HUSBAND AND WIFE
A. Beeri, The husband's obligation to support his wife in Israeli
Law; the rebellious wife and her right to maintenance (Heb.), Ramat-Gan,
l982, Pp. 484 (Bar-Ilan University Dissertation); see KS 58/4 no.
5802.
J. David Bleich, "Jewish Divorce: Judicial Misconceptions and
Possible Means of Civil Enforcement", Connecticut Law Review
16/2 (1984), 201-289. - The author argues that civil enforcement of a
get in American courts ought not to fall foul of first amendment problems,
since the get is a non-religious act of the parties (comparable to
a contract under Jewish law), and not a decree of a rabbinic court. He notes
a growing judicial recognition of the true character of the get in
American courts, and urges "a policy of non-intervention expressed
in the withholding of a decree of divorce in the absence of a get "
as a permissible form of pressure. (B.S.J.)
M. Chigier, Ha'ish veha'ishah bedine yisra'el, Jerusalem: Harry
Fischel Institute, l984, Pp. ii, 241; see KS 60/1-2 no. 1378.
M. Chigier, Husband and Wife in Israeli Law, Jerusalem: Harry
Fischel Institute for Research in Talmud and Jurisprudence, 1985, Pp.281.
- This is a useful summary of the legal regulation of marriage in the State
of Israel. Commencing with a historical survey from the Pre-State period,
the author deals successively with jurisdiction, matrimonial property, the
rights of widows and divorcees, the positions of Muslim and Christian women,
and the Agunah problem. (B.S.J.)
Y. Cohen, Jewish Legislation (Talmudic Era) regarding the economic
relations between spouses (Heb.), 2 vols., Tel-Aviv University Thesis,
1980.
M. Donaldson, "Kinship Theory in the Patriarchal Narratives:
The Case of the Barren Wife", JAAR 79:1 (1981), 77-87. - The
kinship theories of Lévi-Strauss conduce to reading the patriarchal
narratives synchronically. This shifts the emphasis from fathers-and-sons
and instead asks "who is the legitimate wife?" Lying between incest
(Abram-Sarah) and exogamy (Esau), the answer is that the legitimate wife
is a matrilateral cross cousin. (S.N.R.)
Diana R. Engel, "Marital Property Rights in Jewish Law: A Survey
and Comparison", National Jewish Law Review II (1987), 97-122.
Ze'ev Falk, "Concerning Marriage in Hosea and Malachi" (Heb),
in Studies in the Bible and the Hebrew Language offered to Meir Wallenstein,
on the Occasion of his Seventy-fifth Birthday, edited by C. Rabin, D.
Patterson, B.-Z. Luria, Y. Avishur (Jerusalem: Kiryat Sepher, 1979), 188-195.
- Falk deals first with Hos. 2-3, and makes a series of observations
on the legal phraseology or topoi, with frequent references to rabbinic
literature. For example, he states that the children's names (lo' 'ammi,
etc.) imply a temporary annulment of their paternal relationship; that the
marriage term ishi reflects a shift from a patriarchal notion of
marriage to a more egalitarian one. Falk then digresses on old biblical
family law, and suggests that Zech. 13:3, where the parents must
kill their son for a false prophecy, is related to notions in Deut.
13:7-12, and reflects a reversion to older family laws, where relations
executed punishment (vs. the pre-exilic development reflected in Deut.
21:19). Regarding Malachi, Falk interprets the fact that intermarriage desecrates
the Kodesh YHWH (2:11) in light of the "holy seed" of Israel
concept in Ezra 9:2 (cf. Lev. 21:15), or possibly as related
to the idea of a holy covenant (cf. Dan. 11:28,30). Falk stresses
that for Malachi marriage was a permanent affair; and draws an a fortiori
comparison between the fact that God can annul his divorce with Israel and
the teaching to Israel that their human love must overlook iniquities in
marriage. (M.F.)
