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The complex world of religious divorce

The complex world of religious divorce

By Talya Faigenbaum and Nussen Ainsworth

Divorce Family Court Marriage 

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Jewish and Islamic divorces are not straightforward. Practitioners need to be aware of legal, ethical and religious issues.

Snapshot

  • Parties need to obtain both a civil and religious divorce to allow each side to remarry and move on with their lives.
  • Practitioners must learn and be able to use such terms as Gett and Talaq and be familiar with such bodies as the Beth Din.
  • Practitioners are strongly encouraged to liaise directly with the Registrar of the Melbourne Beth Din and the Board of Imams.

The recent cases of Ferro v Kopel [2016] FamCA 409 (26 May 2016) and Idelsohn & Idelsohn [2017] FamCA 398 (11 May 2017) raise the unresolved issue of how religious divorces are dealt with by the Family Court of Australia. In Australia, where there is a large number of religious or culturally observant people, 1 it is critical that legal practitioners in family law are aware of the issues that may arise in divorces where religion is a factor and are mindful to discuss the topic with their religious clients and seek instructions accordingly.

When the marriage of a couple in a cultural community breaks down, the parties must obtain both a civil and religious divorce to allow each side to remarry and move on with their lives. Failing to do so creates practical consequences with significant effect, particularly for women. In the more acrimonious separations, religious divorce matters often converge with end-of-marriage settlement negotiations or legal proceedings.

Practitioners should have a general working understanding of the religious divorce process, the consequences of either party failing to comply with the process and the options available to clients when seeking the assistance or intervention of Australian courts.

Religious divorce procedures

Jewish divorce process

Under Jewish law, the final dissolution of a marriage in which both parties are Jewish is brought about either through the death of a spouse or by the formal delivery of a divorce document, known as a Gett. The Gett is not a religious document as such and makes no reference to responsibility or fault.

Divorce is largely characterised as a contractual arrangement and therefore usually requires the voluntary agreement of both parties to terminate the marriage. However, while either party may initiate the religious divorce procedures, the Gett itself can be transferred only from husband to wife. This transfer is conducted under the supervision of a Jewish Rabbinical Court, known in Hebrew as a Beth Din.

In most cases, the process of a Jewish divorce is simple and procedural. End-of-marriage matters such as parenting arrangements and property division are determined separately and in accordance with the principles of Australian family law. The Beth Din has no involvement in these matters.

On the day the Gett is finalised, proceedings commence with the writing of the 12-line divorce document in Hebrew/Aramaic. Once signed, the document is physically given by the husband to the wife. The ceremony itself is not overtly religious, with no prayers, blessings or rituals involved, and is more akin to a contemporary legal transaction.

In instances of impracticality, such as the geographical distance of one party, or undesirability, such as the existence of a family violence intervention order, the ceremony can be performed through a proxy or authorised agent at the appointment of either the husband or wife.

Islamic divorce process

Divorce in Islam can be effected in several ways depending on which gender initiates the process.2 Talaq is where the husband unilaterally pronounces the divorce. No cause or reason is required. The divorce takes effect following a three-month waiting period. The wife can initiate a divorce in three ways, which will generally require a determination from an Islamic authority to take effect. One, Khula, the wife returns a portion of her mahr (dowry). Two, Ta’liq, the husband breaches the marriage contract. Three, Fasakh, one of the recognised faults for divorce is established which include absence, impotence, cruelty or failure to maintain the wife and child.

Consequences of failing to comply with religious divorce procedures

A proper and valid dissolution of the marriage is essential to ensuring the free social interaction of the parties and their children in the parties’ cultural and religious community.

If a Jewish divorce is not finalised in the manner set out above, neither party can remarry in accordance with Orthodox Jewish law and custom. This is the case even when a civil divorce has been obtained. Under Islamic law, the impact is greater for women than men, as men are allowed to marry multiple partners.3

It should be noted that the consequences of not receiving a Jewish divorce are more severe for women.4 This is particularly so because a child born to a Jewish woman and a future Jewish partner in circumstances where no Jewish divorce has been obtained is considered to be the offspring of an adulterous relationship. Such a child is subject to severe stigma and a compromised social status under Jewish law. Consequently, many women in this situation will forgo the opportunity to bear future children.

