Family law attorney Martin Friedlander told members of the legal and mental health community who gathered at the Yashar Conference in New York City that perfecting a halachic prenuptial that would be accepted as the norm and used in all sectors of the Jewish community would curtail a host of problems – from Get refusal, to establishing basic financial support arrangements, and shortening the amount of time a divorce proceeding, once initiated, would take.
Friedlander specifically outlined a universally-accepted halachic prenuptial which would designate a pre-determined sitting beis din, as opposed to a Zablah, where the parties each choose one judge, and those two choose a third. He also said the issue of Shalom Bayis would be tracked. He said neither of these stalling tactics could be used, thereby forcing legal costs to skyrocket, while extending the time one must cover for living expenses, with the goal of causing one party to run out of money and be forced into a settlement offer that is highly unfavorable to them.
While some say that lawyers should not be involved in liberating agunot, and that it should rather be left for rabbinical courts to handle, Nathan Lewin, the renowned American Constitutional lawyer, said, “It’s because of lawyers that partial steps have been taken to resolve the problem of Get refusal.”
Lewin related how, when he was in Yeshiva College, there was uproar when Rabbi Shaul Lieberman at the Jewish Theological Seminary added a clause to the kesubah about a halachic prenuptial. “Then I go out into private practice and 30 years later, I am asked by the OU and the Agudath Israel of America to write a friend-of-the-court brief that it is constitutional to have parties go to arbitration in beis din.”
Lewin explained he wrote a fiend-of-the-court brief supporting the Conservative kesubah in the case of Avitzur vs. Avitzur, heard before the N.Y. Court of Appeals, where the Court found that agreements binding couples to alternative dispute resolution forums was constitutionally permissible. The holding in this case was later codified in New York Domestic Relations Law §253.
Lewin said that in 1983 Agudat Yisrael of Israel realized the agunah problem was a serious crisis and called a meeting of top legal minds, including Aaron Twersky, Alan Dershowitz, Nathan Lewin, among several others, to Israel. They met in the Agudat Yisrael’s offices, and spent an entire day trying to brainstorm on a legal resolution, “The result was an agreement that Get refusal was a barrier to remarriage; it’s a simple notion, if someone goes to court to dissolve a marriage, he or she shouldn’t be able to say, ‘Give me an order that dissolves my marriage while I’m still retaining a barrier to the marriage of my spouse.’ ”
On that basis, in 1983, Lewin says, “Agudath Israel of America, with the help of the New York State Assembly and Sheldon Silver, who was very active and very supportive, got the 1983 Get Law enacted. I personally drafted the language of the 1983 NY Get Law and have notes in my files from Rabbi Moshe Sherrer asking me, ‘Please, it’s an emergency situation, the Assembly is only in session for a couple more weeks.’ ”
Lewin said that today every time he visits Israel, he is asked to visit the Rabbinical Court to discuss cases of Israeli husbands who have absconded to the United States without giving their wives a Get. While the Israeli Rabbinate would like to extradite these men, Lewin explains that’s since “they haven’t committed a crime, so it’s impossible to extradite them… the answer is, again, to look at creative novel legal mechanisms that might affect them in some way.” Lewin suggests establishing a registry for those who impose barriers to remarriage in order to shame them, just as there are registries of sex offenders. He also suggests having one’s tax return audited at the request of the wife who has not received a Get.
Talya Faigenbaum, an attorney from Australia, explained that Australian courts will not enforce a prenuptial agreement that requires parties to go to arbitration in beis din. However, she has found alternative solutions that are proving effective in obtaining a Get in Australia, where an order of protection is issued on the grounds of abuse and control. Under Australian law, abusive behavior is not necessarily classified as “physical abuse,” and it is considered abuse to prevent your partner from keeping connections with his or her spiritual beliefs or practices. Thus failure to provide a Get and thereby prevent a woman from moving on with her Jewish religious life may fall into the category of spousal abuse and ultimately criminal law.
Alyza Lewin, law partner and the daughter of Nathan Lewin, said this issue is very personal as she has a close relative who is trapped as an agunah. She spoke of the Get Law that is currently before the city council of Washington, D.C., which she describes as brilliant.
“The first part is modeled on the NY Get law requiring an affidavit accompanying a complaint for divorce that the plaintiff will remove all barriers to remarriage. The second part recognizes that putting up any kinds of obstacles to remarriage are a form of abuse which could be equivalent to a tort where one could seek damages,” Alyza Lewin explains. “It was originally narrowly drafted to apply to this specific religious group, but is now broad enough to apply to people who are being stalked, harassed and prevented from maintaining personal relationships.”
Addressing the question of the point at which one can establish Get refusal, Alyza Lewin said, “I have a problem labeling it Get refusal and think ‘Get abuse’ is a better term, because if in the negotiations a woman is being asked to take positions, or give up rights, to obtain the Get, to give up, and give up, and give up, that is a form of abuse as it’s going on. We don’t have to wait until the Get refusal at the end…even if at the end of the day she receives her Get, she’s been abused, because she’s had to give up all these things, and that’s been going on long before the final day the recalcitrant spouse may decide not to show up, even though he said he’d show up.”