jewish law association studies xiv · (a jewish bill of divorce) to the court, most likely to...

JEWISH LAW ASSOCIATION STUDIES XIV

The Jerusalem 2002 Conference Volume

Edited by

Hillel GalTIOran

Global Academic Publishing

State University of New York at Binghamton

15 A WESTERN VIEW

OF EASTERN MARRIAGE COMMENTS ON TIlE NUSRAT

SHAULlAN v SULTANA

SHA ULlAN DECISION by

ELIMELECH WESTREICH

In the Shaulian case the Israel Supreme Court denied the right of a Jewish woman of Persian origin to inherit her husband to whom she had been married by the religion of Moses and Israel and who divorced her against her will after he converted to Islam while they were still living in Iran The court preferred another Persian Jewish woman who married the same man also by Jewish law at a later date after he had converted back to Judaism The present paper argues that the court took a western view of marriage and divorce that were enacted in a purely oriental setting and has therefore reached an erroneous and unjust decision The correct decision would have been to recognize both women as wives of the deceased and to award them both rights to his estate This solution would conform to the expectations of the people involved in the case at the time of the marriages to the social norms in their environment and to the Iranian legal system

The details of the case as presented by the Supreme Court are as follows The first woman married Mr Shaulian in 1940 in Iran by the religion of Moses and Israel which is the personal law that applied to the parties in Iran The woman received a ketubah according to the local halakhic tradition After twenty five years of marriage in 1965 Mr Shaulian converted to Islam and the same year divorced his wife Two years after he divorced his wife he returned to the Jewish faith The first wife claimed that

Associate Professor in Family Law and Jewish Law Faculty of Law Tel-Aviv University Israel This research was supported by the Cegla Institute An earlier Hebrew version was published in Kiryat HaMishpat 3 (2003) 315shy343

250 JEWISH LAW ASSOCIAnON STIJDIES XIV JERUSALEM 2002

the purpose of the conversion to Islam was merely to allow her husband to divorce her against her will according to Islamic law Her attempts to annul the divorce in the Iranian courts were not successful In the eyes of Iranian law her husbands conversion to Islam was legal as was his divorce immediately following the conversion

The first wife made a further attempt in 1968 to have the law recognize the validity of her marriage While Mr Shaulian was travelling in Israel she filed for alimony in a rabbinical court in Israel but her suit was rejected for lack of jurisdiction as both parties were foreign citizens and foreign residents The rabbinical court succeeded only in persuading Mr Shaul ian to submit a get (a Jewish bill of divorce) to the court most likely to prevent the woman from becoming an agunah (an abandoned wife) But the woman did not take possession of the get and refused to be divorced The parties returned to Iran and in 1970 Mr Shaulian married another woman by Jewish law In 1980 Mr Shaulian and his second wife left Iran and emigrated to Israel In 1981 the first wife emigrated to the US In 1988 Mr Shaulian passed away and left his estate in Israel The first wife then sued in the District Court to be recognized as the only legal widow of the deceased and to deny the second wifes rights to any portion of the estate

Three legal acts of marriage and divorce took place in this case all of them in Iran Two acts of marriage between a man and two women according to Jewish law both recognized by the Muslim state law in Iran and one act of divorce according to Muslim law after the man converted to Islam and which dissolved the mans marriage with the first woman

The suit was rejected in the District Court in Israel and the first wife appealed to the Israel Supreme Court The decision handed down by Justice Dorner in which she was joined by Justices Or and Tal rejected the appeal of the first wife The court sided entirely with the second wife the respondent and recognized her as the only spouse entitled to inherit the deceased completely denying any portion of the estate to the first wife The court followed two lines of argumentation (a) to establish the first wifes claim as heir to the mans estate it was necessary to rule on the validity of the divorce

The courts request that he file a get should not be seen as a divorce decree since the rabbinical court had no jurisdiction to rule in matters relating to the couples marriage or divorce based on section 1 of the Rabbinical Courts Jurisdiction Law (Marriages and Divorces) 5713-1953 For a comprehensive and detailed analysis of Section I cited above see Prof M Shavas treatise Personal Law in Israel (Tel Aviv Modan Publishers 4th expanded edition 2001) by the index entry on 1017

ELIMELECH WESTREICH COMMENTS ON TIlE SHAUllAN DEOSION 251

by Israeli law (b) the conflict between two women laying claim to the same mall and now to his estate requires a decision as to which of them prevails and displaces the other

In her opening words Justice Dorner focused the discussion by saying that the central issue in the appeal before us is whether the appellant succeeded in refuting the validity of the respondents marriage with the deceased The logic of the Supreme Courts decision dominated by the issue of the second wifes marriage leads the justices to the conclusion that the first wife cannot inherit the deceased The position of the judges is unequivocal the court can recognize the right of only one woman to inherit the deceased there is no third way A binary decision must be reached as customary in property law and the alternative of a non-binary division of the type known in tort law as for example in cases of contributory negligence - does not exist

In reality the main issue is not the validity of the second wifes marriage This marriage is valid beyond any question without the need to consider matters of justice and equity in all legal systems touching upon the case the Iranian the Jewish and the Israeli But the mere validity of the second wifes marriage is not sufficient to exclude the first wife entirely from the Shaulian estate2 To decide this case it is necessary to determine whether the first wife is still considered to be married to her husband by Israeli law If the answer is affirmative the question becomes how to divide the portion of the estate to which spouses are entitled by Israeli law between the two widows

The difference between the approach followed by the Supreme Court in focusing the issue and that followed in this article is rooted in differences between the models of marriage applied in examining the case The Supreme Court applied as a matter of course the monogamous model that has been dominant in Western society and culture for about a thousand years Over many generations this model has been adopted by Ashkenazi Jewish tradition as the prevailing norm both socially and judicially Israeli law is also affected by this model as seen in both criminal legislation and court decisions In the present case however it would have been appropriate to apply the oriental model which is essentially polygamous This model has prospered since time immemorial among peoples and societies of the Middle East and has had a strong presence in Jewish society and in legal doctrine in

Contrary also to the first wifes position in her appeal who like the court postulated a binary situation in which either the first or the second wife was the legal wife of the deceased

2

252 JEWISH LAW ASSOCIATION STIJDIES XIV JERUSALEM 2002

talmudic times and beyond3 This presence is still felt among Jewish communities that lived in a Muslim environment and were relatively isolated from strong Sephardic and western influences Iranian Jews belong to the isolated communities To appreciate the uniqueness of this group a general understanding of polygamy in the relevant societies is necessary

PaUems ofMarriage

Today the common pattern of marriage in the world is the monogamous one But the exclusive union of one man and one woman is not the only one possible in the eyes of the law and of society Anthropologists maintain that if societies in all times and all places known to science are taken into account the monogamous pattern of marriage is the less frequent one Nevertheless western society which has dominated the world in the past 500 years has adopted the monogamous model which is why the model is important in the legal debate in Israel

The Christian West

For the past thousand years the monogamous model dominates marriage patterns in Western society without opposition Its roots are in Christian tradition and culture which regards marriage as a union between one man and one woman and does not recognize polygamous relationships4 The western view of marriage rejects bigamy entirely and regards such marriages as void The structure of the family monogamous or polygamous is among the most prominent differences between the Christian West and the Muslim East The inflexible monogamous family pattern crystallized definitively in Europe in the course of the 12th century following a long struggle and since then all social strata have rejected other models of the family that are contrary to the ancient Christian ideaJ5 Henceforth if a man married a

3 MA Friedman Jewish Polygyny in the Middle Ages Polygamy in Israel New Sources from the Cairo Geniza (Jerusalem The Bialik Institute Tel-Aviv University 1986) 7-28

4 International Encyclopedia of Comparative Law (Tfibingen ICoB Mohr 1997) Vol 4 (Mary Ann Glendon Chief Editor) ch3 (D Coester-Waltjen and M Coester) 34-34

5 IA Brundage Law Sex and Christian Society in Medieval Europe (Chicago and London University of Chicago Press 1987) 176-228 For the eradication of polygamy in western Christian society see ibid 23-25

ELIMELECH WESTREICH COMMENTS ON THE SHAULJAN DECISION 253

second woman wjthout divorcing the first one his second marriage was considered null and void and lacking legal validity and only his marriage to the first woman was recognized as valid

The tendency toward monogamy in Western Europe went so far as to rule out not only the simultaneous marriage to more than one spouse but also serial polygamy prohibiting divorce6 These legal arrangements (rejection of bigamy and denial of the validity of divorce) helped assimilate throughout

Western societies the Christian idea of the sacramental character of marriage7

The well-known 19th century definition of marriage in the English courts handed down in the Hyde case states Voluntary union for life of one man and one woman to the exclusion of all others8

This pattern of marriage has taken strong root and remains valid to this day among western Christian societies despite many upsets and changes that

the institution of marriage sustained in the 20th century Bigamy is rejected in all western countries and is considered a serious criminal offense9

Western legal thought operates in a social spiritual and intellectual space where a family consists of one man and one woman and does not tolerate another partner male or female The question Whom does the law regard as

someones wife has only one possible answer So-and-so or such-andshy

such not both

Ashkenazi Jews

The Western model of monogamous marriage gained common currency in the Ashkenazi tradition At the beginning of the second millennium Jews

residing in northern and western Europe began to develop a monogamous pattern of marriage Under the leadership of Rabbi Gershom Meor Hagolah

two regulations named after him were enacted which banned bigamy and divorcing a woman against her will 10 These restrictions had several legal

