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Partner Lucy Greenwood & trainee Solicitor Feriha Tayfur look at Jewish divorces ('Get') and potential solutions to family law practitioners and clients who need to ensure that a Jewish client obtains both a civil and religious divorce.

Introduction

Whilst there has been a lot of discussion around the recognition of religious marriages following the recent Court of Appeal case of Akhter v Khan and another[1], serious issues and implications can also arise in respect of the recognition of religious divorces. Perhaps the most common of which we come across in our work relates to a Jewish divorce or ‘Get’.

This article focuses on Jewish divorces and identifies the issues and potential solutions available to family law practitioners and clients who need to ensure that a Jewish client obtains both a civil and a religious (Jewish) divorce via a ‘Beth Din’ (Jewish Court) which is authorised to give them. It also highlights the limitations of the use of s10A Matrimonial Cause Act 1973 (MCA 1973) for other religions.

Recognition of Jewish Divorces

A Jewish divorce or ‘Get’ obtained in England will not be recognised by the English courts. The parties to a divorce will therefore want to obtain both a Jewish and a civil divorce.

Where a Jewish divorce has been obtained overseas and by way of judicial or ‘other proceedings’ that divorce will only be recognised if:

  1. The Jewish divorce is legally valid in the country in which it was obtained
     
  2. At the time the divorce was obtained either the husband or the wife was habitually resident, domiciled or a national of the country where the divorce was obtained[2]
     
  3. Both the husband and wife had notice of the proceedings[3]

Case law suggests that a ‘Get’ represents a divorce obtained by way of ‘other proceedings’. In Broit v Broit[4] (a case concerning an Israeli divorce) Lord Fraser stated that “it was abundantly clear that the Israeli divorce fell within the words of ‘other proceedings’”.

Issues may arise where the ‘Get’ obtained constitutes a transnational divorce (i.e. where proceedings are commenced in one country and concluded in another). A transnational divorce is not recognised as an overseas divorce in England.

The process of obtaining a ‘Get’ requires a great degree of formality and unlike the Muslim ‘Talaq’[5] it cannot be obtained orally. A document (i.e. the ‘Get’) is written on the instructions of the husband and handed by the husband or his agent to his wife in front of a ‘Beth Din’

A ‘Get’ might occur transnationally where the document is written in one country by the husband and the document is then delivered to the wife who is residing in a different country. In the case of Berkovits v Grinberg[6] the document was written in London and delivered to the wife in Israel. Consequently, the divorce was not recognised by the English Courts. This was despite the fact that the divorce was recognised in the country which it was obtained (i.e. Israel). It can be seen therefore that this can be a complicated yet vitally important area of family law.

The Significance of Obtaining both a Jewish and Civil Divorce

Where a Jewish divorce has been obtained in England, but a civil divorce has not, or a divorce has been obtained overseas but it is not capable of being recognised in England, then the parties will need to obtain a civil divorce in England.

Until a legal divorce is obtained which is recognised in England, the parties will still be deemed as legally married and consequently neither party is free to remarry under English law. Their entitlements to financial remedies after a foreign decree pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) would also be impaired.

Where a Jewish divorce has not been obtained, again, neither party is free to remarry in the Jewish faith. This is even if the parties have obtained a civil divorce.

Additionally, where a Jewish woman does not obtain a Jewish divorce and she then goes on to have a child from another Jewish man, that child would be deemed to be illegitimate (and he/she would be known as a ‘mamzer’), which would preclude him/ her (and his/her descendants) from marrying in Jewish law.

She would also be deemed to be committing adultery in Jewish law if she commenced a sexual relationship with another man, even if she obtained a civil divorce and cannot marry a man if her relationship with that man commenced before obtaining her Jewish divorce. Her standing in the Jewish community generally would also be impacted

Therefore, it will be seen that the ramifications in particular for a Jewish woman and her children can be huge and life changing.

Solutions in English Law

According to Jewish scripture, a ‘Get’ can only be completed with both parties’ consent. Difficulties may arise therefore when either party refuses to respond to the ‘Beth Din’s’ call to co-operate in the ‘Get’ process. A wife who finds herself in a position where the husband is refusing to co-operate is known as an ‘agunah’ (meaning chained). A husband who finds himself in the same position is known as an ‘agun’ (also meaning chained).

It is for this reason that the Divorce (Religious Marriages) Act 2002 was enacted. Section 1 of the Divorce (Religious Marriages) Act 2002 inserts section s10A into the MCA 1973. In essence, where a husband or wife is refusing either to give instructions for the writing of the ‘Get’ or refusing to accept the ‘Get’, the provision enables a party to apply for an order to delay the making of the decree absolute obtained in the civil proceedings, until the other party has co-operated. The court has a discretion whether to make the order and will only make it if it is satisfied that in all the circumstances of the case it is just and reasonable to do so.[7]

Additionally, a court may also assist the parties to resolve any issues in respect of any children and financial arrangements by endorsing an agreement between the parties obtained through religious arbitration as seen in the case of Re AI and MT.[8]

In this case the father was a Canadian citizen and the mother a British citizen. Both were observant Jews from well-respected and wealthy families. Following difficulties in their marriage whilst living in Canada the wife returned to England taking the children and failing to return with them. This was against the husband’s wishes.

