toby yerbugh

The legal net is closing on men who refuse a religious divorce

New routes are being created so that women can fight back

March 18, 2022 00:00

Caroline Moher is still chained to her husband because he refuses to grant her a get, nearly three years after they were civilly divorced and six years after she began proceedings. On 28 February 2022, Alan Moher pleaded guilty to controlling and coercive behaviour, in part for denying his wife a get, in a landmark private prosecution brought by his ex-wife. The businessman is now facing a prison sentence. But why did Ms Moher have to go to these lengths to gain her freedom?

A get is the document effecting a couple’s religious divorce, usually processed through the local Beth Din. It allows a wife the freedom to remarry and move on with her life; until the get is granted, she is still viewed by the rabbinical courts as being married to her husband. Halacha requires that a valid get must be granted with the husband’s free will, and this is where the problem of get refusal arises. Even if a civil divorce is obtained, a husband can refuse to grant his wife a get.

He can use this as a stick to hold over his wife, effectively blackmailing her into reaching a settlement in the civil courts more favourable to him in terms of finances or contact with the children. Even if civilly divorced, a wife without a get cannot remarry in the synagogue under Jewish law. To do so would be regarded as adulterous, and any children of such a union considered mamzerim (illegitimate).  A victim of “get abuse” is forced to remain in a marriage that is functionally over. She is an agunah, a “chained woman”, prisoner to her husband’s demands. So what can wives in this situation do?

The Beth Din has suggested that couples can enter into a pre-nuptial agreement which commits them to finalising the Jewish divorce if the marriage fails. Some Batei Din now impose community and other sanctions on a recalcitrant husband refusing to grant a get, such as advising the community to refrain from interacting with him, not allowing him to be given a religious role in a synagogue service, withdrawal of membership privileges, including burial rights, or the issuing of formal summonses.

They view abuse of the get process as a “chillul Hashem” and many Batei Din will do whatever they can to bring about the giving of the get. The Reform and Liberal Batei Din in Britain can even grant a religious divorce to a woman without her husband’s consent, allowing her to remarry in a Progressive synagogue. An Orthodox Beth Din would not generally recognise this Reform get, however, and so women from Orthodox communities continue to remain unprotected. 

Similarly, the civil courts cannot compel a husband to grant a get, a point iterated in the 1999 case of N v N, where the wife sought that her pre-nuptial agreement, including that her husband grant her a get, be upheld. The court found that it did not have jurisdiction to grant this, as a get must be a mutually consensual transaction, initiated freely by the husband.

The court, however, did find that it had the power to refuse to grant a decree absolute (finalising the divorce in the civil courts) to a spouse who refused to grant a get. This occurred in the case of O v O [2000]. The judge declined the husband’s application for a decree absolute, as granting it would lead to gross injustice between the parties: the husband free to continue practising his religion, his wife shackled to their marriage.

This was one of the cases which helped to demonstrate the need for The Divorce (Religious Marriages) Act 2002. This provides that the court may order that a decree of divorce is not to be made absolute until a declaration is made by both parties that they have taken the required steps to dissolve the marriage, in accordance with the practices of Jewish law. If a husband isn’t bothered about obtaining a decree absolute, though, the civil courts have limited recourse.

One increasingly-used method of persuasion is where the court makes a financial remedy order in the civil proceedings, which includes an order for periodical payments until the husband grants a get. This was ordered in the acrimonious civil case between the Mohers in 2019. Mr Moher appealed, arguing in part that the order amounted to “compulsion” upon him to obtain a get, rendering it invalid under religious law. The Court of Appeal upheld the original order, finding that it did not “punish” or “compel” the husband to grant a get, but simply provided that until he did so, he must make payments to his wife, who would meanwhile be disadvantaged and vulnerable. An order that the husband continues paying maintenance until he grants the get is an inducement approved by the Beth Din.

Until last year, the only other remedy for a wife in this situation was a private prosecution for controlling and coercive behaviour under The Serious Crime Act 2015. The first private prosecution of a husband under this act came in January 2020 and resulted in him granting his wife a get at the last minute, to avoid a trial and up to five years in prison. The offence is an act “designed to make persons subordinate and / or dependent… exploiting their resources or depriving them of their independence and regulating their everyday behaviour”. A husband refusing a get, leaving his wife unable to remarry while he is free to do so, was claimed to be an example of such behaviour. However, this has not been tested in the courts.

The civil order against Alan Moher still did not result in him granting a get and his wife therefore brought a private prosecution under the 2015 Act. The charge in Ms Moher’s case stated that Mr Moher’s conduct: “Was likely to have been interpreted as using unreasonable manipulation of the inherent control a Jewish man has to give his wife a divorce, and thereby release her from the marriage… financial discussion was raised with the complainant to induce her to take less money than had been ordered by the Family Court proceedings in order to facilitate the giving of a get”. This is the charge to which Mr Moher pleaded guilty and the result was accordingly claimed to be a “powerful remedy to protect vulnerable women whose treatment by recalcitrant husbands strays into criminal offending” by those representing Ms Moher.

Since 2021, there is another piece of criminal legislation that directly addresses this issue. Guidance issued under the Domestic Abuse Act 2021 provides that “withholding of a religious divorce” can amount to a form of “spiritual abuse”, used as a threat to control and intimidate victims. The statute specifies that this includes a husband refusing to grant his wife a get, thereby allowing him to exert leverage in relation to other aspects of the divorce. It remains to be seen how this legislation will be used to help women in Ms Moher’s situation.

When all else fails, such prosecutions can be used as a means of persuasion, as a last resort. However, a private prosecution is only open to the wealthy few and CPS prosecutors are yet to venture into this area. 

Meanwhile, the Federation of Synagogues have warned that a get given under duress – such as the threat of prosecution and imprisonment for abusive behaviour – may be invalid under Jewish law. For now, granting the get is still within the gift of men alone, even those resposible for coercive behaviour.

The new “no-fault” divorce laws are coming into force in the English civil courts from 6 April, in part so that someone whose spouse refuses to accept a divorce will no longer have to wait five years for one to be granted. 

In this context, more than ever, many may feel that it is an immoral anachronism offending against a woman’s basic rights, that she can be indefinitely chained to her ex-husband and kept forever hanging at his whim.

Some organisations which can help support women in this situation are Jewish Women’s Aid and GETToutUK.

Toby Yerburgh and Tanya Roberts are family law specialists and partners at Collyer Bristow. This article was co-written with the firm’s trainee solicitor Natalie Spong

March 18, 2022 00:00

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