6 Ibid 183

7 For the end of this process in the middle of the 12th century see ibid 183

8 Hyde v Hyde (1886) LR 1 PampD 130 133 See International Encyclopedia of Comparative Law supra n4 at 33 For an extensive comparison of the positions of the English and Israeli legal systems see P ShUman Family Law in Israel (Jerusalem Harry and Michael Sacher Institute for Legislative Research and Comparative Law 1995 2nd ed) 1235-239

9 Ibid

10 E Westreich Transitions in the Legal Status of the Wife in Jewish Law A Journey Through Traditions (Jerusalem Magnes Press 2002) 62-70

254 JEWISH LAW ASSOCIA nON STIJDIES XIV JERUSALEM 2002

repercussions Their legal foundation was legislation of a public-criminal nature that held sway over the breadth of Ashkenazi and French Jewish culture including extensive ramifications in Eastern Europe The causes that justify the relaxation of these regulations which were accepted as a result of the restrictions imposed upon men greatly reduced and qualified the possibility of relaxing the regulations even in cases in which the man had a good reason to request it 11 Prominent trends among Ashkenazi halakhah scholars justified setting aside the regulations especially when the ground was based on subjective factors having to do with the womans behavior 12

But even if the mans claim was found to be justified the procedure necessary

to set aside the regulations (the approval of a hundred rabbis from three

countries) was so strict and encumbering that it greatly diminished even this

possibility of breaching the established framework 13 The system strictly

protected the regulations and issued stringently enforced bans against whoever violated them without proper authorization The regulations were accepted entirely both in the legal and the social sense by Jews living in these regions so that Jewish and Christian families became identical as far as polygamy was concerned

The Muslim East

Unlike the western Christian model the eastern and especially the Muslim one favors a polygamous familyl4 in which a man can take more

than one wife (but not the other way around) Various Islamic trends maintained that this was indeed a commandment and set the number of wives at four IS In all Muslim societies since the founding of Islam by Muhammad in the 7th century polygamy has been recognized as legal In several countries there have been attempts to limit this phenomenon Sheikh

11 Ibid 105 For greater detail see 106-155 1 2 Ibid 157-159 for a summary 13 Ibid 155-157

14 SD Goitein and A Ben-Shemesh Muslim Law in Israel (Jerusalem MiphaJ Hashichpul 1968) 131-132 See also International Encyclopedia of Comparative Law supra n4 at 31-32 J Schacht An Introduction to Islamic Law (Oxford Clarendon Press 1964) 161-168 A Fyzee Outlines of Muhammadan Law (Oxford Oxford University Press 1964)93 142-144

15 Goitein ibid 132 See also s14 of the Ottoman Family Law (Marriages and Divorces) of Tishrin awal 1333 (October 1917) which prohibits a man already married to four wives to marry yet another

ELIMELECH WESTREICH COMMENTS ON TIlE SHA UlJAN DECISION 255

Abdu who served as head Mufti in Egypt argued that polygamy should be prohibited because today men cannot afford to support two wives and provide for all their needs 16 But this position was eventually rejected and Egyptian law allows polygamy without reservation 17 Womens organizations in Egypt tried to accomplish the same in a more moderate way using contract law They asked to add a standard clause to marriage certificates specifying that the husband obligated himself not to take another wife Although clauses of this type are acceptable in Islamic law and have been used over the years18 there was strong opposition to them among Islamic and legal

scholars in Egypt and they refused to turn the contractual clause against polygamy into a general norm which it would have become had it been

included in every marriage certificateJ9

Legislation in various Arab states shows that they all uphold polygamy legally The overwhelming majority of Muslim states remain loyal to Islamic law and to the social custom that recognizes the complete legitimacy of the polygamous family To the best of my knowledge Tunisia is the only Arab country today that has prohibited polygamy and treats it as a criminal offense But even there if a man marries a second woman in addition to his first wife the second marriage remains valid and obligates him in every way20

The Babylonian Talmud and the Eastern Tradition

According to the talmudic law formulated by Rabbah a man can marry other women in addition to his first wife without limit as long as he can meet all of his responsibilities toward all of his wives21 The woman has no recourse to a direct means of preventing another wife from joining her

16 On Sheikh Abdu see Goitein supra n14 at 268 This approach is reflected in the Syrian Personal Status Law of 1953 which decrees in s17 that the judge is entitled to refuse granting a marriage license to marry a second wife if the mans economic situation does not permit him to provide for two wives ibid Similar arrangements are in effect in Iraq and other countries See International Encyclopedia of Comparative Law supra n4 at 31-32

17 Ibid at 32 18 Friedman supra n3 at 28-29 19 International Encyclopedia of Comparative Law supra n4 at 32

20 Ibid at 32-33 21 Yebamot 65a See also Friedman supra n3 at 7-11 Westreich supra nlO

at 21-23

256 JEWISH LAW ASSOCIAflON STIJDlES XlV JERUSALEM 2002

household although she has some indirect means as for example specifying a high sum in the ketubah which he would have to pay if the marriage were dissolved or setting high alimony payments and other legally mandated expenses which might deter other women from marrying the man This pattern is close to the Muslim model but more moderate because the provision whereby a man can marry more than one wife only if he can satisfy all their needs22 incorporates in the very law that allows polygamy a restriction that has the potential to limit the phenomenon

Spain and the Mediterranean A Middle Trend

Another trend that had reservations about polygamy and contained the possibility of divorcing a woman against her will developed in Spain and in other places along the Mediterranean The legal basis of the womans protection against polygamy was contractual which is part of personal rather than public law and takes the form of a clause added to the ketubah The

clause contains the husbands obligation not to marry another woman and includes remedies in case he breeches the obligation The remedies include the payment of reparations payment of the ketubah and a divorce granted to the first wife upon her request We know about extensive use of the monogamy clause in Egypt at the time of the Rambam23 but the pattern became widespread and prominent among Spanish Jews only after their expUlsion at the end of the 15th century The Spanish emigrants took this tradition with them and assimilated it in the patterns of their marriages and in their ketubot The clause appears frequently in all places reached by the Spanish emigrants the Balkans the Middle East and the coastal cities of the Mediterranean

To protect women against polygamy another element was added to the husbands personal obligation through the use of an oath The oath accomplished two goals it provided greater leverage to the contractual obligation as people treated it more seriously than an ordinary civil

obligation and it helped plug various loopholes concerning the validity of the monogamy clause or of other obligations touching upon remedies

22 It is possible to restrict polygamy by this rule based on the assumption that it is not practically feasible for a man to conform to everything that the law requires him to provide for all his wives In recent years attempts have been made in various Muslim countries to limit polygamy by arguments of this nature See International Encyclopedia of Comparative Law supra nA at 32

23 Friedman supra n3 at 28-41

ELIMELECH WESIREICH COMMENTS ON TIlE SHA ULIAN DECISION 257

Injecting the monogamy oath into the legal field raised the halakhic question whether the oath was transformed into an actual legal construct or remained essentially a prohibiting ordinance There is no doubt that the legal acceptance of the oath favors the woman and strengthens the marital union

vis-a-vis the mans attempt to marry a second wife Use of the oath proliferated later than the monogamy clause but by the 19th and 20th centuries the two were linked most of the time

In Israeli society and especially in the legal establishment headed by the Supreme Court the western monogamous model is clearly dominant over both the oriental and the middle Spanish ground At the statutory level the Israeli Penal Law of ]97724 classifies bigamy as an offense of the criminal

type (the most serious type of offense) and the penalty for breaking the law

is imprisonment for up to five years The criminal prohibition against

polygamy which originated at the time of the British Mandate in Palestine was applied shortly after the establishment of the State of Israel to Muslims as well despite the fact that their personal law allows polygamy without reservations 25 The Chief Rabbinate had previously in 1950 enacted a group of regulations known as the Jerusalem Ban one of which prohibits polygamy in all of the communities in Israel26 this by means of personal religious Jaw The regulation applies to all including members of oriental communities that were not accustomed to protecting women even by means of the monogamy clause The civil legal institutions with the Supreme Court in the lead adopted the western approach entirely in this area and have guarded vigilantly against any erosion in the law that bars polygamy in Israeli society Thus for example in the Boronowsky case Chief Justice

Agranat quoted with complete agreement these words of Justice Halevy The institution of monogamy is considered - by all peoples state and society in which it is practiced as one of the highest values of human culture27

The monogamous trend has dominated in rabbinical courts as well

24 In ch8 of the Penal Law of 1977 which deals extensively with polygamy and in s176 where it sets the penalty for it five years imprisonment

25 Section 8 of Womens Equal Rights Law 5711middot1951 26 The regulation prohibits any man or woman in Israel to engage or become

engaged to a second woman in addition to his first wife without an approved marriage certificate signed by the Chief Rabbis of Israel Ben-Zion Schereschewsky Family Law (Jerusalem Reuben Mass Publishers 4th enlarged edition 1992) 452

