After the Glass Has Shattered: A Comparative Analysis of Orthodox Jewish Divorce in the United States and Israel
Capell, Heather Lynn, Texas International Law Journal
The kalah' and chatan2 stand under the chupah.3 The chazan4 chants the Seven Blessings. The rings have been exchanged, the ketubah5 has been read and signed, and then, in the midst of the happiness, the chatan smashes a wineglass wrapped in cloth with his foot. Shattered, the glass lies on the floor. "Mazel Tov!"6 shouts the crowd. The Jewish marriage ritual is complete.7
The shattered glass symbolizes and reminds the couple and all of those in attendance of the many tears shed throughout the history of the Jewish people. The shattered glass symbolizes and reminds them of the destruction of the Temple in Jerusalem. This symbol and reminder serves to humble the couple as they begin their new life together, united as one.8 Unfortunately, for some the shattered glass foreshadows the fate of their union. For these few, the marriage will end tragically with a decision by one or both parties to divorce. For Jewish couples, this decision dictates that the divorce must be conducted under Jewish laws.
This paper will compare Orthodox Jewish divorce in two democratic legal systems: the secular family law of the United States and the religious family law of Israel. The analysis will trace the development of the law in both countries. This will include case analysis in both countries. Furthermore, this paper will examine these cases' different and similar impacts on the legal and social system in each country. The emphasis of change can be detected in newly created statutes as interpreted by the secular courts in the United States. The changes in the Israeli system are revealed in the increased jurisdiction of the secular courts over marital matters, at the expense of the religious courts. In both countries, however, there is a push toward using secular sanctions initiated by civil courts to compel citizens to subject themselves to the jurisdiction of the religious courts.
II. THE TWO LEGAL SYSTEMS
Both the United States and Israel are considered democracies. Both countries have established legal systems in which there are legislatures, courts, judges, and citizens. Each country, however, divides their legal scope of influence very differently from one another.
A. The US. Legal System and Family Law
The relevant parts of the U.S. family law system are the federal and state courts and legislatures. In the United States, marriage and divorce law are the subject of state statutes. Between 1969 and 1985, there was a fervent movement in the United States to reform the divorce laws from strict fault-based laws, which had been founded upon canon law, to more lenient types of no-fault or mixed-fault divorce statutes.9 Moreover, today's laws include the "acceptance or simplification of divorce by mutual consent."'o Divorce law in the United States is a civil matter, in which the laws develop through majority mandates from the legislatures" and through judicial decisions in state and federal courts interpreting the new and old statutes.12 U.S. courts have even gone as far as to suggest that the right to divorce is a constitutional right.l3
B. The Israeli Legal System and Family Law
Israel's legal system is founded upon principles influenced by traditional Jewish law and the success and structure of positive state law. This combination "is a source of substantive and procedural legal problems and of tensions in public life generally."'4 As a result of this tension, Israel does not have a written constitution.15 Instead, Israel has eleven Basic Laws which outline the existing practices and symbols of the State.'6 Israel has a loosely coordinated set of court systems: the civil courts, the military courts, and the courts of the fourteen recognized religious communities. Within Israel the civil courts have basic jurisdiction in criminal and civil matters.... The various religious courts have exclusive jurisdiction over members of their communities on matters relating to marriage and divorce; there is no civil marriage or divorce in Israel. …