{ subscribe_url: '/share/sites/library-of-congress-blogs/law.php' }

Releasing Agunot from the Chains of Marriage in Selected Countries

Ketubbah (“Wedding Contract”) for the marriage of David Hayyim bar David Moshe Norzi and Estellina bat Yehudah Barukh, Aug. 23, 1839, Maddalena on the Po. Image courtesy of the Hebraic Section, African and Middle Eastern Division.

Last week I blogged about Israeli legislative and judicial efforts to assist Jewish women who cannot divorce their husbands (עגונות, agunot,  literally “chained”; עגונה, agunah in singular). In accordance with Jewish law, which applies to matters of marriage and divorce of Jewish residents and citizens of Israel, a valid divorce requires the consensual delivery by the husband and receipt by the wife of a get (גט, a Jewish writ of divorce). Therefore, while a rabbinical court may find that the parties should divorce each other, it does not have the power to dissolve the marriage. Non-compliance with a court order of divorce will leave the woman agunah, with the negative implications described in my previous post, and she will be deprived of the possibility of ever rebuilding her life with another (Jewish) man.

Unlike Israel, matters of marriage and divorce for Jews living in other countries are usually governed by the law of the countries of their residence. The availability of civil divorce in many countries, however, has no effect on the status of the agunah under Jewish law. While such a divorce makes it possible for the parties to remarry under civil law, it does not release them from their Jewish marriage, which they presumably entered into. In the absence of the receipt of a get, regardless of the validity of the civil divorce, the woman remains “chained” to the marriage in the eyes of her community.

Bill of Divorce for Leah bat Shlomo Zalman from Mordecai ben Raphael (Lissa, Poland,1890), Image courtesy of the Hebraic Section, African and Middle Eastern Division, Library of Congress.

In recognition of the serious impact this “discrepancy” has on Jewish women’s lives, several countries with Jewish communities have attempted to address the plight of the agunot. Some countries require parties to a civil divorce to remove any barrier to their religious remarriage as a pre-condition for recognition of a final decree of civil divorce. Several countries also subject Jewish spouses, who do not comply with the requirement to remove such barriers, to pay monetary compensation to the aggrieved party.

The introduction of such measures has raised contradictory reactions. Whereas some view civil law sanctions on get- refusing husbands as violating principles of separation of state and church, others opine that such measures might be necessary to protect constitutional principles of equal treatment. Among others, the measures could prevent undue pressure by husbands, utilizing their leverage under Jewish law, in matters of monetary and custody disputes that are determined under civil law.

The following highlights the different views on the application of civil law measures and describes relevant approaches adopted in New York State and in selected countries around the globe.

 

Australia

The Australian Law Reform Commission on Multiculturalism and the Law, (ALRC Report 57, § 5.42, April 14, 1992) called for amending the Family Law Act 1975 as

[t]o provide that, on application, in specified circumstances, a decree nisi does not become absolute until the court is satisfied… that … the applicant has removed, or has undertaken to remove, any impediments to the other party’s remarriage …has asked the other party to remove a specified impediment to the applicant’s remarriage [but]…the other party has not complied with the request.

An October 2015 report of the Australian Law Reform Commission regarding implementation of the report, however, noted that “[T]he ALRC recommendations relating to customary and religious divorce have not been implemented.”

In a 1983 decision, an Australian family court reportedly ordered a wife to appear before the rabbinical court in Melbourne (Gwiazda & Ber (unreported, Family Court of Australia, Emery J, 23 February 1983). The decision appears to have been limited to submission of the wife to the jurisdiction of the Rabbinical Court, not affecting “her right to make any application to or submission to such a tribunal.” (Ferro & Kopel [2016] FamCA 409 (26 May 2016) ¶448). A different conclusion was reached, however, in Ferrro & Kopel where the court held that ordering a party to appear before a religious tribunal amounts to interference in religious matters. (Id.¶456).

[גט. פירי פאשא. תרכ”ג] Get (bill of divorce) issued in Piri Pasa בכפר פירי פאשה הסמוך לקושטנדינה (near Constantinople) on 27 Av, 5623=1863 to Loeb b. Samuel. Witnesses: Moses b. Aaron, Elijah Isaiah b. Nissim Joseph David; Image courtesy of the Hebraic Section, African and Middle Eastern Division.

Canada

Unlike in Australia, Canada’s Divorce Act generally authorizes courts to strike out an application, pleadings and/or affidavit by a party who has failed to remove “barriers to religious remarriage.” (§21.1).

Additionally, in its 2007 decision in Bruker v. Marcovitz (2007 SCC 54) the Supreme Court of Canada  recognized the enforceability of a condition of a contract requiring a Jewish husband to give his wife a get.

