Broyde, M. Marriage, Divorce, and the Abandoned Wife in Jewish Law

Michael J. Broyde, Marriage, Divorce, and the Abandoned Wife in Jewish Law (Hoboken, NJ, Ktav Publishing: 2001). [1]

For those of us concerned with the problem of the agunah, the wife trapped in a marriage from which she cannot escape, this book is very important. It is a historical survey of the problem but, more importantly, it is a conceptual analysis of a very complex phenomenon in Jewish and secular law, with solutions proposed at the end.

Chapter One is a review of the types and history of igun, abandonment in Jewish marriage. The agunah of the talmudic period was a woman whose husband had disappeared either involuntarily or voluntarily. The Talmud envisioned two solutions to ease this dilemma: liberalized rules of evidence attesting to the death of the husband, and conditional divorce granted before a long (and dangerous) trip. The medieval period added a new type of agunah: the woman whose husband had left Judaism for Christianity. There was no solution for this, except to make return to Judaism as easy as possible. The modern period added the husband who is recalcitrant, i.e., one who refuses to give a get for any of several reasons (pages 73-74 contain a full list).

Chapter Two is a review of the types of divorce in Jewish law and tradition, again arranged historically. The Torah provides for unilateral divorce by the male. The Talmud retains this but adds that the husband must pay the dower ( ketubah) which was not a nominal sum. The Talmud also offers two other types of divorce: one given by mutual consent with the financial aspects negotiated by the parties, and one ordered by the court in case of “fault,” that is, in case of a provable legal offense such as adultery.

The geonim, perhaps recognizing that the woman did not have equal access, provided a new form of divorce: “unilateral, no-fault” divorce. “Unilateral” here means that either side could simply declare that the marriage had ended and file for divorce. “No fault” does not mean that no one is at fault; rather, it means that no legally defined, provable fault such as adultery is necessary in order to file for divorce. Thus, either party can say “she / he is repugnant to me,” i. e., either party can use a subjective criterion as grounds for divorce. This is also known as “soft fault,” as opposed to the more formal “hard fault,” divorce. The geonic “unilateral, no fault / soft fault” divorce was adopted by Maimonides but rejected by everyone else.

The European rishonim, especially Rabbenu Gershom and Rabbenu Tam, perhaps recognizing that the woman did not have equal access, reaffirmed both hard fault divorce and mutual consent. Thus, either, one side had to prove legal “fault” or, divorce had to be only by mutual consent. This latter option meant that neither side could exit the marriage without the agreement of the other, thus forcing both either to remain married or to negotiate. By eliminating polygamy, the pressure was equalized on the man and the woman. Note that both must actually sue for divorce if there is no mutual consent.

Thus, the geonim, thus, solved the problem of the agunah by freeing both sides to initiate divorce on any grounds, while the European rishonim solved it by making neither side free to end the marriage without the full consent of the other. The latter also approved means of pressuring the man to give a get where he was refusing to do so if the court judged the grounds serious enough for pressure but not serious enough for a court ordered divorce. Later sefaradim, rejecting the geonic-Maimonidean form, solved the problem of the agunah by building provisions into the ketubah. One opinion (the Or Zarua) proposed that, if the marriage had been ended in fact by either side leaving the marital domicile, then it could be ended in law by court order.

Chapter Three deals with the modern phenomenon in which there is a civil divorce and no religious divorce. Here the issue is “entitlement” to a get. According to the Or Zarua, the woman is “entitled” to a get when the marriage is over in fact, which a civil divorce accomplishes, and hence a get should be ordered by the bet din . According to others, Jewish law, in order to retain its integrity as a legal system, must retain the right to determine when a woman is “entitled” to a get. In this view, a civil court can never do this for Jewish law. (“Entitlement” is a function of a court decree and is to be differentiated from the party’s “right of action” which is the right to bring the case before a court. The latter is almost always a given right, though the party may not be successful in court.)

Chapter Four discusses the various functions of a bet din and bemoans the lack of power from which the bet din systems suffers.

