New guidance on recognising get refusal as a form of domestic abuse should explicitly recommend parties to liaise with the religious courts to avoid a conflict between Jewish and civil law, the government has been told.
The London Beth Din, the Federation Beth Din and the Board of Deputies’ family law group have submitted similar proposals in a response to a public consultation on guidance to the recently passed Domestic Abuse Act, which closed on Tuesday.
The effect of the guidance would be to make it easier for women to seek prosecutions for controlling and coercive behaviour against former partners who deny them a get.
While broadly supporting the anti-abuse legislation, the LBD, the court of the Chief Rabbi, said there was concern at one aspect which was shared across the Jewish community.
In its submission, it warned that punitive measures against a get refuser could invalidate a Jewish religious divorce, which must be agreed voluntarily by both parties.
Supporting the recognition of get refusal as a form of “spiritual abuse”, the LBD said it welcomed this “since any attempt to use religious precepts to harm another person is an abuse of our faith and must be called out as unacceptable.”
However, it proposed additions to the guidance to explain the position in Jewish law.
According to the LBD, the guidance should state that “save in limited cases” a get can only be given with the “free will of the husband” and received with “the free will of the wife”.
“If either party chooses not to cooperate in the granting/receiving of a get, in most circumstances, a get cannot be effected.”
Punitive measures or the threat of them against one of the parties would “in all likelihood invalidate a get subsequently granted and received, leaving the victim of spiritual abuse, whether the husband or wife, without the religious divorce they want.”
It was therefore advisable for parties “to liaise with the relevant beth din at the earliest opportunity to advise on how a get can be given/received in a manner that will be effective under Jewish law,” the LBD suggested.
The LBD told the government, “We all share the same concerns regarding the draft statutory guidance. The fact that the entire community can speak with one voice on this issue through its representative body and the religious courts speaks to the widespread concern created by the draft guidance.”
In its submission, the Federation suggested the guidance should state that it was “advisable for both a husband and a wife to consult and take all necessary steps with the relevant religious authority as soon as is possible if a party wants to dissolve a religious marriage, and essentially before any civil steps are taken”.
The guidance should make clear that “due to the requirement in Jewish law for the get to be given without duress, if a criminal prosecution is initiated in order to compel the husband to give a get, before a beth din is consulted, this may actually hinder the granting of the get, because a subsequent get may as a matter of Jewish law be invalidated due to duress.”
The Federation told the government there were “objective circumstances” when a man could be compelled to give a get. However, if a woman threatened a prosecution when these circumstances did not apply, “then even if the husband were to agree to give the get, no Beth Din would be able to oversee and approve such a get.”
This was an “immutable fact” of Jewish law, it said.
The Board of Deputies’ family law group also proposed amending the guidance, to say that “If a party wishes to dissolve a Jewish religious marriage, it is advisable for them to consult the relevant religious authority, prior to any civil steps being taken.
“If a criminal prosecution (for coercive control) is suggested or started before a get is given/received, then any get subsequently written may be invalid and ineffective to dissolve the religious marriage.”
The group represented “the range of synagogue movements” across England, Scotland and Wales, the Board said.
But Lord Mendelsohn, one of the peers who was instrumental in pushing for the new legislation to cover get refusal, had reservations about the proposed reference to religious courts.
He said he was "very disappointed that the expected assurances on reforms and changes to the divorce processes and procedures to provide confidence that the beth dins would provide better support for women had not been announced already"
He added that it was.unfortunate that the Union of Orthodox Hebrew Congregations had "chosen not to be part of a unified approach. Alas, it still therefore seems inappropriate for the guidance to make reference to any role for a Bet Din in these circumstances and would likely cause more difficulties."
Baroness Altmann, who also campaigned on behalf of agunot, said she had "always envisaged that these measures would only be used after the woman has already engaged with the bet din process and has found, through that process, that her husband is consistently refusing to give her a get and repeatedly refuses to set her free. T
"This will not be something that a court could order a man to give, but Jewish women sometimes, sadly, may need to turn to the law of the land to establish whether her husband is guilt of criminal abuse. The main intention, of course, is for all Jewish men and women to realise that deliberately withholding a get from a wife, or demanding money or other ‘favours’ in return, is not acceptable behaviour in this country.
"Men who choose to exercise this kind of control over their wife must also be told by the batei Din that this is not acceptable behaviour and that, once the marriage is over, refusing to set the wife free is morally wrong. They can now point unequivocally to this law to confirm that"
Only where a man refused to give his wife a get, she said, "would this law come into effect as far as I can see."
The law could also protect men whose wives refused to accept a get, she added, "but the consequences of a wife not accepting a get from her husband are far less serious to the continuance of living a religious Jewish life and do not also potentially impact any future children that the man may have.
"That is why I think the focus on women is so important and I do also hope that the dayanim will recognise the need for the batei din to offer women support, understanding and practical help during this process."
