Private court annuls marriage of long-term ‘agunah’

An independent, Orthodox rabbinical court has voided the marriage of a woman whose husband refused to grant her a divorce for nine years. This is the second such case in the court in two months – of releasing women from long-term divorce refusers.

In this latest incident, Oshrat Ben-Haim had sought to divorce her husband for nine years, despite the marriage being over for all intents and purposes, and her estranged husband now living in the US.

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Ben-Haim is currently pregnant by another man. Despite rulings by the Haifa Rabbinical Court instructing her husband to divorce her, he has refused to do so – and the rabbinical court has refused to take more drastic action.

Owing to this failure, Ben-Haim turned to the independent rabbinical court so that her unborn baby will not become a mamzer – a highly problematic personal status in Jewish law – if she had not been freed from her original marriage.

The independent court – headed by respected Talmudist Rabbi Daniel Sperber along with Rabbi Michael Avraham and one other rabbi who wishes to remain anonymous – annulled the marriage based on the fact that one of the witnesses to the wedding was invalid, thereby voiding the marriage retroactively.

As reported last month by The Jerusalem Post, to a wedding was a convicted pedophile at the time of the wedding.

Valid witnesses must be religiously observant, especially of Shabbat; if a witness if not religiously observant this can invalidate a marriage.

In cases where a man refuses to grant a divorce for an extended period of time, voiding the marriage on the basis of an invalid witness is an effective tool in freeing the agunah – a Jewish woman who is “chained” to her marriage.

The advocacy organization Mavoi Satum (dead end) – which has been representing Ben-Haim – made several appeals to the Haifa Rabbinical Court to void that marriage because the witness was a convicted pedophile and therefore not observant of Jewish law. But the court panel, headed by rabbinical judge Rabbi Daniel Edri, refused to employ this tool.

Even when the case was appealed to the Supreme Rabbinical Court, which then instructed the Haifa court to explain why it had not granted the request to void the marriage, Edri still refused to give his reasoning.

According to the ruling by the independent rabbinical court which freed Ben-Haim last Thursday, however, someone suspected of illicit sexual relations is considered by Jewish law to be “an evil person” and therefore is invalid as a witness.

Attorney Batya Kahana-Dror, head of Mavoi Satum, noted that since Ben-Haim is in the advanced stages of her pregnancy it was crucial and urgent that, after nine years of seeking a divorce through regular channels, a rabbinical court step in to resolve the case.

“Where the state rabbinical court failed, the independent court took its place,” Kahana-Dror said.

“I believe that this ruling, which Torah scholars have supported, is a watershed moment for relations between the public and the rabbinic monopoly,” she added.

“These types of rulings constitute public pressure on the rabbinical courts to give halachic solutions on the one hand, and demonstrate the need for privatizing the religious establishment on the other hand.”

Sperber said that he and the other officiating rabbis “do not see ourselves as greater Torah scholars than the honorable rabbinical judges” of the state courts, but said that they relied on the same sources of Jewish law, and that in such cases the law prefers that stringencies not be used.

In June, the same court headed by Sperber freed a woman whose husband had refused to grant his wife a divorce for 23 years. That case involved a far more controversial ruling in which the marriage was annulled, not retroactively voided, on the basis of complex aspects of Jewish law.
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