Law Pod UK latest episode: Coercive and Controlling Behaviour
24 February 2020
According to Jewish religious law, if a husband refuses to grant his wife a divorce (a “get”) she has no recourse to the Jewish authorities for a certificate and must either be content with a civil divorce, or remain a “chained woman” or “argunot”. One of the consequences of this system is that any child she may have by a subsequent relationship is considered a “manner”, or illegitimate.
For the first time in legal history Anthony Metzer QC of Goldsmith’s Chambers has used the secular criminal law to persuade a recalcitrant husband to grant his client a “get”, the threat of a prosecution for the offence of coercive and controlling behaviour leading to a maximum prison sentence of five years. This is a fascinating breakthrough and has implications not only for other “chained women” in Jewish communities but in the wider world of religious traditions where women are often the victim of unfair religious laws.
Rosalind English discusses the implications of this case with Mr Metzer QC in this week’s episode (No. 103) of Law Pod UK. You may want to refresh your memories on the use of the offence of criminal and coercive behaviour in proceedings in the family courts by listening to Rosalind’s interview with Clare Ciborowska of 1 Crown Office Row in Episode 43.
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My brother in law is in Australia and very close to the orthodox community and he put the piece into a global context which I thought you might be interested in:-
The problem is not new, nor is the solution in general terms. The specifics are unique to the UK, depending as they do on the Act of 2015. AFAIK, we do not have such an Act in Victoria..
The Israeli Supreme Court has previously dealt with this problem by jailing the recalcitrant husband. However at least one such husband has preferred sitting in jail above freeing his wife. So he has sat at the public expense while his wife has remained chained. He, being a frum Jew, with plenty of time on his hands and no need to earn a quid, has been free to pursue his religious studies, not for a moment considering the hypocrisy of what he is doing, the evil he is perpetrating.
IIRC, there was a divorce case in Victoria some years ago, in which the judge made property orders the effect of which was that if the husband gave his wife a gett he would have to pay her a lot less than if he refused. Obviously that can only work if there is enough wealth available. Also if he prefers paying to giving a gett, she remains chained.
In an orthodox community in New York several years ago supporters of the wife dealt with the recalcitrant husband by, essentially, kidnapping him and beating him until he agreed to give the gett. That’s particularly interesting because Jewish law demands that the gett be given freely,. ie not under duress. The way around that was to invoke a principle that goes back centuries – we all have within us the impulse to do good. Unfortunately there is also an evil impulse, and sometimes that evil impulse deflects us from the path of righteousness. In the case of the recalcitrant husband, the beatings were continued only until he came to the realisation that he really did want to give the gett, had wanted to all the time but had been prevented by the evil impulse.
good for her…but why will nobody taken action against g-men for the Coercive and Controlling Behaviour they inflict upon rest of us? virtually driven me to suicide here :-(
Coercive and controlling divorce law. Can it also be used with a short causaul 3 month up and down relationship. This law is being used i NMO with no ties attached. That must be crimanal. Especially when bail is not granted to get ones evidence. When evidence is got it is not used in the defence.A true case happened. Let me know if you can.
Kudos to Mr Metzer, his junior, and his instructing solicitors for achieving a get for their client; but they have not found the magic bullet. Let me (with apologies for the mixed metaphor) throw four spanners into the works.
First and obviously: what they did can only work where the husband is in the jurisdiction and at a known address, and in some of the saddest agunah cases he is not.
Second: costs. I know that this lady got her costs from central funds; but nobody can guarantee that that will happen and another judge might take a different view. She must have had the money up front, and most agunot don’t. Again, if the prosecution fails she might be (and frankly should be) liable for the defendant’s costs.
Third: children if any. Threatening to have their father locked up may do nothing for her relationship with them.
Fourth and above all: I know this legislation runs wide, but it is about “behaviour” and I suggest that that must mean DOING something – not FAILING TO DO something, especially something which the courts of civil jurisdiction (family or otherwise) would never order the defendant to do. I seriously doubt whether this prosecution would have got past half-time – and even if it did a jury might take the view that refusing to get involved with a religious divorce ought not to be considered criminal. If the case were thrown out on a submission and especially if that were upheld by the Court of Appeal this line of action would be, if I may use the expression, a busted flush.
The remedy for this wretched state of affairs does not lie in secular legislation – which has done all it can – or the criminal courts. It lies with the rabbinical authorities, the Batei Din, and it is for them to find a solution within the “halacha”, the body of Jewish law (or more correctly custom) which they practice. And they can; where there is a rabbinical will there is a halachic way.
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