Rabbinic Attempts to Resolve the Agunah Dilemma in Early-Twentieth-Century France

After capturing the Senate in 1879, the republicans in France began to dismantle the relationship between church and state. The Ferry Laws of 1881–82 secularized the public schools, and the 1882 burial law secularized municipal burial grounds. Then, in 1884, the republicans reestablished civil divorce, which Louis XVIII had abolished in 1816. While the Catholic right opposed all three republican measures, the consistorial representatives of French Jewry opposed only the burial law that sought to abolish confessional burial plots.¹ Regarding the issue of divorce, Isadore Cahen, editor of Les Archives israélites de France, noted that, “the serious objections of the Church against the legal repudiation [of marriages] in accordance with its dogma of the indissolubility of marriage do not exist for Judaism. Divorce is inscribed in our Torah and is still used by our co-religionists in countries where it is legally recognized.”²

While there were no serious objections within the organized French Jewish community to divorce per se, there were Jewish spokes-people who raised questions about the specifics of the new divorce law. For example, writing in L’Univers israélite, legal expert J. Blumenthal raised two important issues. Although Jewish law allowed for divorce, would the new law force rabbis to grant religious divorces? Furthermore, leaving aside the question of coercion, at what point would rabbis be allowed to issue religious divorces, before or only after a couple received a civil divorce?³ Responding to his first question, Blumenthal concluded that just as the civil marriage law, dating back to the French Revolution, did not require rabbis to perform religious marriages, a civil divorce law could not impose on rabbis the obligation to grant religious divorces. Otherwise, the state could presumably force Catholic priests to grant divorces, which was unthinkable.⁴ Blumenthal was less certain about the answer to his second question. He presumed that a rabbi would be allowed to grant a religious divorce before a civil divorce even though Article 199 of the French Penal Code subjected to a fine, “every minister of any sect, who proceed[ed] to the religious ceremonies of a marriage, without having it proved to him that an act of [civil] marriage has been previously taken by the officers of the civil state.” As he explained, when it came to penalties, there was a legal principal of poenalia non sunt extendenda, penalties should not be broadly interpreted. In other words, one should not infer from the existence of a prohibition in a marriage law that the same prohibition applies in a divorce law.⁵ Nonetheless, in a footnote, the editors of the Univers israélite added, “This is a delicate question, and the opinion reflects solely that of the author.”⁶ And, as it turned out, rabbis were not allowed to grant a religious divorce prior to a civil divorce.⁷

What was notably absent in either Cahen’s or Blumenthal’s analysis was the question of whether the French rabbinate should or would voluntarily modify Jewish law to accommodate the 1884 divorce law. This article will examine in depth the extent to which French rabbis were prepared to harmonize traditional Jewish divorce law with the new French divorce law and will briefly consider how and why their results differed from those of the French civil courts.

The French divorce law decreed that either a husband or a wife could obtain a civil divorce from a French court on a variety of fault grounds.⁸ According to Jewish law, however, a husband’s consent was required to obtain a religious divorce. Even a husband who committed a serious matrimonial offense could refuse to give his wife a get (a religious bill of divorce), and she would remain religiously married to him. At best, a rabbinic court could attempt to persuade such a person to grant his wife a divorce. If he nonetheless refused, his civilly divorced wife could never religiously remarry. If she chose to civilly remarry, as was her French legal right, from the perspective of Jewish law she would have the status of an adulteress...