Agbara v. Agbara
Jul. 8th, 2009 05:11 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
ymarkovThe distinctions in Jewish Law regarding the status of a woman who lives with a man to whom she is not married formed the basis of the Supreme Court’s ruling in the case of Agbara v. Agbara (CA 4946/94, 49(2) PD 508). The case concerned a divorced couple, whose divorce agreement stipulated that “the husband’s obligation to pay the entire sum of maintenance… will apply until each of the children has reached 21 years of age or until the wife remarries, if she remarries, whichever the later” (p. 510 of judgment). Following the husband’s remarriage and subsequent separation from his second wife – without a get, due to the second wife’s refusal to accept it – the original couple resumed living together as “common law spouses.” Eighteen years later the husband left the home. The woman claimed that the original divorce agreement was still in force, as she had not yet married, and the man was therefore liable for maintenance payments. The husband claimed that his obligation under the agreement lapsed at the point that the wife had received a secure financial framework, and that the agreement was void by implication because their actions, upon returning to live together, attested to its annulment. The Supreme Court (Justice Zvi Tal) ruled that, in accordance with Jewish Law, the agreement was no longer valid because the condition regarding the woman’s remarriage had been fulfilled, and the woman was considered as both betrothed and married to the man.
"Regarding an ordinary couple who are common law spouses,
there are many opinions as to whether or not the woman requires
a get, and it also depends on the circumstances of the
case. There are those who at the very least require her to receive
a get le-ḥumra (a writ of divorce to cover possible halakhic uncertainty
as to her status), based on the presumption that “a man
does not intend his sexual relations to be promiscuous” and the
evidentiary presumption – anan sahadi – that there was marital
intention. On the other hand, there are those who make the
application of this presumption conditional upon whether the
life style of the couple in question validates its application in
their particular case. Furthermore, if they could have married
officially, and refrained from doing so, this is deemed as a declaration
on their part that they are not interested in marrying,
and hence the presumption does not apply to them.
But irrespective of what the situation is regarding an ordinary
couple, it differs with respect to spouses who were married,
divorced, and then resumed living together. Regarding such a
couple the Mishnah states (Git. 9:10):
“If a man has divorced his wife and then stays with her
overnight in an inn, Bet Shammai say that she does not require
from him a second get, but Bet Hillel say that she does require
a second get from him ….”
The halakhah was decided according to Bet Hillel, and
codified accordingly (Maim., Yad, Gerushin 10.17; Sh. Ar., EH
149:1):
“Now, if this is the rule regarding one night in an inn,
then a fortiori, it would apply to cohabitation for almost 20
years, during which time the couple were regarded as husband
and wife; hence, she requires a get from him if she wishes to
remarry. For if on the basis of one night together in an inn the
woman is considered as “definitely betrothed” (the terminology
of Shulḥan Arukh), and betrothal alone does not obligate the
man to support her, then it is clear that cohabitation for close
to 20 years would be deemed a marriage, creating an obligation
of support. Indeed, the essence of huppah – which confers
the status of marriage upon a betrothed woman – is their
shared domicile in one house as man and wife. The fact that the
couple did not remarry by way of a proper marriage ceremony
with ḥuppah and kiddushin is not indicative of their intention
not to marry, for the husband was still officially married to his
second wife. It seems clear that, under the circumstances, the
respondent should be considered a married woman who requires
a get from the appellant, and as such he is obligated to
support her by dint of his personal status – albeit not by force
of the agreement. Regarding the divorce agreement, the condition
stipulated for the termination of the agreement – “until
she marries” – should be regarded as having been fulfilled, and
therefore the obligation to pay support pursuant to the divorce
agreement is vitiated. (ibid., pp. 513–14).”
The question which the Supreme Court was required to decide in the framework of the appeal was limited to the issue of the validity of the agreement. Regarding this question, the Court’s conclusion was that the agreement is invalid, inasmuch as the couple was considered as still married. Therefore, the woman can demand support from the man on the basis of her status as his married wife, but she can only do so in the framework of a separate proceeding. It is noteworthy that Justice Tal emphasizes that the ruling does not constitute a decision on the validity of the marriage, an issue residing within the exclusive jurisdiction of the rabbinical court. The Supreme Court’s decision relates solely to a secondary question, required for the clarification of the main question: the financial question of the validity of the agreement – for which the Supreme Court has jurisdiction.
(From the Encyclopedia Judaica, entry Concubine)
"Regarding an ordinary couple who are common law spouses,
there are many opinions as to whether or not the woman requires
a get, and it also depends on the circumstances of the
case. There are those who at the very least require her to receive
a get le-ḥumra (a writ of divorce to cover possible halakhic uncertainty
as to her status), based on the presumption that “a man
does not intend his sexual relations to be promiscuous” and the
evidentiary presumption – anan sahadi – that there was marital
intention. On the other hand, there are those who make the
application of this presumption conditional upon whether the
life style of the couple in question validates its application in
their particular case. Furthermore, if they could have married
officially, and refrained from doing so, this is deemed as a declaration
on their part that they are not interested in marrying,
and hence the presumption does not apply to them.
But irrespective of what the situation is regarding an ordinary
couple, it differs with respect to spouses who were married,
divorced, and then resumed living together. Regarding such a
couple the Mishnah states (Git. 9:10):
“If a man has divorced his wife and then stays with her
overnight in an inn, Bet Shammai say that she does not require
from him a second get, but Bet Hillel say that she does require
a second get from him ….”
The halakhah was decided according to Bet Hillel, and
codified accordingly (Maim., Yad, Gerushin 10.17; Sh. Ar., EH
149:1):
“Now, if this is the rule regarding one night in an inn,
then a fortiori, it would apply to cohabitation for almost 20
years, during which time the couple were regarded as husband
and wife; hence, she requires a get from him if she wishes to
remarry. For if on the basis of one night together in an inn the
woman is considered as “definitely betrothed” (the terminology
of Shulḥan Arukh), and betrothal alone does not obligate the
man to support her, then it is clear that cohabitation for close
to 20 years would be deemed a marriage, creating an obligation
of support. Indeed, the essence of huppah – which confers
the status of marriage upon a betrothed woman – is their
shared domicile in one house as man and wife. The fact that the
couple did not remarry by way of a proper marriage ceremony
with ḥuppah and kiddushin is not indicative of their intention
not to marry, for the husband was still officially married to his
second wife. It seems clear that, under the circumstances, the
respondent should be considered a married woman who requires
a get from the appellant, and as such he is obligated to
support her by dint of his personal status – albeit not by force
of the agreement. Regarding the divorce agreement, the condition
stipulated for the termination of the agreement – “until
she marries” – should be regarded as having been fulfilled, and
therefore the obligation to pay support pursuant to the divorce
agreement is vitiated. (ibid., pp. 513–14).”
The question which the Supreme Court was required to decide in the framework of the appeal was limited to the issue of the validity of the agreement. Regarding this question, the Court’s conclusion was that the agreement is invalid, inasmuch as the couple was considered as still married. Therefore, the woman can demand support from the man on the basis of her status as his married wife, but she can only do so in the framework of a separate proceeding. It is noteworthy that Justice Tal emphasizes that the ruling does not constitute a decision on the validity of the marriage, an issue residing within the exclusive jurisdiction of the rabbinical court. The Supreme Court’s decision relates solely to a secondary question, required for the clarification of the main question: the financial question of the validity of the agreement – for which the Supreme Court has jurisdiction.
(From the Encyclopedia Judaica, entry Concubine)
