JEWISH LAW, STATE, AND SOCIAL REALITY: PRENUPTIAL AGREEMENTS FOR THE PREVENTION OF DIVORCE REFUSAL IN ISRAEL AND THE UNITED STATES

Abstract

AbstractRabbinical courts in Israel serve as official courts of the state, and state law provides that a Jewish couple can obtain a divorce only in these courts, and only strictly according to Jewish law. By contrast, in the Western world, especially the United States, which has the largest concentration of Jews outside of Israel, the Jewish halakha is not a matter of state law, and rabbinical courts have no official status. This article examines critically the common argument that for a Jew committed to the halakha, and in particular for a Jewish woman who wants to divorce her husband, a state-sponsored halakhic system is preferable to a voluntary one. This argument is considered in light of the main tool that has been proven to help American Jewish women who wish to obtain a halakhic divorce from husbands refusing to grant it: the prenuptial agreement. Many Jewish couples in the United States sign such an agreement, but only a few couples in Israel do so, primarily because of the opposition of the rabbinical courts in Israel to these agreements. The article examines the causes of this resistance, and offers reasons for the distinction that exists between the United States and Israel. It turns out that social and legal reality affect halakhic considerations, to the point where rabbis claim that what the halakha allows in the United States it prohibits in Israel. The last part of the article uses examples from the past to examine the possibility that social change in Israel will affect the rulings of rabbinical courts on this issue.