Rabbi is the term in Judaism for a religious teacher. The word rabbi derives from the Hebrew root word , rav, which in biblical Hebrew means ‘great’ in many senses, including "revered." The word comes from the Semitic root R-B-B, and is cognate to Arabic ربّ rabb, meaning "lord" Rabbi ' onMouseout='HidePop("83359")' href="http://www.absoluteastronomy.com/topics/Marriage_(conflict)">marriage
In conflict of laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural community existence.-Public policy:...
and divorce difficulties while resident outside
IsraelIsrael officially the State of Israel , is a developed state in Western Asia located on the eastern shore of the Mediterranean Sea. It borders Lebanon in the north, Syria in the northeast, Jordan in the east, and Egypt on the southwest, and contains geographically diverse features within its...
. 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
AgunahAgunah is a halachic term for a Jewish woman who is "chained" to her marriage. It is also often used nowadays for a woman whose husband refuses or is unable to grant her an official bill of divorce, known as a get.For a divorce to be effective, Jewish law requires that a man grant his wife a get...
). 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
residenceIn the nations of the European Union and elsewhere, parental responsibility refers to the rights and privileges which underpin the relationship between a child and either of the child's parents or those adults who have a significant role in the child's life...
and
contactIn family law, contact is one of the general terms which denotes the level of contact a parent or other significant person in a child's life can have with that child...
with
childA child is a human being between the stages of birth and puberty. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...
ren, and for
maintenanceAlimony, maintenance or spousal support is an obligation established by divorce law in many countries that is based on the premise that both spouses have an absolute obligation to support each other during the marriage unless they are legally separated...
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 NationsThe United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and the achieving of world peace...
Universal Declaration of Human RightsThe Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Guinness Book of Records describes the UDHR as the "Most Translated Document" in the world...
which is repeated almost word for word in Article 9(1)
European Convention on Human RightsThe Convention for the Protection of Human Rights and Fundamental Freedoms , was adopted under the auspices of the Council of Europe in 1950 to protect human rights and fundamental freedoms in Europe...
,
International Covenant on Civil and Political RightsThe International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
and the United Nations
Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Beliefhttp://www.unhchr.ch/html/menu3/b/d_intole.htm). 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
countriesIn geography, a country is a geographical region. The term is often applied to a political division or the territory of a state, or to a smaller, or former, political division of a geographical region...
operate under
constitutionA constitution is a set of rules for government—often codified as a written document—that establishes principles of an autonomous political entity. In the case of countries, this term refers specifically to a national constitution defining the fundamental political principles, and establishing the...
s based on a separation between
church and stateChurch and State may refer to:*Separation of church and state, political and legal doctrine that government and religious institutions are to be kept separate*Americans United for Separation of Church and State or their monthly newsletter, Church & State...
which forbid
governmentA government is the body within a community, political entity or organization which has the authority to make and enforce rules, laws and regulations.....
s 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
RhodesiaWhen the former colony of Northern Rhodesia changed its name to Zambia on independence in 1964, the colony of Southern Rhodesia changed its name to just plain 'Rhodesia'. The change had not yet been officialy ratified when Rhodesia declared itself independent on 11 November 1965...
, 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
jurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility.Alternatively, jurisdiction is the authority given...
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
CanadaCanada is a country occupying most of northern North America, extending from the Atlantic Ocean in the east to the Pacific Ocean in the west and northward into the Arctic Ocean...
, 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
affidavitAn affidavit is a formal sworn statement of fact, signed by the author, who is called the affiant or deponent, and witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public or commissioner of oaths. The name is Medieval Latin for he has declared upon...
s filed by a spouse who has failed to remove religious barriers to the remarriage of the other spouse. The
legislatureA legislature is a type of deliberative assembly with the power to pass, amend and repeal laws. The law created by a legislature is called legislation or statutory law...
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 influenceUndue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. It is where free will to bargain is not possible.-Undue influence in contract law:...
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.
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".
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.
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."
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.- Justice Hilton, Quebec Court of Appeals
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. 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
annulmentAnnulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is retroactive: an annulled marriage is considered never to have existed....
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
AustraliaAustralia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the continental mainland , the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans...
