The “tender-years clause,” under which children over the age of two will no longer be automatically given to their mother’s custody in divorce cases but rather put under joint custody, should be rescinded, that’s obvious. It is a remnant of a judicial arrangement that was based on a worldview that was suitable for the 1950s and 1960s, which is no longer appropriate in our time.
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However, as usual with us, debating such an important issue is always accompanied by arm-twisting and glees of delight, never mind a childish “girl vs. boy” flavor attached to the dispute, ignoring all the while the “elephant” standing at the core of the dispute, which is the religious establishment’s control over the personal status of each and every one of us.
There is some inequality in the fact that custody over children under six years of age is almost automatically granted to mothers, but it’s very easy to address such limited discrimination while ignoring the much larger inequality inherent in the whole complex issue of divorce proceedings in this country.
The inequality in divorce matters stems first of all from the simple fact that divorce procedures are governed by rabbinical courts, regardless of other issues such as custody, alimony and division of property. According to religious judges who interpret the religious law they adhere to, men have complete control over the process of divorce, allowing them to exploit every disputed issue, including custody, as a condition for granting the divorce. This is, in essence, the core evil of divorce in Israel, leading to the divorce process (in itself not a pleasant journey) deteriorating into a cruel struggle with occasional irresponsible steps taken, ones that harm children.
Under these conditions it doesn’t really matter where discussion of custody takes place – in rabbinical or civil courts – since this issue can also turn into a bargaining chip used for extortion in a divorce settlement. As long as there is no complete equality in the divorce process, equality that is restricted to matters of custody will actually reduce any advantage women hold and magnify the bargaining position of men, who already enjoy an advantageous status.
It is possible and apt to correct in a judicious and egalitarian manner not only the distortion inherent in the tender-age clause but also the injustice caused to many men with regard to alimony. This should be done only under certain circumstances, where the divorce settlement is achieved separately from other issues, without debating the act of divorce itself in cases in which the rift between the couple is certain and obvious (which accords with numerous religious rulings). The insane race to see who gets to the rabbinical or family court first must be banned.
It’s no secret that many men buckle under the heavy burden of alimony prescribed by the courts, leaving them with nothing after making their payments. One result of this is that the tendency of judges to reduce alimony sums when there is joint custody makes many men fight for such custody even when they can’t really sustain this in practice. This could harm their children, and is a result of alimony being based on religious law, not taking account of cultural and economic changes that have taken place in the status of both men and women.
The crux of the problem therefore lies not in the tender-age clause but in the fact that one cannot get divorced in Israel outside a rabbinical court. Even after arriving at one, people are not guaranteed being granted one after a proper judicial process. This is so because divorce, according to rabbinical courts, is not dependent on the court and its rabbinical-judicial considerations, as in every judicial process in other courts. Divorce ultimately depends on the free will of the man, and his will alone. If even sanctions are brought to bear on him, his free will always be autonomous and not subject to the will of others, not even the court.
However, our politicians, who operate as usual in patchwork fashion, prefer mending one injustice – albeit an important one – while ignoring a much broader and more essential injustice which unfortunately and lamentably is irrevocably linked to state-religion relations in this country. These relations find expression in veteran status quo agreements, which seem to last forever. From coalition to coalition, from government to government, they become more entrenched and unbreakable.
Every novice politician wanting to succeed understands that status quo issues in coalition agreements are off-limits. Why tackle the Orthodox parties in an arena in which one almost always loses? It’s much easier, garnering more support, to fight women’s groups, those “hypocritical feminists” who all of a sudden object to equality.
The writer, an attorney, heads an organization that helps women whose husbands refuse to grant them a divorce.