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Main article: Get (divorce document)

:For the religious process, see Get (divorce document)

A 'get or ghet is a Jewish bill of divorce which is supervised by a Beth Din which is a rabbinical court in the city or jurisdiction where one lives. This page deals with the Conflict of Laws or civil law implications vs Judaic Law (religious law) when a women does not get her ghet and is kept in "agunah" which means chained.http://www.icar.org.il For a discussion of the purely religious implications, see religious divorce.

Discussion

Jewish communities have maintained a strong desire for religious, cultural and economic autonomy. Jewish Law is administered and enforced Judaic Lawin Israel and in the Diaspora through Bet Dins (Houses of Judges) Judaic Law holds that the man must initiate the request for the Jewish Divorce ("get")and the woman must agree to receive the ("get").

The relationship between state and religion

Jewish law or religious law is not justiciable in societies with the civil law doctrine of separation of Church and State which can sometimes cause conflict for women who remain in "agunah". One of the most common divorce difficulties is that a spouse can be held in a limping marriage when the other spouse refuses co-operation in the religious form of divorce (see Agunah). A civil divorce can be obtained through local courts which entitles the parties to remarry civilly, but the capacity to remarry is also religious question. Where one party has the power to grant or withhold a religious divorce, this power can be used as a bargaining tool to pressure the other party to agree more or less favourable terms for residence and contact with children, and for maintenance and property settlements. Such provisions produce a conflict between the human rights of the woman to be free to marry and the freedom of people to practise their religion (see Article 18 of the United Nations Universal Declaration of Human Rights which is repeated almost word for word in Article 9(1) European Convention on Human Rights, International Covenant on Civil and Political Rights and the United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief[1]). The difficulty is that most countries operate under constitutions based on a separation between church and state which forbid governments from interfering in the practice of religion within their territory unless the behaviour of one or more parties is in breach of the local civil or criminal law. Thus, for example, in Rhodesia, the case of Berkowitz v Berkowitz (1956) (3) SA 522 (SR), held that it was inappropriate to use contempt proceedings to force a husband to grant a get because anything concerned exclusively with religious formalities was outside the jurisdiction of the secular courts.

Nevertheless, the majority of Western states do, to some extent, make the secular court's response to matrimonial proceedings conditional on the relevant party taking the steps necessary to complete a religious divorce on fair terms, so that either the court will impose excessively generous orders for maintenance and property settlement, or deny access to a civil decree or to ancillary relief until the religious formalities have been completed.

Canada

In Canada, following consultation with all major religious groups, the Divorce Act was amended in 1985 to add Section 21.1 to give the courts have the power to dismiss any application, and strike out any pleadings and affidavits filed by a spouse who has failed to remove religious barriers to the remarriage of the other spouse. The legislature intended to:

• place spouses on a more equal footing in civil divorce actions;
• encourage women in particular to exercise fully their rights under the law; and
• maintain the integrity of the Divorce Act 1985 by helping to ensure that refusing to accept or to give a religious divorce was not used as a bargaining tool to gain unfair concessions on child custody and access, or monetary support.

This reflects a general strong response at a federal level to any elements of duress or undue influence within the civil law system.

Bruker v. Marcovitz

The justiciability of a civil contract with religious overtonese is now being tested in the Supreme Court Case of Bruker v. Marcovitz. See Canadian Civil Liberties Association. http://www.ccla.org/pos/legal/

In 1969, the parties married in an orthodox ceremony. During the next 11 years they adopted two children after Ms. Bruker was unable to conceive. After they adopted their daughters, she had an on and off again affair with a college sweetheart and became pregnant. She then had an abortion. In April of 1980, Ms. Bruker initiated divorce proceedings. A link to the decision database is http://www.jugements.qc.ca/ and the full decision can be found with a text search for “Bruker” under “Cour d’appel”</ref>

In 1980, Mr. Marcovitz agreed upon a consent judgment for the divorce to appear immediately before Rabbinical authorities for the purpose of granting the religious Get. Shortly, after the civil divorce, Ms Bruker, personally and through various attorneys and Rabbis, asked Mr. Marcovitz to provide the get, but Mr. Marcovitz refused. Mr. Marcovitz opined that he refused to comply because he viewed Ms. Bruker's behavior since the divorce as harassment and an attempt by her to alienate him from his children.

Ms Bruker sued Mr. Marcovitz in 1989, seeking damages in the amount of $500,000 "for having been restrained from going on with her life since de Decree Nisi [...], for having been restrained to remarry according to the Jewish faith [and] for having been restricted of having children".

