You can tell from my parent’s wedding album that they got married in 1975. Between my grandmothers’ floor-length lace and purple gowns, the plethora of tortoiseshells and my father’s, well, bangs, there’s no room for doubt. I used to enjoy looking through the album as a child, the pictorial narrative of the origins of my family slowly coming together. First, a shot of the invitation, set tables, some bridesmaids getting ready, and my beautiful young mother in her gown. Then some pictures of my father, parents and brother, some of my mother, parents and brother, separate families still. Eventually the group comes together, two families becoming one. Later, more relatives appear, allowing me to play the game of picking out cousins as their shrunken child-sized selves, great-grandmothers I never met, and male relatives I never imagined once had a full head of hair. Finally, somewhere in-between all the family portraits and awkward table shots, the moment that made it all count, my father’s father, my mother’s father, the brothers, uncles and several first and second degree male cousins from both sides, all surrounding my father seated at a table, holding a pen and smiling, signing the Ketubah*, the Jewish marriage contract.

And then on the next page, my mother’s mother, my father’s mother, grandmothers, aunts, female relatives from both sides, all surrounding my mother, seated at the table smiling, holding the pen, signing the Ketubah.

Despite my childhood sense of the ominous nature of my mother’s absence from the Ketubah picture, I can’t say I’ve spent a whole lot of time thinking about the feminist implications of the Jewish marriage contract between then and coming to work for CWJ this summer. And in learning about the arcane reasoning of the Rabbinic courts that marrying or divorcing Israeli Jews are subject to, it can be really easy to assign the blame on the lack of separation of Rabbinate and state in Israel. Civil marriage for everyone, we can say, problem solved, people who still want religious sanction for their marriage or divorce can choose to subject themselves to whoever’s antiquated rulings they choose, or not.

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While I believe it’s essential to provide secular jurisdiction over all aspects of Israeli family law starting yesterday, we can’t pretend that the Israeli Agunah* crisis arose out of a vacuum. We can’t say that it’s all due to a tiny little error of judgement Ben Gurion made 63 years ago, or that the Israeli problem is unrelated or wholly different in nature from the Agunah problem that continues to exist in the free Jewish world outside Israel. Agunot have existed for thousands of years. The problem of the Agunah has been one of the most intractable legal and ethical conundrums in the Jewish community for ages. Temple destroyed?  No worries, we’ll just focus on the book. Can’t sacrifice animals anymore?  We’ll pray instead.  In perpetual exile?  That’s ok, we can always celebrate holidays for two days instead of one.  It says in Deuteronomy that should he find some unseemly thing in her, he writeth her a bill of divorcement…?  Uh oh. And 2000 years later, it seems as if all most of us are doing is still shrugging our shoulders and saying, uh oh.

It turns out my mother’s presence wasn’t the only unnecessary one for the Ketubah signing. “Traditionally” the only signatures required are two male Jewish witnesses, unrelated to the bride and groom. Husband, wife, Rabbi, all completely superfluous. In fact, the Ketubah isn’t even technically a marriage contract, per se, it’s an ancient prenuptual agreement, originally intended to protect the wife in the event of a divorce. In ancient times, a Jewish husband made a payment to his wife or her parents upon engagment/marriage, which served as compensation to her if he should die or decide to divorce her. The Rabbis introduced the Ketubah as a solution both to the problem of young men who could not afford to pay the sum at the time of marriage, thus delaying the payment until the time of actual injury done to the wife, and secondly in order to provide a financial disincentive for men considering divorce. This was of course in a time when women were so inherently dependent on men socially, legally and financially that staying married was seen as being in her interest, at any personal or emotional cost.

 What I learnt was very disappointing.

 Where a regular prenuptial agreement is designed to protect property owned by one of the parties from before the marriage from being divided during a divorce, a halachic pre-nup is created to ensure the delivery or acceptance of a Get.

 There are many ways that these agreements can work. The basic level is simply a civil contract that says that should one of the parties file for divorce and the Get is not given within a year (or another specified period of time) then every day after that, the recalcitrant party owes the other money. A self-imposed financial penalty for Get refusal. These agreements are binding in civil courts.

 Another clause that could be added to these agreements is a more halacha based solution. Where the spouses sign that in the event that a year has passed and the matter is still unresolved that the rabbinic court is authorised to appoint an emissary (shaliach) to give/accept the divorce on the unco-operative spouse’s behalf.

 An additional clause can also be added to these agreements which is even more halachically complex. This clause stipulates that the marriage is entered on the condition that if one of the parties files for divorce, the Get will be given or received within one year. If this condition is broken then the marriage become’s retroactively annulled because the condition upon which the marriage was based did not eventuate. A bit tricky right?

 Tricky or not, these are some of the options available for halachic pre-nups.

 Now some may say that it’s very unromantic to sign a pre-nuptial agreement. Others may say that you are jinxing your marriage on your wedding day. But ultimately a Ketuba is another prenuptial agreement, but it has become so standard and accepted that it is no longer viewed that way.

 That is what the beit din in the city that I’m from is attempting to do. In Melbourne they want to normalise the signing of a halachic pre-nup for all Jewish couples marrying. Therefore, all Rabbis belonging to the Rabbinical Council of Victoria recommend to couples that are set to marry, that they sign a suitable version of these pre-nups. This way even if you know nothing about the matter you will still be protected. This way even if you belong to the ultra-orthodox community you will still be protected.