Before the final hearing was due to be heard in England the husband and wife agreed to refer their matter to arbitration by the ‘Beth Din’ in New York. The issues between the parties included the children’s welfare, financial matters and obtaining a ‘Get’.

After several years of negotiation and arbitration, the parties were able to come to an agreement, assisted primarily by the ‘Beth Din’ in New York. However, the parties still required the assistance of the English courts to make orders.

The mother was unwilling to agree to the complex terms of the agreement unless the ‘Get’ was given by the husband. The husband was unwilling to agree to give the ‘Get’ until the court had approved the agreement and indicated that it would agree to its terms being incorporated in a court order.

The court was willing to assist, subsequently ratifying the agreement. In his judgment, Baker J stressed a number of matters pertinent to religious arbitration in marital cases:

  • First, insofar as the court has jurisdiction to determine issues arising out of the marriage, or concerning the welfare and upbringing of the children, that jurisdiction cannot be ousted by agreement.[9]
     
  • Second, save where statute provides otherwise, when considering issues concerning the upbringing of children, it is the child's welfare that is the paramount consideration.[10]
     
  • Third, the court gives respect to all religious practices and beliefs, “but that respect does not oblige the court to depart from the welfare principle because…the welfare principle is sufficiently and broad and flexible to accommodate many cultural and religious practices”.[11]
     
  • Fourth, it is always in the interests of parties to try to resolve disputes by agreement wherever possible, including disputes concerning the future of children and ancillary relief (financial remedy) of the breakdown of a marriage.[12]

Baker J stated that, in addition to the above there were three further features of the process which warrant further comment:

  • First, it was an integral aspect of the process of arbitration that it took place under the auspices of the ‘Beth Din’. It was a profound belief held by both parties and their respective extended families that the marriage, which had been solemised in accordance with the tenets of their faith, should be dissolved within those tenets.[13]
     
  • Second, it was a notable feature of the litigation and the process before the ‘Beth Din’ that each parent benefited from the support of their extended families. Their presence and involvement was not only beneficial to the parties, but also served to underline the strength of the parties’ family identity as a component of their faith.[14]
     
  • Third, at a time when there is much comment about the antagonism between the religious and secular elements of society, it was notable that the court was able not only to accommodate the parties’ wish to resolve their dispute by reference to their religious authorities, but also buttress that process at crucial stages.[15]

It is for the reasons outline above that the court endorsed the outcome of the parties’ agreement concerning the children and the financial arrangements.

Additionally, Baker J considered that the resolution of the issues between the parties by this process was largely in accordance with the overriding objective of the Family Procedure Rules 2010.[16] The outcome was in keeping with English law whilst achieved by a process rooted in the Jewish culture to which the families belong.

Criminal proceedings

In some cases a party may seek to ‘coerce’ the other party by threatening not to grant a ‘Get’ until the other party agrees to a smaller financial settlement that they would otherwise be entitled to, or perhaps in respect of with whom a child should live or future contact arrangements.

In such instances, it may be possible to bring criminal proceedings under s76 Serious Crime Act 2015 (SCA 2015), which makes it illegal to inflict controlling or coercive behaviour in an intimate or family relationship.

In January 2020, the wife of a husband who refused to co-operate in the ‘Get’ process initiated a private prosecution. Here, the husband had tried to press the wife into revoking a non-molestation order against him and he required her to leave the country. In turn, he would agree to grant her a ‘Get’.

The wife alleged that the husband had committed an offence, contrary to s76 SCA 2015. The husband was due to face a crown court trial which carried a potential custodial sentence of up to five years. However, subsequent to issuing the private prosecution proceedings the husband gave the wife her ‘Get’. The wife then discontinued the private prosecution against him.

This approach whilst unlikely to be needed to be used often, provides a further legal tool to, in the words of Baker J “buttress” the religious process at crucial stages.

Conclusion

At present only the Jewish (and other prescribed religious usages) are included within the protection provided by s10A MCA 1973.

For a religion to become a ‘prescribed religious usage,’ an order must made by the Lord Chancellor after consulting with the Lord Chief Justice, or their nominated judicial office holder. Such an order must be made by a statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Some family practitioners believe that s10A MCA 1973 applies to religions other than the Jewish faith, such as the Islamic faith, but this is not currently the case.

As family law practitioners we must be aware of the significance for many of obtaining recognised divorces within the civil law arena, but also in the context of a couples’ faith. The damage to individuals of not doing so can be irreparable.

Lucy Greenwood and Feriha Tayfur
lucy.greenwood@iflg.uk.com
feriha.tayfur@iflg.uk.com
The International Family Law Group LLP
www.iflg.uk.com
© April 2020


[1] 2020] EWCA Civ 122, [2020] All ER (D) 88 (Feb)

[2] S46(1) Family Law Act 1986

[3] S51(3)(a) Family Law Act 1986

[4] 1972 SCOTS L. TIMES 32

[5] Talaq is the unilateral right of the man to divorce his wife. He can do this either verbally or in writing. 

[6] [1995] 2 All E.R. 681 (Fam.Div)

[7] s10A(3) of the Matrimonial Causes Act 1973

[8] [2013] EWHC 100 (Fam)

[9] Ibid. [27]

[10] Ibid. [28]

[11]Ibid. [29]

[12] Ibid. [30]

[13] Ibid. [33]

[14] Ibid. [34]

[15] Ibid. [35]

[16] Ibid. [37]