In 1995, a certificate of divorce was issued by the Rabbinical Court of Montreal with Mr. Marcovitz's consent and participation to the get. Despite receiving the get, Ms Bruker amended her action to increase the amount of the damages claimed to $1,350,000 and to include damages "for the loss of consortium."

Since Mr. Marcovitz was in breach of a judgment of the civil court, the lower court found that the matter could be argued before the civil courts and that Mr. Marcovitz had breached his contractual obligation to "appear before Rabbinical Authorities. He awarded Ms. Bruker $47, 500 in damages.

On appeal, Justice Hilton, writing for the three member court, overturned the lower court judgement. The appellate court ruled that the obligation was religious in nature and so could not be judged by the civil courts.

"It matters not that the obligation was stated in the Consent that the Superior Court ratified, since the Superior Court could never have entertained an application for corollary relief under section 17 of the Divorce Act to require the issuance of a ghet. It is not at all unusual to see the parties in an agreement on corollary relief undertake to perform a variety of obligations that are not, strictly speaking, obtainable independently, but which are desirable nevertheless to the extent that they promote an amicable post-divorce environment."

"While I recognize the usefulness of the inclusion of obligations of this nature in divorce agreements, it does not follow that they all automatically become subject to curial supervision and control, whether for specific performance or damages in the event of a breach. In my view, in order for such clauses to be enforceable, they must be directly related to one of the subject matters on which courts issue or vary orders of corollary relief, and otherwise be justiciable.

- Justice Hilton, Quebec Court of Appeals

Marcovitz also pointed out that Bruker had multiple affairs with married men, many who were not Jewish. He questioned her devotion to religious law. Bruker's lawyer countered that her affairs in some matters did not negate her religious conviction. Arguments were heard in the Supreme Court of Canada on December 5, 2006. A decision on the case is pending."On December 27 2006 the Supreme Court received the final transcript of the proceedings. The decision is pending."

United States

In New York State, the court cannot enter a judgment of annulment or divorce unless any barriers to religious remarriage by a spouse, the removal of which are within the control of the other spouse, have been removed. Section 253 of the Domestic Relations Law (the so-called "First New York Get Law") provides that, in a contested divorce, any applicant whose marriage was solemnised by a religious celebrant must file a statement that:

he or she has taken, or will take, all steps within his or her power to remove all barriers to the other spouse’s remarriage; or

the other spouse has waived in writing the applicant’s obligation to file the statement.

In an uncontested divorce both parties must file such a statement or waive the obligation of the other party to do so. The court cannot enter a final judgment of divorce or annulment unless it receives the statements and, even then, final judgment cannot be entered if the person who solemnised the marriage swears that, to his or her knowledge, the applicant has failed to take all steps within his or her power to remove all barriers to the other party’s religious remarriage. See Becher v Becher,245 A.D.2d 408, 667 N.Y.S.2d 50 (N.Y. App. Div. 1997), 97-03205. Dated December 15, 1997 where the lower court should not have entertained the constitutionality of the statute (Get Law) as moot. See also Koeppel v. Koeppel. 138 NYS2d 366 (S.Ct. Queens County, 1954)where the ruling was that it was not unconstitutional to force defendant force defendant to fulfill an earlier agreement to appear before a rabbinical court. See also Rubin v. Rubin, 348 NYS2d 61, 75 Misc2d 776 (Fam. Ct. Bronx County, 1973)where the Court would not enforce payment of agreed upon alimony if wife refused to accept get that she had agreed to accept in same agreement containing alimony. The conflict between religious law and secular law is illustrated with two cases - Pal v. Pal 356 NYS2d 672, 45 AD2d 738 (App. Div., 1974)where the Court ruled it had no authority to convene a Rabbinical tribunal to prepare get; Avitzur v. Avitzur, 449 NYS2d 83, 86 AD2d 133 (App. Div., 1982)where the Court could not enforce liturgical agreement not incorporated into already granted civil divorce and that the Ketubah," a marriage contract written in Hebrew" by its own language, shows itself to be a religious document. For further cites on jewish law vs secular law in marriage and divorce see http://www.jlaw.com/Summary/divorce.html

