International Journal of Coercion, Abuse, and Manipulation Volume 3 2022 66
created.4
1
In his capacity as clergy, the rabbi assists
in contracting a Jewish marriage agreement. In his
capacity as a marriage officer licensed by the state, he
also is solemnizing a civil marriage. If the relationship
should break down, then the religious and civil
marriages must be dissolved through two distinct
processes. State courts can terminate a civil marriage,5
but only a hearing before and a decision by a Beit
din can terminate a Ktubah (Wolfe, 2006, p. 427). In
Judaism, marriage can be dissolved only by the mutual
consent of the concerned parties, and not by any
religious institution or figure. Consequently, because
the parties (and not the rabbi) marry themselves, the
parties (and not the Beit din) must divorce themselves.
Because the ghet must be consensual on both sides,
the two remain married under Judaic law if one party
refuses, despite the wishes of the party who wants the
marriage dissolved, and in spite of the status of the
marriage under state law. Rabbinical judges (dayanim)
are present at the delivery of the ghet to ensure that the
procedure complies with required formalities, but the
court itself has no power to issue a divorce (Levush.
2017, p. 1). Jewish divorce proceedings can be initiated
by either the husband or the wife but to finalize them,
the husband must offer the wife the ghet and she must
accept it. A wife cannot offer the ghet to her husband
therefore, she may initiate proceedings that invite the
husband to come before a Beit din to discuss delivery
of the ghet, but she cannot compel him to deliver it. In
this sense, she cannot end the marriage by herself (Ben
Shlomo, 2004, p. 102).
Implications for Jewish Women and Children
Jewish rules of divorce, therefore, impact women in
a special way beneath the consensual surface of the
rules. If a husband refuses to offer the ghet upon the
breakdown of marriage, then the wife becomes an
4 The Jewish marriage, however, can be dissolved only by a religious
court. The parties are free to resolve questions of ancillary relief in accordance
with civil law procedures, religious law norms, or any other criteria they
might pick for settlement negotiation.
5 A purely religious marriage will not be recognized as valid in civil
law unless the parties entered into it in good faith, believing that they were
thereby creating a valid civil marriage. See also Friedman v. Smookler, 1963,
CanLII 225 (ON SC [same case]).
agunah,6
1
and she can either accept her agunah status
or accept the consequences of her refusal to do so. In
religious terms, the consequences of being an agunah
are substantial (Levush, 2017, p. 2). Not only is the
woman forbidden to marry another man, but if she
were to couple with one, then she also becomes an
adulteress in turn, under Jewish law, any children she
would have from a civil marriage would be illegitimate
(mamzerim).7
According to Jewish law, children who are the products
of adultery suffer a permanent legal disability in the
Jewish community and are not eligible to have their
marriages sanctioned under Jewish law unless they
marry other mamzerim or converts. This tainted status
would remain with them for their entire lives (Yefet,
2009, p. 450) and impacts all the woman’s descendants
for 10 successive generations (Feldman, 1990, p. 139).
From this point of view, the ghet is really permission,
given only by the husband, which allows Jewish women
to remarry and have children within their faith.
Though either party may stand in the way of a Jewish
divorce by withholding consent, the consequences
are graver for a Jewish woman. The absence of a ghet
has no practical bearing on the husband’s ability to
remarry. If the spouses are divorced under civil law, he
can remarry within the Jewish faith without suffering
the personal consequences that burden his wife. His
marriage will not be recognized under Jewish law, but
he and his descendants will not suffer any lasting legal
disability as a result. If and when his first wife accepts
the ghet, he can undergo a Jewish marriage ceremony
with his new wife to secure recognition (Feldman,
1990, p. 162). For a woman, however, refusal by her
husband to deliver the ghet may have implications
that last for generations. Thus, a Jewish wife can never
religiously divorce her husband and, though divorced
by civil courts, may remain religiously married. This
dilemma is why the gendered difficulty in obtaining a
Jewish divorce is a women’s issue (Cobin, 1986, p. 412),
6 Broadly defined, an agunah is a woman who is no longer in a
functional marriage and who cannot remarry because her husband cannot
or will not give her a ghet. Her community knows her as being dead. As a
general rule, if a marriage is no longer functional, then a ghet should be
given, either when a husband and wife no longer desire to live together as
husband and wife, or when a Beit din concludes that there is no chance for
shlom bayit (reconciliation) between them.
