In this series of articles, we will be looking at some of the religious aspects of marriage and divorce. This first article will examine the relevance of religious divorce in the Jewish faith, the issues that can arise when a religious divorce is not freely given, and the interplay with the new domestic abuse legislation. Carla Ditz and Lydia Fowler consider what the Domestic Abuse Act 2021 could mean for Jewish women and religious divorce.
In the Jewish faith, there are several denominations or movements, each differentiated by their level of religious observance. This article focuses on the Orthodox movement, which carries a stricter level of observance and stricter requirements therefore for a religious divorce.
There is an overarching and distinct relationship between civil divorce and the dissolution of a marriage under Jewish law, i.e. a “religious divorce”. Recent changes implemented by the Domestic Abuse Act 2021 have highlighted one of the most significant issues that can arise in the context of a Jewish divorce and the potential for conflict when the civil and religious worlds collide.
What is a religious divorce?
There is an age-old problem when we look at the relationship between civil divorce and the dissolution of a marriage under Jewish law (‘Halacha’). In Jewish law, for a marriage to be valid in the eyes of the religion, the couple must enter into it of their own free will. The same requirement applies if a couple is to divorce.
Jewish law allows a religious divorce to take place upon the creation and presentation of a document called a ‘Get’, which, if the husband agrees to the divorce, he will grant to his wife. Consequently, a degree of formality must be complied with (in comparison to requirements for the pronouncement of the Muslim talaq, for example).
To be considered valid, a Get must meet certain criteria, primarily that the instruction to grant a Get must be made by the husband of his own free will and free of duress. Consent is, therefore, a key component. If the husband is pressured to give the Get, the Jewish court (‘Beth Din’) will likely rule the religious divorce invalid. Similarly, the wife must freely accept the Get for the religious divorce to be effected.
If a Get is not granted or is deemed invalid, the parties remain married under Jewish law. This is the case even if the parties have obtained a civil divorce, as a civil divorce does not bring the religious marriage to an end.
So what happens if the husband, for whatever reason, refuses to grant his wife a Get?
What issues can typically arise?
Before looking at the religious aspects, it is helpful to remind ourselves of the civil law.
Under the laws of England and Wales, it is possible to contest a divorce where one party does not agree that the relationship has broken down irretrievably or where they disagree with the basis of the divorce petition. In this situation, the parties have recourse to the Family Court. Evidence can be presented to the court, which will determine whether the applicant is entitled to a divorce. While contested divorces are rare in practice, the applicant is not usually prevented from obtaining a divorce.
A common reason for couples to contest a divorce petition in civil law is due to a disagreement over the reasons cited in the petition in support of the application. Once ‘no-fault divorce’ becomes law next year, it will no longer be necessary for an applicant to cite the reason they wish to rely on, such as adultery or unreasonable behaviour. It will be enough to demonstrate to the court that the marriage has irretrievably broken down. It is hoped that this will remove the antagonistic element in a divorce petition and the potential for conflict, particularly as the new law will allow a joint application for divorce to be made. Importantly, it will no longer be possible to contest a divorce.
A Jewish divorce is less accommodating in the sense that the actions of one party alone can prevent a religious divorce from taking place. While most separating couples proceed with a religious divorce after their civil divorce has been granted, there are instances where a spouse (usually the husband) refuses to cooperate with the dissolution of the religious marriage by refusing to grant his wife a Get. If a Get is not granted to a wife, she can become stuck in her religious marriage. Women in this situation are known as “agunot” or “chained wives” and are forbidden from marrying again in the Jewish faith.
As already mentioned, the different Jewish denominations have their own requirements insofar as Gets are concerned. However, as a general rule, a woman will not be permitted to remarry into the faith without being granted a Get.
Being trapped in a religious marriage can have devastating consequences for women within their community, preventing them from moving on with their life and, in the worst cases, becoming an outcast. It can be hugely detrimental to her social and personal life. It will also impact any child born to a woman (and her subsequent Jewish partner). The child will be considered a “mamzer” or illegitimate, and the child will not be permitted to marry in the Jewish faith. The fact that Get refusal can impact future generations in this way highlights the gravity of the situation.
The Domestic Abuse Act – what has changed?
The Domestic Abuse Act was given Royal Assent on the 21 April 2021. This progressive piece of legislation sets out the legal definition of domestic abuse. The draft statutory guidance on domestic abuse published in July 2021 has now gone further to set out that withholding a Get can constitute a form of domestic abuse, namely “controlling or coercive behaviour”. (The offence of controlling or coercive behaviour was first introduced by section 76 of the Serious Crime Act 2015 and, if found guilty, carries with it a prison sentence, a fine or both.)
The effect of the draft statutory guidance is to recognise the act of Get refusal formally. The unreasonable prevention of the dissolution of a Jewish marriage in this way is an offence under the new domestic abuse legislation. The reasons for withholding a Get can vary, but commonly can be to retain control and power or as potential leverage in any financial settlement on divorce. The effect is to weaponise the religious divorce process.
This change in the law has prompted an increase in publicity surrounding the topic. Women who have been or are trapped in a marriage as a result of their husband refusing to grant them a Get are now being recognised as victims. It has been made clear in parliamentary discussions that the changes to the Act were not intended to undermine the role of the Beth Din. The hope was to simply provide recourse for those who may need it. The reality from a Jewish law perspective is that it remains an issue that both practitioners and individuals seeking a divorce must be alive to.
While some Jewish movements are in favour of change and accept a more modern approach to the constraints of religious divorce, Jewish leaders have highlighted that reliance on the Act (either as a threat or it being used punitively) places a husband under duress to grant a Get. Therefore, the religious divorce may not be capable of being sanctioned by the Jewish court as valid.
In the parliamentary debate on 8 March 2021, ministers made clear that they endorsed the changes and have compassion and support for victims of abuse. However, a potential conflict stems from the notion that the civil court could impact the rules of a historical religion and the autonomy of the Jewish courts.
The granting and acceptance of a Get is, by its nature, a voluntary process, and so due care will need to be made when considering the new domestic abuse legislation. Where problems are anticipated, contact with the Beth Din should be made well in advance to avoid the religious divorce being invalidated by virtue of any action taken in the civil courts or by initiating criminal prosecutions for controlling or coercive behaviour.
It is possible to apply under s10A Matrimonial Causes Act 1973 to prevent a party from applying for a decree absolute, the final divorce decree, until the Jewish Get has been obtained. While this offers a degree of protection, it is a pre-emptive step and an element of crystal ball gazing would be required. A wife would need to foresee her husband refusing to cooperate with the religious divorce before making such an application.
It remains to be seen how the Jewish court will receive the Domestic Abuse Act in practice. Some senior rabbis have expressed concern that the Act may hinder rather than help, given the potential conflict with Jewish law.
It is hoped the new Act will alleviate the plight of “trapped’ divorcees, as well as shine a light on the religious issues that can arise on divorce. This should give hope to people of other faiths who may be experiencing similar difficulties.
The next article in the series will explore religious divorce and Sharia law.
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