27 Further Discussion 69110 Rachel Boronowsky v The Chief Rabbis of Israel and Others PD 25(1) 32-33


especiany since these courts are also subject to the regulations of the Penal Law28 This trend was strongest in the early days of the State of Israel under chief rabbis Herzog and Uziel when the Ashkenazi school of thought was dominant in the rabbinical justice system29 Later a certain attrition has occurred reinforced with the growing influence of Rabbi Yosef at the top of the rabbinical court system especially regarding causes for the granting of permission to take a second wife3o Nevertheless in one case of open conflict between the Ashkenazi approach that vigorously supports monogamy represented by Rabbi Goren and the oriental approach represented by Rabbi Y osef the Supreme Court ruled in favor of the Ashkenazi position31

It appears that the complete acceptance of the monogamous pattern of marriage as integral to the Ashkenazi and western cultural tradition prevented the Supreme Court from even considering the possibility of applying the oriental model in its discussion of the current case32 In genera] the monogamous pattern deserves to be adopted entirely and the trend in Israeli law to apply it to all citizens of the country must be maintained Nevertheless in the circumstances of the Shaulian case adoption of the polygamous oriental pattern would have prevented an injustice and would have resulted in a more equitable distribution of the property in question

The Tradition ofPersian Jews

A thorough examination of the issues in the Shaul ian case requires

placing the legal tradition of Persian Jews within the three trends present in the Jewish universe Unfortunately almost no legal documents originating with the Jewish community in Iran similar to those we find among other Jewish communities in the East and West have reached us Apparently destruction and hostile edicts to which the community of Persian Jews have

28 Ibid 27

29 E Westreich Defense of the Marital Status of Jewish Women in Israel An Encounter between the Legal Traditions of Various Ethnic Groups Pelilim 7 (1999) 308-314

30 Ibid at 338-343

31 High Court of Justice 751160 Biton v The Chief Rabbi of Israel Rabbi Goren PD 30(1) 309

32 This approach is not reflected even in the appellants arguments as they are presented in the decision

ELIMELECH WES1REICH COMMENTS ON TIlE SHAUUAN DECISION 259

been subjected over the past few hundred years33 have weakened the study of the Torah and the flowering of halakhah scholarship and most likely resulted in the loss of halakhic and legal sources Nevertheless we can delineate the general characteristics of the legal traditions of Persian Jews based on their proximity to other traditions and communities which resided in their region and which were in close contact with them and the conditions of which in areas of our interest were similar to those in Iran

The Traditions ofIraq

Thus we can compare the situation of the Jewish community in Iran with that of the community in Iraq known in the sources as the Babylonian community and draw conclusions about Iran from traditions that were widespread in Iraq Both communities were among the most ancient of the people of Israel with roots reaching back to the Second Temple and even earlier There was uninterrupted contact between the two communities and at times their members wandered from one community to the other Both communities lived in countries far removed from the Mediterranean shores that were not a destination of the Spanish emigrants so they preserved their ancient and original traditions We may therefore cautiously extrapolate from legal custom common in one community to that of another

I will begin by presenting the tradition of the Babylonian community with which Persian Jews were in close contact in halakhic and rabbinical matters as well as socially and economically and follow up with a presentation of the tradition of Yemenite Jewry which is similar in many ways to that of the Persian Jews

The matrimonial status of women in Iraqi Jewish tradition has not been studied in depth and I cannot present an accurate and complete picture I use central halakhic sources and the collection of ketubot at the National Library in Jerusalem to present a picture of its most outstanding features Iraqi Jewry did not adopt the Spanish-Mediterranean monogamy clause and oath as it appears from an examination of rulings and responsa of Yosef IIayyim of Baghdad34 the most prominent and famous Iraqi Rabbi in the 19th century and whose influence to this day is decisive in the halakhic tradition of

33 Y Ben-Zvi The Isolated of Israel (Tel Aviv Defense Ministry Press Expanded Third Edition 1963) 127-137

34 On Rabbi lI ayyim see A Ben-Yaakov The Babylonian Community (Jerusalem Kiryat Sefer 1979 2nd ed) 190-200


Babylonian Jewry35 A query addressed to him by the rabbinical court in Baghdad states

It is known to your Excellency that there was no clause between the husband in question and his wife stating that he would not take her to another town as there is no custom in this town to create such clauses and he did not take an oath that he would not take another wife and no such condition was entered in the ketubah not even unintentionally but it is only the custom observed in Baghdad that he cannot take another wife without a good reason36

This description of the legal tradition of Baghdad and the local custom regarding polygamy was adopted by Rabbi IJayyim in his statement that in our town no oath is taken that he would not take another wife but only a custom to that effect and he used this position to argue his ruling in the matter37

The collection of ketubot at the National Library supports the finding that the Babylonian community did not use the monogamy clause Among dozens of documents from Baghdad and other places I found not a single ketubah that contained the monogamy clause which supports the conclusion reached through the legal analysis of various halakhic sources

Despite the absence of the monogamy clause from the documents of the Babylonian community there was no unlimited and unbridled polygamy among Iraqi Jews as evidenced by Rabbi IJayyims answer quoted above According to the statement made in the query which received the rabbis complete support there was a custom in Baghdad not to take another wife without adequate cause My assumption is that the increase in restrictions in Iraq was the result of the growing exposure of Iraqi Jews to western influence in the second half of the 19th century This is strongly reflected in Rabbi flayyims ruling in the case of a Baghdad Jew who emigrated to Singapore for business and whose wife refused to follow him there After drawn-out negotiations and legal discussions the local court allowed him to take another wife Some time after he did so his first wife agreed to join him in Singapore and live alongside the second wife and claimed that medical problems had caused her initial refusaL In his ruling Rabbi IJayyim accepted the mans claim and justified his position with the following argument

35 Ibid See also the introduction of Rabbi Mordechai Eliahu Rishon LeTzion and former Chief Rabbi or Israel to his essay on the abbreviated ShullJan Arukh

36 Responsa SeIer Rav Pealim Even Ha Ezer 2 8

37 Ibid toward the end of the responsum

ELIMELECH WESTREICH COMMENTS ON TIlE SHAULJAN DECISION 261

For it is known that by the nature and custom of the places where the husband now lives managing two wives is difficult and can bring shame and disgrace on both the husband and the wife as is known to be the case in the custom of the Europeans and these places are similar therefore the husband prevails38 (My emphasis)

Clearly the measure of protection offered by local custom in Baghdad was

significantly smaller than what a Spanish woman enjoyed by virtue of the

monogamy clause and oath Custom is a vague legal factor it is not clear

when it was fonned and whether it is still in effect and it is even less known

what its conditions are and under what circumstances it is possible to set

aside the protection it offers By contrast the monogamy clause relies on a

broad and well fonned legal and social tradition of hundreds of years and it is

rooted in authoritative legal sources of great prestige And indeed Rabbi

IJayyim used these to support his decision to accept the mans claim to be

released from various responsibilities toward his wife

The local custom in Baghdad also suffered from structural flaws of the

type that applies to all custom and it is reasonable to assume that there were

many cases in which custom was ignored or disregarded for frivolous reasons

In another query addressed to Rabbi IJayyim the court asks the following

In an event that took place in our town Suleman Mordecai Michael married the divorced woman Massuda b Sallah Ida and a few days later married the maiden Tafakha b Yaakov Rikhana Then the relatives of Tafakha found out that he had already married the divorcee quarrelled with him and came before us to tell us that Suleman is suspected of relations with Massuda when she was still married and before she was divorced from her husband39

The man married two women within a few days without any obstruction

The relatives of the maiden he married second who didnt know about his

first marriage to another woman argued with him when they found out and

tried to force him to divorce her The only legal means at their disposal was

the claim that the first wife was forbidden to him because he had had conjugal

relations with her before she was divorced from her first husband They had no claim against him for marrying two women simultaneously and bringing

them both into his house as his wives in all respects The local court that

deliberated in the case as well as Rabbi IJayyim who was asked for an

opinion did not address at all the issue of polygamy and did not attempt to

examine the relationship from the point of view of it being against local

custom All discussion in the responsum and the decision turned on the

38 Responsa Sefer Rav Pealim Even HaEzer 2 9

39 Responsa Sefer Rav Pealim Even HaEzer 19


issue of whether the divorced woman was allowed or forbidden the man because of the regulation whereby a woman who was unfaithful to her

husband cannot marry her lover Indeed the local court had initially

forbidden the man to marry the divorcee and refused to write a ketubah for

this reason which was supported by the mans admission before the court

that the woman had been unfaithful to her husband However the man ignored the decision of the local court and lived-with the woman without a ketubah After a while he recanted his admission regarding the unfaithfulness

of the woman toward her former husband providing an excuse and an

explanation The issue now turned on whether his recantation was

significant and whether it was possible in its aftermath to approve his

marriage with the divorcee In the end Rabbi IJayyim ruled that the mans

recantation was valid and that a ketubah should be written for the couple

The question of polygamy never arose in this long and complex discussion and had no effect on the final result

