A Jewish divorce is called a get. A get may only be granted by the Beth Din if the husband ‘gives’ his wife the divorce she seeks. Without a get, no matter for how long the couple is separated, and no matter how many civil documents exist, in the eyes of Jewish law the couple is still married.
The get is a dated and witnessed document wherein the husband expresses his unqualified intention to divorce his wife and sever all ties with her. The get is written by an expert scribe acting as the husband’s agent. Each get is individually tailored to the particular divorcing couple. One of the most important rules governing the writing of the get is the requirement that it be written specifically for the husband and wife who will be using it.
So, a husband who refuses to give his wife a get binds her, in Jewish law, to their marriage, even if they have been divorced civilly and he has married another woman in terms of civil law. Whilst still married under Jewish law a wife suffers certain ‘disabilities.’ For example, she may not remarry within Judaism. Such a woman is called a mesorevet get (literally ‘refused a divorce’), if a court determined she is entitled to a divorce. It is religiously forbidden for either spouse to remarry without a get and doing so is considered adultery according to Jewish law, and children conceived in it mamzerim.
What sometimes happens is that the Beth Din place husbands who unreasonably refuse to give a get under cherem. Cherem is the highest ecclesiastical censure in the Jewish community. It is the total exclusion of a person from the Jewish community. It is a form of shunning, and is similar to vitandus excommunication in the Catholic Church. In 2016 it was reported that: “The Beth Din is taking drastic steps and we are prepared to name and shame men who refuse to give a get,” Rabbi Kurtstag, the head of Beth Din said.
The issues arising have caused some interest in the community, the Beth Din, the media and the Courts. In the community Go Getters — the South African Gett Network was formed, to, inter alia, protect women victims. It has 916 Facebook followers, it envisions events, and actively support agunot, (a woman chained to her marriage) with recalcitrant husbands. They stand for liberation and social justice for women and their families. The media often report on the issues, and the Beth Din is now apparently working on a halachic prenuptial contract. The South African civil courts have considered a number of cases concerning the grant or refusal of a get. For example, In Amar v Amar, Goldstein J in the Johannesburg High Court ordered a husband to pay a set monthly amount of maintenance until he gave his wife a get. Israel enacted the 1995 Rabbinical Courts Law (Enforcement of Divorce Judgments) 5755-1995 which grants rabbinical courts the power to adjudicate Jewish divorces by issuing certain sanctions compelling the husband to grant the get to his wife. Sanctions would include the prevention of a husband from travelling abroad, the refusal to issue the husband with a driving licence or passport, or even the imprisonment of the husband until he issues a get releasing his wife. The law has given women considerably more bargaining powers in the negotiation process to obtain a divorce. An interesting parallel can be drawn between the legal position in Israel and that in South Africa.
After lobbying by Chief Rabbi Harris the South African parliament in 1996 amended the Divorce Act of 1979 to include a provision that empowers the court to refuse to grant an order of divorce. Section 5A of the Divorce Act allows South African courts to prevent a Jewish husband from obtaining a secular divorce without also providing a woman with a religious divorce. This is meant to ensure that a woman will automatically be granted a get by her husband, if a secular divorce is granted. The real and practical challenge is to ensure that all women are aware that until they have been granted a get by their husband they are empowered to make it really tough for their husbands to obtain a civil (secular) divorce.