According to the majority opinion:

The fact that a dispute has a religious aspect does not by itself make it non‑justiciable. Recognizing the enforceability by civil courts of agreements to discourage religious barriers to remarriage, addresses the gender discrimination those barriers may represent and alleviates the effects they may have on extracting unfair concessions in a civil divorce. This harmonizes with Canada’s approach to equality rights, to divorce and remarriage generally, to religious freedom, and is consistent with the approach taken by other democracies.  [41] [63]

Nor is the husband entitled to immunity from damages for his unilateral contractual breach by invoking his freedom of religion under s. 3 of the Quebec Charter of human rights and freedoms. The claim to religious freedom must be balanced and reconciled with countervailing rights, values, and harm, including the extent to which it is compatible with Canada’s fundamental values. Determining when such a claim must yield to a more pressing public interest is a complex, nuanced, fact‑specific exercise. [2] [77]

The Court concluded that “[A]ny impairment to the husband’s religious freedom is significantly outweighed by the harm both to the wife personally and to the public’s interest in protecting fundamental values such as equality rights and autonomous choice in marriage and divorce.” [17] [70] [92]

France

The principle that applies to application of religious laws in France is that of laïcité; combining full separation and neutrality in dealing with all denominations and respect for all beliefs. (See Robert O’Brien, The Stasi Report: The Report of the Committee of Reflection on the Application of the Principle of Secularity in the Republic (William Hein & Co. Inc.  2005).

A get or bill of divorce dated Sunday, 8 Tevet 2107 of the Seleucid era =
1795 in Wadaya[?] in Yemen באחד בשבת דהוא שמנה ימ[ין] לירח טבת שנת תרין אלפין ומאה וחמשה ושתין לשטרי … במאתא ודעה; Image courtesy of the Hebraic Section, African and Middle Eastern Division, Library of Congress.

Although France does not recognize the validity of a religious divorce by itself, a 1998 report from the Conseil Constitutionnel (the French constitutional court) on the legal regime of religion in France provides that French courts can find an ex-husband civilly liable for refusing to grant a get to his ex-wife. Such refusal was found by the Court of Appeals of Versailles to constitute a moral harm for which he could be held liable. (Id. p. 18, ft. 28 of the report, citing Versailles, 31 Oct. 1994, D. 1995, p.245).

In a recent case a Jewish woman has reportedly received her get 29 years after her civil divorce. Having been convicted of threatening to kill her and sentenced to nine years imprisonment, her husband had consistently refused to give her a get. He apparently changed his mind after being subjected to a fine at the amount of €50,000 plus interest under article 1382 of the French Civil Code (now found at art. 1240) which imposes a duty of compensation for any person who is found responsible for causing damage to another.

New York State

New York State Domestic Relations Laws ubjects a civil divorce, among others, to a requirement that the plaintiff has to provide a written statement that to the best of his/her knowledge he/she has ”taken all steps solely within his or her power to remove all barriers to the defendant’s remarriage … or that the  defendant  has waived in writing [this requirements].” (Id. §253.3)  The Law further requires the court in related actions such as for maintenance or disposition of property, “where appropriate, [to] consider the effect of a barrier to remarriage … on the factors enumerated in paragraph e of this subdivision.” (Id. §236B(5)(h), formerly §236B (6) (o)).

The constitutionality of this provision was challenged in Masri v Masri, 2017 NY Slip Op 27007 (January 13, 2017), where the Court held that in the circumstances presented there, there was no evidence that the defendant withheld a get from his wife to extract concessions from her. The Court held:

To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment. The court accordingly declines plaintiff’s invitation to apply DRL §236B (6) (o) in determining Defendant’s maintenance obligation. (Id.¶4).

South Africa

The Divorce Amendment Act, 1996 (adding section 5A to the Divorce Act, 1979) provides that the court may refuse a divorce decree

… If it appears to a court in divorce proceedings that despite the granting of a decree of divorce by the court the spouses or either one of them will, by reason of the prescripts of their religion or the religion of either one of them, not be free to remarry unless the marriage is also dissolved in accordance with such prescripts or unless a barrier to the remarriage of the spouse concerned is removed…

The Amendment Act further authorizes the court under such circumstances to “make any other order which it finds to be just.” (Id.).

United Kingdom

The Divorce (Religious Marriages) Act 2002, Chapter 27,  allows a Court to withhold the final legal civil dissolution of a marriage of Jews or of other persons, by means of granting the decree absolute, “until a declaration made by both parties that they have taken such steps as are required to dissolve the marriage in accordance with those usages is produced to the court”. (Id. §10A(2)).

The Law Library of Congress publications and collections on law and religion, and particularly on the intersection between them, include a number of relevant titles on a variety of topics, including Israel: Extrajudicial Sanctions Against Husbands Noncompliant with Rabbinical Divorce Rulings. You may visit our Comprehensive Index of Legal Reports under “Religion and the Law”, or “Marriage, Divorce, and Estates”, or visit our Global Legal Monitor under “Religious Law” to find several articles on similar subjects. To identify additional sources, please visit the Library of Congress online catalog or submit questions through the Ask the Librarian feature. We hope you will find our products and services useful.

One Comment

  1. Nathan
    May 30, 2017 at 7:27 pm

    This is fasinating. I would love to see a blog comparing different religious laws on marriage. Islamic, Roman Catholic, Eastern Orthodox, Hindu, Buddhist, etc. Thanks for comparing different countries.

Add a Comment

This blog is governed by the general rules of respectful civil discourse. You are fully responsible for everything that you post. The content of all comments is released into the public domain unless clearly stated otherwise. The Library of Congress does not control the content posted. Nevertheless, the Library of Congress may monitor any user-generated content as it chooses and reserves the right to remove content for any reason whatever, without consent. Gratuitous links to sites are viewed as spam and may result in removed comments. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on the Library site. Read our Comment and Posting Policy.

Required fields are indicated with an * asterisk.