, 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
http://www.ag.gov.au/agd/WWW/rwpattach.nsf/viewasattachmentPersonal/(A0E22772974CC5513F69378CCFFF57C2)~Cultural-Community+Divorce.pdf/$file/Cultural-Community+Divorce.pdf that the
decree nisiA decree nisi is a ruling by a court that does not have any force until such time that a particular condition is met. Once the condition is met the ruling becomes decree absolute and is binding...
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 lawEnglish law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countriesand the United States...
, 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 nisiA decree nisi is a ruling by a court that does not have any force until such time that a particular condition is met. Once the condition is met the ruling becomes decree absolute and is binding...
has been granted but not made absolute and the parties:
were married in accordance with:
- the usages of the Jews, or
- any other prescribed religious usages; and
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 lawCivil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim...
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
morallyMorality has three principal meanings.In its first, descriptive usage, morality means a code of conduct or belief concerning matters of what is moral or immoral...
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 LiebermanSaul Lieberman , also known as Rabbi Shaul Lieberman or The Gra"sh , was a rabbi and a scholar of Talmud...
, 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, 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 (
mamzerIn Halakha a mamzer is a person born of certain relationships that are forbidden to Jews. That is, the offspring of a married woman impregnated by a man other than her husband adultery, or the offspring of incest as defined by halakhah.The mamzer status is also inherited, i.e., a child of a...
), 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
asmachtaIn Jewish law, an Asmachta is a conditional commitment or promise that a person makes, but actually has no intention of keeping. The agreement is not considered binding, and the commitment is considered null and void....
- 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
statusA person's status is a set of social conditions or relationships created and vested in an individual by an act of law rather than by the consensual acts of the parties, and it is in rem, i.e. these conditions must be recognised by the world. It is the qualities of universality and permanence that...
and
capacityThe capacity of both natural and artificial persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
of the spouses so that they are then free to remarry. Within the Conflict system, the
enforcement of foreign judgmentsIn law, the enforcement of foreign judgments is the reciprocal recognition and enforcement of judgments between states. This is frequently regulated by bilateral treaty or multilateral international convention. This is an area of growing importance...
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 lawChoice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as states, federated states , or provinces...
depends on the
characterisationIn Conflict of Laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. This process is described in English law as classification and as qualification in French law...
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 policyPublic policy is the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change over time...
because one of the parties is seeking to
evadeIn law, the Doctrine of Evasion is a fundamental public policy. Whereas a person may legitimately plan his or her affairs so as to avoid the incidence of obligations or liabilities imposed by the law, no-one is allowed to evade the operation of otherwise mandatory provisions once duties and...
some mandatory provisions of law or it is not in the
best interestsBest interests or best interests of the child is the doctrine used by most courts to determine a wide range of issues relating to the well-being of children...
of any children (see
parens patriaeParens patriae is Latin for "parent of the nation". In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection...
). If the characterisation is status/capacity, this will be determined under the
lex domicilii (the law of the
domicileIn Conflict of Laws and for purposes of diversity jurisdiction, domicile is the basis of the choice of law rule operating in the characterisation framework to define a person's status, capacity and rights. The international term for this as a connecting factor is the lex domicilii, i.e. the law of...
) in a
common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
state, and under the
lex patriae (the law of the
nationalityNationality is the relationship between a person and their state of origin, culture, association, affiliation and/or loyalty. Nationality affords the state jurisdiction over the person and affords the person the protection of the state....
) or
habitual residenceIn the Conflict of Laws, habitual residence is the standard civil law connecting factor used to select the lex causae in cases characterised as status, capacity and family law. It matches the common law connecting factor of lex domicilii....
in a
civil lawCivil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined, as in common law, by judges. The principle of civil law is to provide all citizens with an accessible and written collection of the laws which...
state. Alternatively, the court seized of the matter might apply the
lex foriIn Conflict of Laws, the Latin term lex fori literally means the "law of the forum" and it is distinguished from the lex causae which is the law of the forum actually applies to resolve the particular case.-Explanation:...
(the municipal law of the forum state).
The best answer is always to produce an
in remIn rem is Latin for "in a thing". In a lawsuit, an action in rem is directed towards some specific piece of property, rather than being a claim for, say, monetary compensation against a person . It focuses on proprietary title to property. Land is an example of a case where, when the title 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 lawEnglish law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countriesand the United States...
, 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.