Tort Compensation for Abandoned Wives (Agunut – Women Whose Husbands Refuse to Give Them a Get)
The College of Management Law Review (Hebrew), Vol. 12, pp. 285-343, 2007
58 Pages Posted: 30 Nov 2009 Last revised: 29 Dec 2014
Date Written: November 27, 2009
An interesting and piquant debate between scholars on the subject of financial compensation for women refused a get has recently been abandoned. The central concern is that a decision obliging the husband to compensate his wife for refusal to grant a get may incentivize him to give the get in exchange for the woman's waiving this compensation, and as a result the get will be considered unlawfully coerced since it was not a result of the real consent of the husband, and the children of that woman from another man will be considered illegitimate. This subject extends beyond the bounds of Israeli law, since it is relevant to Jewish couples throughout the world. In addition, the discussion goes to the bases of the goals of tort law and analyzes an interesting intersection between tort law and the family unit that is also connected to the tension existing between the Family Court and the Rabbinical Court.
The paternalistic approach to the matter suggests a unique and novel system for tort actions by setting qualifications on the action, including a substantive boundary on the sum of the action according to a certain halachic construction based on the Jewish alimony laws, the application of which would not lead to a concern of a coerced get. The feministic approach to the matter is offended by turning the tort action into the servant of family law and suggests leading to a change in "oppressive" family law via pressure on the part of tort law. This Article suggests another approach, according to which these actions should not be blocked or qualified, but not specifically because of a feminist analysis, particularly since that analysis is problematic and contains several flaws. The proposal is to examine the matter through the goals of family law, as it is first and foremost a tort action. According to this approach there is no need for an interaction between the family law in the Rabbinical Court and the tort law. The only relevance beyond tort law should be the examination of the court hosting the litigation - the Family Court - and the goal of dispute settlement in this institutions; however, there is no room at all for the influence of family law on the case.
In effect, it should be understood that this is an action stemming from emotional damage from negligent mental abuse, and therefore any compensation that is given should seemingly start from the date of the beginning of the tort, which is generally an earlier date than the date that the Rabbinical court has declared a duty to give a get (despite the fact that from a halachic perspective, there is a problem with such an approach, and also that the courts have not give compensation for anything before the date of the obligation to give a get).
This Article will critique the two existing approaches, in themselves and with regards to the goals of tort law and the goal of dispute settlement, and will suggest another approach. This Article will also call for a real effort to solve the Halachic problem of women refused a get, so that there will be no need to circumvent it by filing a tort action against a man who refuses a get, and will call upon the Family Courts to implement the "pure" tort law, but also to do everything they can to resolve the dispute before referring to such implementation.
Note: Downloadable document is in Hebrew.
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