I. Francus, "The Approaches of the Babylonian and Jerusalem Talmuds
to the Widow's Right to Claim her Ketubah from Movable Property"
(Heb.), Sinai 86 (5740), 136-148. - The Gaonim changed the Talmudic
law that a widow could only collect her Ketubah from immovable property
and allowed her to collect it from chattels too. The article deals with
two passages in the Talmud dealing with this law, with a view to
clarifying the law in the Talmudic period. (Y.S.K.)
S. Friedman, "The Case of the Woman with two Husbands in Talmudic
and Ancient Near eastern Law", Israel Law Review 15 (1980),
530-558. - The author considers Yeb. 10:1,3: the case of a woman
who marries another man during the absence of her husband. Unlike the ancient
Near East sources (Laws of Eshnunna 29, 30, LH 133-136, Assyrian Laws 45)
rabbinic jurisprudence allows the deserted woman to marry another man only
on the testimony that he had died. According to the mishnaic sources, if
she re-marries without authorisation of the Beth Din, her second marriage
is considered not valid and, on his return, she is allowed to return to
her first husband. On the other hand, if she re-marries with such authorisation,
her second marriage is considered valid; in this case, she is compelled
to leave both men. This decision results from the fact that the Sages regarded
as unlawful the co-existence of two valid marriages: no idea of a penal
function is involved in this decision. (D.P.)
T. Frymer-Kensky, "Patriarchal Family Relationships and Near
Eastern Law", The Biblical Archaeologist 14 (1981), 209-214.
- The author sees the patriarchal material as authentically reflecting a
general cuneiform tradition of the ancient Near East. A common pattern of
the extended family is sketched which is seen as being patrilocal in residence,
patripotestal in power and patrilineal in descent. The well rehearsed problems
of childlessness, the barren wife, adoption and inheritance, particularly
in Gen. 15 and 16, are examined in the light of cuneiform material.
The consistent biblical motif of choosing the younger son over the older
is seen to reflect the Near Eastern use of the terms "first-born",
as well as "son", "father", "brother" and
"sister", as the description of a judicial relationship which
is a matter of choice and can be entered into by contract as well as by
birth. (K.W.W.)
Irwin H. Haut, Divorce in Jewish Law and Life, New York: Sepher-Hermon
Press, 1983, ISBN 0-87203-110-1, Pp. xiii, 146, Price: $12.50 (Studies in
Jewish Jurisprudence, V). - Prompted by the increasing problem encountered
in the civil courts of dealing with failure to deliver or accept a get,
this book seeks to provide the courts, the legal profession and the general
public with an understanding of the principles of the Jewish law of marriage
and divorce, with particular attention to the problem of get. He
deals with the formalities of marriage, marital obligations, the ketubah
(providing an English text), rabbinic takanot, the get and
its formal requirements, the wife's right to sue for divorce, the get
procedure (according to the Shulhan Arukh) and the legal consequences
of divorce. Turning to modern problems, he deals with the relations between
civil and religious divorce, the Conservative ketubah, and the response
of American courts to the get problem, particularly in the state
of New York. The response of Israeli courts is also briefly treated. In
surveying rabbinic proposals to solve the get problem, he advocates
a takanah which would empower the rabbinate to annul marriages as
a last resort. The Opinions of Wachtler, J., and Jones, J. (dissenting)
in Avitzur v. Avitzur are extracted in an Appendix. This book
will add nothing new for the specialist, but may certainly assist the lay
public in grasping the general character of the problem. (B.S.J.)
The Jewish Law Annual, ed. B.S. Jackson, Leiden: E.J. Brill,
Vol.IV, 1981, ISBN 90 04 06504 0, Pp. vii, 332, Price: Gld.108. - Part One
consists in a major symposium on "The Wife's Right to Divorce",
with articles which deal with the ancient Near East (Lipinski), Biblical
law (Zakovitch), The New Testament (Lvestam), the intertestamental and early
rabbinic period (Piattelli), the Roman Empire (Rabello), the Cairo Geniza
documents (Friedman), and the period of the Rishonim (Shilo, on the
particular problem of impotence as a ground for divorce). The modern problem
of the wife denied a get by her husband is dealt with in articles
by Washofski, Bleich, Novak and Chigier, and the relationship between civil
and religious laws are considered by Meislin (for North America) and Freeman
(England). An extract is published from the judgment of Judge Held in Stern
v. Stern. Comparative perspectives on the problem are provided by
Pearl (for Muslim law) and Derrett (Hindu law). The Editor in his Introduction
argues for reversal of the normal rule of priority, which requires the parties
to obtain a civil divorce before approaching the religious authorities.
