While a state may enact laws that apply universally to its constituents, many also choose to live their lives in accord with certain religious tenets or laws, which have a separate system of adjudication. One such religious law is the Jewish divorce. According to halacha, a divorcing woman is not permitted a religious remarriage unless she is physically handed a legal document called a Get by her divorcing husband. The act of handing over the Get must be voluntary.
The result of the refusal to cooperate with giving the Get is the creation of the female status of agunah, or the woman chained to the religious marriage, unable to remarry in her faith. The agunah, who is often a psychologically abused and financially abandoned spouse with children, is in essence “chained” to a dead marriage and unable to move on with her life.
More than a decade ago, the topic of the Get (Jewish divorce) hit the media following the trial of several New Jersey/New York area rabbis accused and convicted of using illegal and often physically coercive tactics to force recalcitrant Jewish men into “voluntarily” giving their wives the “Get.” Without a Get, a Jewish woman is not permitted a religious remarriage.
The refusal to grant the Get is frequently based on negotiating “leverage” for the terms of divorce. As one example, the husband refuses to grant the Get to the wife unless he is granted better financial or custodial terms in the divorce case. Another example arises when the wife refuses to “accept” the Get from the husband unless her terms are met. This is a rarer circumstance, but it can happen.) In either case, the Get becomes a “bargaining tool” and this phenomenon runs contrary to the goal of our State’s matrimonial courts, which want to “level the playing field” between the parties.
A Jewish divorce starts with a review of the ketubah, a halachic premarital agreement. When a marriage is dissolving, both parties may agree to appear before a Beth Din, or Jewish court of law, and to follow the Beth Din’s rulings. The Beth Din will arbitrate the dissolution of the marriage and granting of the Get. The Beth Din will also arbitrate financial sanctions for non-compliance by the husband giving the Get. There can be sanctions of $100 or $150 per day until the Get is delivered. Beth Din can order compliance. However, a Beth Din cannot physically force a husband to “voluntarily”give the Get. Unfortunately, many rabbis do not require the prospective couple to insert stronger remedies in the ketubah or premarital agreements often endorsed by rabbis.
There is a predictable problem with religious premarital agreements when followers of a faith turn to the secular legal system for enforcement of the religious agreement. The general principle has been that “courts can and do decide secular legal questions in cases involving some background issues of religious doctrine, so long as the courts do not intrude into the determination of the doctrinal issues.” [Elmora Hebrew Center, Inc., v. Fishman, 125 N.J. 404, 414 (1991)] Courts can and will, for the most part, enforce agreements entered into by the parties as long as this is a matter of enforcement, even if the subject matter is religious (Light v. Light, 2012 Conn. Super. LEXIS 2967).
New York took the lead in addressing religious divorces, with courts enforcing the ketubah since 1926 [Hurwitz v. Hurwitz, 216 A.D. 362 (1926)]. In 1983, New York enacted statutory provisions that require a party who commences a matrimonial action to verify that he/she has acted to “remove all barriers to remarriage.” Although non-denominational in language, the intent was to address the agunah problem by requiring the filing party to “remove any barrier to the [other spouse’s] remarriage following the annulment or divorce”, or a civil divorce would not be granted. The non-filing spouse who consents to the actual divorce must also abide by these terms. An attempt to strengthen DRL §253 was made in 2010 in DRL §236(B)(5), so that courts now review all equities in a divorce when dividing marital property. The result is that not only are the economic sanctions contained in the ketubah available as a remedy to the wife, but the court’s determination of equitable distribution may be affected if the husband refuses to release the wife from the marriage.
In New Jersey, there is no statutory provision or rule addressing the issue of religious divorce or enforcement of religious premarital agreements. The case law, which is too extensive to cite in this article, is somewhat divided on the issue. In brief, a premarital agreement in New Jersey is civilly enforceable, as would be the economic sanctions for failure to arbitrate and failure to abide by the arbitration decision. However, specific performance of a religious activity (like the granting of the Get) cannot be forced by the Court, although the financial sanctions can be enforced.
What can be done in New Jersey to even the playing field?
I propose that this state begin with legislation similar to New York, combining the relevant portions of New York DRL §253 and §236(B)(5) but adding additional provisions to strengthen loopholes in the New York laws:
1) Each party that appears in the civil divorce shall agree to remove all barriers to remarriage.
2) Religious clergy who are submitting the civil marriage license to New Jersey shall require a written representation by both parties to cooperate to remove all barriers to the other’s remarriage.
3) Enforcement of religious or secular premarital agreements in which the parties agree to arbitrate their religious divorce before a religious tribunal; including economic sanctions contained therein for non-compliance.
4) Amending the New Jersey Equitable Distribution statute (N.J.S.A. 2A:3423.1) to allow the trial court to consider the financial effect of one party refusing to remove barriers to religious remarriage.
While this article primarily addressed the Jewish divorce, any statewide remedies must not be directed at one particular religion. The above recommendations may be construed, for example, as requiring Catholics to cooperate in seeking a religious annulment (if that is the accepted religious marital dissolution that allows for a Catholic remarriage). There are also problems encountered with the giving of an Islamic Talaq and interpretation of the Mahr in a Muslim Divorce, which new law should equally address.
The problem of barriers to remarriage in many religions demands a concerted effort to create a universal remedy in secular courts. This article addresses issues that I raised several years ago. Unfortunately, these problems continue to exist.
Robert Kornitzer Esq. is certified by the Supreme Court of New Jersey as a matrimonial law attorney. He has been ranked by Best Lawyers as one of New Jersey’s top family and divorce attorneys for the past five years. As a dual law and MBA degree holder from Boston University, with extensive business experience, Kornitzer brings unique expertise in both the legal and financial aspects of all issues related to divorce. Contact [email protected]
