Prosecution of divorce refusers
On November 10, 2016, the State Attorney’s Office published State Attorney’s Directive No. 2.24 regarding the prosecution of divorce refusers, under the title “Policy for Prosecution and Punishment for Failure to Comply with a Judicial Order of the Rabbinical Court to Grant or Accept a Divorce.”
A divorce refuser is a spouse who refuses to give or accept a divorce, thereby forcing the other spouse into a marriage against their will.
In most cases, this involves the husband’s refusal to grant a divorce to his wife, the woman who refuses the divorce, also known as an agunah woman. Refusing the divorce violates the woman’s basic freedoms and rights, including the right to remarry, the right to have children without them being considered bastards and unfit for marriage, the right to have an intimate relationship, economic and social harm, and more.
The new guideline is intended to give Response to the issue of refusal of divorce which has not yet been resolved within the framework of criminal law, in a manner whereby it determines that in cases where Home Rabbinic Law If an order is issued to force a divorce on a person who refuses a divorce, consideration should be given to opening an investigation against the person who refuses the divorce and prosecuting him for violating a legal provision under Section 287(b) of the Penal Code.
Taking criminal action against a divorcee in accordance with the new directive has 3 main goals:
- Labeling the refuser as a criminal offender who harms general public interests and values, and not just the victim, the one who refused the divorce.
- The fulfillment of the law against the perpetrator of the offense and the fulfillment of the goals of criminal punishment as retribution and deterrence, for the past act, both because of his harm to the woman and because of his harm to the government system that issued the order.
- General deterrence of potential refusers and reduction of the phenomenon of anchoring.
In order to rule out the possibility that a get granted due to criminal proceedings will be considered a fabricated get, which is invalid according to Jewish law, then the investigation and prosecution of a get refuser will only be initiated after the Rabbinical Court has decided to force a get, the get has not been granted within 61 days of the decision, and consultation with the legal advice of the Rabbinical Courts has been undertaken prior to initiating criminal proceedings.
In order to make a decision regarding the opening of an investigation and prosecution for refusing a divorce, the following considerations must also be considered:
- The period of time from filing the divorce petition, as well as the period of time during which the refuser maintains his refusal. The longer the period, the greater the public interest in opening an investigation and prosecution.
- Projecting the refusal to grant a divorce onto the situation of the refused woman. The greater the harm caused to the refused woman by refusing a divorce, the greater the justification for opening an investigation and bringing her to justice.
- The return of the person who refuses the get from his refusal. The main purpose of the existence of criminal proceedings against a person who refuses the get is considerations of retribution and general deterrence, and therefore, granting the get at a late stage does not necessarily lead to the closure of the investigation file or the cancellation of the indictment. However, the above does not rule out giving weight to this fact.
If the person refusing the get is indeed prosecuted and convicted of the offense of violating a legal provision, the prosecution will request that he be sentenced to actual imprisonment for a specific period. Of course, the person refusing the get must be represented. By an experienced lawyer.
The following circumstances will be a consideration for aggravating the prosecution’s punitive position:
- The defendant has maintained his refusal for a period of time exceeding 12 months from the time the order for a divorce was issued, and at least 61 days have passed since the order for forced divorce was issued.
- There are indications that the defendant’s refusal to divorce is being used as a means of blackmail or revenge.
- Refusal of the get or the years of marriage were accompanied by additional offenses, such as the use of violence by the refuser towards his wife or children, terrorizing them, or disrupting their normal lifestyle.
If the refuser retracts before the sentencing arguments stage, this will be a consideration for mitigating his sentence, but still, as a general rule, a conviction and tangible punishment must be sought.
The background to the directive to prosecute those who refuse to get a divorce
The guidance clarifies that matters of personal status in Israel are determined according to religious law and are within the authority of the authorized religious tribunals. For Jewish couples, authority in matters of personal status is vested by law in the Rabbinical Court.
According to Jewish law, Divorce They are a personal act performed by the couple themselves and of their own free will, and therefore the Rabbinical Court is not itself authorized to dissolve the marriage bond between the couple, but only to provide guidance on the issue of granting a divorce, as will be explained below.
A rabbinical court hearing a divorce case that was opened at the request of one of the spouses can accept the claim or reject it and even recommend that the parties return to the court. For the procedure Hello home.
If the court accepts the claim, but the other spouse refuses to grant the divorce, the court has at its disposal a range of decisions, orders, and sanctions that it can impose on the refuser:
Recommendation for divorce or command to divorce – The Rabbinical Court does not oblige the couple to divorce, but it determines that in light of all the circumstances of the matter, it is recommended that they divorce or that this even constitutes a religious mitzvah.
Divorce fee – A rabbinical court determines that the parties are obligated to divorce. Such a decision is a binding legal decision. Violation of this decision constitutes a violation of a legal provision and allows the court to impose sanctions on the refuser.
In these cases, as long as the rabbinical court has not issued a ruling that also allows for the forced divorce, the court may impose indirect sanctions on the refuser that make it difficult to manage his life, which are known as rabbinical banishments, but this is with the exception of imposing imprisonment, which you considered a direct sanction.
Forced divorce – The Rabbinical Court establishes a high-level obligation, which includes direct sanctions against the refuser, including, in appropriate cases, the imposition of actual civil imprisonment in order to comply with the order.
As stated, in accordance with the new directive, only when the court has ruled on the coercion of a divorce will a criminal investigation and prosecution be considered for violating a legal provision under Section 287(b) of the Penal Law.
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