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Template:Conflict of laws

A get or gett (גט) is the Jewish form of divorce which, when one is available in the state of residence, is supervised by a Beth Din (בית דין), a rabbinical court. This page deals with the Conflict of Laws implications, rather than any other implications for divorce in Judaism.

Discussion

Jewish communities have maintained a strong desire for religious, cultural and economic autonomy and so have administered and enforced Judaic Law through synagogues and, where one has been established, a Beth Din in parallel with the remedies available through the secular courts of the states in which they live. Judaic Law holds that, as with the marriage ceremony, so the get must be consensual on both sides. It is the parties who marry each other not the Rabbi who marries the parties. Similarly, in the case of divorce, the Rabbis exercise what is essentially a supervisory role and it is for the parties to divorce themselves.

The relationship between state and religion

Jewish communities sometimes experience marriage and divorce difficulties while resident outside Israel. One of the most common divorce difficulties is that a spouse can be held in a limping marriage when the other spouse refuses co-operation in the religious form of divorce (see Agunah). A civil divorce obtained through local courts entitles the parties to remarry, but the capacity to remarry is also religious question. Where one party has the power to grant or withhold a religious divorce, this power can be used as a bargaining tool to pressure the other party to agree more or less favourable terms for residence and contact with children, and for maintenance and property settlements. Such provisions produce a conflict between the human rights of the woman to be free to marry and the freedom of people to practise their religion (see Article 18 of the United Nations Universal Declaration of Human Rights which is repeated almost word for word in Article 9(1) European Convention on Human Rights, International Covenant on Civil and Political Rights and the United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief[1]). They may also breach sex discrimination laws in some states, but the acceptance and implementation of the provisions within the local religious community are very real and should not be ignored. The difficulty is that most countries operate under constitutions based on a separation between church and state which forbid governments from interfering in the practice of religion within their territory unless the behaviour of one or more parties is in breach of the local civil or criminal law. Thus, for example, in Rhodesia, the case of Berkowitz v Berkowitz (1956) (3) SA 522 (SR), held that it was inappropriate to use contempt proceedings to force a husband to grant a get because anything concerned exclusively with religious formalities was outside the jurisdiction of the secular courts.

Nevertheless, the majority of Western states do, to some extent, make the secular court's response to matrimonial proceedings conditional on the relevant party taking the steps necessary to complete a religious divorce on fair terms, so that either the court will impose excessively generous orders for maintenance and property settlement, or deny access to a civil decree or to ancillary relief until the religious formalities have been completed.

Canada

In Canada, following consultation with all major religious groups, the Divorce Act 1985 was amended to give the courts have the power to dismiss any application, and strike out any pleadings and affidavits filed by a spouse who has failed to remove religious barriers to the remarriage of the other spouse. The legislature intended to:

  • place spouses on a more equal footing in civil divorce actions;
  • encourage women in particular to exercise fully their rights under the law; and
  • maintain the integrity of the Divorce Act 1985 by helping to ensure that refusing to accept or to give a religious divorce was not used as a bargaining tool to gain unfair concessions on child custody and access, or monetary support.

This reflects a general strong response at a federal level to any elements of duress or undue influence within the civil law system.

Bruker v. Marcovitz

Recent Canadian laws surrounding the intersection of religious and civil matters were tested in the Supreme Court Case of Bruker v. Marcovitz.

In 1969, they married in an orthodox ceremony. Subsequently they adopted children after Ms. Bruker was unable to conceive. In April 1980, Ms. Bruker initiated divorce proceedings.[1]

The parties appeared before the rabbinical authorities in Montreal to obtain the traditional religious get, immediately upon their divorce being granted in civil proceedings. Shortly after the civil divorce Ms Bruker asked Mr. Marcovitz to provide the get, but Mr. Marcovitz refused.

Ms Bruker sued Mr. Marcovitz in 1989, seeking damages of $500,000 "for having been restrained from going on with her life since de Decree Nisi [...], for having been restrained to remarry according to the Jewish faith [and] for having been restricted of having children". [2] Mr. Marcovitz countered that Ms. Bruker's religious orthodoxy was suspect given her adultery, and that she was unable to conceive children. In his view, Ms. Bruker was using the get as the means to continue her harassment.[3]

In 1995, a certificate of divorce was issued by the rabbinical court of Montreal with Mr. Marcovitz's consent and participation to the get. Despite receiving the get, Ms Bruker amended her action to increase the amount of the damages claimed to $1,350,000 and to include damages "for the loss of consortium."[4]

At the first trial, the court found that the matter could be argued before the civil courts and that Mr. Marcovitz had breached his contractual obligation. The court awarded Ms. Bruker $47,500 in damages.

On appeal, Justice Hilton, writing for the three member court, overturned the lower court judgment. The appellate court ruled that the obligation was religious in nature and so could not be judged by the civil courts.