Resolving cases of recalcitrance

Although many religious divorces finalise with little complication, there is a growing number of cases in which the Gett or Talaq is used to manipulate the outcome of substantive divorce proceedings or settlement negotiations. The underlying motivations may vary and can include attempts to extract property or parenting concessions from the other party or may simply be an unconscionable attempt at harassment or revenge. In the Jewish community, such behaviour is often referred to as “Gett recalcitrance” or “Gett abuse” and is viewed as abhorrent. In the Islamic context, this is commonly referred to as a “limping marriage”.5

Cultural communities have tried to resolve recalcitrance through mediation and social pressure, conducted by the religious courts, community leaders, spiritual leaders or a combination of all three. Cultural communities also appear to be more open to using mechanisms that they have been reluctant to use in the past. In the Islamic communities, a growing number of Imams are increasingly willing to grant a religious divorce where the husband signs any document in the civil divorce proceedings, as this indicates his consent to the divorce even if he refuses the religious divorce.6

In extreme cases, the Beth Din may issue a contempt order against the recalcitrant spouse, which enables further and more robust efforts to persuade that party into compliance. These efforts may include withholding religious privileges and ceremonial rites or ostracism by the community.

However, the power of the contemporary religious Jewish Court is largely limited to ensuring that the procedural requirements of the religious divorce are met. Although it can issue strong directives or orders, it cannot enforce its orders with any significant sanctions.

Using legal proceedings to resolve cases of recalcitrance

In instances where the use of traditional cultural-community avenues has been unable to resolve a situation of recalcitrance, both husbands and wives have sought assistance from state and federal courts.

Mediation

The Family Law Act 1975 (Cth) encourages parties to resolve financial and parenting disputes through negotiation and mediation. Mediation can also be a useful tool to resolve disputes relating to religious divorce. In these types of disputes, mediation offers benefits in addition to the potential cost and time savings. One benefit is that mediation allows the parties to deal with this religiously based issue without subjecting themselves to a religious determinate body which has potential issues such as providing natural justice7 and further perpetuating inherent religious gender biases.8 Another benefit is that mediation allows the parties to address their religious dispute with the benefits and protections set out under the Family Dispute Resolution regulatory framework.9

Applications under Family Law Act 1975

Spouses of recalcitrant parties in the Jewish community have sought redress primarily by way of applications to the Family Court of Australia.10 The relief has been facilitated through the inclusion of “Gett-clauses” in orders imposed by the Court11 or as made by consent between the parties.

It is imperative that when drafting such orders, practitioners incorporate the correct terminology and employ the phraseology recommended by the Melbourne Beth Din. This is to ensure the validity of any Gett that may ultimately be procured through such measures. The Melbourne Beth Din will provide the appropriate wording for such clauses upon request.12

The approach by Family Court judges to this issue has, however, been somewhat inconsistent.13 In Ferro & Koppel, the wife sought an order that the husband grant her a Gett. The Family Court refused to make the order.

Berman J determined that he did not have the power to make the order sought by the wife, although it was unclear whether His Honour based his decision on the constitutional argument or jurisdictional considerations or that such orders were beyond the injunctive powers afforded by s114 of the Family Law Act. Similarly, in Idelsohn, Benjamin J questioned whether the Court had either the jurisdiction or power to make the orders sought by the husband requiring the wife to facilitate his Gett application.

Recognising the uncertainty that had been generated by case law, the Family Law Council submitted a report to the Attorney General in August 2001 proposing to clarify the law. At the core of the report was a recommendation to amend the Family Law Act 1975. The proposed amendment would give courts exercising jurisdiction under that Act specific discretionary powers to take into account the separate systems of divorce present in the Australian community.14 None of the recommendations has been adopted.

Applications under the Family Violence Protection Act 2008 (Vic)

An emerging avenue of legal redress is the use of family violence intervention orders. A case before the Victorian Magistrates' Court in early 2015 suggests that judges may be willing to characterise persistent recalcitrance as a form of family violence, specifically under the provisions relating to psychological and emotional abuse.15

It is still too early to determine the exact implications of applying family violence intervention orders to cases of Gett-recalcitrance. The magistrate’s decision in the 2015 case is not reported and its power to influence other judges is relatively weak. However, there is reason to be cautiously optimistic: the Family Violence Protection Act gives magistrates broad discretion to include in a family violence intervention order any conditions that the Court believes are “necessary or desirable in the circumstances”.16 It is therefore not implausible to envisage the inclusion of conditions that would restrict a recalcitrant husband from attending at his wife’s place of worship, to require a husband to attend the relevant religious court or possibly even to extend the length of an intervention order indefinitely until such time as the Gett is given.