There was uninterrupted contact between the Jews of Iran and Iraq for

thousands of years The two neighboring countries share a long border Repeatedly the two countries were incorporated into the same political unit

which greatly facilitated travel and communication between the two centers Indeed in halakhic writings originating in Iraq we find numerous queries

from the Jewish community in Iran as for example a query directed to Rabbi

Tzadok Huzein who was the Rabbi of Baghdad in the 18th century and

rehabilitated there the Torah center that had been destroyed following a great

epidemic4o We also find many queries from Iran to the scholars of Iraq in

40 See for example the following case (Responsa Tzedakah Umishpat Even Ha Ezer 45) I was asked about a man in one of the towns of Persia who converted to Islam with his son to evade the heavy taxes The son was married to a Jewish woman and continued to live with her as man and wife after he had converted That woman had a sister Father and son would sit together to eat and drink and with them the sister who was a widow The father touched the widows heart and married her He told her If you stay with the Jews your burden will be heavier Stay with us and the goyim will convert you Listen to me and be my wife She agreed to be his wife and he had her without a ketubah and kiddushin (blessing) They lived as man and wife for about six years he a converted Muslim and she a Jew Then the son was visited by pure thoughts and God enlightened him to return to the true faith to go to another town where he was not known and perform teshuvah The son his wife and the fathers wife left their town and came to Baghdad while the father in his impurity remained where he was_ The fathers wife having nothing to live on was looking to marry any man willing to feed and maintain her And unable to marry without obtaining a divorce from her

ELiMELECH WES1REICH COMMENTS ON TIlE SHAULAN DECISION 263

the 19th century as can be seen from the responsa of Rabbi Yosef IJayyim to questions on family law from various towns in lran41 Moreover there is

direct evidence in Rabbi IJayyims responsa that Persian Jews follow the Jews of Baghdad in matters of family law Discussing the ancient question of whether one is concerned about the Sivionot that is whether matchshymaking gifts are considered marriage fees and whether the breaking of the

match requires a get he states what the custom was in Baghdad as well as in Iranian towns

In our town of Baghdad where the custom is not to be concerned about such Stvionol (gifts) which can be returned as long as the marriage has not taken place and it is known that Persian towns follow in the steps of Baghdad42

It is likely that the close links between Iran and Baghdad and the Persian

Jews ties to the customs of the Babylonian community were not limited to matchmaking gifts but embraced additional areas of family law including matters of polygamy This dependence is understandable also in light of the fact that there were no large Torah centers and prestigious scholars in Iran as

can be inferred from Rabbi Yosef IJayyim s words When asked about the validity of divorce certificates written by laymen who were not authorized by

central Torah centers according to various regulations in effect in different

centers he answered

In these countries there are no such regulations and every day divorce certificates are written in Persia and the towns of India which they create without authority and we do not know them and whether or not they are sufficiently knowledgeable as well as in small townships neighboring our town of Baghdad like the Assyrian town and others where they also divorce without permission from the head of the rabbinical court or the head of the Yeshivah in Baghdad43

husband for he had married her without a kelubah and kiddushin her life became hell Can we now presume that a man does not cohabit with a woman without the intention of marrying her And will our rabbi instruct us whether she requires a gel by law

41 In Responsa SeIer Rav Peaiim Even HaEzer I 13 Rabbi Yosef ijayyim was asked about a man who married his daughter during mishte hayayin (drunken Purim banquet) ibid 2 4 the Rabbi was asked about abduction marriage that a man performed in his house with his servant ibid 4 12 questions were addressed to the Rabbi from the town of Shiraz For additional questions see 2 21 as well as 3 3 and 8

42 Responsa SeIer Rav Pealim Even HaEzer4 8



My basic assumption is that the legal and social tradition in Iran was not stricter in limiting polygamy than the widespread custom in Iraq I find support for this conclusion in the collection of ketubot from Iranian towns

held at the National Library in Jerusalem where I have not found a single

ketubah that contained the Spanish monogamy clause This is a reasonable

conclusion given that the clause originated among the last generations of

Spanish Jews who disseminated it in the places where they settled after their emigration These places were generally along the shores of the Mediterranean and Palestine and primarily Jerusalem The Spanish

emigrants did not reach remote locations like Iraq let alone distant and closed Iran ruled by zealous Shiites who were hostile to Jews and persecuted them

In various oriental communities restrictions have been imposed on

polygamy outside the ketubah In Aleppo there were some who did not add

the monogamy clause to the ketubah but men took an oath not to marry another woman under a 1uppah44 I presented the above halakhic sources

indicating that the custom in Baghdad was not to take a second wife although

husbands did not obligate themselves in this respect in the ketubah and did

not take an oath But we also noted that this custom was lax and Jewish officialdom first and foremost the halachic scholars in the rabbinical courts raised no real obstacles to breaching it

The absence of the monogamy clause indicates that on the East-West

continuum the Persian tradition was eastward of the Spanish tradition but

there is no indication whether it was similar to that of the Babylonian

community or was perhaps even more polygamous It is common opinion

that there were fewer limitation in Iran than in Iraq because growing

restrictions in Iraq were the result of increased exposure of the Jews there to western influence in the second half of the 19th century In the absence of a

similar influence in Iran there was no factor to moderate the polygamy of Persian Jewry My assumption is therefore that Persian tradition persevered in the basic oriental model that allowed polygamy without reservation and

was similar to the Yemenite tradition that remained at the eastern end of the

continuum until close to the time of the establishment of the State of Israel

The Traditions in Yemen

The social and family traditions of Yemenite Jews are better documented

44 Information obtained by oral interview of several community members residing in Israel

ELIMELECH WESTREICH COMMENTS ON TIlE SHAUl1AN DECISION 265

than those of Persia and in general documentation and research surpass that of many other communities The topics of our interest are discussed extensively in halakhic and legal documents by generations of Yemenite

scholars inside Yemen and outside it especially in Israel In a ruling in

1916 the rabbinical court in Sana addressed the following case Said Hashdi

was married but suffered from impotence He admitted the fact but claimed

that his wife had bewitched him The court in Sana ruled that he must divorce his wife and pay her the amount specified in the ketubah However

instead of going through with the divorce he married a second wife although

he continued to suffer from impotence45 The further details of the case are beyond the scope of this discussion but we learn from the decision that the

man married a second wife without a good cause on the contrary it was his

wife who had a strong case against him and even obtained a court decision

stating that her husband should divorce her

Yemenite scholars in Israel and among them scholars who served as

judges in the Chief Rabbinical Court voiced similar opinions In a decision in 1946 they stated

The Yemenite community was not included in Rabbi Gershoms ban and has never accepted it The regulations followed by the Yemenites are those of the great luminaries the Rambam and our teachers and reality proves that many Yemenites are married to two or three women if they so desire without anyone objecting46

This position reflects accurately the Yemenite tradition Other testimony is

available to the same effect Rabbi Kafah one of the most illustrious judges

in the Chief Rabbinical Court and an outstanding halakhah scholar in

addition to being a researcher in various branches of the sciences wrote as follows in a treatise about Yemenite customs and polygamy in Yemen the

country of his origin

45 A Gaimani Between the Sada and Sana Courts Dine Israel 20-21 (2000shy2001) 290-292

46 Responsa Divrei fakhamim Even HaEzer 9 signed by Rabbi Abraham Cohen head of Yeshivat Ohel Torah in Tel Aviv Rabbi Itz~ak Halevi Rabbi of the Yemenite community in Tel Aviv Rabbi Raphael Alsheich Chairman of the Religious Council in Israel Rabbi Meir Tzadok Mizrachi Rabbi of Shaarayim Rabbi ijayyim Iraki Cohen Shochet Ubodek and Moreh Tzedek in Jerusalem Rabbi Shlomo Keisar head of Yeshivat ijayyei Shalom in Jerusalem Rabbi Ye~iel N~um Rabbi and Moreh Tzedek in Tel Aviv and Rabbi Shalom Sari Rabbi and Moreh Tzedek in the A vi David organization in Jerusalem

266 JEWISH LAW ASSOCIAnON STUDIES XIV JERUSALEM 2002

Marriage to two women was very rare in Sana and in the large towns and only if a man lived many years with his wife without her giving birth to a son would he take a second wife But a man does not marry two women for no good reason even though the law allows il47 (my emphasis)

Also in another paragraph he writes

Only a minority of a minority an almost insignificant minority of those cases [of a second marriage] are cases of marriage with a second woman because the first is entirely sterile or has not given birth to male children 48 In any case there was no prohibition and no custom not to marry two wives49

So that while polygamy was not at all widespread as a social phenomenon there was no restriction of any kind imposed upon it neither legally nor by

custom This placed the Yemenite tradition at the Eastern end of the continuum as regards polygamy We can now conclude that the tradition of Persian Jewry which was close to the Yemenite followed the eastern and

talmudic tradition that allowed polygamy and did not take any direct legal action to limit or to restrict it

The Shaulian Case

We return now to the case of Mrs N Shaulian the appellant who was married to Mr Shaulian in 1940 and was his wife for 25 years As her representative told me50 there is no monogamy clause in her ketubah that

would prohibit her husband from taking a second wife Mr Shaulian was

allowed to take a second wife without his first wife being able to legally

restrict him It was clear to the couple and to all people in their milieu that the marriage was not monogamous and that there was a possibility that Mr

Shaulian would take another wife in principle and in practice The only obstacle was practical and followed from the ketubah and the conditions in it which placed substantial financial responsibilities on him throughout the period of matrimonial union first and foremost to maintain his wife according to the status he enjoyed and to provide for her residence clothing and other needs by standards corresponding to his station