(B.S.J.)
Tryggve Kronholm, "Polygami och monogami i Galma testamentet.
Med et utblick över den antika judendomen och Nya testamentet",
Svensk exegetisk Arsbok 47 (1982), 48-92. - In his article
on polygamy and monogamy the author gives a survey of Old Testament evidence
of the existence of both polygamy and monogamy from the very beginning of
Israel's history. It seems that for social and economic reasons polygamy
was mainly practised by the more prominent men of the Israelite tribes and
by the kings, while ordinary people practised monogamy or bigamy. The author
emphasizes the underlying monogamous ethos in the creation accounts and
in prophetic and wisdom literature. In a concluding survey of the attitude
in post-biblical Judaism it is shown how NT, the Essenes, possibly also
the Sadducees, the Samaritans etc. opposed polygamy, while the Pharisees
claimed that polygamy is accepted by the Torah. The controversy between
the Rabbis and the Church Fathers on this point is seen as a continuation
of inner-Jewish contradictory positions. The article ends with an English
summary. (K.N
H. Klein, "Natur und recht: Israels Umgang mit dem Hochzeitsbrauchtum
seiner Umwelt", Theologische Zeitschrift 37 (1981), 3-18. -
Various biblical episodes give an insight into marriage customs, probably
of Canaanite origin, which though recorded were not officially sanctioned
by the biblical writers. Judg. 21:19-23; Gen. 38:12-26; Gen.
34 reflect Canaanite methods of finding a marriage partner. Hos.
4:13 reflects the custom of ritualized adultery after the wedding. Gen.
2-3 and Song. 3:6-11 allude to ceremonies associated with the wedding
itself. Probably Israelite men were allowed more liberty in following these
foreign customs than their womenfolk. (G.J.W.)
Hans-Aage Mink, "Indtil døden skiller jer ad. Ægteskab
of skilsmisse i den antike jødedom of kristendommen", in Tekster
of Tolkninger. Ti studier i Det gamle Testamente, ed.Kund Jeppesen
& Frederick H. Cryer (Anis, 1986), 155-74. - In his article "Till
death do you part" Hans-Aage Mink gives a survey of marriage and divorce
in Old Testament law and storytelling. He concludes that polygamy does not
seem to have been common in pre-exilic times, and argues that in post-exilic
time polygamy as well as divorce has been limited as much as possible. In
rabbinic literature discussions about divorce are frequent and show two
main trends: a more conservative and a more liberal. The more restrictive
trend can be found in the Qumran texts and in the New Testament. Monogamy
is regarded as the will of God, all from creation. But in the teaching of
Jesus divorce is regarded not only as something contrary to the original
will of God, but as more or less belonging to the reality of human life.
Monogamy is a blessed way of living, but other things than death are able
to separate what God has brought together. (K.N.)
J.R. Mueller, "The Temple Scroll and the Gospel Divorce Texts",
RQ vol 10, no 38 (1980), 247-56. - Mueller seeks to draw some implications
from the Temple Scroll on marriage, and also to try to solve some cruces
in the gospels. He notes that 11Q Temple LVII:17-19 is opposed to
polygamy and divorce for the king, and suggests that it applies to the people
as well. He further suggests that 11Q Temple LXVI:11-17, which combines
various biblical laws against incest, is an attempt to redefine this issue
(also of concern to Dam Doc. V:7-11). He claims that Dam Doc.
IV:20-21 is clarified by the Temple scroll and must be understood as opposed
to polygamy and divorce. Further, with respect to Gospel passages, Mueller
suggest that 11Q Temple LVII, which is against polygamy and
incest, and associates unchastity with incestuous marriage, may have influenced
Mark 10:2, where the question is raised - without further qualification
- whether divorce is permitted; and it may have influenced the phrase "except
for unchastity" in Mt. 19:9, and indicate that the Greek porneia
may refer to illicit marriage (not adultery). (M.F.)