Conclusion

Legal practitioners are duty bound to give complete and accurate advice to their clients. For religious clients, this must necessarily include a consideration of the religious divorce procedures – including the potential legal problems and possible solutions associated with procuring a Gett or Talaq. In any contentious matter, practitioners are strongly encouraged to liaise directly with the Registrar of the Melbourne Beth Din17 and the Board of Imams Victoria – Council of Family Arbitration and Mediation, as appropriate.18

The above discussion is not intended to be a comprehensive description of all the issues that may be encountered, nor is it an analysis of the current legal framework. Rather, it is anticipated that this article will alert practitioners to the potential legal, ethical and religious issues that may arise in facilitating Jewish and Islamic divorces and to seek further information or advice if required.

 

Talya Faigenbaum is principal lawyer and legal director at Faigenbaum Family Lawyers. She has a niche interest in international matrimonial law and its convergence with faith-based divorce systems.

Nussen Ainsworth is a lecturer at Victoria Law School, Victoria University, an LIV accredited specialist in mediation and a member of the LIV ADR Committee.

1. Australian Bureau of Statistics, Reflecting a Nation: Stories from the 2011 Census 2012–2013 (2012).

2. Ann Black, “Window into Sharia Family Law: Part 2 – Aspects of Divorce”, 2010 (16) Family Relationships Quarterly 11; Ghena Krayem, Islamic Family Law in Australia: To Recognise or Not to Recognise, Melbourne University, 2014 p172.

3. Jacquelin Magnay and Gina Rushton, “Sharia Law Used to Settle Divorces in Muslim Community”, The Australian (online), 23 December 2015. www.theaustralian.com.au/in-depth/community-under-siege/sharia-law-used-to-settle-divorces-in-muslim-community/news-story/c138bc650967b9f51d1bd62a31d64f18.

4. A woman whose husband refuses to give her a Jewish divorce is known in the Jewish community as an Agunah, a term meaning “chained” or “anchored” in Hebrew.

5. Ann Black and Kerrie Sadiq, “Good and Bad Sharia: Australia’s Mixed Response to Islamic Law”, 2011 34(1) University of New South Wales Law Journal 383, 400.

6. Krayem, note 2 above, p199.

7. Mond v Berger (2004) 10 VR 534; Thaler v Amzalek [2013] NSWSC 632 (27 May 2013).

8. Religious divorces generally rely on the male’s willingness to participate.

9. Family Law Act 1975 (Cth) pt 2 div 3; Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth).

10. The authors are not aware of any similar applications or cases in the Islamic community. Other legal avenues of relief, such as a pre-nuptial agreement have been considered but are as yet untested. See Andrew Strum, “Getting a 'Gett' in Australian Courts” (1997) 12(1) Australian Family Lawyer p21.

11. For examples, see Gwiazda v Ber [1982] FamCA 10631 (23 February 1983) (Emery J) in which orders were made for the wife to attend at the Melbourne Beth Din, to accept a Gett from her husband and to do all other things that may be required to give validity to the Gett under Jewish law; In the Marriage of Shulsinger (1977) 28 FLR 202, in which the Full Court enforced an undertaking that had been given by the husband to the Family Court that he would do all things necessary to allow his wife to remarry in accordance with Jewish law.

12. Melbourne Beth Din, www.mbd.net.au/. The Registrar can be contacted by telephone on 03 9523 7748 or email registrar@mbd.net.au.

13. See, eg, In the Marriage of J (Unreported, Family Court of Australia, Hase J, 13 September 1996) and more recently, Ferro v Kopel [2016] FamCA 409 (26 May 2016).

14. Family Law Council, Cultural-Community Divorce and the Family Law Act 1975: A Proposal to Clarify the Law (2001) pp27-35.

15. Family Violence Protection Act 2008 (Vic), s7.

16. Family Violence Protection Act 2008 (Vic) s81(1).

17. Melbourne Beth Din, note 12 above.

18. Board of Imams Victoria, Council of Family Arbitration and Mediation (2015) www.boiv.org.au/service/council-of-family-abitration-and-mediation/.


Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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