47 Y Kafah Customs of Yemen Jewish Life in Sana and its Environs (Jerusalem Ben-Zvi Institute 1963 2nd ed) 74

48 Ibid 111

49 Ibid n2

50 Information obtained by telephone from the attorney who represented the appellant in the High Court of Justice

ELlMELECH WESTREICH COMMENTS ON THE SHAULlAN DECISION 267

Even if Mr Shaulian was limited in some ways in taking a second wife in the absence of any good cause as was the custom in Baghdad if the first wife had not given birth to any children in the past ten years all obstacles were removed It is not known whether or not in this case the first wife had given birth to children and whether her husband fulfilled the commandment to be fruitful and multiply and whether this was the reason for his desire to divorce her and marry another woman The court did not address this issue and established no facts in the matter But according to information contained in the decision there is reason to speculate that the appellant gave birth to no children In describing the second marriage Justice Dorner mentions that Mr Shaulian and his second wife had four children whereas no such information is provided with regard to the first wife Naturally this silence is not conclusive as the presence or absence of children does not affect the case before the Supreme Court in any way but the silence does constitute at least a hint as to the sterility of the first wife

If I am correct and the first wife has had no children for ten years there was no obstacle whatever before Mr Shaulian taking a second wife I have discussed elsewhere in detail the issue of a husbands claim as a result of the wifes infertility51 and I briefly present here the findings as they relate to the present case The commandment to be fruitful and multiply is considered a most important one and IJazal stated that not performing it is tantamount to spilling blood The Talmud states that if a man does not perform the commandment the court can make him do so by forcing him to divorce his wife against her will The Talmud does not indicate whether not performing the commandment serves as a cause for the man to take another wife or to divorce her against her will since according to the Talmud a man can take another wife without any reason and can divorce her against her will In any case the man was forced to payout the amount stated in the ketubah

probably before he was allowed to divorce her and only if the woman had been married three times and not given birth was the last husband exempt from paying the ketubah

Limitations imposed on the husband through legislation contract or custom in the post-talmudic period with regard to taking a second wife or divorcing his wife against her will raised the question as to whether the commandment to be fruitful and multiply can set aside the protections extended to the wife Here too the range of opinion varies from West to

51 E Westreich Husbands Claims of Infertility in Rabbinical Court Rulings Mishpatim 25 (1995) 290-294


East The Ashkenazi tradition produced two trends One of them rejected the commandment outright and did not permit the removal of the protections offered by Rabbi Gershom under any circumstances this trend was weakened over many generations and is currently represented by a small group of judges in the rabbinical courts The other trend did not reject the commandment outright but neither does it accept any non-performance of the commandment as a cause for overriding the Gershom ban only if the woman has not given birth at all can the ban be set aside Moreover the husband is required to demonstrate sincerity and good intention in his claim and the claim is rejected if other matters are involved

In general the Spanish tradition accepted every case of non-performance of the commandment as a cause for taking a second wife or for divorce When for example the woman gave birth to only one child or to children of the same sex or the children died in the fathers lifetime these were considered legal reasons for setting aside the wifes protection At times the monogamy clause raised legal issues but in cases in which exemption clauses were added making the monogamy clause contingent upon the wife giving birth within ten years no obstacles were raised before a man wishing to take a second wife And if the couple belonged to an oriental community where the ketubah contained no monogamy clause the husband faced no difficulty at all in taking another wife The statement of Rabbi Ovadiah Yosef in a decision of the rabbinical court over a bitter controversy with Rabbi Goren is still valid

A simple custom upheld by all rabbinical courts in Israel with regard to a man who lived ten years with his wife without her giving birth even if the wife does not agree to divorce her husband if the man is from an oriental community the court issues a ruling that allows the man to take another wife to perform the be fruitful and multiply commandment as long as the man is capable of performing it and in such a way that each wife has her own residence 52

The conclusion that must be drawn from all this is that under the circumstances there was no legal difficulty or obstacle before Mr Shaulian to take another wife in addition to the first one

Critique of the Supreme Court Decision

An examination of the claims and arguments raised by the justices of the

52 Responsa Yabia Omer Even HaEzer 72

ELlMELECH WESTREICH COMMENTS ON TIlE SHAULAN DECISION 269

Supreme Court quickly reveals the fact that it was the western monogamous model that they followed in their decision rather than the polygamous eastern one A clear indication of it is the very manner in which Justice Domer framed the the central issue in the appeal before us as whether the appellant succeeded in refuting the validity of the respondents marriage with the deceased It is clear that by the polygamous eastern model this is not the central issue as it is entirely possible for both the appellant and the defendant to be the widows of the deceased Thus even if the first wife is unsuccessful in undennining the validity of the second wifes marriage she can still prove

the validity of her own marriage to the deceased before he passed away and win half of her suit

The binary assumption that underlies the monogamous approach whereby only one woman can be married to one man at the same time led the court to rule on the issue of which of the two women is to be considered Mr Shaulian s wife The court could have extricated itself from this conflict had it ruled that the divorce performed in Iran was valid under Israeli law However Justice Dorner did not follow this path After stating that according to the principles of private international law it is the Iranian law that applies to the divorce of the first wife which has recognized the divorce she goes on to discuss the issue of whether the court in Israel is prevented from recognizing the divorce for reasons of public interest 53

Justice Dorner found a source for this line of reasoning in the words of Justice Zusman in the Schlesinger case54 which was apparently absorbed into Israeli law through Section 46 of the Order-in-Council of the King 1922-1947 Justice Dorner found clear support for the case discussed here in an English decision of 1980 dealing with a similar issue In this case the husband who was a resident and citizen of Malaysia converted to Islam after being married to an Anglican woman for twenty years and thereby dissolved the marriage In its decision the English court ruled unequivocally that recognition of this manner of severing the matrimonial union is against the public interest in England it being against the English conception of justice to sever twenty years of marriage in such a unilateral way by converting to another religion55

53 For an extensive discussion of public interest in the Israeli private international law see Shava supra nl at 470-476

54 High Court of Justice 621143 Funk-Schlesinger v Minister of Interior PD 17 225 255-256

55 It is not clear whether the dissolution of the marriage was an automatic outcome of the conversion to Islam or whether the man divorced his wife later

270 JEWISH LAW ASSOClA TION STUDIES XlV JERUSALEM 2002

In the light of this claim the self-evident conclusion is that the first wife continues to be considered the wife of the deceased Indeed this is reflected in Justice Dorners intermediate conclusion

Under these circumstances the divorce although recognized by Iranian law is not consistent with the public interest in Israel It follows that if the litigation had taken place between the deceased and the appellant justice would have required not to recognize the divorce

Therefore if the man had passed away before marrying the second woman there is no doubt that the first wife would have inherited him as his spouse as Israeli law would have rejected the Iranian divorce by reason of the public interest

The legal situation of the first wife looked promising at this point but then a sharp turnaround took place in the decision and the public interest that

appeared to mandate the recognition of the first womans marriage became the factor that undermined the validity of this marriage because of the second wife who married the deceased after he had divorced the first wife according to Iranian law In Justice Dorners view one ought not to casually disregard the

status the second wife had acquired bona fide The reasons for this are she

married the man after his divorce according to the laws of the State of Iran in

which they lived she lived with him as man and wife for eighteen years their marriage was recognized in Israel Under these circumstances summarized Justice Dorner the public interest not only does not prevent but requires the recognition of the divorce on the basis of which the respondent married the deceased

The justice found support for this position in the statements of Professor

Levontin in his treatise about marriage and divorce outside Israel56 Levontin takes a simHar view with regard to a case in which a man obtained a divorce ruling by fraudulent means and without giving his wife the opportunity to appear in divorce court If in the meantime the man married another woman she would be recognized as a married woman because she had married the man while relying on the divorce verdict white the status of the first wife as a married woman would be revoked

As this line of reasoning of Justice Dorner is at the core of her decision

according to Islamic law In fact there is no substantive difference between the two cases because by Islamic law a man can divorce his wife against her will by repeating three times the word talak See Goitein supra n14 at 138

56 A Levontin Marriages and Divorces thllt Take Place Outside the Country (Jerusalem Miphal Hashichpul 1957) 65-66

ELIMELECH WESTREICH COMMENTS ON TIlE SHA ULIAN DECISION 271

to favor the second wife over the first one it must be examined carefully It is true that according to the western model marriage between a man and a second wife are possible only after the first marriage has been dissolved through divorce (I am not considering here situations in which the marriage is annulled) In this context the conflict between the two women is all out and the decision must be binary either the first or the second is married to the deceased and is entitled to his estate there is no third possibility But if we are applying the oriental model this picture is true only if we are dealing with a woman who was married twice The oriental model similar to the overwhelming majority of patterns of marriage in human society does not

tolerate polyandry and must force an unambiguous decision about which of

two men is married to the woman

The situation changes radically if it is the man who had two spouses as

in the case before us The Muslim legal system recognizes without reservashy

tion the possibility of polygamy and some regarded it as a commandment Even Arab legal systems that tried to limit this phenomenon did not go so far as to demand the abolition of polygamous marriages or to regard the dissolution of such marriages as desirable 57 Similarly although not to such extreme degree the oriental Jewish tradition does not reject polygamy and does not strive to dissolve bigamistic marriages According to the oriental marriage pattern there is no legal norm or social custom to require a man to

divorce his first wife in order to marry a second woman - which completely

undermines the central argument that lies at the core of the justiceS decision

to withdraw recognition of the first wifes marriage The same reasoning also serves to reject Professor Levontins thesis

whose evidence is central to the decision and is extensively quoted In the case discussed there the husband obtained a divorce verdict by deceit and based on it he married another woman The second wife married the man in good faith without knowing anything about the fraud lived with him as his wife for all intents and purposes and give birth to children who appeared to

be his legal children In the confrontation between the two women Professor Levontin believes that it is appropriate to act by drawing up a

balance sheet and weighing the injury and damage to each of the women The result can be that at times an innocent and honest party in this case the first wife is harmed in the same way as when the market overt principle is applied in a clash between two parties and as a result of which an innocent

and honest party suffers

57 See supra n20

272 JEWISH LAW ASSOCI A nON S11JDIES XlV JERUSALEM 2002

There is a temptation to extend the comparison between the case of two women laying claim to the same man and that of two people laying claim to the same property in which case the principle of market overt is applied58

