Jewish Divorce in the International Arena

PRIVATE LAW IN THE INTERNATIONAL ARENA, pp. 135-153, J. Basedow, ed., T.M.C. Asser Press, 2000

19 Pages Posted: 9 Sep 2011

See all articles by Talia Einhorn

Talia Einhorn

Tel Aviv University - Faculty of Management; Ariel University - Department of Economics and Business Management

Date Written: July 28, 2000

Abstract

Jewish law, like other religious laws, commands universal application to all Jews. Had all states chosen religious law to apply to marriage and divorce, limping marriages and divorces would have been restricted to persons who are regarded as belonging to several religions (decided from the point of view of that religion), or to none. This would have also been the case had all persons, regardless of the civil law applicable to such matters, adhered to religious laws. However, as long as some states, e.g., Israel, apply religious law to personal status, whereas others apply civil law, limping personal status poses a very real problem.1 Such conflicts befall also Jews who regard themselves bound not only by the civil laws of their state of habitual residence, but also, by autonomous choice, by Jewish law precepts.

The modern, relatively free movement of persons in the international arena has created an urgent need for harmonization of personal status under civil and religious laws. A Jewish couple, married and domiciled in Israel, may move to a country which recognizes only civil divorces. Following an irretrievable marriage breakdown, one spouse sues for divorce and has the marriage dissolved by the civil court. Civil divorce is not recognized by Jewish law. Should the wife return to Israel she would remain agunah, i.e., anchored or chained to her husband until a Jewish divorce is effected. Any children that she may have as a result of her relations with another Jewish man would be considered mamzerim, bastards according to Jewish law, unable to marry a Jew, unless the intended spouse is a mamzer too, or a proselyte.

The paper first explains the Jewish law rules regarding divorce and their application in Israel. An analysis will follow of the response of Jewish law to the problems of limping personal status. Although it is in the first place the responsibility of the rabbinical authorities to help the members of their religious community, it is arguable that Western Civilization, by separating State from Religion, has deprived religious authorities of the power they had previously to deal with such situations. Indeed, the civil courts of many states found ways to mitigate the suffering of chained spouses, mostly wives but occasionally some husbands. Some states have even responded with helpful legislation.

Keywords: Jewish divorce, comparative law, Jewish law, family law, divorce, law and religion

Suggested Citation

Einhorn, Talia, Jewish Divorce in the International Arena (July 28, 2000). PRIVATE LAW IN THE INTERNATIONAL ARENA, pp. 135-153, J. Basedow, ed., T.M.C. Asser Press, 2000. Available at SSRN: https://ssrn.com/abstract=1924025

Talia Einhorn (Contact Author)

Tel Aviv University - Faculty of Management ( email )

P.O. Box 39010
Ramat Aviv, Tel Aviv, 6139001
Israel
+972548181540 (Phone)

Ariel University - Department of Economics and Business Management ( email )

Ariel, 40700
Israel
+972-54-8181540 (Phone)

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