 Sadly, however the situation in Israel is very different. Not only are these agreements not encouraged but they may actually be detrimental to the situation. You see, a Get has to be given by the man of his own free will. There cannot be any external factors compelling him to give this divorce. Therefore, since the rabbinic courts in Israel not infrequently take a very stringent stand on this requirement they interpret the prenuptial agreements as being external pressure forcing him to give the Get thereby invalidating it. Hence the agreement that was designed to protect you from being trapped in a marriage could actually be the thing that keeps you stuck there! It’s simply absurd!

 It’s completely ridiculous that these agreements that are upheld and even recommended by rabbinic courts across the world are being rejected in Israel. Is there a different Torah in Jerusalem? Absolutely not. The rabbinic courts in Israel are rejecting these agreements because they move the jurisdiction away from the beit din to the secular courts. The financial penalty contracts are secular contracts binding in secular courts. It’s a power struggle, plain and simple. But it’s a power struggle with people’s lives. With people’s families.

 This disparity between rabbinic rulings in Israel and in the rest of the world is another one of the myriad of reasons for the privatisation of the beitei din and the separation of religion and state in Israel. How much longer can this absurd situation continue?

 On an unrelated note this will be my last blog for CWJ as I have returned to Australia to finish my law degree. I would like to thank all the staff in particular Susan and Elana for their patience and support and to commend them publically for their untiring work to improve the family law system in Israel. Keep up the inspiring work!

We also discussed (briefly in the meeting but also outside of it) religious coercion in the mikvaot. All Jewish women getting married have to visit the mikva before they are permitted to marry in this country. This means that no matter if you have blue hair, a million piercing and tattoos, eat bacon and eggs for breakfast and have already 3 children outside of marriage, if you want to get married in Israel you have to go the mikva. What happened to freedom of conscience? This is problematic enough but more than this, there are lots of different ways to go to the mikva. There are different laws and practices regarding the preparation process. What if you would like to keep one practice but the balanit would prefer if you observed another? What if you’d prefer that she doesn’t cut your nails for you? Or insist that you shave your legs? Or file away the callouses on your feet? Perhaps you’d prefer her to not watch you while you are naked at all? These are all legitimate concerns affecting many brides and women in Israel. How can we maintain their right to autonomy within this system where religion and state are still not separated? For one woman’s experience see this.

There was one woman who made a presentation about how she is attempting to fix the problem. She is a Rebbetzin in Tzfat and has established a course for Balaniot. At present anybody could become a balanit without any training at all. So this course is important whether they are just starting out or have been working in the area for a number of decades already. This course taught them the laws relating to ritual immersion but also other really vital skills. They were taught how to be personable, how to talk to people and make them comfortable. Also significantly, they were taught how to pick up signs and recognise domestic violence or other forms of abuse and how to deal with such situations. The course also enabled a sharing of stories and information for the women in the area who otherwise are very isolated in their work. It allowed for camaraderie which is sometimes difficult to engineer in women’s lives.

Ultimately, I left the meeting realising how much work there is yet to be done. The mikvaot need to be safe places for women, free from religious coercion. The women who work there need to be trained and given dignitary in their employment conditions. Most importantly visiting the mikva needs to be a woman’s choice. The state should have no say in whether or not she participates in these very personal rituals. But to my deepening frustration this cannot happen while there is no separation of religion and state in Israel.

Ellyse Borghi is currently a second year law student in Jerusalem. She volunteers with CWJ and teaches informal Jewish education on the side. She loves every type of cheese and would like very much to travel in Eastern Europe.

 My expectation from universities is that they would not only teach the law but would also educate their students to better the legal system and to practice their profession with dignity and compassion.

 In reality however, I was taught how to exploit the system even at the expense of people’s families and children.

 In a course on family law we were not advised to sue recalcitrant husbands for damages when they refuse to give a get. We were simply told to file for divorce as quickly as possible in the family law courts and hope for the best. If that doesn’t work and you are representing the woman, you can use your right to spousal maintenance as leverage for the Get. If that still doesn’t work, you can use your custody of the kids to limit visitation rights of your spouse as leverage to receive your Get.

 In a course on divorce agreements I was taught how to write up clauses that rob women of their property rights in exchange for a Get. I was taught to create clauses that free men of their obligations for child maintenance payments. I was taught that if a woman wants to change these contracts, I could apply to have her Get retroactively annulled.  When students protested saying that these contracts were not fair, we were told that our job as lawyers is “not to be fair, but to be smart.”

 We were not taught how to negotiate with both parties to have a quick and fair outcome. We were not taught to refuse with dignity to participate in the wrongs of the system. We were not taught to limit the damage and trauma to the parties. We were not taught compassion or empathy.

 If this is what we are being taught, the problems for families in Israeli courts will only continue.

 We need a new generation of lawyers who will practice their profession with the ideals of justice, fairness and equality.

 Ellyse Borghi is currently a second year law student in Israel. She volunteers with CWJ and teaches informal Jewish education on the side. She loves every type of cheese and French movies very much.