"It matters not that the obligation was stated in the Consent that the Superior Court ratified, since the Superior Court could never have entertained an application for corollary relief under section 17 of the Divorce Act to require the issuance of a ghet. It is not at all unusual to see the parties in an agreement on corollary relief undertake to perform a variety of obligations that are not, strictly speaking, obtainable independently, but which are desirable nevertheless to the extent that they promote an amicable post-divorce environment."

"While I recognize the usefulness of the inclusion of obligations of this nature in divorce agreements, it does not follow that they all automatically become subject to curial supervision and control, whether for specific performance or damages in the event of a breach. In my view, in order for such clauses to be enforceable, they must be directly related to one of the subject matters on which courts issue or vary orders of corollary relief, and otherwise be justiciable.[5]

- Justice Hilton, Quebec Court of Appeals </blockquote> In December 2007 the Supreme Court decided in favor of Bruker on the basis of enforcing a civil contract. The two dissenting judges objected to the ruling as incursion on religious freedom. In February 2008, Macovitz applied to the Court to have the decision reheard on constitutional grounds.[6] The Court dismissed that application in March 2008.

United States

In New York State, the court cannot enter a judgment of annulment or divorce unless any barriers to religious remarriage by a spouse, the removal of which are within the control of the other spouse, have been removed. Section 253 of the Domestic Relations Law (the so-called "First New York Get Law") provides that, in a contested divorce, any applicant whose marriage was solemnised by a religious celebrant must file a statement that:

he or she has taken, or will take, all steps within his or her power to remove all barriers to the other spouse’s remarriage; or
the other spouse has waived in writing the applicant’s obligation to file the statement.

In an uncontested divorce both parties must file such a statement or waive the obligation of the other party to do so. The court cannot enter a final judgment of divorce or annulment unless it receives the statements and, even then, final judgment cannot be entered if the person who solemnised the marriage swears that, to his or her knowledge, the applicant has failed to take all steps within his or her power to remove all barriers to the other party’s religious remarriage. (For a discussion of the issues, see Amicus Curiae brief in Becher v Becher, page 7, New York Supreme Court, Appellate Division - Second Department (1997) 245 A.D 2d 408)

Australia

In Australia, the Family Court in Gwiazda v Gwiazda No. M10631 of 1992 used its general injunctive power to order a reluctant wife who refused to accept the get, to appear before the Beth Din in Melbourne. Emery J. observed that:

If I correctly understand the intention of the Act, then it is the clear duty of a judge of this court to ensure that appropriate orders are made fully effective, not only in theory but in fact. In this case the husband as a matter of law can marry any woman who is free to marry, subject only to the prohibitions in the Marriage Act, but as a matter of fact and practicability he cannot do so."

So-called "Gwiazda Orders" are now occasionally used when necessary to produce a fair result by requiring the parties to refer their problems to the local Beth Din. The Australian Law Commission has proposed [2] that the decree nisi should not become absolute and, in any other proceedings except those relating to a child, the court should have the power to adjourn the proceedings.

United Kingdom

In English law, the case of Brett v. Brett (1969) 1 All ER 1007, saw the court exploiting its power to make and vary maintenance and property orders to induce the reluctant party to co-operate in the get. But this did not establish a consistent practice within the Family Court. The present rules derive from the Divorce (Religious Marriages) Act 2002 (as implemented by the Family Proceedings (Amendment) Rules 2003), which applies if a decree nisi has been granted but not made absolute and the parties:

(a) were married in accordance with:
(i) the usages of the Jews, or
(ii) any other prescribed religious usages; and
(b) must co-operate if the marriage is to be dissolved in accordance with those usages.

On the application of either party, if the court is satisfied that in all the circumstances of the case it is just and reasonable to do so, it may order that the decree nisi is not made 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.

Another option

Where neither party to a religious marriage comes to the civil courts for relief, the above options do not apply: the civil law courts cannot intervene at the own initiative order the facilitation of a religious divorce. Even where relief is sought, the use of delay in the civil process could add to the wife's problems. She could be denied the get and denied the secular divorce. She would be unable to marry under either system. (Hence, this form of solution to perceived problems in the religious system is morally no better than the behaviour complained of.) Indeed, any use of conditional orders could, per se, cause Halachic difficulties as the court's behaviour might be construed as unauthorised coercion and produce a Gett Maussa.

One possible solution to these problems in those states where prenuptial agreements are enforced, would be for the celebrants to a marriage to agree to accept the role of the Beth Din in the event of a matrimonial breakdown. The secular courts would then have a better legal justification to use their injunctive powers. But such proposals have been controversial in rabbinical circles.

Clauses at marriage

The so-called "Lieberman clause," developed by Rabbi Saul Lieberman, does not deal with secular law at all, but instead inserts, at the time of marriage, a halakhic stipulation that the marriage is only valid on the condition that the man gives a Get within 6 months of any secular court's divorce. Were the man to refuse to give a Get, the marriage would be declared null retroactively--it would be as if the couple were never married from a Jewish legal perspective. However, the so-called "conditional marriage" is generally not advisable according to most rabbis,[who?] because should the couple have children then divorce civilly without a Get, the marriage would be nullified retroactively and the children would in turn become children out of wedlock (Hebrew: פגם). Furthermore, since most rabbis do not accept the possibility of a "conditional marriage", any further children (born to the woman) will be bastards (mamzer), prohibiting their marriage to any Jew.

