תביעות חוזיות בגין סרבנות גט

Translated title of the contribution: Breach of Contract Actions for GET Refusal

בנימין שמואלי, משה פוקס

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Abstract

A get is a Jewish bill of divorce that a husband “gives” his estranged wife. In some cases, husbands refuse, for various reasons. Get refusal is a serious social problem engendered by the reality of Jewish matrimonial laws. This Article deals with extortion – i.e., a situation in which the get-refusing husband attempts to obtain financial gains for his agreement to divorce. Private Rabbinical Court, which acts as an arbitrator in most states of the world, or the State Rabbinical Court, which acts by virtue of state authority in Israel, do nothing or can do nothing other than to order the refuser to divorce his wife. Private Rabbinical Courts lack powers of enforcement. State Rabbinical Courts in Israel have enforcement powers (albeit not unlimited), but they use these powers sparingly for fear that compulsion might invalidate the get, which must be given of the husband’s own free will. The halakhic tools are, therefore, rather limited so that external solutions from outside the sphere of religious family law are required. Similarly, solutions from areas such as family law or the application of criminal sanctions fail to comprehensively address this painful phenomenon. Releasing the victim of get refusal from the chains of her unwanted marriage is, therefore, an extremely important social mission. It requires the creation of additional, innovative mechanisms, or the creative use of existing mechanisms that have not been used in get-refusal situations.Get refusal for financial extortion can be countered with civil measures that are not part of the matrimonial law and that have not all been exhausted to date. This article will focus on breach of contract action against the refuser – a tool that has not been central in Israel and should be brought to center stage together with the more familiar mechanism, tort action. In most cases, these two solutions are designed for circular transaction in which the refuser gives the get in exchange for a refusal-victim’s waiver of the compensation that she had been awarded in a civil action, provided that it is sufficiently high and counters the stronger bargaining power of the refuser. Five alternatives of breach-of-contract action for get refusal are presented in this Article. Each action is discussed individually, in juxtaposition with the others and vis-à-vis tort actions. The Article argues that the best solution is to expand the toolbox available to get-refusal victims, and to encourage the use of actions for breach of contract, alongside actions in tort, to strengthen the civil actions mechanism against get refusal, even instead of tort actions at times. Actions for breach of contract are not always dependent upon prior rabbinical court decisions that order or compel a get, and certain tools create no concern of coercing a get. Some contractual tools could motivate the creation of more balanced and fair divorce agreements than those that presently exist.
Translated title of the contributionBreach of Contract Actions for GET Refusal
Original languageHebrew
Pages (from-to)345-410
Number of pages66
Journalדין ודברים: כתב-עת משפטי בין-תחומי
Volumeי
Issue number2
StatePublished - 2018

IHP Publications

  • ihp
  • Actions and defenses
  • Breach of contract
  • Civil law
  • Compensation (Law)
  • Contracts
  • Damages
  • Defense (Administrative procedure)
  • Divorce
  • Divorce (Jewish law)
  • Domestic relations
  • Duress (Law)
  • Extortion
  • Get (Jewish law)
  • Good faith (Law)
  • Prenuptial agreements

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