When the market overt principle is applied the law prefers the later buyer who acted in good faith and paid the purchase price over the first buyer despite the fact that from a purely theoretical standpoint the first buyer holds the right of property Following the comparison we apply the same principle to the case of two women laying claim to the same man and favor the second woman who acted in good faith The resemblance between matters of status and property has been widely treated in the legal literature and on one occasion the Supreme Court expressed the following view

The respondent is right in that her civil marriage to the respondent bestowed upon her the rights to which she is entitled in his eyes and in those of the general public And she is right in her claim that she is entitled to these rights not only in Romania where the marriage took place but also in any country where laws are observed59

But comparing womens marital status with property rights fits the western

marriage pattern which is entirely monogamous Within this pattern at any one time a man can have only one wife and if two women lay claim to him it is necessary to settle the controversy Adopting a market overt-like principle is well-suited to this model of marriage But if we are dealing with the oriental pattern of marriage where more than one woman can be married to a man at the same time it is possible to apply with great benefit principles from the realm of tort law which is not binary and more flexible I am referring to the principle of contributory negligence which allows the court to divide responsibility in case of damage unlike the strict binary model that places all responsibility on one party only

Justice Domer reinforces the argument about favoring the second wife for reasons of public interest by criticizing the conduct of the first wife She finds the womans conduct objectionable because since 1968 when the legal actions ended and until the death of the deceased in 1988 the appellant did

58 Levontin apparently did not intend to compare the two cases and claim that in the case of two women laying claim to the same marriage the principle of market overt should be applied All he said was that if we should prefer the second wife the first one who was an honest party loses out in a way that is similar to cases of market overt

59 Justice Halevy quoted with complete agreement by Justice Agranat in the Boronowsky case supra n27 at 29

ELIMELECH WESTREICH COMMENTS ON THE SHAULAN DECISION 273

not initiate any action to establish her status as the wife of the deceased by not bringing to the attention of the second wife the dubious grounds of her marriage by not litigating with the deceased in rabbinical court in his lifetime and after he emigrated to Israel in 1980 and by the fact that she was awaken (sic) to the fact of her marriage only after his death when the inheritance of his substantial estate became an issue Ending her complaints against the first wife the justice reiterates the fact that she did nothing for twenty years during which the deceased married another woman with whom he had children

The court applied here the principle of estoppel well known in English law which has been adopted by Israeli law The essence of estoppel is to bar a litigant from making a certain claim legal or factual which may be true in and of itself and which has the potential of providing the litigant some legal advantage in order to prevent an unjust outcome as a result of improper conduct on the part of the litigant as for example neglecting to tell another party that the litigants legal situation is at high risk US courts have applied this principle in matters of validity of divorce in cases in which two women laid claim to the same man for example if a man was married to a woman and afterwards another woman claimed that she preceded this woman as the mans wife and therefore the second womans marriage to the man was invalid If it is established that the first woman did not inform the second for an extended period of time that her marriage was invalid although conditions permitted her to do so and at the same time did not take steps to protect her own legal status in court she is then silenced and not allowed to make this claim later

justice Dorners criticism and her subsequent arguments are stuck in the mold of the western model of marriage in addition to being astonishing and factually unjust Immediately after her divorce the first wife began a campaign to cancel its validity She initiated action in two instances in Iran in the civilian and in the highest religious court According to Iranian law which justice Dorner perceived as unjust and whose results were contrary to the public interest the woman lost and her suit was rejected But not only did she not neglect her rights within the standard frameworks available to her but she took exceptional steps and pursued the deceased on his visit to Israel where she attempted to defend her rights as his legal wife To this end she petitioned the rabbinical court in Israel focusing her claims on alimony payment which is the central expression of the matrimonial union during marriage especially in traditional society This attempt also miscarried as the rabbinical coun had no jurisdiction to rule in an alimony claim between


two Jewish foreign residents who came to Israel for a short visit60

Because the rabbinical court feared that the woman might end up as an agunah and not be able to force her husband to give her a get in Iran it pressured him into filing a get with the court as a condition for removing the temporary injunction against his leaving the country that had been issued against him There is no mention that he was asked to also file a ketubah with the court Mr Shaulian agreed to file a get as this fully corresponded to his intention of freeing himself from his wife and divorcing her for which purpose he had converted to Islam a few years earlier Without a request that

he pay the amount required by the ketubah filing the get with the court satisfied all his desires After the two returned to Iran and Mr Shaulian married another woman according to Iranian law it is difficult to see what

else the first wife could have done in that country to change her situation or to achieve recognition of her marriage which was dissolved by that countrys legal system Ten years later Mr Shaulian emigrated to Israel with his second wife and the first wife settled in the US After sixteen years during

which she either tried to take action or was not in a position to do anything to change her situation it is difficult to expect an aging woman living alone in a new country so different from her own to begin pursuing her case through the Israeli court system which did not help her thirteen years earlier

It is true that with Mr Shaulians emigration to Israel the circumstances changed and it is possible that the rabbinical court now had jurisdiction to rule in the couples case but even this is not entirely clear of doubt Had the first wife asked to be divorced from her husband the rabbinical court would have had clear jurisdiction to rule in a divorce that takes place in Israel But to do that she wouldnt have even had to file for divorce she could simply

have taken possession of the get filed there by her husband in 1968 But the

wife endeavored to accomplish the opposite of this that is to gain recognition of the validity of her marriage despite their dissolution by the Iranian court A claim of this nature would have touched upon the validity of her divorce that took place in Iran

60 Regarding the demand for alimony based on 54 of the Rabbinical Courts Jurisdiction Law 5713-1953 there is no requirement that the parties be citizens and residents of Israel in the way the requirement appears in sl of the Jurisdiction in Matters of Marriage and Divorce Law Nevertheless even in a demand for alimony a certain nexus to Israel is necessary in addition to the fact that the marriage was performed according to Jewish law as for example is the case when the marriage has taken place in Israel As in this case no nexus to Israel existed the court had to rule that it had no jurisdiction in this case

ELIMELECH WESTREICH COMMENTS ON TIlE SHAUUAN DECISION 275

The question of the rabbinical courts jurisdiction to rule on the validity of divorces or marriages that took place abroad at a time when the parties were foreign citizens not residing in Israel is not a simple one In the Kahanoff case61 which came before the Supreme Court in 1973 Justice Berenson ruled that the term in Israel in Section I of the Rabbinical Courts Jurisdiction Law 5713-1953 refers also to the act of marriage and not only to the parties of the suit In other words not only do the parties have

to be in Israel as a condition for granting jurisdiction to the rabbinical court in matters of marriage and divorce but the marriage which is the object of the trial must also take place in Israel In Justice Berensons words

In other words although from the point of view of their persons the parties are such that the jurisdiction of the rabbinical court applies to them in matters of marriage and divorce when the substance of the case before the court is the fitness or validity of marriage or divorce that took place outside of Israel it has no jurisdiction62

This opinion of Justice Berenson received the full approval of Justice Mani63 albeit in an obiter that was not necessary for deciding the case at hand In 1980 the Supreme Court still left this issue open64 and it appears

that no definitive decision has been reached on the issue to this day In 1995 the learned Shifman in the second edition of his book Family Law in Israel

summarizes the position of Justice Berenson as not having yet obtained general acceptance65 although it has not been rejected either And in the year 2001 the learned Shava in the latest edition of his book Personal Law in Israel states that 1ustice Berensons opinion has weakened nowadaysoo

Despite his strong criticism of the opinion in no way does Shava imply that

it has been entirely rejected67

Discussion of these decisions and others that followed it68 had to do with

marriages that took place abroad The reason for this is practical as in the

61 High Court of Justice 733 Jacqueline Kahanof v Tel Aviv Regional Rabbinical Court and Others PO 29(1)449

62 Ibid at 453

63 Ibid at 454

64 High Court of 1ustice 8051 Margalit Cohen v Rehovot Regional Rabbinical Court and Others PO 35(2) 8 12 in Justice Landaus decision

65 Shifman supra n8 at 361

66 Shava supra nl at 545

67 Ibid at 541-545

68 High Court of Justice 77573 Zak v Tel Aviv-Jalfa Regional Rabbinical Court PO 32(1) 281 286-287 in Justice Ben-Porats decision

