We need to be crystal clear that get refusal is emotional abuse

There is no shame in using secular law to solve Jewish problems and we should be glad that the Government is taking action


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October 01, 2021 09:58

This year has seen developments, discussion and debate relating to Jewish divorce and the issue of get refusal. These developments have not happened in a vacuum. One can perhaps trace the beginning to the most unlikely of sources.

When psychological abuse ultimately drove Helen Titchener to try to kill her husband, Rob, in BBC Radio Four’s drama The Archers, this set in motion a campaign which led to the criminalisation of non-physical spousal abuse in 2015. It was clear to me that I was seeing something very similar in many of the get refusal cases I was working on. Several of those involved women who had been worn down, lost their sense of self, felt powerless and gaslighted.

In some they remained able to pick up and fight their corner. In others they lost the will or the strength to do so.

Our understanding of the nature of domestic abuse has changed dramatically since then, including within the community, thanks to the excellent, persistent work of JWA. Wider societal changes have had a significant impact. The MeToo movement shone a light on sexual harassment by those in the public eye, and the Everyday Sexism project pointed out just how widespread such behaviours are. Everyone’s Invited highlighted the extent to which sexually abusive behaviour, with its imbalanced power dynamic, has been normalised within our culture and the lives of our young people at school.

Thanks to the publicity these movements have attracted, misogyny is no longer minimised and inappropriate behaviour no longer condoned or brushed under the carpet.

Women are building the confidence to speak up, and know they will be heard and supported. Grassroots organisations such as GETTout UK have been established. Instagram influencers in the US have garnered huge support and traction, helping to resolve high-profile cases. Significant momentum is building. The issue is firmly on the communal agenda, as indeed it should be. That get refusal is abuse is a mantra that is no longer in question, and our Batei Din assert it clearly.

Nonetheless, get refusers too often manipulate a narrative to present themselves as victims. In situations of relationship breakdown, they may well feel like victims. A charming mesarev get (get refuser) often persuades allies, religious leaders included, to believe his version of events. He may assert that he would be prepared to give a get if only his wife behaved differently, or if only for a host of other unconscionable conditions.

It is important that as a community we recognise get refusal for what it is — a gift to a controlling husband. It can be a tool to exert leverage for financial gain. It can be a way of continuing to assert power when that power is being removed. When a mesarev argues that he needs to withhold the get, he undermines the level playing field that the English legal system provides. There are mechanisms within secular law to deal with financial and child related issues, or even better, through mediation which is collaborative and children-focussed.

Using a get as leverage should be a red flag — the playing field is not even. According to Jewish law, a husband’s free will is required for a get to be effective. Without this, a woman remains ‘chained’, unable to move on and remarry according to Jewish law, with terrible consequences for any future children. While there are women who refuse to receive their get, the requirement that they do so is a later enactment which Batei Din can sometimes override. There are indeed many men waiting to move on with their lives, but those waiting several years or decades are invariably women.

Much attention has been given to the new Domestic Abuse Act and the definition of get refusal as controlling or coercive behaviour in its draft statutory guidance (which was in its consultation period until 14th September). This definition and the description of its impact adds meat to the same terms used in the existing legislation, the Serious Crime Act 2015, which criminalised controlling or coercive behaviour.

Discussion has focussed on the risk that a prosecution brought without Beth Din approval could give rise to a forced and, thereby, an invalid get.

These concerns detract from some significant successes which we should celebrate.

First, the Serious Crime Act, particularly as now clarified through its link to the Domestic Abuse Act, can provide a real safety net in certain cases, where no other existing solutions can help. Indeed, it has already led to the resolution of two heartbreaking cases of women who had lost all hope of moving on with their lives, having exhausted so many other avenues to secure a get. Both were young women with child-bearing years ahead of them, abused during short-lived marriages.

Second, the fact that get refusal is now explained in statutory guidance, at least in draft form, speaks volumes for the seriousness with which the issue is now taken in the Home Office and in Parliament. It is a marker of the esteem in which our community is held, and the importance attached to our concerns, that such issues gain traction and support there.

Some feel embarrassed to ‘air our dirty laundry in public’. But we risk abandoning the victims of get refusal if we keep such behaviour under the radar, and that should concern us much more.

Third, by naming get refusal as coercive and controlling behaviour that is potentially criminal, the Domestic Abuse Act can be a huge deterrent for would-be refusers. We should ensure that contention does not undermine this effect.

The Domestic Abuse Act in fact does little to change the law.

The Serious Crime Act already enabled prosecutions to be brought which ultimately led two abusive husbands to give a get rather than face Crown Court proceedings. The guidance will likely make such prosecutions more straightforward, by linking expressly to get refusal.

While criminal law operates independently of halacha to convict, fine or jail a get refuser, it cannot ensure that a valid get is given.

Halacha stipulates that coercion must be mandated only in appropriate cases and initially by the Jewish courts. This leads to a conflict of laws between the English legal system and halacha, unless there is full communication and collaboration between them.

If a prosecution is brought which alleges lack of cooperation in get proceedings, a Beth Din will necessarily be involved in the case already. It is nonsensical that an allegation would be made unless a get had been pursued through a Beth Din. But a Beth Din will want the opportunity to rule first as to whether coercion can be applied in the given case. It will likely do so only where other routes have been exhausted and its ruling may fall into two categories: those where a get can be ‘ordered’ and those where a get can be ‘forced’.

The impact of the first case is that social sanctions could be imposed by the Beth Din, short of an outright cherem (excommunication), including publicity campaigns with ostracism and even withdrawal of burial rights. It is only the latter, more stringent category where a criminal court’s sanction would be halachically permissible.

This process is not a panacea and more widespread preventative measures, such as a robust pre-nuptial agreement with financial penalties, would be even better (if a halachically acceptable rubric could be found). Nonetheless, there are cases in which a prosecution can be transformative. Each brave woman waiting is a life on hold. The relief of having an exit routecannot be underestimated.

There is no shame in using secular law to solve Jewish problems. It is a pragmatic response to a structure in which religious courts are not part of the judicial system, and has long been part of the landscape both in the UK and overseas.

We should grasp this important legal development and cultural shift to together ensure that it creates an important deterrent. The clearer we are, both in the legislation and in our own minds, that get refusal is abusive behaviour that cannot be justified, the more we can avoid difficult and protracted cases from arising to begin with. And, crucially, fewer women will needlessly sacrifice years of their lives.

Joanne Greenaway is Chief Executive of LSJS (the London School of Jewish Studies)


October 01, 2021 09:58

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