Chapters Five through Eight examine critically four solutions to the agunah problem available today:

(1) “unilateral no fault” get, following the geonim and Maimonides. This may seem desirable but Broyde argues that the consensus of the orthodox community, substantiated by sociological research in the general world, is that this option does not stabilize marriage. Rather, most Jews want some form of structure for end of marriage problems. Further, this solution does not reduce the antagonism in divorce proceedings. In addition, there are technical problems with returning to a rejected form of Jewish law
(2) “follow the civil courts” (i.e., issue a court ordered get after they do), following the Or Zarua. This, too, may seem reasonable but Broyde argues it impugns the integrity of the Jewish legal system, yielding authority on a very key issue to the civil court system
(3) “allow concubinage,” (i.e., allow men to have more than one woman within Jewish marriage, not as an illicit affair, while still not committing polygamy). This, Broyde argues, would undermine traditional Jewish family life.
(4) “prenuptial contract” which could take several forms including financial penalties in case of recalcitrance by either party, arbitration by a bet din , etc. (Appendix F provides seven types of prenuptial contract that have been approved by various rabbinic authorities.) This, Broyde argues, is the best alternative — halakhically, for various technical reasons and, conceptually, because it preserves marriage as essentially a matter of private contract and not court or state order. However, Broyde argues, one must not propose only one form of prenuptial agreement; rather, one must present all the options available to each couple and help them discuss and choose. This increases the free consent to the contract. Finally, Broyde argues, the prenuptial contract procedure will create a multiplicity of marriage arrangements within the community which will exist side by side, with some communities favoring one and others favoring another — just as the traditional community has parallel standards of kashrut, of Shabbat observance, of family purity observance, etc. Each of these instances is “halakhic” and each has a community that adheres to them, and yet all coexist within the traditional Jewish community. The same could be the case for prenuptial agreements and this would solve the problem of the agunah is modern society.

Marriage, Divorce, and the Abandoned Wife in Jewish Law is a text on three levels: the analysis itself, the footnotes which contain further argumentation for those interested in the details of Jewish law and sources, and the appendices which deal in greater depth with certain issues: annulment, the New York get laws, types of prenuptial contracts, etc. The reader can, thus, choose the level of his or her involvement.

The oral Torah to this book, as I have heard it from Rabbi Broyde, is as interesting as the book. Basically, modern people, Jewish and non-Jewish, must confront two issues: First, should there really be soft fault divorce? That is, should one really be able to say “I have found someone else and I want out” and obtain a divorce on those grounds? And second, should men and women have equal access to such soft fault divorce? The second question is easier to answer than the first. Yes, whatever access to divorce is available, it should be the same for men and women. This problem is largely solved in Jewish law for, as noted above, either there must be consent of both parties or both parties must go to a bet din .

The first question is harder because, on the one hand, we think one should be able to exit from an unhappy marriage easily but, on the other hand, we believe in the institution of marriage and want to strengthen it. This requires making exit difficult, albeit for both parties. Jewish law, in order to strengthen the institution of marriage, has taken the stance that exit should not be easy, that divorce should be difficult, even though it must be equally available to men and women. Hence, if there is no hard fault and no mutual consent, the couple must remain married. This could lead to a situation in which one party would try to “buy” the consent of the other. If this succeeded, it might be unpleasant but at least it would be consensual (“I agree to this divorce, though I would really rather not, in return for a very large settlement”). This may sound unfair but it is not for, even if the settlement might not accomplish other more emotional goals, both parties must agree and sign on the line for it. On this matter we, as Jews, must give more thought to the values we wish Jewish law to embody.

Broyde’s analysis is very lucid, intellectually and historically. It is also very learned, as those acquainted with his work in other areas of halakha would expect. Broyde’s proposal for a multiplicity of prenuptial agreements as the means for eliminating the problem of the agunah will probably work, if the rabbinate can ever agree on a systematic use of this method. I am not terribly sanguine on this. I rather suspect that the non-orthodox community will just disregard halakha and the orthodox community will just suffer the injustices of the system. Orthodox batei din, in America where they don’t have coercive power and in Israel where they have it but won’t use it, are likely to do nothing to ameliorate the situation. Further, as long as coercion is not used, current agunah cases will not be solved, leaving that injustice unremedied.

In addition, since all of the rabbinic judges are male, it is, in the final analysis, through male (and orthodox) eyes that women are, and will be, seen and judged. Women’s perspectives and issues will not be raised and, if raised, not dealt with. In the American legal system, by contrast, there are certain changes effected in actual law by the presence of women attorneys and judges, primarily a sensitivity to women’s concerns and goals. This will not occur in Broyde’s proposal and protestations of “male objectivity” have not, sociologically, proven to be true in law, medicine, business, or elsewhere in human society.

This is a fine book and it is good to have a clear analysis and clear proposals.

This review appeared in Conservative Judaism, 54:2 (Winter 2003) 90-92.

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