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Napoleon's Sanhedrin and the Halakhah 21
document. A court could force the husband to give a divorce, and a man might be punished and imprisoned for his refusal to give a divorce; this remains true in modern Israel . If he remains unwilling after punishment, nothing further can be done(B.B. 48a; Yad, Hil. Erusin 2:20)°'. There are also certain circumstances under which a court may demand a divorce, although neither one of the parties involved has requested it. The detailed reasons for a divorce have been codified in the various early codes and in the Shulhan Arukh, Even Ha-ezer(1 ¥. 11.1; 39.4; 70.3; 76.11; 115.5; 134; 154.1- 7, etc.). The actual procedure and the document of divorce have been surrounded by many restrictions in order to ensure their complete validity. The procedures have been prescribed in greatest detail(Shulhan Arukh, Even Ha-ezer 119ff). The various problem areas have been treated extensively by Rabbinic law; for example, the mental incapacity of the husband or wife, the disappearance of the husband, or his presumed death. In these instances and in ordinary divorce, Orthodox law has found itself in a difficult position, for only the man can actually grant a divorce, and if he is unwilling or unavailable there is little that can be done.
As divorce proceedings frequently involve a great deal of bitterness, the husband may be unwilling to provide a religious divorce (get) along with the civil divorce unless a large payment or some other concessions are made. Sometimes a religious divorce is stipulated as part of the arrangement in a secular divorce.The Conservative Movement has sought to remove itself from this predicament by including a special statement in its marriage document. It provides for authority of a rabbinic court to grant a divorce in cases where the husband is unwilling to do so or if he becomes unavailable.” This kind of ante-nuptial agreement, as well as other possible solutions, have been suggested by various traditional scholars as Freimann in his Seder Kiddushin Venisuin and Berkovits, in Tenai Benisu-in Uveget, but they have met strong opposition among other Orthodox authorities.