Marriage, Divorce, and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America

by Broyde, Michael J.

• ISBN13: 9780881256789
• ISBN10: 0881256781
• Format: Hardcover
• Copyright: 2000-11-01
• Publisher: Ktav Pub Inc

Table of Contents

Foreword The Purpose of This Book	xi
Preface A Restatement of the Agunah Problem	xv
Jewish Marriage: A Conceptual Review of Marriages in the Jewish Tradition	1	(14)
The Fault Exception	3	(1)
Historical Agunah Problems and Solutions	3	(1)
The Talmudic Agunah Problem	3	(2)
The Levirate Marriage Problem and the Case of Agunah	5	(2)
Summary	7	(1)
The Modern Agunah Problem	7	(1)
Solved Cases	7	(1)
The American Agunah Problem	8	(2)
Proposed Solutions to the American Agunah Problem	10	(1)
Annulments	11	(1)
Conditional Marriages	12	(1)
Conditional Promises to Give a Get	12	(1)
State Intervention in the Jewish Divorce Process	12	(1)
Support Agreements	13	(2)
Paradigms for Marriage as Grounds for Divorce in the Jewish Law Tradition: An Historical Review	15	(14)
The Image of Divorce in the Torah	17	(1)
The Rabbinic Period	17	(2)
Post-Talmudic Jewish Law I: The Geonim	19	(1)
Post-Talmudic Jewish Law II	20	(1)
Option I: Unilateral No-Fault Divorce	20	(1)
Option II: Mutual Consent or Hard Fault	21	(1)
Option III: Return to Contractual Rules	22	(1)
Option IV: Marital Abode as the Norm	23	(1)
Gender Equality as the Issue?	23	(2)
Modern Developments and Summary	25	(4)
Chart 2.1: Views of Marriage, Divorce, and Igun in the Era of the Rishonim	28	(1)
Dual System and Divorce: The Impact on the Agunah Problem of the American Legal System	29	(14)
Introduction	29	(1)
The Dual System and the Problem of the Agunah	30	(2)
Two Legal Systems	32	(1)
A Comparison of Private and Public Law Models	33	(2)
The New York Experience	35	(1)
Creating the Right to Be Divorced	36	(1)
One Solution: Ignore the Dual System Problem	37	(1)
A Critique of This Approach	38	(1)
The Issue of Commercial Custom	38	(1)
Another Solution: Follow Secular Law	39	(1)
Summary of the Dual System Problems	40	(3)
The Role of Bet Din: How Does a Jewish Court Prevent Abandonment of Spouses?	43	(16)
Introduction: Theory and History	43	(1)
The Modern Reality	43	(2)
Jewish Law and Its Role in Marriage	45	(1)
Modern Jewish Law and Marriage in America	46	(3)
Modern Jewish Law and Marriage in Israel	49	(3)
Comparison of Modern Jewish Law and Marriage in Israel and America	52	(2)
The Bet Din Issue in America	54	(1)
The Relationship Between the Bet Din System and the Secular System	55	(2)
Conclusion	57	(2)
The Multitextured Agunah Problem and Proposed Modern Solutions: A Conceptual Critique	59	(14)
Unilateral No-Fault Divorce as the Solution	60	(3)
Abandoning Marriage as a Solution	63	(1)
Contractarian Solutions and Their Problems	63	(2)
Rabbinical Tribunals as a Solution	65	(1)
Prenuptial Agreements as Marriage Contracts	66	(2)
Secular Intervention as a Model for Divorce	68	(2)
Summary of the Modern Solutions and Their Problems	70	(3)
Chart 5.1: Views of Marriage, Divorce, and Igun in the Modern Era	71	(2)
Summary: A Conceptualization of the Agunah Problem	73	(6)
The Nature of the Agunah Problem	73	(2)
Preconditions to Successful Solutions	75	(4)
Summary: A Conceptualization of Solutions to the Agunah Problem	79	(6)
The Nature of the Solutions	79	(2)
Pluralistic Images of Marriage and Divorce	81	(1)
Multiple Types of Prenuptial Agreements: A Real Solution to the Root Problem of Multiple Image of Divorce	82	(1)
The Bet Din System	82	(3)
Conclusion: What Can Be Done?	85	(2)
Appendix A A Brief Historical Introduction to Jewish Law	87	(2)
Appendix B Error in the Creation of Jewish Marriages: Under What Circumstances Can Error Void the Marriage Without Requiring a Get	89	(14)
Preface	89	(2)
Introduction	91	(1)
Marriage as Contract	92	(5)
Defects in the Man	97	(3)
Continuing Marriage Which Started with a Defect	100	(2)
Conclusion	102	(1)
Appendix C The 1992 New York Get Law: A Less than Ideal Solution that Creates Halachic Problems	103	(16)
Introduction	103	(2)
Halachic Considerations	105	(8)
The Reality of Divorce	113	(2)
Conclusion	115	(4)
Appendix D Brief History of Secular Marriage and Divorce Law	119	(6)
Appendix E Civil Death as a Concept in Public Marriage Jurisdictions Including American Law and Islamic Law	125	(2)
Appendix F Sample Arbitration and Prenuptial Agreements	127	(10)
Memorandum of Agreement	128	(1)
Model A	128	(1)
Model B	129	(1)
Model C	129	(1)
Model D	129	(1)
Model E	130	(1)
Additional Paragraph Governing Fault	130	(2)
Model F: The Prenuptial Agreement Authorized by the Orthodox Caucus	132	(5)
Notes	137	(50)
Table of References	187	(6)
Subject Index	193	(4)
About the Author	197