J. Murphy-O'Connor, "The Divorced women in 1 Cor.7:10-11",
JBL 100 (1981), 601-606. - The author argues that since choristhenai
(1 Cor. 7:10) is an aorist passive infinitive, it should be
translated "the wife should not be separated from her
husband." Paul sometimes uses the passive with the connotation "to
allow to be" (1 Cor. 6:7; Rom. 12:2). He thus
translates 7:10a as "the wife should not allow herself to be separated
from her husband", which is the reverse of "the husband should
not divorce his wife" (7:11c). If it is wrong for the husband to issue
a writ of divorce, it is equally wrong for the wife to accept it since this
is disobedience to God. 7:1-9 is a reaction to a specific situation in Corinth,
where ascetics were advocating married couples should abstain from sexual
intercourse. It is this situation which might lead to divorce if the partners
do not agree. Paul refuses divorce in 7:10-11 because the grounds were insufficient,
but permits it in 7:15 where the reason is convincing. He concludes that
Paul considered Jesus's prohibition of divorce, not as a binding precept,
but a directive whose relevance to a specific situation had to be evaluated
by the pastor. (K.W.W.)
Reinhard Neudecker, Frührabbinisches Ehescheidungsrecht: Der
Tosefta-Traktat Gittin, Rome: Biblical Institute Press, 1982, ISBN pbk,
Pp. XVII, 133, Price: $30.00 (Biblica et Orientalia 39) - This German version
of Tosefta Gittin is based on the Erfurt ms (now Ms.or.fol.1220 of the Staatsbibliothek,
Berlin), photographs of which are supplied at the end of the volume. Variants
from the Vienna ms, the Venice 1521 editio princeps of Alfasi, the
Paris Genizah fragment of Gittin, and the Vatican codex, Hebr. 169, are
regularly discussed. The commentary is devoted largely to elucidating, in
rather "atomistic" fashion, basic problems of translation and
meaning. Broader issues, such as the relationship between the various text-witnesses,
the structure of the tractate, and the relationship of Mishnah to Tosefta,
should have received more attention. Neusner's Tosefta translation and his
History of the Mishnaic Law of Women came too late for Neudecker
to use systematically, but he gives his reactions to Neusner's work on pp.
XIII-XVI of his Vorwort. This is a useful and generally competent
contribution to the study of early Rabbinic literature. (P.S.A.)
W.E. Phipps, "Is Paul's Attitude towards Sexual Relations Contained
in 1 Cor. 7:1?", New Testament Studies 28 (1982),
125-131. - No. In 1 Cor. 7:1 Paul is quoting a slogan of the Corinthian
Christians which he rejected. Paul approved of sexual intercourse within
marriage. (G.J.W.)
T. Prewitt, "Kinship Structures and the Genesis Genealogies",
JNES 40 (1981), 87-98. - Abram is the oldest of Terah's sons. This
means, according to "some ideal political relationships common to anthropologically
known contemporary systems", that Abram will be the chief "wife-taker"
in the Hierarchized group Abram-Nahor-Haran. The article also notes a persistent
south-south-westerly movement of the "Terah connubium". (S.N.R.)
S. Riskin, The "moredet"; a study of the rebellious wife
and her status in initiating divorce in Jewish law, Ann Arbor: University
Microfilms International, l983, Pp. vii, 199; see KS 59/4 no. 6031.
W. Rudolph, "Zu Mal 2 10-16", ZAW 93 (1981), 85-90.
- Rudolph rejects the view of S. Schreiner, who in ZAW 91 (1979),
207ff., had argued on the basis of Ma. 2:10-16 that Malachi tolerated
divorce in the manner of Deuteronomy, but regarded the second marriage as
inferior. Rudolph also notes other recent literature on Ma. 2:10-16. (J.D.)
