NEW YORK (Jul. 8)
A civil measure designed to ease a centuries-old disability imposed on the observant Jewish wife whose husband refuses to give her a Jewish divorce decree, called a “get,” has been approved by both houses of the New York State Legislature.
The bill, believed to be the first of its kind in American law, is awaiting certain signature by Governor Hugh Carey, Assemblyman Sheldon Silver, author of the measure, said today. The measure will become state law when the governor signs it expectedly before the end of the month.
Silver, a Democrat-Liberal representing Man hattan’s Lower East Side, told the Jewish Telegraphic Agency that the bill was the product of months of careful drafting to avoid any possibility of conflict with the Constitutional church-state separation doctrine.
Under Jewish religious law (halacha), a wife refused a “get” has the status of an “Agunah,” and may not remarry religiously even after winning a civil divorce.
PRINCIPLE BEHIND THE BILL
Silver explained that the principle behind the bill is that “a matrimonial action is an action in equity. One of the doctrines of equity is that the court should leave the parties with equal status.” He added that the measure permits one party to allege that “if this (divorce) court dissolves this marriage, civilly I will have a barrier to remarriage.” The barrier will be the husband’s refusal to give his wife a “get,” though the measure makes no reference to that religious action.
The measure provides that when one party to a civil divorce action complains of a barrier to re-marriage imposed by the other party, the issue may be submitted to a fact-finding and mediation panel which will have the function of determining whether such a barrier exists and, if it does, whether either party can remove it.
The measure provides for the judgs hearing the divorce case to name the panel which can make recommendations for removal of the barrier. The panel is thus an agency of the court. The court may, at its discretion, withhold a final judgment on the civil divorce if the party seeking the divorce — in such cases, the Jewish husband — fails to comply with the recommendation of the panel — presumably to give his wife a “get.” The panel has 30 days to make its recommendation. To avoid legal problems, the measure was written to withhold intentionally any authority for the judge to hold in contempt the divorce party rejecting the panel’s recommendations. The clout the judge can exercise for the wife of a recalcitrant Jewish husband is to refuse to give him and his wife a civil divorce.
Silver was asked by the Jewish Telegraphic Agency what recourse the wife has if the judge, exercising his discretion, gives the husband and wife a civil divorce despite his panel’s recommendations that the civil divorce be withheld on grounds the wife will have a barrier to re-marriage.
Silver replied that, under standard procedures in the State Supreme Court, which has jurisdiction in divorces, the wife can appeal to the next highest state court, the appallate division.
Prof. Aaron Twerski, a Hofstro law professor who is chairman of the Commission on Legislation and Civic Action of Agudath Israel of America, an Orthodox agency, helped draft the legislation Calling the measure “a low profile resolution to a high profile problem,” Twerski said the drafters “very studiously stayed away from the question of a court-coerced get’ to avoid getting into the thicket of halachic questions.”
Also consulted on the measure were such rabbinical authorities as Rabbi Moshe Feinstein, president of the Union of Orthodox Rabbis of the United States and Canada, a world authority on halacha; Rabbi Jacob Kamenecki, dean of Yeshiva Torah Vodoath of New York; and Alan Dershowitz, a Harvard law professor and expert on civil liberties law.
Approval of the bill in the assembly was by 132 to six. The measure was introduced in the State Senate by Sen. Martin Connor, also a Democrat-Liberal from the Lower East Side, where approval was unanimous.
COMPLAINTS OF UNETHICAL CONDUCT
Orthodox leaders said that only in recent years have marriages in the cohesive Orthodox community begun to break up in significant numbers, bringing on increase in complaints of unethical conduct by parties to divorce, mostly on the part of husbands.
There have been widespread reports that such husbands are denying “gittim” to their wives, sometimes out of spite, and sometimes to coerce wives to sign away rights to property, child support and maintenance of civil divorce actions.
Silver said there are an estimated 150,000 Orthodox Jewish women in New York State alone, who are civilly but not religiously divorced, adding that some have been waiting as long as two decades for a “get.” He said the new measure will not help any of the 150,000 “but it may help others in the future.
It may also help a much smaller number of Orthodox husbands, who assert they are denied religious divorces by wives who refuse to accept a “get.” Rabbis said women also are using the “get” for leverage in civil settlements, though halacha provides options to men not available to women.
Rabbi Moshe Sherer, Agudath Israel president, said “we hope this bill will have the effect in the Orthodox Jewish community of discouraging coercion and blackmail in divorce procedures.”