276 JEWISH LAW ASSOCIATION S11JDIES XIV JERUSALEM 2002

Israeli reality there are many instances in which marriages are performed abroad so there is a great likelihood that one of the partjes wiiI file a suit regarding a marriage that was performed abroad Justice Berenson ruled that the rabbinical court will have no jurisdiction in these matters even if all other conditions are met that is the parties are citizens and residents of Israel and at the time the suit is filed are both physically in Israel -- and all the more so if at the time when the marriage was performed the parties were foreign citizens and residents Discussion of divorce that took place abroad is for understandable reasons rare because parties usually come before the rabbinical court to divorce so there is nothing to prevent the courts

jurisdiction even if the marriage took place abroad But the reasons and the rule regulating divorce that was performed abroad remain the same And according to Justice Berensons approach as he explicitly states it in the paragraph quoted above the rabbinical court would have had no jurisdiction to rule in the case given that the divorce occurred abroad

The necessary conclusion is that it is questionable whether the rabbinical court would have been able to rescue the woman soon after her emigration to the US given Justice Berensons opinion which dcnied it jurisdiction in the

case Are we expecting this woman who experienced several rejections from the legal system including the one in Israel to try once again this time from her new residence across the ocean I will note that the rabbinical court even took steps to protect itself from the implications of this rule and based its decisions on matters having to do with marriages performed abroad on claims that justify divorce in Israel at the present time and not on claims that reject the validity of marriages performed abroad

We can summarize and state that the first wife by no means neglected her rights and did all she could after which she desisted when faced with the

absence of a reasonable possibility of altering her situation Basing the argument about a public interest not to recognize the first wifes marriage on her conduct and struggle in the legal arena is more than astonishing

Furthermore I do not agree with the demand that the woman should take legal action to establish her legal status and display its validity to all In the two US precedents on which Justice Dorner based her argument the divorce was decreed by the regular state court that had jurisdiction to rule in the matter and the women had no reason to doubt the titness and propriety of the systems even if in their case the decision was wrong The matter is different in the Shaulian case The first wife was married by Jewish law recognized by the Iranian state in which she lived with her husband they were citizens and residents The countrys legal system recognized the validity of the marriage

ELlMELECH WESTREICH COMMENTS ON THE SHAULAN DECISION 277

and granted legal jurisdiction to the Jewish court to rule ill matters of marriage within the Jewishcommunity Apparently in the opinion of the first wife the countrys legal system allowed her husband to perform an unjust act and to dissolve their marriage by the very act of his conversion to Islam only because of the inequitable Muslim world view that favors members of this religion over those of other religions

Are we going to treat this woman with excessive strictness because she did not fight against a legal syslem whose treatment of Jews and other foreigners is based on outrageous inequity and discrimination Recall that the Supreme Court viewed the conduct of the Iranian legal system in this case as damaging the public interest in Israel

There is yet another difference between the Shaulian case and the US

precedents cited by Justice Dorner In the US precedent the confrontation

between the two women occurred after the man died and the debate focuseJ on inheriting his estate In both cases divorce decisions had been handed down and the woman remained silent while the man was alive and only after many years and after the man remarried and had children and died did the woman come forward and demand the nullification of her divorce The facts in the Shaulian case are radically different as the first wife fought the validity

of the divorce from the first moment at every possible instance and in every possible way Only after all options were closed before her did she desist but she never created the impression that she accepted the legality of her divorce It is difficult to accept the opinion that the first wife dealt improperly with the second one justifying the lise of estoppel against her which for all practical purposes denies her the status of a married woman

In the course of its criticism of the first wife the court stated that the respondent [the second wife] who married the deceased in 1970 was not

informed during all the years of her marriage about the possibility that her marriage may not be valid It is difficult to accept the fact that thl secund wife didnt know about the first wifes vehement opposition to the divorce that was forced upon her by personal Muslim law Tht small communit in question contains a mere few tens of thousands of Jews across all of Iran69 of whom some twelve thousand lived in Teheran the largest of them Is it reasonable to assume that a daughter of one of these communities or her family did not know that the man had been married before and had obtained his divorce by converting to Islam against the will of his wife who pursued

69 Y Ben-Zvi supra n33 estimates than in all of Irall thtre were about sixty thousand Jews at the time of his visit there which was close to the time of the first Mrs Shauliang marriage

278 JEWISH LAW ASSOClA nON STUDlES XIV JERUSALEM 2)02

him legally through all instances of the legal system and all the way to Israel It would be astonishing

But let us assume that the second wife acted in good faith and knew

nothing about Mr Shaulians previous marital life The court claims that the first wife should have warned the second one of the possibility that her

marriage may not be valid Again the courts reasoning is behold~n to the monogamous pattern of western marriage where the first wifes appetll against the validity of her divorce automatically implies the negation of the validity of the second wifes marriage But in the purely oriental model we

are dealing with recognizing the validity of the first wifes marriage by

refusing to recognize her divorce does not necessarily imply a denial of the

validity of the second marriage1o It is possible to hold on to the man from

both ends and to rule that he is married simultaneously to both the first and

the second wife A ruling of this nature appears more equitable from various points of view First and foremost it recognizes the social and legal setting

within which the marriage was performed and the way in which the parties themselves understood the nature of the matrimonial union Moreover it

conforms better to the conduct of both the first and the stcond wife after the fact But above all the decision that the deceased was married to both

women provides the best solution to a difficult and complex situation in

which the actors are not all honest or all evil but mixtures of everything Thus if both women were married to Mr Shaulian on the eve of his death

the conclusion is that the estate should be divided between the two wives A

solution of this nature is probably not to be found in the English or US

precedents cited by the court and not among other sources that routinely

serve as inspiration in Israeli law But in this case we need not look far for a solution since the answer is readily available in Israeli law According to Article 146 of the Inheritance Law of 1965 If a man waiimarried to more

than one woman at the time of his death the spouses portion of his estate

shaH be equally divided among his widows

The possibility of two widows inheriting one estate is thereforemiddot

recognized in the mainstream of Israeli legislation It is beyond any doubt

that this provision was created with the oriental model of marriage in mind

Muslim or Jewish which allows a man to marry more than one woman and

the court is therefore likely to encounter situations in which two widows lay

70 There is no reason to believe that the first wife did not do so consciously while in Iran although this did not gain expression in her arguments as presented by the court


claim to the same estate The legislatures decision was simple and clear two widows will divide equally between them the estate of the common husband and no additional considerations are taken into account For example the court will not examine which of the wives was beloved and which one detested with whom did the deceased live longer who was dominant in the house who bore children and who didnt The right to inherit is attached solely to the womans marital status If she is married she receives half the estate and there are no other conditions or requirements According to Article 137 of the same law the Israeli law applies in this case

because at the time of his death Mr Shaulian resided in Israel The necessary conclusion is that the provision of the law dealing with the possibility of two widows claiming the same estate should be applied

Like every provision of the law Article 137 also requires comment and qualification Consider for example a case in which a man takes a second

wife only because his first wife refuses to accept a get after the court issues a final divorce verdict against her In a case of this nature the rabbinical court allows the man to marry again after he deposits a get and the ketubah with the court and thereby severs all legal connection with his first wife Indeed in a recent Supreme Court decision is has been stated that in such a case the first wife is liable not to be considered as a widow for the purposes of Article 137 of the above mentioned law as long as the rabbinical court has ruled that the woman must accept the get71 Permission granted to the man to take another wife without an accompanying court order that forces the get upon the first wife allows her to retain her status as a widow for purposes of inheriting the estate of her husband Our case is different however The divorce performed by Mr Shaulian is viewed by the court itself as an inequitable act that cannot be allowed in Israel for reasons of public interest As far as the relationship between the first woman and Mr Shaulian is concerned the court stipulated that they should be regarded as a married couple Therefore after the death of the husband it is proper and right to regard her as his widow and award her the portion of the estate specified by lawn

71 Civil Appeal 971247 Sabbagh v Sabbagh PO 53(4) 49 58-60 See also S Shilo Interpretation of the Inheritance Law ill Israel 1965 (Jerusalem Nevo Publishing 2002) 111391-393

72 Although Mr Shaulian filed a get with the rabbinical court in Israel the court did not attach to it a decision that forces the get on the wife and did not rule or even recommend that she divorce her husband Moreover the rabbinical court had no jurisdiction to deliberate on matters related to the couples

280 JEWISH LAW ASSOClA TION STIJDIES XN JERUSALEM 2002

It is not out of the question that the Supreme Court considered an equal division of the estate between the two women to be unjust and was therefore driven to a binary decision The reason for this would be the fact that the first wife had not lived with the deceased for twenty three years while the second wife had been living with him for his last eighteen years and bore him several children I believe that a solution can be found to settle this matter as well within the framework of Israeli law based on another ruling of the Supreme Court in the Nafisi case of yet another Jewish couple of Persian origin73 The Supreme Court ruled that the couple who were married in another country at a time when they were not Israeli citizens or residents from the moment they became Israeli citizens and residents they also became subject to the provisions of community property presumption in the Israeli law And this was so even in the case of a couple immigrating from Iran where the rule of joint possession based on an egalitarian outlook regarding the genders was not known at the time of their marriage

