Category

Marriage

Hafkaat Kiddushin

By | Marriage, Religion and State | No Comments

This position paper presents the proposed law that seeks a legally mandated solution for the problem of aginut (the situation whereby a spouse is ‘chained’ to a marriage) resulting from the husband’s refusal to grant his wife a get (a halakhic divorce), or from her refusal to accept a get.  A get ends the marriage. The proposed law is based on a mechanism that was suggested in the Babylonian Talmud to enable the Beit Din (Rabbinic Court), in severe circumstances, to annul the validity of the betrothal that the couple had originally mutually entered. This mechanism is termed hafka’at kiddushin (retroactive annulment of the betrothal).

As explained in the paper, the authority for such retroactive annulment is given not only to the Beit Din but also to the ‘kahal’ – the community. In other words, the community in which the couple lived, also has the authority to decide on implementation of the retroactive annulment of a betrothal in those cases in which the members of the community see fit. In contemporary circumstances, the ability to make such decisions “in the name of the community” can be understood to reside with our elected representatives i.e., the members of the Knesset. The central recommendation of Professor Berachyahu Lifshitz,[1] the author of this paper, is that the harsh reality of aginut created by recalcitrant husbands, should lead the Knesset to legislate the use of hafka’at kiddushin as a means of solving the problem, thereby saving women from this tragic plight.

[1] Berachyahu Lifshitz is a professor of law, senior research fellow at the Institute for Zionist Strategies, the former dean of the Faculty of Law at the Hebrew University, an expert in Jewish Law and laureate of the EMET Prize awarded under the auspices of the Prime Minister of Israel.

To the full research…

The Race for Jurisdiction

By | Marriage, Religion and State | No Comments

By: Ariel Finkelstain, Arieh Ulman

Assisted: Roy Yellinek, Daniel Wildlansky

The first chapter of this position paper will present the legal background, the current situation, and the implications of the issue commonly known as the “race for jurisdiction.” The existing legal situation in Israel has the rabbinical courts as the only system authorized to settle divorce cases and the giving of a get. The attendant issues in the divorce (property division, custody, and alimony) can be decided in either the rabbinical or the family courts. The crucial element in deciding which legal system will resolve disputes on these matters is a chronological test: the system in which the first claim was made is the system which will hear the case. Read More

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