Australia

In the case of In the Marriage of Gwiazda,[26] Emery SJ ordered a wife to appear before the relevant tribunal to accept a Jewish gett. Both of these decisions were also accepted in the case of In the Marriage of Frey,[27] where it was also noted that ‘provided the need can be shown for the Court to intervene, in order to exercise effectively its jurisdiction in respect of matrimonial causes, it is no objection that the granting of a gett involves proceeding before a religious tribunal’.[28] In the case of In the Marriage of Steinmetz,[29] a lump sum maintenance payment was imposed upon a husband in the event that he continued to refuse to grant a gett. In the event that the gett was given, the sum was to be reduced. The court referred to the earlier case of Brett v Brett,[30] where it was held that if a spouse’s conduct related to the financial resources of the other spouse, it could be taken into consideration when making certain orders. This was applied in Steinmetz[31] as a relevant consideration of the court in awarding maintenance payments under s 75(2)(o) of the Family Law Act. As it was within the husband’s power to prevent the wife from remarrying (and therefore gaining the financial benefits that would accrue from remarriage) it was held that a larger sum of maintenance could be imposed due to the denial of the wife’s right to remarriage. http://www.austlii.org/au/journals/JCULRev/2004/7.html In Australia, law has also been changed so that the decree absolute does not become final until all barriers to remarriage are removed. In Australia, the Family Court in Gwiazda v Gwiazda No. M10631 of 1992 used its general injunctive power to order a reluctant wife who refused to accept the get, to appear before the Beth Din in Melbourne. Emery J. observed that:

If I correctly understand the intention of the Act, then it is the clear duty of a judge of this court to ensure that appropriate orders are made fully effective, not only in theory but in fact. In this case the husband as a matter of law can marry any woman who is free to marry, subject only to the prohibitions in the Marriage Act, but as a matter of fact and practicability he cannot do so."

So-called "Gwiazda Orders" are now occasionally used when necessary to produce a fair result by requiring the parties to refer their problems to the local Beth Din. The Australian Law Commission has proposed [2] that the decree nisi should not become absolute and, in any other proceedings except those relating to a child, the court should have the power to adjourn the proceedings.

United Kingdom

In English law, the case of Brett v. Brett (1969) 1 All ER 1007 This case examines the decision of the Family Division of the High Court in N. v. N. (Jurisdiction: Pre-Nuptial Agreement) in which, in the context of Jewish divorce proceedings, the Court found that it had no jurisdiction to order a husband, by specific performance of a marriage agreement, to go through the procedure to obtain a ‘get’ (a hand-written bill of divorcement) allowing his wife to remarry. First, discussion of the case is contextualised broadly within the debate on the (de)merits of employing legal means in order to redress social wrongs. Secondly, adopting a theoretical perspective upon the difficulties involved in using law to achieve social change, the note goes on to examine more specifically why women from minority cultures may choose to go to the law of the dominant culture in order to obtain relief. http://www.springerlink.com/content/x61qh25471752770/ This case is akin to the Bruker v Marcovitz case in Canada which is now being tested before the Supreme Court of Canada,with respect to the issue of specific performance where Mr. Marcovitz agreed in the decree nisi to appear before Rabbinical authorities.

Other Options

Where neither party to a religious marriage comes to the civil courts for relief, the above options do not apply: the civil law courts cannot intervene at the own initiative to order the facilitation of a religious divorce. Even where relief is sought, the use of delay in the civil process could add to the wife's problems. She could be denied the get and denied the secular divorce. She would be unable to marry under religious law. Hence, this form of solution to perceived problems in the religious system is morally no better than the behaviour complained of.

PreNuptial Agreements

A couple entering into marriage can consider a prenuptial agreement where the man agrees in the event of divorce to appear before Rabbinical Authorities to give the get. However, if upon a civil divorce, the man decides to ignore this clause in the prenuptial agreement, the problem arises as did with Mr. Marcovitz where the civil court stepped in to adjudicate a religious contract. A prenuptial agreement is a contract which if a couple agrees when signing the prenuptial agreement, to accept the role of the Beth Din in the event of a matrimonial breakdown, the breach of this contract can then be brought into the civil courts for adjudication. http://icar.org.il/en/display/solutions_premarital_agreement

Conditional Clauses at marriage

Main article: Lieberman clause

In 1968 the Conservative movement in the U.S. adopted the conditional marriage solution. In some Conservative ceremonies, the couple is asked to sign an agreement before the huppah in front of a Rabbinic Court that states that the marriage is conditional. The agreement stipulates that if the couple were to obtain a civil divorce and the husband refuses to give his wife a get within 6 months, the marriage would be null and void (a minority of rabbis use this solution, because in cases when a get cannot be obtained, the Conservative movement’s Rabbinic Court performs hafka'at kiddushin – betrothal annulment).