B. Schereschewsky, Dine mishpahah, 3rd ed., Jerusalem: R. Mass,
l984, Pp. iv, 588; see KS 60/1-2 no. 1392.
Angelo Tosato, "Il transferimento dei beni nel matrimonio israelitico",
Bibbia e Oriente 27 (1985), 129-148; see OTA 9/3 (1986), no.761.
A. Tosato, Il matrimonio Israelitico, Rome: Biblical Institute
Press, 1982, Pp. xvi, 274, Price $19.00 (Analecta Biblica 100). - This book,
part of the author's doctoral thesis, is in fact his second book on this
theme; see also Il matrimonio nel Giudaismo antico e nel Nuovo Testamento,
Rome: Città Nouva, 1976. The present work is richly documented and
broadly conceived, more broadly than its title might suggest. For the author
includes an account of non-matrimonial modes of "taking" a woman
- as prisoner, slave or prostitute. His object in this is not merely historical;
he seeks to combat modern attacks upon marriage, viewing them as equivalent
to enslavement or prostitution. He is at pains to point out the superior
rights enjoyed by the wife as compared with the slave or prostitute. He
points out, on the basis of linguistic analysis, that there was a transformation
of the status of the husband as well as the wife; that the wife was not
a passive object in a commercial transaction; that the function of marriage
was to assure the legitimacy of the offspring, in the interests of both
parties; and that the resultant status of the wife was to be reserved exclusively
and unilaterally to the man who became her husband - a reservation not equivalent
to a property relationship, but rather a relationship of personal consecration.
The availability of polygamy to the man but not the woman is seen as an
advantage to the wife, protecting her from divorce; but rights of divorce
were enjoyed by both parties. Nevertheless, the woman was still in a position
of relative inferiority, to be improved as the institution of marriage developed
in the Jewish and Christian world. The author does well not to seek to conceal
his conservative orientation; nevertheless, his intelligent and detailed
marshalling of the sources, primary and secondary, make this a significant
contribution to a difficult topic. (B.S.J.)
R. Yaron, "The Missing Husband in Jewish Law", Mélanges
à la mémoire de Marcel-Henri Prévost (Paris: Presses
Universitaires de France, 1982), 133-140. - The author considers the obligations
of an absent husband to maintain his wife, and the problem of the missing
husband, whose whereabouts and fate are unknown. In the latter case, the
practice grew up of handing the wife a conditional get. The author
discusses various complications which may arise therefrom, as provided for
in the early rabbinic sources. (B.S.J
Moshe Yismach, "Polygamy in Israel" (Heb), Sinai
92 (1983), 240-246. - An account of the development of the injunction against
polygamy in Jewish Law. Y shows how the formal prohibitions against polygamy
in the Middle Ages are rooted in Biblical and Talmudic tradition, both of
which indicate that the practice while legally permissible was extremely
rare and in fact discouraged by the authorities. Opposition to the practice
was rooted in social and Halakhic considerations. In the Gaonic period the
social censure was replaced by formal communal prohibitions or the introduction
of a limiting clause in the marital contract, and later on by the famous
injunction (herem) of Rabbenu Gershom. The author also examines similarities
and differences in legal and social structures in polygamy. (M.J.P.)
Y. Yudlov, "A Judgment of the Venetian Rabbis of 1609" (Heb.),
Sinai 84 (5739), 166-172. - This judgment, which is also referred
to in the general Responsa literature, involved a marrano
who for some fifteen years had enjoyed the status of Kohen and now
wished to marry a divorcee. His argument was that there was insufficient
evidence of his priestly status and, therefore, the marriage ought to be
allowed since he was not, in fact, a Kohen. The case quickly became
a cause célÍbre, and the Rabbis of Venice, who
rejected the marrano's argument, felt the need for a speedy response
and published their decision in a separate volume which is presented in
the present article. This type of responsum presenting various judgments
on a particular issue, is a special, albeit rarely-found branch of the responsa
literature in general. (Y.S.K.)
About
| Officers | Constitution
| Membership | Conferences
Publications | Abstracts
| Resources | Courses
| Links
View the framed
or non-framed version of this site
|