Get (conflict)
Encyclopedia
A get or gett 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.
s 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.
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 considered a religious question in some religions, including Judaism. 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 child
ren, and for maintenance
and property settlements. Such provisions produce a conflict between the human rights of each spouse to be free to divorce, or remarry, children's right to support, and custody or visitation, regardless of the parents' relations or religion, and the general right 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 Beliefhttp://www.unhchr.ch/html/menu3/b/d_intole.htm). They may also breach sex discrimination laws in some states. The difficulty is that most countries
operate under constitution
s based on a separation between church and state
which forbid government
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 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.
, following consultation with all major religious groups, the Divorce Act 1985 was amended to give the courts the power to dismiss any application, and strike out any pleadings and affidavit
s filed by a spouse who has failed to remove religious barriers to the remarriage of the other spouse. The legislature
intended to:
This reflects a general strong response at a federal level to any elements of duress or undue influence
within the civil law system.
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 $47,500 in damages.
On appeal, Justice Hilton, writing for the three member court, overturned the lower court judgment. The appellate court ruled that the obligation was religious in nature and so could not be judged by the civil courts.
In December 2007 the Supreme Court decided in favor of Bruker on the basis of enforcing a civil contract. The two dissenting judges objected to the ruling as incursion on religious freedom. In February 2008, Marcovitz applied to the Court to have the decision reheard on constitutional grounds. The Court dismissed that application in March 2008.
In an uncontested divorce both parties must file such a statement or waive the obligation of the other party to do so. The court cannot enter a final judgment of divorce or annulment
unless it receives the statements and, even then, final judgment cannot be entered if the person who solemnised the marriage swears that, to his or her knowledge, the applicant has failed to take all steps within his or her power to remove all barriers to the other party’s religious remarriage. (For a discussion of the issues, see Amicus Curiae brief in Becher v Becher, page 7, New York Supreme Court, Appellate Division - Second Department (1997) 245 A.D 2d 408)
, the Family Court in Gwiazda v Gwiazda No. M10631 of 1992 used its general injunctive power to order a reluctant wife who refused to accept the get, to appear before the Beth Din in Melbourne. Emery J. observed that:
So-called "Gwiazda Orders" are now occasionally used when necessary to produce a fair result by requiring the parties to refer their problems to the local Beth Din. The Australian Law Commission has proposed http://www.ag.gov.au/agd/WWW/rwpattach.nsf/viewasattachmentPersonal/(A0E22772974CC5513F69378CCFFF57C2)~Cultural-Community+Divorce.pdf/$file/Cultural-Community+Divorce.pdf that the decree 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.
, the case of Brett v. Brett (1969) 1 All ER 1007, saw the court using 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: were married in accordance with:
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.
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. 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.
, 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.
This clause is not considered advisable according to Orthodox 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 (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.
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:
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
which, when one is available in the state of residence, is supervised by a Beth Din
Beth din
A beth din, bet din, beit din or beis din is a rabbinical court of Judaism. In ancient times, it was the building block of the legal system in the Biblical Land of Israel...
(בית דין), a rabbinical court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
. This page deals with the conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
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 synagogueSynagogue
A synagogue is a Jewish house of prayer. This use of the Greek term synagogue originates in the Septuagint where it sometimes translates the Hebrew word for assembly, kahal...
s 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
Party (law)
A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. Parties include: plaintiff , defendant , petitioner , respondent , cross-complainant A party is a person or group of persons that compose a single entity which can be...
who marry each other not the Rabbi
Rabbi
In Judaism, a rabbi is a teacher of Torah. This title derives from the Hebrew word רבי , meaning "My Master" , which is the way a student would address a master of Torah...
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 marriageMarriage (conflict)
In conflict of laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural and multi-national relationships...
and divorce difficulties while resident outside Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
. 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
Agunah
Agunah ; literally 'anchored or chained') is a halachic term for a Jewish woman who is "chained" to her marriage. The classic case of this, is a man who has left on a journey, and has not returned, or has gone into battle and is MIA...
