The New York State Get Bill and its Halachic Ramifications
Rabbi Chaim Malinowitz
In 1980, the New York State legislature passed what has become known as "the old New York State Get Bill."1 This was in response to a perceived, ever-growing problem of spouses whose partners refuse to give/accept a Get, leaving them in a state of Igun. Igun - being chained - classically refers to a woman whose husband's whereabouts are unknown; hence, she is unable to remarry, nor does she have a husband. Of late, our community has come to know of the "modern-day agunah", when a husband refuses -- for any reason (including mean-spirited ones) -- to give his wife a Get in a situation that the wife would describe as a dead marriage.2
This at times also leads to extortionist demands being made in "return" for a Get. This situation has worsened, in part, due to the lack of a sense of community where a strong central Bet Din's order to give a Get would almost automatically be listened to, as well as the lack of societal cohesiveness to ostracize the recalcitrant party.
The 1980 bill in New York essentially stated that the party initiating a divorce proceeding in the civil courts must certify that he or she has removed any "barrier to remarriage", as defined in that law. This effectively conditioned the procuring of a civil divorce for the party enlisting the aid of the courts upon the giving/receiving of a Get. The bill won the support of a broad spectrum of Poskim, who held that it was in no way coercive or otherwise problematic; with the approval of those who decide areas of Jewish Law, the law was passed.
However, this statute is obviously limited: for example, it only withholds a civil divorce but cannot compel a Get; it applies only to the plaintiff in the suit; it requires only an affidavit that the condition has been met. Yet these limitations helped to give impetus to rabbinic approval -- for the court never directly ordered a party to give/receive a Get, nor is there any provision for the recalcitrant party to be penalized in any way. (There is no halachic problem in withholding from a person something that he is requesting (and is not necessarily due him) unless he gives a Get.)
Given these limitations, however, pressure continued to grow for a better Get Bill. And so in 1992, without benefit of public hearings or input from a range of Poskim, a second Get Bill was passed.4 This "new Get Bill" directs the courts, when determining the distribution of marital assets, to take into account a "barrier to remarriage" (as defined in the first Get Bill). There are thirteen factors which a judge is directed to take into account when determining this distribution, and this bill tells a judge to weigh the effects of a "barrier to remarriage" upon all of these factors. The bill then goes on to direct a judge to do the same regarding the eleven factors presently taken into account when deciding an amount for "maintenance" (alimony). And since a judge must specify his reasons for setting these awards, a situation was crated where the husband can now suffer a financial loss explicitly for his refusal to give a Get.
Canada also has passed a Get Law5 -- to this writer's knowledge, unapproved by Poskim -- which contains all of the problems of the New York State law, and to a much greater degree. In England there are rumblings about some sort of legislative remedy for agunot, as there are in many other jurisdictions. This article points out the fundamental halachic concerns with the New York State bill, and, it is hoped, can serve to help evaluate other potential legislative "solutions."
In the view of this writer, the problems with the New York State Get Bill are so many and varied, that the wonder is not the opposition it has met, but rather that it has any support whatsoever. Many contend that the Jewish community is immeasurably better off without the bill than with it since, as we shall see, the bill represents a dangerous time-bomb to the validity of many Gittin. Hence, ultimately, it endangers the sanctity of the Jewish family.
In addition, ironically, the bill may actually be counterproductive. The halachic process, which, under most circumstances solves Igun problems when followed through, is undercut by "solutions" such as these. By encouraging people to avoid a Bet Din and avoid having to justify their demands by the standards of halacha, it only helps frustrate Rabbanim and Rabbinic Judges who seek halachic solutions. It teaches litigants to ignore the Bet Din process and rulings and, indeed, to second-guess them. The overwhelming majority of Igun cases, after all, are solved -- by rabbinic leadership along with community pressure. If the public is taught by well-meaning and not-so-well-meaning activists that the halachic route is to be avoided and ignored, then although there may be a few agunot helped by (one hopes) valid Gittin, there will be many many more who find their problems compounded.
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