According to the Judaism 101 website, "Children born out of wedlock are not mamzerim in Jewish law and bear no stigma, unless the marriage would have been prohibited for the (halachic) reasons above."

Some rabbis will only marry a couple on condition that, should the need arise, they will handle a divorce through him so he will guarantee the Get is done correctly. Other rabbis contend that this condition is unenforceable under Jewish law. This type of condition is known as an asmachta - a condition made under circumstances that led the contracting parties to believe that it would never be germane. For example, in our case, a couple getting married never "really" assumes that they will get divorced. Although they are aware it is a possibility the marriage could fail, the act of contracting the marriage reveals their state of mind - i.e., that they do not believe that it will fail.

Due to these objections, most rabbis do not instruct the couple to make any conditions at the time of marriage.

International recognition of the get

If the get is executed in a state where it is effective to terminate the marriage, this potentially affects the status and capacity of the spouses so that they are then free to remarry. Within the Conflict system, the enforcement of foreign judgments is a reasonably well-regulated area. But this form of divorce is only quasi-judicial at best, so it falls outside the normal rules.

The general expectation as to choice of law depends on the characterisation of the issue. As a form of divorce, the rule might be that the lex loci actus (the law of the place where the transaction took place) should be applied and recognised universally so that the parties would avoid a limping marriage (i.e. that whether they are considered married will change depending on which states they visit or reside in). However, this may be against public policy because one of the parties is seeking to evade some mandatory provisions of law or it is not in the best interests of any children (see parens patriae). If the characterisation is status/capacity, this will be determined under the lex domicilii (the law of the domicile) in a common law state, and under the lex patriae (the law of the nationality) or habitual residence in a civil law state. Alternatively, the court seized of the matter might apply the lex fori (the municipal law of the forum state).

The best answer is always to produce an in rem solution, i.e. wherever possible, the result must be accepted in the majority of states around the world. Thus, if the get is effective under the lex loci actus and recognised under the laws relevant to determine status and capacity, it will be recognised so long as the best interests of the children are protected in any orders or agreements made by the parties. For example, in English law, Part II of the Family Law Act 1986 draws the distinction between a divorce obtained by "judicial or other proceedings" and the divorce obtained "otherwise than by means of proceedings". The get is therefore recognised in UK if:

it is effective by the lex loci actus (the law of the place where it was obtained), and
at the relevant date, either party was:
- habitually resident in,
- domiciled either in accordance with the local law or English law, or
- a national of that foreign country.

References

  • Broyde, Michael J., "The New York Get Law: An Exchange", [3]
  • Colman, Gene C. & Posen Joseph M. "Jewish Marriage and Ontario Law", [4]
  • Freedman, E, "'Religious Divorce in Israel", (April, 2000), International Family Law, 20.
  • Freeman, Michael, "The Jewish Law of Divorce", (May, 2000), International Family Law, 58.
  • Feldman, M, "Jewish Women and Secular Courts: Helping a Jewish Woman to Obtain a Get" (1989-90) 5 Berkeley Women’s Law Journal, 139.
  • Jacobus, Helen, "Getting together", (August 11, 2000), Jewish Chronicle.
  • Katzenberg, S, & Rosenblatt, J, "Getting the Get", (March 1999), Family Law, 165.
  • Stern, Marc D. "A Legal Guide to the Prenuptial Agreement for Couples about to Be Married", [5]

Footnotes

  1. see the Quebec Court of Appeals Marcovitz vs Bruker (500-09-013353-032; September 20, 2005). A link to the decision database is http://www.jugements.qc.ca/ and the full decision can be found with a text search for “Bruker” under “Cour d’appel”
  2. "Stephanie Brenda Bruker v. Jessel (Jason) Benjamin Marcovitz". Supreme Court of Canada. 2006. http://cases-dossiers.scc-csc.gc.ca/information/cms/case_summary_e.asp?31212. Retrieved 2007-08-31. 
  3. Marcovitz vs. Bruker (500-09-013353-032; September 20, 2005)
  4. "Stephanie Brenda Bruker v. Jessel (Jason) Benjamin Marcovitz". Supreme Court of Canada. 2006. http://cases-dossiers.scc-csc.gc.ca/information/cms/case_summary_e.asp?31212. Retrieved 2007-08-31. 
  5. Greenberg, Martin (2005). "Family Law Bulletin: Quebec Court of Appeal Rules Settlement Agreement to Give a Ghet Note Enforceable". www.lawyers.com. http://www.lawyers.com/hendygreenberg/newsletter.jsp. Retrieved 2007-08-31. 
  6. Arnold, Janice (2008). "Supreme Court asked to hear challenge of get judgment". Canadian Jewish News. http://www.cjnews.com/index.php?option=com_content&task=view&id=14036&. Retrieved 2008-03-03. 

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