Legal Implications of Religious Divorce
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Legal Implications of Religious Divorce

An exploration of Gett Refusal from a legal, social, and historical perspective

courtesy of the author
courtesy of the author

Individuals of all faiths, cultures and backgrounds have life cycle rituals and betrothal traditions. Upon divorce, there are rules in place that are based on thousands of years of religious practice. In many communities, including but not limited to Orthodox Jews, traditional Muslim, and Christians, the end of a marriage can be a shameful experience. The rift between the couple is a deep disappointment that affects each individual but also his or her extended family. 

It is not a secret that divorce matters have an emotional intensity that few other legal practice areas have. When you combine stigma, family honor, unresolved anger, and an adversarial legal forum, otherwise simple divorce matters can become very complex to handle. 

When you combine stigma, family honor, unresolved anger, and an adversarial legal forum, otherwise simple divorce matters can become very complex to handle. 

It is vitally important to understand where clients are coming from and to respect the cultural and religious context of their lives and their disputes. The lawyer’s task is to help clients make informed rational decisions that will shape their future.  

The Significance of the Gett

Under New York’s current law, any one married more than six months can file for a “No Fault” divorce. Once a divorce is finalized, the Supreme Court issues a decree, and then either party is free to move on with their lives in every respect, including remarriage.  In 1983, New York enacted Domestic Relations Law § 253, the “Gett Law”, which was intended to resolve the above scenario by requiring the person who commenced the proceeding, the plaintiff, to sign what is known as an “Affidavit Removing Barriers to Remarriage” in order to procure a civil divorce. 

But under Jewish religious law, a civil decree is not enough for a woman to remarry. The religious community looks upon the woman as still married and not released from her husband, no matter what New York State may say. In order to end the marriage, the woman must obtain a Gett, which is a writ of religious divorce. 

But under Jewish religious law, a civil decree is not enough for a woman to remarry. The religious community looks upon the woman as still married and not released from her husband, no matter what New York State may say.

For a divorcing Jewish couple, obtaining a Gett is a Biblical mandate, found in Deuteronomy 24:1-3 and comprising one entire Book of the Talmud. It is also an imperative of the highest order. According to Jewish law, a rabbi may not officiate at the remarriage of either a husband or a wife unless their Gett has been obtained. For someone observant, not obtaining a religious divorce decree effectively means she cannot date and cannot have more children. 

Secular Remedies

New York courts have the authority to impose penalties and sanctions if the husband refuses to cooperate with the Get in a reasonable period of time. Penalties can include counsel fees, increased support awards to the wife, as well as an increased share of assets to the wife. 

Despite the enforcement remedies available, there are still real human casualties. These include victims and their children, whose lives are really torn apart by unfair outcomes in divorce matters. Victims in religious and traditional households stay in abusive situations far longer than their more secular counterparts. 

Despite the enforcement remedies available, there are still real human casualties. These include victims and their children, whose lives are really torn apart by unfair outcomes in divorce matters. Victims in religious and traditional households stay in abusive situations far longer than their more secular counterparts. 

As a civil rights matter, according to the United States Constitution, individuals should not be discriminated against based on their religious practice. Religiously motivated agreements must be interpreted the same as secularly motivated ones, as long as they can be interpreted using neutral principles and without evaluating religious doctrine.

Jacqueline Harounian is a Partner at Wisselman, Harounian & Associates in Great Neck, and a Chair of the WBASNY Matrimonial Committee. She volunteers her time at The Safe Center and UJA Hope Against Domestic Violence Committee.

Posts are contributed by third parties. The opinions and facts in them are presented solely by the authors and JOFA assumes no responsibility for them.

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