TORONTO — Not long after giving a talk at Congregation Bnai Torah last summer, lawyer Sharon Shore began receiving phone calls from a number of women grateful to her for raising the issue of agunot, Jewish women who can’t obtain a religious divorce.
Yael Machtinger
“Thank you for giving us a voice,” Shore recalled one of them telling her.
Shore, who practises family law, said many in the Jewish community had thought the problem of agunot was resolved after two important amendments to the civil law were enacted years ago.
In 1986, Ontario’s Family Law Act and in 1991 the Federal Divorce Act were amended so that husbands who refused to grant their wives a religious divorce, a get, were prevented from seeking civil remedies connected to their marriage breakup. They couldn’t obtain custody, financial support, property division or a civil divorce until they had removed all religious barriers to their spouse’s remarriage.
Despite those changes, Shore handles four or five cases a year in which “a husband tries to use the get to extract concessions from his wife in areas of custody, support and division of property. I’m sure there are more out there,” she said.
In a recent paper on the topic When Jewish and Civil Law Collide, which focused on whether a prenuptial agreement was a viable remedy, Shore said the issue of gets still comes up during negotiations “as a leverage point to extract concessions from the wife. The effect is to leave women vulnerable to extortion, despite the civil laws in place to protect them… Giving up monetary claims is regarded by many as a better alternative than living as an agunah.”
She argued that prenups, which have been effectively employed in the United States, could address the problem in Canada, though our domestic law makes their effectiveness less certain.
While Shore acknowledges there has been improvement in the situation facing women and that some Jewish organizations have taken steps to address the issue – refusing synagogue honours to a recalcitrant husband, denying a role as a director or officer in Jewish organizations – she believes “we need a community-level effort” to tackle the problem. “This, too, should be a pressing issue and a concern,” she said.
Yael Machtinger has studied the issue as part of her master’s thesis at York University. Her 71-page work, titled the Sounds of Silence, included interviews with four agunot as well as religious authorities. Her first interview, she said, came after she gave a public lecture at the Beth Avraham Yoseph synagogue during Shavuot.
“People were surprised I was talking about it publicly,” she said, “But after I finished, people applauded… That’s how I got my first interview.”
A woman approached her with the story that she had been an agunah for 10 years and that her husband “out of pure malice” withheld a get.
Although she eventually did get the divorce – only after her friends flew in a rabbi to convince him to provide it – “it took her seven years to then meet someone new and get married.”
Quoting the woman, Machtinger writes: “He took the best years of my life and I took the blame.”
Machtinger, who describes herself as Orthodox, said, “My goal is not to alienate myself from my community. I believe Jewish law and Canadian law can coexist,” but the current situation “is a problem.”
The number 1 issue in Toronto, as she sees it, is that “there’s a misconception that it’s no longer an issue, that we solved the problem.”
What is required, she continued, is that “the larger community acknowledge that it’s still going on.”
As to the number of agunot in Toronto, Machtinger said “quantifying it is not the issue. One agunah is too many… You just have to scratch the surface and see that the problem persists.
“It’s very difficult if not impossible to get a statistic on this,” she continued. “There’s a lot of shame for women, and I believe the men should feel shame.”
There are no specific programs or support groups in Toronto for agunot, she said, adding that Montreal, New York and Israel “have organizations that help agunot.”
One activist group, Organization for the Resolution of Agunot (ORA), is a not-for-profit that helps couples resolve their differences and effectuate a Jewish divorce. ORA has been known to picket the husband’s home or work to shame him, Machtinger, 23, said. The organization publishes the names of husbands who are withholding gets in the Jewish press as seiruvim, people who are in contempt of an order of a beit din.
Some beit dins will even pronounce a cherem, ostracizing the individual from the community if they repeatedly ignore the religious court’s invitations to appear and resolve the issue, she said.
Of the four women she interviewed for her thesis, two eventually received gets, thanks to the intervention of American rabbis, while two haven’t.
For those unfortunate two, “their personal lives are essentially debilitated because they can’t move on. They can’t remarry or have kids.”
She would like to see more social pressure and “a public conversation about this. People should be aware it is going on.”
John Syrtash, a family law lawyer whose practice includes Jewish divorces, agrees that there are women who, despite changes to the civil law, still find themselves without a get.
Nevertheless, “without deriding the suffering of those women, we have to work very hard for these women, but we have to celebrate how dramatically improved the system has become,” he said.
Compared to the period prior to the changes to provincial and federal law, “it’s like night and day. It’s dramatically better.
“You are always going to find exceptions, intractable problems,” he said.
The Supreme Court of Canada, in its 2007 decision in Bruker vs. Marcovitz, ruled a husband was in breach of contract when he ignored an agreement on the breakup of the marriage that required him to provide a get.
“This kind of conduct is no longer sanctioned in the community and among the general public,” Syrtash said.
Prior to changes in the law and its educative elements, “people said, ‘Why not use it as another tactic?’” Syrtash said.
Today, “in the overwhelming number of cases, it’s not a problem, because the law and the social element have improved dramatically.” Those good-news situations, where an Orthodox beit din resolves disputes between spouses, don’t get reported, he said.
One under-appreciated aspect of the issue is the extent to which women are now using gets as a lever for some sort of benefit or out of malice, Syrtash said.
Although only a man can offer a get, the woman must willingly and without coercion accept it. If she refuses, her husband is also in marriage limbo, bound to his wife. “I’ve had a number of men pay a great deal in legal fees to extricate themselves from situations where women adamantly refuse to accept a get,” he said.
In one case, a couple were married for only a short time before breaking up. The woman refused to accept the get and though a rabbinic court in New York approved the get, she refused to accept it. She moved to Israel, and her husband continues to pay spousal support for fear that if he visits Israel, he could be arrested under that country’s laws for refusing spousal support.
“It’s not a women’s issue,” Syrtash said. “It’s a Jewish issue.”
He said some lawyers refuse to work with the beit din’s Rabbi Mordechai Ochs. A co-operative approach is beneficial to comply with the halachic requirement that a get be granted voluntarily. If a lawyer goes through the civil system and presents the beit din with a court order requiring a get, that can be interpreted as coercive and scotch attempts to grant one, he added.
Syrtash said consulting ahead of time with Rabbi Ochs can help solve problems before they arise. The rabbi, he continued, “is very creative and successful in dealing with the legislation.”
(Rabbi Ochs did not respond to CJN requests for a comment.)
By taking a co-operative approach and being sensitive to religious sensibilities, lawyers can succeed in providing clients with both Jewish and civil divorces.
Based on his practice, Syrtash estimates that “98 per cent of the people do not fight a get. That’s a success.”