Withholding A Get: Between Leverage And Extortion

Jewish Week    All too commonly, we read about a man who refuses to grant his wife a Jewish writ of divorce (a “get”). We are told her story, culminating in her demand for a get and a plea to help pressure the recalcitrant husband to grant it. As for the man’s version of events – they do not matter; according to the approach promoted by the Organization for the Resolution of Agunot (“agunah” refers to a woman chained to a failed marriage by a husband unable or unwilling to grant her a get) and numerous others, it is never justified for a man to withhold a get as leverage during the divorce settlement.

The zero-tolerance attitude toward get-withholding is an adaptation of Jewish law to a relatively new social reality. This in itself does not make it wrong; on the contrary, new circumstances demand that the application of halachic norms be reconsidered. Yet this attitude implicitly adopts certain core attitudes toward marriage and divorce that are largely alien to Jewish tradition. It behooves us to consider whether it is possible to retain the traditional system but tweaking it to prevent abuse, instead of adopting the regnant divorce paradigms relegating the get to a mere religious technicality. [...]

Mutual consent implies, by definition, the ability to withhold consent, which is inherently a form of leverage within divorce negotiation. This sort of leverage is present in many negotiations and works against the party most eager to reach an agreement; a thirsty man is willing to pay a higher price for a bottle of Coca Cola. Of course, there is a point at which leverage becomes extortion, and that point must be defined, but we must take care not to treat leverage as though it is extortion.

The mutual-consent paradigm seems reasonable in principle, but in practice the traditional system of Jewish divorce has become unacceptable. Despite the best efforts of the medieval rabbis, the playing field is not really level. The deck is stacked against women in several ways. This imbalance has become a central issue as awareness of it has grown and demands for an equality in divorce have become almost universal.

Another reason for the turn against traditional norms of Jewish divorce is the adoption of a unilateral divorce paradigm. This has shifted perceptions about the nature of marriage and the process of its dissolution. The marriage is deemed over once one spouse deems the differences between the spouses unbridgeable. Under this paradigm, withholding a divorce is perceived as a denial of one’s basic rights and freedoms, and if the purpose is withholding is to negotiate a more favorable division of the marital pie, it becomes extortion. The same act that is a legitimate tool of negotiation under the mutual-consent paradigm is a weapon under the unilateral paradigm. [...]