Marriage, Divorce, and the Abandoned Wife in Jewish Law

216 Pages·2001·2.97 MB·English

by  Sam Elowitch

Marriage, Divorce, and the
Abandoned Wife in Jewish Law
A CONCEPTUAL UNDERSTANDING OF
THE AGUNAH PROBLEMS IN AMERICA
epigraph/dedication Page vi Friday, January 19, 2001 3:15 PM
Marriage, Divorce, and the
Abandoned Wife in Jewish Law
A CONCEPTUAL UNDERSTANDING OF
THE AGUNAH PROBLEMS IN AMERICA
by
Michael J. Broyde
KTAV Publishing House, Inc.
2001
epigraph/dedication Page vi Friday, January 19, 2001 3:15 PM
epigraph/dedication Page v Friday, January 19, 2001 3:15 PM
.r.i.m dvbkl
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.rtvy bvha tmah qr Nvelpa bvha earqs bvha :ynvyh Mypvslyph war btk
[rvamh rpsl h"zrh tmdqh har Mg] e Nmys ryay tvvc t"vw
The seal of God is Truth.
So says the great philosopher:
“Love Socrates, love Plato; love truth more.”
This book is dedicated to the one who taught me to live by these rules,
and to accept truth as the guiding light.
epigraph/dedication Page vi Friday, January 19, 2001 3:15 PM
BroydeTOC Page vii Friday, January 19, 2001 3:17 PM
Contents
Foreword
The Purpose of This Book xi
Preface
A Restatement of the Agunah Problem xv
Chapter One
Jewish Marriage: A Conceptual Review
of Marriages in the Jewish Tradition 1
The Fault Exception 3
Historical Agunah Problems and Solutions 3
The Talmudic Agunah Problem 3
The Levirate Marriage Problem and the Case of Agunah 5
Summary 7
The Modern Agunah Problem 7
Solved Cases 7
The American Agunah Problem 8
Proposed Solutions to the American Agunah Problem 10
Annulments 11
Conditional Marriages 12
Conditional Promises to Give a Get 12
State Intervention in the Jewish Divorce Process 12
Support Agreements 13
Chapter Two
Paradigms for Marriage as Grounds for Divorce in
the Jewish Law Tradition: An Historical Review 15
The Image of Divorce in the Torah 17
The Rabbinic Period 17
vii
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Post-Talmudic Jewish Law I: The Geonim 19
Post-Talmudic Jewish Law II 20
Option I: Unilateral No-Fault Divorce 20
Option II: Mutual Consent or Hard Fault 21
Option III: Return to Contractual Rules 22
Option IV: Marital Abode as the Norm 23
Gender Equality as the Issue? 23
Modern Developments and Summary 25
Chart 2.1:
Views of Marriage, Divorce, and Igun in the Era of the Rishonim 28
Chapter Three
Dual System and Divorce: The Impact on the Agunah
Problem of the American Legal System 29
Introduction 29
The Dual System and the Problem of the Agunah 30
Two Legal Systems 32
A Comparison of Private and Public Law Models 33
The New York Experience 35
Creating the Right to Be Divorced 36
One Solution: Ignore the Dual System Problem 37
A Critique of This Approach 38
The Issue of Commercial Custom 38
Another Solution: Follow Secular Law 39
Summary of the Dual System Problems 40
Chapter Four
The Role of Bet Din: How Does a Jewish
Court Prevent Abandonment of Spouses? 43
Introduction: Theory and History 43
The Modern Reality 43
Jewish Law and Its Role in Marriage 45
Modern Jewish Law and Marriage in America 46
Modern Jewish Law and Marriage in Israel 49
Comparison of Modern Jewish Law and
Marriage in Israel and America 52
The Bet Din Issue in America 54
The Relationship Between the Bet Din System
and the Secular System 55
Conclusion 57
viii
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Chapter Five
The Multitextured Agunah Problem
and Proposed Modern Solutions: A Conceptual Critique 59
Unilateral No-Fault Divorce as the Solution 60
Abandoning Marriage as a Solution 63
Contractarian Solutions and Their Problems 63
Rabbinical Tribunals as a Solution 65
Prenuptial Agreements as Marriage Contracts 66
Secular Intervention as a Model for Divorce 68
Summary of the Modern Solutions and Their Problems 70
Chart 5.1:
Views of Marriage, Divorce, and Igun in the Modern Era 71
Chapter Six
Summary: A Conceptualization of
the Agunah Problem 73
The Nature of the Agunah Problem 73
Preconditions to Successful Solutions 75
Chapter Seven
Summary: A Conceptualization of Solutions
to the Agunah Problem 79
The Nature of the Solutions 79
Pluralistic Images of Marriage and Divorce 81
Multiple Types of Prenuptial Agreements: A Real Solution
to the Root Problem of Multiple Images of Divorce 82
The Bet Din System 82
Chapter Eight
Conclusion: What Can Be Done? 85
Appendix A
A Brief Historical Introduction to Jewish Law 87
Appendix B
Error in the Creation of Jewish Marriages:
Under What Circumstances Can Error Void
the Marriage Without Requiring a Get 89
Preface 89
Introduction 91
ix
BroydeTOC Page x Friday, January 19, 2001 3:17 PM
Marriage as Contract 92
Defects in the Man 97
Continuing Marriages Which Started with a Defect 100
Conclusion 102
Appendix C
The 1992 New York Get Law: A Less than
Ideal Solution that Creates Halachic Problems 103
Introduction 103
Halachic Considerations 105
The Reality of Divorce 113
Conclusion 115
Appendix D
Brief History of Secular Marriage and Divorce Law 119
Appendix E
Civil Death as a Concept in Public Marriage Jurisdictions
Including American Law and Islamic Law 125
Appendix F
Sample Arbitration and Prenuptial Agreements 127
Memorandum of Agreement 128
Model A 128
Model B 129
Model C 129
Model D 129
Model E 130
Additional Paragraph Governing Fault 130
Model F: The Prenuptial Agreement Authorized
by the Orthodox Caucus 132
Notes 137
Table of References 187
Subject Index 193
About the Author 197
x