The Battle between Jewish Law and Secular Courts –
How to Protect a Client’s Fundamental Right to Marry.
by Sheryl J. Seiden, Esq. and Shelby Arenson, Esq.
In the Jewish religion, though parties may be civilly married, they are not considered married in the eyes of Jewish law without the issuance of a Ketubah, which is a Jewish marriage certificate. Nevertheless, a Jewish marriage has similarities to a civil marriage as a marriage is not just a spiritual union but a contractual union as well. It is important to note that not all people who identify as Jewish adhere to all Jewish laws. This article, however, focuses on parties who do adhere to Jewish laws.
Parties to a religious marriage enter into a binding contractual commitment which is outlined in a Ketubah. The Ketubah outlines the fundamental responsibilities of a husband as stated in the Torah, which includes, but is not limited to, providing his wife with shelter. The Ketubah, however, does not include the wife’s fundamental responsibilities to her husband. Rather, the Ketubah signifies the wife’s agreement to enter into marriage with her husband. Therefore, the Ketubah sets forth a woman’s rights in marriage.
Just as a civil marriage must be dissolved with a judgment of divorce, a Jewish divorce must be dissolved with a religious divorce – that is known as the Get. Accordingly, for parties who adhere to Jewish laws, a civil divorce is not sufficient to divorce them under Jewish law. For just as Jewish law does not accept a civil marriage ceremony, it does not accept a civil divorce. Therefore, even if parties are civilly divorced, in the eyes of Jewish law, they will still be considered to be married. To obtain a religious divorce, parties must participate in a divorce proceeding in front of a Beis Din, which is a rabbinical court comprised of three rabbis. During this proceeding, the husband provides the wife with a Get which is a dated and witnessed document wherein the husband expresses his intention to divorce his wife in the presence of the rabbis from Beis Din, who serve as witnesses. The document is written by a scribe. Thereafter, the husband must deliver the Get to the Wife by “handing it her” or hiring a shliach, or messenger, to deliver the Get to his wife on his behalf. Ibid. It is important to note that only the husband can deliver or arrange for the delivery of the Get to the wife. Under Jewish law, the wife does not have the authority to deliver the Get. She merely has to accept the Get from the Husband.
The concept of a Get is outlined in the Torah in Deuteronomy 24:1-2, which when translated states:
“When a man takes a wife and is intimate with her, and it happens that she does not find favor in his eyes because he discovers in her an unseemly matter, and he writes for her a document of severance, gives it into her hand, and sends her away from his house. She leaves his house and goes and marries another man.”
In the overwhelming majority of cases, Jewish parties are divorced both civilly and religiously without any problems and the husband willingly and many times eagerly, provides the Get to his wife. There are, however, instances where the husband refuses to provide a Get. When a husband refuses to provide his wife with a Get, the woman is referred to as an “agunah.” The translation for agunah is chained, thereby, signifying how the woman is chained to a dead marriage. Not only is the woman chained to a dead marriage, but she is prevented from remarrying because pursuant to halacha or Jewish law, a woman may not remarry unless there is clear evidence that her husband has died, or she has a Get. Therefore, an agunah cannot get remarried, which essentially prevents her from pursuing any romantic relationships or having children under Jewish law. This causes social, emotional and psychological trauma and in worst case scenarios, empowers the husband to engage in coercive controlling behaviors, including but not limited to, complete financial control and physical and/or sexual abuse.
Not only does the husband have to provide the Get, but the wife has to accept the Get. While it is very rare, a woman may refuse to accept the Get while the civil divorce is pending in an effort to ensure that the Husband is reasonable in the civil divorce proceedings. Though rare, there is a potential remedy for husbands to remarry even if their wife refuses to accept a Get. The prohibition against bigamy was instituted by rabbanim, or a host of prominent rabbis, and not the Torah. Therefore, a man whose wife refuses to accept a Get may petition a Beis Din to issue a heter meah rabbanim, wherein, the Beis Din receives the consent of one hundred (100) rabbis, from three countries, to allow the husband to remarry even though his wife has refused to accept a Get. The issuance of a heter meah rabbanim is extremely rare. Nevertheless, same is not available to a woman because according to the Torah, a woman may not be married to more than one man. Therefore, in extremely rare circumstances, a husband may be able to remarry without his wife accepting a Get, which remedy is simply not available to women.
In recent years, prominent Jewish organizations, such as the Beth Din of America, have recognized the disproportionate number of women who are agunahs. In an effort to combat the agunah crisis, the Beth Din of America, in consultation with prominent religious leaders, developed a halachic prenuptial agreement, which empowers the Beis Din to determine when a Get should be issued and provides the Beis Din with tools to ensure that its ruling is followed. Like a prenuptial agreement, parties who enter into a halachic prenuptial agreement sign the document prior to entering into marriage. Under the halachic prenuptial agreement, the husband is forced to pay his wife a daily monetary penalty, which usually equates to about $150 per day, for each day that he refuses to provide his wife a Get. Though the halachic prenuptial agreement is a step in the right direction, it unfortunately has not been adopted by all sects of the Jewish community.
