Q. How can I make sure that the Beth Din will give me a gett (a bill of divorce)?
A. It is not the Beth Din that grants or withholds a gett. Just as the rabbi does not “marry” a couple but they marry each other under the rabbi’s supervision, so the Beth Din does not divorce them: the divorce is brought into being by them under the Beth Din’s supervision.
Either party can apply to the Beth Din for the gett proceedings to be organised, though it is the husband who gives instructions to the Beth Din scribe for the drawing up of the divorce document and to the witnesses for its signature. This is because the Torah says, “he shall write for her a bill of divorce”.
If necessary the handing over of the divorce document can be by means of an agent appointed in the presence of the Beth Din. Once the gett has been delivered, it is cut across and filed in the office of the Beth Din and a certificate of divorce is issued to each party.
Ideally, both parties acknowledge that their marriage is now history and conduct themselves with dignity in closing the chapter by means of a civil divorce and a gett. But occasionally one or other withholds their co-operation to the gett. The reasons vary, but unfortunately at times they include a continuing desire for revenge. In most cases the Beth Din succeeds in securing the co-operation of the person concerned, but on occasions the stalemate persists. The popular view is that it is generally the woman who suffers, and although this is true in about 60% of cases, there is another 40% where it is the ex-wife who withholds her co-operation.
In Israel the law of the state can impose sanctions on an uncooperative person, but in the Diaspora the only force that can be used is moral (and sometimes communal) sanctions. In theory even this should be unnecessary because Judaism expects every human being to do the decent thing as a matter of course. But sometimes it is necessary to resort to the civil law to assist towards a solution. Various legislative, judicial or administrative options are or may well become available in order to achieve this.
Yes, some argue that for the civil law to become involved may contravene section 116 of the Australian constitution, but expert opinion negates this fear. An alternative proposal is for a couple to sign a prenuptial agreement designed to secure a gett if the marriage breaks down, and a number of rabbis make this suggestion to brides and grooms. The courts in Australia have, however, not yet had to rule on the legal validity of a Jewish prenuptial agreement, though we believe that the wording we use would be judicially upheld if it came to court.