Legal responses to agunah are civil legal remedies against a spouse who refuses to cooperate in the process of granting or receiving a Jewish legal divorce or ''"
get
Get or GET may refer to:
* Get (animal), the offspring of an animal
* Get (divorce document), in Jewish religious law
* GET (HTTP), a type of HTTP request
* "Get" (song), by the Groggers
* Georgia Time, used in the Republic of Georgia
* Get AS, a ...
"''.
Agunah
For a divorce to be effective under
Jewish law
''Halakha'' (; he, הֲלָכָה, ), also Romanization of Hebrew, transliterated as ''halacha'', ''halakhah'', and ''halocho'' ( ), is the collective body of Judaism, Jewish religious laws which is derived from the Torah, written and Oral Tora ...
, a man must grant his wife a Jewish divorce—a ''get''—of his own free will. Sometimes a Jewish woman can be held in a so-called "limping marriage" when her husband refuses co-operation in the religious form of divorce. She may have received a civil divorce but cannot remarry within her religion, meaning that for all intents and purposes, she may not be able to remarry at all—a phenomenon known as ''
agunah
An ''agunah'' ( he, עגונה, plural: agunot (); literally "anchored" or "chained") is a Jewish woman who is stuck in her religious marriage as determined by ''halakha'' (Jewish law). The classic case of this is a man who has left on a journey ...
''. Where one party has the power to grant or withhold a religious divorce, that power can be used as a bargaining tool to pressure the other party to agree more favourable divorce terms. A parallel problem—sometimes called "male agunah"—can arise when the wife refuses to respond to the husband's attempts to initiate the ''get'' process, such as refusing to appear before a rabbinical tribunal for the proceeding. Although the consequences are not as serious for the man, the result can still be a form of extortion to agree to agree to the other party's demands.
By location
Canada
Since 1990 Canada's
Divorce Act permits the Court hearing the divorce to strike out the application, pleadings and/or affidavit evidence of a party creating a barrier to the religious remarriage of their spouse.
In ''Bruker v. Marcovitz,'' the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
ruled that, in the
Province of Quebec
Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirteen p ...
, a condition of a contract between two spouses that required the husband to give his wife a ''get'' was enforceable. The court overturned a decision from the
Court of Appeal of Quebec
The Court of Appeal of Quebec (sometimes referred to as Quebec Court of Appeal or QCA) (in French: ''la Cour d'appel du Québec'') is the highest judicial court in Quebec, Canada. It hears cases in Quebec City and Montreal.
History
The Court wa ...
which held that as the substance of the obligation was religious in nature, the obligation was a moral one and was therefore unenforceable by the courts. The Supreme Court's decision, written by Justice
Rosalie Abella
Rosalie Silberman Abella (born July 1, 1946) is a Canadian jurist. In 2004, Abella was appointed to the Supreme Court of Canada, becoming the first Jewish woman and refugee to sit on the Canadian Supreme Court bench. She retired from the fede ...
, restored the trial decision of Mass J., who had ordered a total of $47,500 in damages: $2,500 for each of the 15 years that the husband had refused to grant the ''get'', and $10,000 for Ms. Bruker’s inability to have children considered “legitimate” under Jewish law.
New York
In
New York
New York most commonly refers to:
* New York City, the most populous city in the United States, located in the state of New York
* New York (state), a state in the northeastern United States
New York may also refer to:
Film and television
* '' ...
, a 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
Annulment is a legal procedure within Law, secular and Religious law, religious legal systems for declaring a marriage Void (law), null and void. Unlike divorce, it is usually ex post facto law, retroactive, meaning that an annulled marriage is c ...
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.
Australia
In Australia, the Family Court in ''Gwiazda v Gwiazda'' ordered a reluctant wife 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 that the
decree nisi
A decree nisi or rule nisi () is a court order that will come into force at a future date unless a particular condition is met. Unless the condition is met, the ruling becomes a decree absolute (rule absolute), and is binding. Typically, the condi ...
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 (England and Wales)
Within the United Kingdom, in
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
, the
Divorce (Religious Marriages) Act 2002
The Divorce (Religious Marriages) Act 2002 is an Act of the Parliament of the United Kingdom. The Act amends the Matrimonial Causes Act 1973 to allow one party to petition a court to not declare their divorce decree absolute until they have rece ...
, relates to Jewish divorce. The Act allows a Court discretionary right to award any ''
damages under Tort remedies'', impose any civil or criminal fines or other penalties, or to grant any further relief, and withhold the final legal civil dissolution of a marriage of Jews or of other person by means of granting the ''
decree absolute
A decree nisi or rule nisi () is a court order that will come into force at a future date unless a particular condition is met. Unless the condition is met, the ruling becomes a decree absolute (rule absolute), and is binding. Typically, the condi ...
'' until a declaration made by both parties that they have taken such steps as are required to dissolve the marriage in accordance with rabbinical law.
In case law, there have been a number of cases regarding the provision of a ''get'': in the case of ''O v O'', the wife petitioned for a civil divorce and was granted a ''decree nisi''. As she had not been granted a get, she did not apply for a ''decree absolute''. The husband attempted to apply for it under s9(2) of the Matrimonial Causes Act 1973, but was denied until the get had been granted.
South Africa
Section 5A of the Divorce Act, 1979 provides that the court may refuse a divorce decree if one spouse does not take steps necessary to dissolve the marriage (or to allow the other spouse to remarry) in accordance with religious custom. The court may also make any other order which it finds to be just. This provision was added in 1996 as a result of the
South African Law Reform Commission The South African Law Reform Commission (SALRC) is a law reform commission which investigates the state of South African law and makes proposals for its reform to Parliament and the provincial legislatures. It is an independent advisory statutory ...
's report on Jewish divorce.
Clauses at marriage
The Lieberman clause, developed by Rabbi
Saul Lieberman
Saul Lieberman (Hebrew: שאול ליברמן, May 28, 1898 – March 23, 1983), also known as Rabbi Shaul Lieberman or, among some of his students, The ''Gra"sh'' (''Gaon Rabbeinu Shaul''), was a rabbi and a Talmudic scholar. He served as Professo ...
, does not deal with secular law, 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.
See also
*
Divorce (Religious Marriages) Act 2002
The Divorce (Religious Marriages) Act 2002 is an Act of the Parliament of the United Kingdom. The Act amends the Matrimonial Causes Act 1973 to allow one party to petition a court to not declare their divorce decree absolute until they have rece ...
Footnotes
{{Reflist
References
*Broyde, Michael J., "The New York Get Law: An Exchange"
*Colman, Gene C. & Posen Joseph M. "Jewish Marriage and Ontario Law"
*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"
Agunot
Conflict of laws
Family law
Agunah
An ''agunah'' ( he, עגונה, plural: agunot (); literally "anchored" or "chained") is a Jewish woman who is stuck in her religious marriage as determined by ''halakha'' (Jewish law). The classic case of this is a man who has left on a journey ...