We can use the Nafisi ruling to establish a better balance between the two women and increase the sense of justice produced by the decision Community property presumption does not follow from the marriage itself as even in a non marital cohabitation the woman can claim her due based on it14 The basis of joint possession is life in common and the couples intention of sharing their property equally It is beyond question that only the second wife who lived with Mr Shaulian since they emigrated to Israel and until his death is entitled to receive her share based on joint possession while the first wife who has not lived with him in Israel and who was separated from him by an ocean will receive no share on this basis If the Nafisi ruling applies only to the property accumulated since the arrival of Mr Shaulian to Israel the second wife will receive three quarters from this component of the estate and the first wife only one quarter From the property accumulated before the couple arrived in Israel the two women will each receive half However the opinion of Chief Justice Barak (and other justices agreed with him) in the Nafisi case was that it makes no sense from the point of view of the joint assets provision and from the point of view of the contractual basis at its foundation to differentiate between assets that the parties brought with them to Israel after their marriage and assets accumulated

marriage and divorce (see supra nl) The court merely offered advice and expressed a sincere desire to prevent the wife from becoming an agunah

73 Further Civil Discussion 9411558 V Nafisi v N Nafisi PD 50(3) 582

74 Civil Appeal 8052 Shahar v Friedman PD 38(1) 443 445-4550

ELIMELECH WESTREICH COMMENTS ON THE SHAUUAN DECISION 281

In IsraeL 75 The same rule of joint possession in Israel applies to assets acquired before marrying the second wife while the man was married to the first Therefore the second wife will receive three quarters of the entire estate while the first wife will receive only one quarter 111is result should satisfy the sense of justice which on one hand is not willing to divide the estate equally between the two women and on the other is not ready to dispossess the first wife and cut her out entirely of her husbands estate

Finally I would like to examine one more issue raised in the Supreme Court ruling The first wife tried to base her argument on a principle established by Justice Agranat in the Skornick case namely that Hebrew law is the national law of the Jews in addition to being the standard national law6 Justice Dorner rejected this reasoning with the argument that the principle of Justice Agranat was intended only to validate marriages that the standard national law does not recognize but that it was not intended to be used for the annulment of marriages by means of the Hebrew law Because

in this case the appellant asked to invalidate her divorce from the deceased and his marriage to the respondent her argument was rejected Once again the monogamous western model becomes evident whereby invalidating the di vorce of the first wife will of necessity invalidate the second wifes marriage But from the point of view of the polygamous eastern pattern the picture is different It would have been possible to accept the appellants main argument whereby she was still married to Mr ShauJian by virtue of the Hebrew law which is the second national law despite the opinion of the other national law the personal law which regards her as being divorced This recognition would not deny the validity of the second wifes marriage in view of the oriental polygamous approach so that the court could have remained within the bounds of the Skornick ruling77


76 Civil Appeal 51191 Skornick v Skornick PD 8 141 178

77 In this case the Agranat position has added validity as Iranian law itself sees in the halakhah the parties personal law in the case of their marriage unlike Polish law in the Skomick case The very fact of their marriage according to Iranian law was derived from the authority of the Hebrew law and its framework Although Iranian law regarded the first wife as having been divorced from her husband Hebrew law did not regard her as being divorced Consequently the marriage should be recognized as still valid

282 JEWISH LAW ASSOCIATION STUDIES XIV JERUSALEM 2002

Summary

The courts decision to reject the womans claim to inherit her husband was based on the argument that the man was married to another woman This argument is highly vulnerable because it is only in the western monogamous model that the mans marriage to another woman prevents the first wife from also being married to him According to the polygamous oriental model both Muslim and Jewish within the framework of which all marriages were performed in Iran there is nothing to prevent the first wife

from being considered married to the man along with the second wife Adopting the oriental model is entirely consistent with the public interest in

Israel as established by the court itself and according to which the mans act of divorce in Iran under the aegis of the Muslim religion was inequitable and should be rejected by Israeli law

This model also defuses the confrontation between two public interests the one that regards the divorce as a patently unjust act and the other which views the invalidation of the second wifes marriage as unjust toward her Recognition of the possibility that the man is shared by two women makes the confrontation an imaginary one It also cancels the necessity of ascrihing undignified conduct to the first wife for the sole purpose of rejecting the recognition of her marriage which clashed with the marriage of the second wife based on the public interest The solution for two women claiming the same estate is to divide it between them as provided for explicitly by the Inheritance Law At the same time the court could have used joint possession according to the Nafisi ruling to increase the portion of the second woman and satisfy the sense of justice

15 A WESTERN VIEW

OF EASTERN MARRIAGE COMMENTS ON TIlE NUSRAT

SHAULlAN v SULTANA

SHA ULlAN DECISION by

ELIMELECH WESTREICH

In the Shaulian case the Israel Supreme Court denied the right of a Jewish woman of Persian origin to inherit her husband to whom she had been married by the religion of Moses and Israel and who divorced her against her will after he converted to Islam while they were still living in Iran The court preferred another Persian Jewish woman who married the same man also by Jewish law at a later date after he had converted back to Judaism The present paper argues that the court took a western view of marriage and divorce that were enacted in a purely oriental setting and has therefore reached an erroneous and unjust decision The correct decision would have been to recognize both women as wives of the deceased and to award them both rights to his estate This solution would conform to the expectations of the people involved in the case at the time of the marriages to the social norms in their environment and to the Iranian legal system

The details of the case as presented by the Supreme Court are as follows The first woman married Mr Shaulian in 1940 in Iran by the religion of Moses and Israel which is the personal law that applied to the parties in Iran The woman received a ketubah according to the local halakhic tradition After twenty five years of marriage in 1965 Mr Shaulian converted to Islam and the same year divorced his wife Two years after he divorced his wife he returned to the Jewish faith The first wife claimed that

Associate Professor in Family Law and Jewish Law Faculty of Law Tel-Aviv University Israel This research was supported by the Cegla Institute An earlier Hebrew version was published in Kiryat HaMishpat 3 (2003) 315shy343













2



PaUems ofMarriage


The Christian West














such not both

Ashkenazi Jews




6 Ibid 183



9 Ibid









The Muslim East
















at 21-23





























28 Ibid 27


30 Ibid at 338-343















































































centers he answered



























































The Shaulian Case







48 Ibid 111

49 Ibid n2




















































57 See supra n20




































62 Ibid at 453

63 Ibid at 454




67 Ibid at 541-545



































































Summary

















2



PaUems ofMarriage


The Christian West














such not both

Ashkenazi Jews




6 Ibid 183



9 Ibid









The Muslim East
















at 21-23





























28 Ibid 27


30 Ibid at 338-343















































































centers he answered



























































The Shaulian Case







48 Ibid 111

49 Ibid n2




















































57 See supra n20




































62 Ibid at 453

63 Ibid at 454




67 Ibid at 541-545



































































Summary







PaUems ofMarriage


The Christian West














such not both

Ashkenazi Jews




6 Ibid 183



9 Ibid









The Muslim East
















at 21-23





























28 Ibid 27


30 Ibid at 338-343















































































centers he answered



























































The Shaulian Case







48 Ibid 111

49 Ibid n2




















































57 See supra n20




































62 Ibid at 453

63 Ibid at 454




67 Ibid at 541-545



































































Summary














such not both

Ashkenazi Jews




6 Ibid 183



9 Ibid









The Muslim East
















at 21-23





























28 Ibid 27


30 Ibid at 338-343















































































centers he answered



























































The Shaulian Case







48 Ibid 111

49 Ibid n2




















































57 See supra n20




































62 Ibid at 453

63 Ibid at 454




67 Ibid at 541-545



































































Summary












The Muslim East
















at 21-23





























28 Ibid 27


30 Ibid at 338-343















































































centers he answered



























































The Shaulian Case







48 Ibid 111

49 Ibid n2




















































57 See supra n20




































62 Ibid at 453

63 Ibid at 454




67 Ibid at 541-545



































































Summary















at 21-23





























28 Ibid 27


30 Ibid at 338-343















































































centers he answered



























































The Shaulian Case







48 Ibid 111

49 Ibid n2




















































57 See supra n20




































62 Ibid at 453

63 Ibid at 454




67 Ibid at 541-545



































































Summary

































28 Ibid 27


30 Ibid at 338-343















































































centers he answered



























































The Shaulian Case







48 Ibid 111

49 Ibid n2




















































57 See supra n20




































62 Ibid at 453

63 Ibid at 454




67 Ibid at 541-545



































































Summary

















































































centers he answered



























































The Shaulian Case







48 Ibid 111

49 Ibid n2




















































57 See supra n20




































62 Ibid at 453

63 Ibid at 454




67 Ibid at 541-545



































































Summary


























































The Shaulian Case







48 Ibid 111

49 Ibid n2




















































57 See supra n20




































62 Ibid at 453

63 Ibid at 454




67 Ibid at 541-545



































































Summary























































57 See supra n20




































62 Ibid at 453

63 Ibid at 454




67 Ibid at 541-545



































































Summary








































62 Ibid at 453

63 Ibid at 454




67 Ibid at 541-545



































































Summary






































































Summary





jewish law association studies xiv · (a jewish bill of divorce) to the court, most likely to...

Documents