Equalizing gendered access to Jewish divorce in South Africa

Abstract

This paper explores potential solutions to address the unequal access of Jewish women to religious divorce known as a get in the legal context of South Africa. We assess rabbinical and state (judicial and legislative) responses to the issue of get refusal in Orthodox and Conservative South African Jewish communities and show that there are significant limitations to the effectiveness of their responses. By drawing on South African case law and parallel rulings on religious entanglement in the United States of America, we illustrate the legal viability of judicial enforcement of a ketubah (Jewish marriage contract) in South Africa. In particular, we argue that inclusion, recognition, and enforcement of maintenance clauses in the ketubah by South African courts can incentivize recalcitrant husbands to issue a get. We further address the need for legislation to solidify the judicial enforceability of a ketubah, thereby ensuring timely and equitable access to religious divorce for Jewish women in South Africa.

Keywords:

• Gender equality
• get refusal
• Jewish divorce law
• South African family law
• legal pluralism

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 The most recent census in South Africa records a total population of 53 million people. Of that total population, Muslims make up 2%, comprising the largest religious community in the country, followed by Hindus consisting of 1% of the total population, and Jews comprising 0.2% of the total population. See Statistics South Africa 2013, 15, 32.

2 The collective body of Jewish law is known as halacha, which traditionally derives from primary sources including the written Old Testament (Torah) and oral Torah (Talmud). The Torah and Talmud comprise codified Hebrew and Aramaic legal and theological scholarship and commentary. Other sources of Jewish legal interpretation include later Rabbinical codes and halachic scholarship, as well as customs and community practices (minhag). See Rautenbach (2018, 317–343).

3 Recognition of divorce under Jewish law is derived from the Torah, which provides: “If a man marries a woman who becomes displeasing to him because he finds something indecent about her, and he writes her a certificate of divorce, gives it to her and sends her from his house.” Deuteronomy 24:1 (NIV).

4 In South Africa, the Jewish Ecclesiastical Court, namely Beth Din is seated in Johannesburg and maintains legal authority over Jewish life. The Beth Din rules on matters of Jewish law including family law, succession, conversion, circumcision, and approval of kosher food, as well as arbitrates disputes in accordance with halacha. See Union of Orthodox Synagogues 2020.

5 The proclamation is attributed to Rabbi Gershom. There is an additional exception in the proclamation that allows men to remarry where a woman is halachically incapable of consenting to a get, for example, due to a deteriorated mental condition. See discussion in Silberberg (2020).

6 Requirements for a civil marriage include: a) the male must be 18 years or older and the female must be 16 years or older; b) both parties must consent to the marriage and have legal capacity to consent; c) the parties must be of the opposite sexes; c) the marriage must be monogamous; and d) the marriage ceremony must be witnessed by at least two adult persons. See sections 26(1) and 30 of the Marriage Act, 1961; Ismail 1983 at 1019H.

7 Section 5A was incorporated into the Divorce Act (1979) by the Divorce Amendment Act (1996).

8 In one reported case in Israel, an abusive and violent husband deserted his wife and refused to grant a get for more than 19 years, even withholding the get after eventually being placed in an Israeli prison. See Sharon (2019).

9 See for example, Ismail v Ismail 1983 at 1021H-1022A, 1024E-G.

10 For example, see Christian Education South Africa v Minister of Education 2000; Taylor v Kurtstag 2005; Singh v Ramparsad 2007; Faro v Bingham NO and Others 2013.

11 See for instance, Hurwitz v. Hurwitz 1926; Minkin v. Minkin 1981.

12 For a detailed analysis and critique of the proposed single marriage act and omnibus legislation for religious marriages, see Amien (2020, 78–82).