The issue of obtaining a Get in a case where Jewish parties are getting a divorce has plagued the New Jersey court system for years. Unfortunately, many Jewish women remain trapped in their religious marriages even after the civil courts grant a divorce from the bonds of civil marriage. In order to avoid the situation where a religious woman cannot remarry, it is imperative that the woman’s husband agree to provide them with a Get as part of any marital settlement agreement entered by the parties. It is important to note that the court does not have the authority to order a husband to provide a Get to his wife upon resolution of the matter. In the matter of Minkin v. Minkin, 180 N.J. Super. 260, 261 (Ch. Div. 1981), the plaintiff-wife sought an order that would require the defendant-husband to give her a Get. The Minkin court conducted a plenary hearing, during which time, a rabbi testified that the issuance of a Get is not a religious act, but rather, the severance of the contractual relationship between the parties. Several other rabbis testified during the plenary hearing, who also testified that the issuance of a Get is civil and not religious in nature. Id. at 265. The Minkin court found the testimony of the rabbis to be credible and the judge held that a Get is not a religious act and therefore, entered an order compelling the defendant-husband to provide the plaintiff-wife with a Get. The Court stated that the act of providing the Get would “have the clear secular purpose of completing a dissolution of the marriage.” Ibid. The Court specifically held that the compelling of the husband to provide the Get was not a violation of his constitutional rights.
The Minkin court set precedent for the matter of Burns v. Burns. In Burns v. Burns, 223, N.J. Super. 219 (Ch. Div. 1987), the defendant-wife sought to get remarried, but first needed the plaintiff-husband to provide her a Get. The plaintiff-husband, however, refused to provide the defendant-wife a Get unless she invested $25,000 in an irrevocable trust for their daughter. Id. at 222. Defendant-wife, believing that the plaintiff-husband was seeking to hold the Get and hold it hostage for financial purpose filed an application with the Court. The Burns court held that the plaintiff-husband’s refusal to provide the defendant-wife a Get was not based on his religious beliefs, but rather, was purely “an issue of monetary gain.” Id. at 223. The judge subsequently reviewed the laws of Moses and Israel and determined that “there are various circumstances which would require the husband to secure a get from his wife” and ordered the plaintiff-husband to appear before Beis Din and “release the defendant from the [marriage] and put an end to the relationship.” Id. at 226.
About ten years later, in the matter of Aflalo v. Aflalo, 295, N.J. Super. 527 (Ch. Div. 1996), the precedent set forth in Minkin was disrupted. In this matter, plaintiff-wife filed for divorce and defendant-husband asserted that no matter what occurred in the civil divorce action, that he would refuse to consent to provide plaintiff-wife with a Get. Id. at 530-31. The Aflalo court held that the Minkin court erred when considering the issue of providing a Get against the backdrop of the Establishment Clause rather than the Free Exercise Clause of the First Amendment. Id. at 537. The Aflalo court also held that the Minkin court erred when it stated that requiring a husband to provide a Get is not a religious act. Id. at 538. Therefore, the judge in Aflalo found that compelling a party to provide a Get is not solely concerned with civil issues and compelling a party to obtain a Get would not have the desired effect of the wife because pursuant to Jewish law, the husband must provide a Get willingly. The judge then concluded that the court had no authority to determine for the parties “which aspects of their religion may be embraced, and which must be rejected.” Id. at 542.
Historically, the New Jersey trial courts have differed on the issue of whether a civil court has the authority to compel a husband to provide a get. Therefore, in the matter of Mayer-Kolker v. Kolker, 359, N.J. Super. 98, 819 A.2d 17 (2003), wherein, the plaintiff-wife sought that the court order the defendant-husband to cooperate in obtaining a Get, the court had to consider the decisions determined by the Minkin, Burns and Aflalo courts. The Kolker court entered a dual judgment of divorce and determined that it did not have the authority to compel the defendant-husband to provide plaintiff-wife a Get. The plaintiff-wife subsequently appealed.
On appeal, the Appellate Division acknowledged that the parties entered into a Ketubah, which is a Jewish marriage contract. Plaintiff-wife argued that the act of executing a Ketubah made the parties’ marriage subject to Jewish law. Id. at 100-03. Defendant-husband, however, asserted that the Ketubah that the parties signed did not automatically convey the parties’ adherence to Jewish law, lacked the requisite specificity for enforcement and was silent on the issue of whether a Get would be granted in the event the parties divorced. Ibid. The Kolker court did not determine the limits of judicial authority with regard to compelling a husband to provide a Get, but rather, focused on whether the Ketubah that the parties signed compelled the parties to adhere to Jewish law.
