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
Date Written: July 28, 2000
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
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