). A civil divorce obtained through local courts entitles the parties to remarry, but the capacity to remarry is considered a religious question in some religions, including Judaism. 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
Parental responsibility (access and custody)
In 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 contact
Contact (law)
In 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 child
Child
Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...
ren, and for maintenance
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
and property settlements. Such provisions produce a conflict between the human rights of each spouse to be free to divorce, or remarry, children's right to support, and custody or visitation, regardless of the parents' relations or religion, and the general right of people to practise their religion (see Article 18 of the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
which is repeated almost word for word in Article 9(1) European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The 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. The difficulty is that most countries
Country
A country is a region legally identified as a distinct entity in political geography. A country may be an independent sovereign state or one that is occupied by another state, as a non-sovereign or formerly sovereign political division, or a geographic region associated with a previously...
operate under constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
s based on a separation between church and state
Separation of church and state
The concept of the separation of church and state refers to the distance in the relationship between organized religion and the nation state....
which forbid government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
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 Rhodesia
Rhodesia
Rhodesia , officially the Republic of Rhodesia from 1970, was an unrecognised state located in southern Africa that existed between 1965 and 1979 following its Unilateral Declaration of Independence from the United Kingdom 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 jurisdiction
Jurisdiction
Jurisdiction 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...
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
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends 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 the power to dismiss any application, and strike out any pleadings and affidavit
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
s filed by a spouse who has failed to remove religious barriers to the remarriage of the other spouse. The legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
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
Undue influence
Undue 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, Marcovitz 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 annulment
Annulment
Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place...
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
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, 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 nisi
Decree nisi
A decree nisi is a court order that does not have any force until such time that a particular condition is met, such as a subsequent petition to the court or the passage of a specified period of time....
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
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, the case of Brett v. Brett (1969) 1 All ER 1007, saw the court using 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
Decree nisi
A decree nisi is a court order that does not have any force until such time that a particular condition is met, such as a subsequent petition to the court or the passage of a specified period of time....
has been granted but not made absolute and the parties: were married in accordance with:
-
- (i) the usages of the Jews, or
- (ii) 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 (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals 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. 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 Lieberman clause, developed by Rabbi Saul LiebermanSaul Lieberman
Saul 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, 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.
This clause is not considered advisable according to Orthodox 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 (mamzer
Mamzer
The Hebrew noun mamzer in the Hebrew Bible and Jewish religious law, is a person born from certain forbidden relationships, or the descendant of such a person. A mamzer is someone who is either born of adultery by a married woman, or born of incest , or someone who has a mamzer as a parent...
), 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
Asmachta
In 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 statusStatus (law)
A 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 capacity
Capacity (law)
The capacity of both natural and legal 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 judgments
Enforcement of foreign judgments
In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another jurisdiction...
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
Choice of law
Choice 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 sovereign states, federated states , or provinces...
depends on the characterisation
Characterisation (conflict)
In 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 policy
Public policy (law)
In private international law, the public policy doctrine or ordre public concerns 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...
because one of the parties is seeking to evade
Evasion (law)
In 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 interests
Best interests
Best 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. The most important of these issues concern questions that arise upon the divorce or separation of the children's parents...
of any children (see parens patriae
Parens patriae
Parens 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 domicile
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
) in a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
state, and under the lex patriae (the law of the nationality
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
) or habitual residence
Habitual residence
In conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing....
in a civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
state. Alternatively, the court seized of the matter might apply the lex fori
Lex fori
Lex fori is a legal term used in the conflict of laws used to refer to the laws of the jurisdiction in which a legal action is brought...
(the municipal law of the forum state).
The best answer is always to produce an in rem
In rem
In rem is Latin for "against a thing." In a lawsuit, an action in rem is directed towards a piece of property rather than against a person . The action disputes or seeks to transfer title to property. When title to real estate In rem is Latin for "against a thing." In a lawsuit, an action 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
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, 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.