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Divorce in the Jewish Community

Australians who marry are subject to the provisions of the Marriage Act 1961 (Cth).  When they want a divorce, they are subject to the provisions of the Family Law Act 1975.

In the matters of marriage and divorce, observant Jewish Australians must take into account two different legal systems: not only the Australian legal system but also Jewish law – “Halakhah”.  

Leading Family Law QC, Andrew Strum, writes that “marriage, in Jewish law, is a contract which is created and terminated by mutually consenting parties”.

Jewish marriage is recognised, if indirectly, by Australian law; if the marriage has been solemnised by an authorised marriage celebrant, it will accord with s 45 (1) of the Marriage Act.

It is a different story regarding divorce for Jewish people. According to Jewish law, a civil divorce document cannot dissolve the marriage.  Divorced under Australian law, Jewish couples may still be married under Jewish law. 

A Jewish Bill of Divorce is called a “gett”. It is the role of the husband to grant a “gett” and the role of the wife to receive this “gett”.  Both must be acting of their own free will, otherwise the gett will be invalid. The rabbinical tribunal, the Beth Din, has a supervisory role in terminating a Jewish marriage; it ensures that the laws which relate to this procedure are complied with.  But it does not dissolve the marriage. That is done by the couple themselves. Unlike Australian law, parenting and property issues are not considered.

The gett process can be subverted by a lack of cooperation.  A partner in a Jewish marriage can use manipulative behaviour to prevent the marriage from ending.  Some husbands use the process to torment their former wives or to extract financial concessions.  These women can find themselves trapped, unable to re-marry.  Any children born subsequently will be viewed as the result of an adulterous union.

A wife can apply to the Beth Din requesting an order to direct the husband to give the gett; conversely, a husband can do likewise.  The Beth Din must then decide whether it would be just to compel the unwilling spouse to comply, given that if the providing spouse is under duress, the gett will be invalid. The Beth Din can request the recalcitrant partner to attend the rabbinical court.  Persistent failure to do so can result in a contempt order, but this is unenforceable. One Jewish wife, married in 1943 and separated in 1952, still sought a gett in 2016!

Recourse through Australian Courts is unsatisfactory: it appears that Australian judges are uncomfortable when asked to interfere in a religious matter.  In the matter of Reicher & Reicher [2008] FamCA 108, Young J ordered the husband to appear before the Beth Din to give the wife the gett, “if and when the same has been ordered, directed or recommended by the said Religious Court” but he went on to write that “I do not consider that I have the power to make the order as sought by the wife.  To do so would be to interfere in religious matters that do not involve behaviour that is in breach of the general civil or criminal law”.

Justice Berman expressed similar views in Ferro & Kopel [2016] FamCA 409, stating that the Court “must consider two factors in determining whether an order should be made.  Whatever the Court does, it must be consonant with the requirements of Jewish law or otherwise a gett may be void for unlawful duress and the Court’s actions therefore futile.  Secondly, from a public policy perspective, if not a constitutional one, civil courts should not be seen to become involved in religious matters”.

Talya Faigenbaum, principal lawyer at Faigenbaum Family Lawyers in Melbourne, is possibly the only Australian lawyer to offer pro bono legal assistance to Jewish women experiencing gett refusal.  In the Victorian Magistrates’ Court in 2015, Ms Faigenbaum successfully argued that gett refusal constituted a form of abuse under Victoria’s Family Violence Protection Act. The wife was granted an extension of an IVO, which was still resisted, so the matter ended up in the County Court on appeal and a settlement was reached, which involved the husband finally granting the gett.

Unchain My Heart, a Jewish women’s organisation, was formed in 2015 when 6 Jewish women’s groups joined forces in Melbourne to “acknowledge this scourge on the Jewish people”. One suggestion was that the Beth Din takes more responsibility; another strategy is using pre-nuptial agreements which commit the couple to granting a gett should the marriage fail.

In May 2018, Unchain My Heart, together with the National Council of Jewish Women, lodged a submission on gett refusal with the Australian Law Reform Commission, making a number of recommendations which, if adopted, will “make it easier for Jewish women to obtain a gett and move on with their lives within their religion”.

 

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