7 Mamzerim is the plural form of mamzer. The term refers to a
child or children born of a forbidden sexual union (incest or adultery). See
https://www.myjewishlearning.com/article/the-mamzer-problem/

ISSN: 2710-4028 DOI: https://doi.org/10.54208/0003 67
which creates a skewed power dynamic that infringes
on Jewish women’s right to remarry and have families.
Observations about the vulnerability of women within
traditional family law systems are not new. Scholars have
noted that women “face greater restrictions on their
rights to marry, their rights to pass on their nationality
or membership to their children, their options and
access to divorce, their financial circumstances, and
their opportunities to be awarded custody” (Estin,
2012, p. 540). In traditional Judaism, women are
subordinate to either father or husband. Further, the
biological gender difference is interpreted as a moral
difference, which is enforced and maintained through
the law (Elior, 2018, p. 256). Although both men
and women are able to decide who to marry, when it
comes to divorce, Jewish women face many challenges
and are essentially completely dependent on their
husbands. The individual impact and the public-policy
ramifications of Jewish divorce laws call for judicial
intervention into the affairs of the religious community
(Yefet, 2009, p. 446). Professor and lawyer Lisa Fishbayn
wrote that “the power men enjoy under Jewish law to
withhold a ghet is of concern to civil law because this
power becomes an effective bargaining endowment in
the resolution of civil family law disputes” (Fishbayn,
2004, p. 85). Similarly, the Supreme Court of Canada
suggested that “the spouse could say, ‘Give up your
claim for support or custody of the children and I will
offer the ghet’” (Bruker v. Marcovitz, 2007, SCC 54,
[2007] 3 S.C.R. 607, para. 8). This predicament leaves
many women with only the option of leaving their faith
if they want to remarry and have a new family. I argue
here that women should have the right to divorce and
to remain a part of their religious communities.
Variations and Contradictions Between Secular and
Civil Laws
In Israel, rabbinical courts are empowered by secular
law to deal with all issues of marriage and divorce.
Therefore, in the State of Israel, if a man were ordered
by a Beit din to give a ghet to his wife and he refused,
then he may be imprisoned until he complies. Other
sanctions include revocation of a driver’s license or
passport, and also termination or denial of employment.
These sanctions appear to coerce but because they
are efforts to enforce the decision of a Beit din, they
constitute halachically acceptable mechanisms and
therefore are accepted in the religious context and are
not viewed as an unjust intervention (Hacohen, 2014,
p. 436).
Outside of Israel, the decision of a Beit din generally
is not enforceable by secular courts, which may issue
an order with no effective means to back it up. In
other countries, the Beit din may excommunicate the
recalcitrant husband by excluding him from synagogue
membership and honours such as attending his son’s
bar mitzvah (Levush, 2017, p. 8). Unfortunately,
excommunications issued by one Beit din often are
routinely ignored by other groups and therefore
have no real bite. As a result, most Beit dins are often
reluctant to even issue a cherem8
1
because of the strong
probability that such efforts would be ineffective.
Some authorities have advocated the use of a secular
prenuptial agreement signed at or before the wedding
ceremony in which the parties agree to submit their
marital disputes to the Beit din and abide by its
decisions. According to secular law, this document
would constitute an arbitration agreement. Such
agreements are legally enforceable by the imposition of
fines or even imprisonment (Fishbayn, 2016, p. 191).
Thus, by the expedient of such an agreement, even
the decisions of a Beit din outside of the State of Israel
could be enforced civilly.
In New York, state law essentially prevents a husband
from obtaining a civil divorce unless he removes the
impediments to his wife’s ability to remarry. New York
State Courts therefore have certain powers to encourage
a divorcing couple to provide, in addition to the civil
divorce, a religious divorce ([Rabbi] Breitowitz, 2009).
This measure was aimed principally at Orthodox
Jewish men who may take advantage to leverage their
power to obtain a more beneficial financial or custodial
arrangement under Jewish law before initiating a ghet.
Similarly, in Canada, the 1990 amendment to the
Divorce Act9 creates a legal incentive to provide a
Jewish wife a ghet. Under this amendment, a judge in
a civil divorce case is able to exert pressure on a spouse
8 A cherem is the total exclusion of a person from the Jewish
community, similar to excommunication in the Catholic Church.
9 The Canadian constitution provides that the federal government
has jurisdiction regarding power over marriage and divorce. Section 21.1 of
the 1990 amendment to the Divorce Act obliges divorcing couples to remove
“barriers” to each other’s religious remarriage before the civil divorce can be
finalized.