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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 .tma avh Kvrb wvdqh lw vmtvc .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 BroydeTOC Page viii Friday, January 19, 2001 3:17 PM 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 BroydeTOC Page ix Friday, January 19, 2001 3:17 PM 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 foreword Page xi Friday, January 19, 2001 3:20 PM FOREWORD The Purpose of This Book This book is about the relationship between the institution of mar- riage and the process for ending that institution in the Jewish tradi- tion. The Jewish tradition contains a number of different views of what the “ground rules” are for when divorce is proper, and these rules affect and effect when and how divorce happens. This book is not primarily about devising a mechanism to force the giving or receiving of a get in any particular case or set of cases; rather it aims to understand properly what we mean when we speak about the “agunah problem.” There are a number of different types of agunah problems (from soldiers lost at war to recalcitrant husbands) that are conceptually quite different from one another. We should not allow the use of a common term to confuse us into thinking that we have a single or united problem. Essentially, the modern American agunah problem relates to the inability of people to come to an agreement about the terms and conditions for ending their marriage, and thus the marriage does not end. The theoretical solutions to this problem are not difficult; four solutions come readily to mind, though not all of them are consis- tent with normative halachah.1 1. Judaism can change the rules of divorce so as to allow and encourage divorce anytime either side wishes to be divorced. Disagreements about procedure become secondary, as mar- xi foreword Page xii Friday, January 19, 2001 3:20 PM xii FOREWORD riage is viewed as a partnership, with either side able to leave whenever he or she wishes. (Annulment, then, becomes a mechanism to achieve this goal; conditional marriage or conditional divorce can be used similarly as well.)2 2. Judaism can follow the secular legal system and announce that whenever secular law rules the couple divorced, they should be divorced according to Jewish law too. Some pren- uptial agreements state this, creating an enforceable right to give or receive a get. 3. Judaism can revive and empower the Jewish court system so as to allow it to adjudicate when Jews should or should not be divorced, and to rule on the respective rights of the par- ties concerning marital assets and children. 4. Judaism can abandon Jewish marriages and allow adherents of Jewish law to marry civilly if they wish. Any one of these four solutions will accomplish the goal of elim- inating the agunah problem, but each in very different ways in terms of what marriages, and thus community and family, will look like. Option 1 weakens the bonds of marriage and makes people view marriage as a less stable institution. Option 2 continues the post- emancipation emasculation of Jewish law; ceding jurisdiction to the secular legal system rarely strengthens Judaism in either the long or the short run. Option 3 is not appealing since the bet din system lacks a track record for solving problems in America. Indeed, some claim that the system is close to non-functional generally. Option 4 changes the community in incalculable ways; the decision to aban- don marriage to solve the agunah problem would lead to the destruction of the Jewish marriage, and would produce dire conse- quences. As a matter of public policy, I am convinced that options 1 and 4 are disasters in the making for the Jewish community, having within them the ability to destroy the central features of the Ortho- dox Jewish community. (In addition, many of these proposals nakedly violate Jewish law.) In sum, I want not to write a book on how to solve the agunah problem; many different mechanisms have been proposed, each foreword Page xiii Friday, January 19, 2001 3:20 PM THE PURPOSE OF THIS BOOK xiii with its own strengths and weaknesses. Instead, my intention is to note that each of these possible solutions points the Jewish family in different directions, takes the Jewish community and its family structures down different paths, and produces a different type of Jewish family structure. This problem has not previously been explained, possibly because the agunah problems have not been well understood and explained.

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