The so-called "Lieberman clause," developed by Rabbi Saul Lieberman, does not deal with secular law at all, but instead inserts, at the time of marriage, a halakhic stipulation that the marriage is only valid on the condition that the man gives a Get within 6 months of any secular court's divorce. Were the man to refuse to give a Get, the marriage would be declared null retroactively--it would be as if the couple were never married from a Jewish legal perspective. However, the so-called "conditional marriage" is generally not advisable according to most rabbis, because should the couple have children then divorce civilly without a Get, the marriage would be nullified retroactively and the children would in turn become children out of wedlock (Hebrew: פגם). Furthermore, since most rabbis do not accept the possibility of a "conditional marriage", any further children (born to the woman) will be bastards (mamzer), prohibiting their marriage to any Jew. Jewish children born out of wedlock are not recognized in Jewish law nor in Israel. http://icar.org.il/en/display/solutions_conditional_marriage

Conditional Divorce

According to Jewish Law, a man can give his wife a get and tell her that it would be valid in case of an adverse event such as: not returning from a trip, being declared missing in action during a war, loosing his mind and other exceptional cases. A different option is for a representative of the husband to write his wife a get if such an event occurs. At times, the rabbis took such initiative and suggested that a conditional get be written. In 1987 Israel extradited a Jew named William Nakash to France. Before he left the country, the Rabbinic Court in Jerusalem insisted that he deposit a conditional get with the court, which Nakash agreed to.

This solution, however, was only suggested in relation to soldiers going off to war. According to Halakhah, it is not possible to give a conditional get once and to keep it until it is needed. If a man goes to war, gives his wife a conditional get, then comes home on vacation and is intimate with her before returning to war, he must give her a new get. This means that a new conditional get must be deposited each time. The IDF (Israeli Defense Forces) has a conditional get version that can be deposited before a particularly dangerous mission.

The Betrothal Annulment

This is also known as bethrothal annulment and is not a routine one for solving the problem of Agunot and women who are refused a get. The Rabbinic Court of the Conservative movement in the U.S. uses betrothal annulment as a legitimate solution to the problem (in a limited fashion, when it is impossible to obtain a get). It is important to state that this solution is not accepted by Orthodoxy which claims that betrothal annulment was indeed used in special and rare cases, however; it cannot be employed as a standard solution. This solution came to the forefront in the past several years in the State of Israel: Rabbi Shlomo Riskin suggested applying betrothal annulment on the basis of an enactment by the Chief Rabbinate in which it would to take such authority upon itself and Professor Berachyahu Lipshitz suggested that the Knesset should allow betrothal annulment on the basis of a law that would function as a community enactment.

http://icar.org.il/en/display/solutions_anullment_or_hafkaat_kiddushin

International recognition of the get

The get is recognized world over by Jewish religious law and is required in the event that an Jewish individual who is divorced wishes to remarry in either a Conservative or Orthodox synagogue or by a Conservative or Orthodox Rabbi.

Social and Political Reform

Currently, there is an agunot campaign in Israel whose purpose is to remedy the injustice suffered by Jewish women whose husbands deny them a religious divorce get after their marriages have irretrievably broken down. http://www.agunot-campaign.org.uk/ The denial of a get to a woman affects the children who are of issue to a marriage and is also as a result of an abusive marriage which often commences many years before the marriage ends. Their firm view is that refusal to grant a woman a divorce is contradictory to Jewish values and highly detrimental to the woman, her children and extended family, and society in general.

References

• Broyde, Michael J., "The New York Get Law: An Exchange", [3]
• Colman, Gene C. & Posen Joseph M. "Jewish Marriage and Ontario Law", [4]
• Freedman, E, "'Religious Divorce in Israel", (April, 2000), International Family Law, 20.
• Freeman, Michael, "The Jewish Law of Divorce", (May, 2000), International Family Law, 58.
• Feldman, M, "Jewish Women and Secular Courts: Helping a Jewish Woman to Obtain a Get" (1989-90) 5 Berkeley Women’s Law Journal, 139.
• Jacobus, Helen, "Getting together", (August 11 2000), Jewish Chronicle.
• Katzenberg, S, & Rosenblatt, J, "Getting the Get", (March 1999), Family Law, 165.
• Stern, Marc D. "A Legal Guide to the Prenuptial Agreement for Couples about to Be Married", [5]