The Agunah Crisis Abroad Part I

The current agunah crisis is not exclusively an American-Jewish problem, it persists in many countries throughout the world. Previously, I have discussed a civil court case in the United States’ civil system, Avitzur v. Avitzur, which highlights some of the legal complexities of civil court cases interjecting into religion.[1] To see more on Avitzur v. Avitzur, please click here. Because the United States is not the only place where this issue persists, it is useful to look at how other countries handle the agunah crisis as well.

France was one of the first countries to address get refusal in civil divorces. In Gasman c. Dame Kulbolcas, the court held that the ex-husband’s duty to deliver a get to his ex-wife did not violate the principle of separation of church and state.[2] This decision and similar decisions from the French court find basis in civil law doctrines that are analogous to the American civil doctrines of intentional torts. Decisions have also considered the withholding of a get to be abuse of rights, which considers the motive for one exercising their rights — unfortunately, there is no analogous doctrine for in the American civil legal system. The French courts have relied on damages for many years as a form of motivation, and would reduce the damages if a get was granted within a certain period after the decision was made.[3]

In Canada, recently, courts have awarded damages against husband’s who have not gone through with their promise to appear before a rabbinical tribunal for the purpose of obtaining a get.[4] One solution that Canadian courts have looked at is conditional marriages, where annulment is the solution when there is a failure to abide by a decision.[5] Canadians have also relied on the Lieberman Clause, that is inserted into the ketubah, but as in the United States, not all denominations of Judaism accept the Lieberman Clause’s purpose and use.[6] For more information on the Lieberman Clause, click here. While there is no “one size fits all” solution, the American Civil Legal System can look to the ways other countries handle the agunah crisis for inspiration. Other countries attempt to resolve the agunah crisis by suing recalcitrant husbands for torts, or granting damages to the wives for breach of contract — these are avenues that those facing the American Legal System can attempt as well.

[1]58 N.Y.2d 108 (N.Y. 1983).

[2]Amanda Jennedy, John C. Kleefield, Article: “A Delicate Necessity”: Bruker v. Marcovitz and the Problem of Jewish Divorce, 24 Can. J. Fam. L. 205, 221 (2008).

[3]Amanda Jennedy, John C. Kleefield, Article: “A Delicate Necessity”: Bruker v. Marcovitz and the Problem of Jewish Divorce, 24 Can. J. Fam. L. 205, 221–222 (2008).

[4]Amanda Jennedy, John C. Kleefield, Article: “A Delicate Necessity”: Bruker v. Marcovitz and the Problem of Jewish Divorce, 24 Can. J. Fam. L. 205, 206 (2008).

[5]Amanda Jennedy, John C. Kleefield, Article: “A Delicate Necessity”: Bruker v. Marcovitz and the Problem of Jewish Divorce, 24 Can. J. Fam. L. 205, 217 (2008).

[6]Amanda Jennedy, John C. Kleefield, Article: “A Delicate Necessity”: Bruker v. Marcovitz and the Problem of Jewish Divorce, 24 Can. J. Fam. L. 205, 217–218 (2008).