined and the consequences a man faces for crossing the line between negotiation and extortion are devastating and also commensurate with the consequences that a woman would face for indefinite refusal to accept a get. This can also be extended to other forms of inequality that systematically prejudice the proceedings in favor of one side; the goal is to make sure that nobody brings a gun to a knife fight.

Several effective tools for preventing recalcitrance are already available. The New York Get Law and similar laws are designed to ensure that religious barriers to divorce are removed before the state recognizes the dissolution. Various prenuptial agreements, especially the Rabbinical Council of America’s, set terms and principles that govern divorce negotiations, establish penalties for failure to participate in them or to reach an agreement within a particular time frame, establish jurisdiction for the religious divorce proceedings, and establish equitable principles that the final agreement must follow.

Leveling The Playing Field

In addition to the provisions of the prenup, other measures can be taken, by the rabbinical courts and by the community, to level the playing field. Some tentative suggestions might include:

· Distinguishing leverage from extortion. This will demand the work of bona fide legal and halachic experts, though certain distinctions seem intuitive. To take one variable among many, withholding consent for existential reasons (e.g., to ensure that one’s children remain nearby) is more likely to be legitimate than withholding for financial reasons.

· Establishing jurisdiction. Cases of recalcitrance are often exacerbated by the lack of an agreed-upon rabbinical court to resolve disputes. Ideally, jurisdiction would be established before acrimony sets in (indeed, this is a key element of the RCA prenup and of the “Lieberman Clause,” an insertion into the traditional Jewish marriage contract promoted by Rabbi Prof. Saul Lieberman of the Jewish Theological Seminary).

Yet even when the parties have not agreed on a rabbinical court, there is nothing stopping rabbinical courts themselves from agreeing upon a procedure to establish jurisdiction (defaulting to the civil court with jurisdiction will not be effective, as the permissibility of using civil courts is the subject of massive halakhic controversy). Getting all of the rabbinical courts on board may prove problematic, as, unfortunately, rabbinical courts occasionally undermine the authority of other courts whose jurisdiction the parties have already accepted.

· Sanctions that take a woman’s biological clock into consideration. Part of the inequality inherent in Jewish divorce is due to the different rate at which men’s and women’s biological clocks tick. The severity of sanctions should reflect the age, sex, and filial status of the aggrieved party.

· Birth control. Though this does not directly address inequalities, many of today’s most acrimonious disputes revolve around the custody of a child conceived soon after a relatively short courtship and engagement. In such cases, each party wants nothing more than to move on and pretend that the short-lived nightmare never even happened. However, once a child is involved, this poorly matched pair is linked for life. Advising young women to go on birth control for beginning of marriage can help ensure that future children will be born into loving, stable relationships, that bitterness about “that man/woman” playing an integral role in raising the child does not trigger recalcitrance, and that doomed couples may forget about each other with no strings attached.

· No more heter me’ah rabbanim. The rabbinic ban on polygamy and it’s “out clause” – license for a man to marry a second woman if 100 rabbis agree – have technically expired but have remained in force for a thousand years. Perhaps it is time to do away with the heter. It casts its shadow over all divorce negotiations much the way that the threat of physical coercion of the husband once did. Now that the threat of physical coercion no longer enhances the woman’s bargaining power, perhaps it is time to remove the heter, thereby commensurately diminishing the man’s bargaining power.

Alternatively, if it becomes more common for rabbinical courts to release agunot using (highly controversial, to say the least) mechanisms of annulment, perhaps the effectiveness of these annulments should be contingent upon the agreement of 100 rabbis, thus becoming the analogue and equivalent of the heter me’ah rabbanim.

· Limited interaction with lawyers. Allowing attorneys to play a role favors the wealthier party in two ways. Firstly, the more expensive lawyer is more likely to win her client a better settlement, and secondly, the wealthier side can afford to drag out proceedings until the other party is broke and forced into a disadvantageous agreement. This may eliminate recalcitrance as well, as it is often the last-resort strategy of a party that feels cornered.

· The media as a weapon of the court, not the parties. Through much of Jewish history, the cherem (disenfranchisement or excommunication) and associated sanctions were among the community’s most powerful enforcement mechanisms. It was forbidden to eat with, be near, or do business with the subject of a cherem. In self-governing Jewish communities, this tool was devastating.

The cherem lost most of its force once the walls of the ghetto began crumbling in the 18th century, but very recently a new weapon, with similar effect, has begun to take its place: the media campaign. A well-orchestrated viral campaign can be a game-changer, bringing tremendous pressure on the recalcitrant party and even his or her employer and family.

This tool is quite effective, but whereas the cherem was always a tool of the rabbinical court, media campaigns are launched by one party to the dispute. In order to make sure that this potent weapon is used responsibly, it must remain in the court’s arsenal, not those of the disputants. Thus, if the rabbinical court with jurisdiction over the case decides that one party has crossed the line between negotiation and extortion, it may promote a social media campaign, arrange media interviews, pen op-eds, set up partisan websites, release documents related to the case, and even hire a PR firm to orchestrate it all. This weapon must remain out of the hands of the parties, though.

But what if a couple enters into a marriage believing that the system is fine as it is? The easy response is to say, “you sleep in the bed you make.” One who places himself or herself in a situation where equalizing measures are unavailable implicitly accepts the other party’s power to withhold divorce. The aggrieved party thus becomes a victim of the system that he or she insisted on upholding. To make matters worse, precisely in these dysfunctional cases where there is no agreed-upon forum for resolving the dispute the trial ends up taking place in the court of public opinion. Each side publicizes letters from rabbis, rabbinical courts, and all sorts of others to gain the most “likes.” Had a process for adjudicating a divorce been in established – if not by the couple then by the community – none of this would be necessary or relevant. It is tempting to simply ignore it all.

This, however, is not the correct response, no matter how tempting. In virtually all cases, an aggrieved party does not go public until all other avenues have been exhausted, and he or she certainly deserves our sympathy and support. Nevertheless, we must respect that, at least implicitly, the marriage was affected under the mutual-consent paradigm, under which each party may use a get as leverage within certain parameters. We must encourage discussion and develop yardsticks that allow for a level playing field where the dissolution of marriage can be negotiated and refereed by a competent tribunal. We have the tools and creativity to do so without effectively surrendering Jewish divorce to the civil authorities and the norms they embody.

The author wishes to thank Prof. Chaim Saiman and Dr. Ram Rivlin for taking the time to discuss issues and share unpublished material. All opinions expressed herein and any mistakes or misrepresentations are the author’s alone.

Elli Fischer is a writer and translator from Modiin, by way of Baltimore. He holds rabbinical ordination from the Chief Rabbinate of Israel, and is happily married.