The Kolker court determined that though the parties provided a copy of their Ketubah, that there were not sufficient translations, as the Ketubah signed by the parties was in two languages; that the parties did not provide evidence regarding the effects of a Ketubah; and that the parties failed to present expert testimony about what Jewish law would require. Ibid. The Kolker court then affirmed the trial court’s denial of plaintiff-wife’s request that the court compel defendant-husband to provide a Get. The court reasoned the plaintiff-wife failed to establish the effect of the Ketubah that the parties entered into and failed to establish the Ketubah’s mandate of Jewish law with regard to enforcement. Ibid. While the Kolker court did not address whether New Jersey courts have the power to compel a party to provide a Get, recent decisions by New Jersey courts have interpreted the law to deny any request to compel the issuance of a Get.
As set forth above, New Jersey courts have been hesitant to order parties to provide their spouse a Get due to concerns as to infringement of a husband’s First Amendment right. New Jersey courts, however, have failed to address that the right to marriage is recognized as a fundamental right by both the Federal and State Constitutions. Therefore, by New Jersey courts focusing only on First Amendment concerns, they are inadvertently denying their citizens their fundamental right to marry. There is no doubt that the citizens who choose to abide by Jewish laws continue to struggle with this issue in some cases. However, if we look to our sister state of New York, we see that there are secular means of ensuring that all persons, regardless of their religious beliefs, have the ability to exercise their fundamental right to marriage.
New York enacted Domestic Relations Law 253 Removal of Barriers to Remarriage in 1983. Pursuant to paragraph 2, “any party to a marriage … who commences a proceeding to annul the marriage or for a divorce must allege, in his or her verified complaint: (i) that, to the best of his or her knowledge, that he or she has taken or that he or she will take, prior to the entry of final judgment, all steps solely within his or her power to remove any barrier to the defendant’s remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision.”
The enactment of similar law in New Jersey will not eradicate the issue of some husbands refusing to provide their wives with Gets, especially, when the only repercussion is the lack of a civil divorce. However, it should be the goal of New Jersey courts to ensure that all of its citizens are entitled to a divorce pursuant to the laws of the State and no longer sit idle, which may empower some men to gain an unfair advantage throughout divorce proceedings. It is our hope that this article will be the first step of many toward bringing awareness to the challenges that agunahs face and to work toward ensuring that all people are able to exercise their fundamental right to life, liberty, and the pursuit of happiness.
 Sheryl J. Seiden, Esq. is the managing partner of Seiden Family Law, LLC in Cranford, NJ. She is a trustee of the NJSBA, an officer and fellow of the American Academy of Matrimonial Lawyers, and a former Chair of the Family Law Section. Shelby Arenson, Esq. is an associate at Seiden Family Law, LLC where she focuses her practice on family law issues. She clerked for the Honorable Marc R. Brown in the Superior Court of New Jersey, Family Part, Union County. Shelby also served on the executive board of the American Bar Association’s Family Law Quarterly during its inaugural year at New York Law School.  The Torah is comprised of the Five Books of Moses, the entire Hebrew Bible and the entirety of all written texts of Jewish religious knowledge. Jewish Divorce Basics: What is a ‘Get’? Chabad.org. Retrieved from: https://www.chabad.org/library/article_cdo/aid/557906/jewish/Jewish-Divorce-Basics-What-Is-a-Get.htm.  In circumstances wherein divorce is the only option, it is a mitzvah, or good deed, for a husband to provide his wife a Get.  Silberberg, Naftali. The Agunah. Chabad.org. Retrieved from: https://www.chabad.org/library/article_cdo/aid/613084/jewish/The-Agunah.htm.  If a Jewish woman has a child with another man while she is still married, that child will be considered a mamzer. Though the child will be considered Jewish, there are certain restrictions placed upon a mamzer, such as who they may marry. See What is a “Mamzer”? Chabad.org. Retrieved from: https://www.chabad.org/library/article_cdo/aid/4007896/jewish/What-Is-a-Mamzer.htm.  Eisen, Yosef. Major Ashkenazi Rishonim. Chabad.org. Retrieved from: https://www.chabad.org/library/article_cdo/aid/2617025/jewish/Major-Ashkenazi-Rishonim.htm.  Weissmann, Rabbi Shlomo. Ending the Agunah Problem as We Know It. The Orthodox Union. Retrieved from: https://www.ou.org/life/rekationships/ending-agunah-problem-as-we-know-it-shlomo-weissmann/.  It is worth noting that according to Jewish law, it is permissible and encouraged to condemn an individual who take advantage of another, such as a husband refusing to provide his wife a Get, which includes, but is not limited to, publicly denouncing the individual and exposing the individual by protesting outside of their home and/or place of business.  U.S.C.A. Const. Amend. 14; N.J.S.A. Const. Art. 1, par. 1.  Domestic Relations Law 253 was drafted by Nathan Lewin, Esq., who has extensive experience advocating for First Amendment rights and civil liberties.