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.