Jewish divorce and the English courts

Last week we looked at how the English courts treat Islamic marriages and divorces, and how they try to incorporate the religious sensibilities of people appearing before them. This week we take a brief look at Jewish matrimonial custom and the approach of the English courts to it.

Jewish law is governed by the Beth Din, whose function is to arbitrate in civil disputes and administer Jewish family law. For a Jewish marriage to be recognised under English law, the couple will need a civil marriage certificate as well as their Jewish marriage contract.

As well as a civil divorce in the courts, a Jewish couple need a Get (a Jewish divorce) which enables them to remarry in an Orthodox synagogue and remain fully integrated in the Jewish community. A Get is granted by the husband to the wife and she must formally agree to accept it. For the Get to be universally recognised within the Jewish world, the procedures should be affected under the auspices of an Orthodox Beth Din.

Without a Get, the wife has the status of “Agunah”, effectively a “chained woman”. She will be unable to remarry in a synagogue, and in the absence of the Get a wife who enters a new relationship will be considered to be committing adultery even if she has a civil divorce. Furthermore without a Get, any children of a new relationship have a much lower status than legitimate children under Jewish law. A Jewish child who is religiously illegitimate is known as a “mamzer” and is under a severe social handicap in that they cannot marry a fellow Jew, the status permanent and the label passes down the line in perpetuity. This does not necessarily apply in all branches of Judaism but is the case for Orthodox Jews. It serves to underline the importance of obtaining Gets for Jewish clients.

Such is the importance of obtaining a Get that the Divorce (Religious Marriages) Act 2002 provides that a civil decree absolute can be withheld until a Get is obtained.

The English civil courts try their best to acknowledge the religious and cultural background of the parties in disputes. It was therefore interesting to see that a recent case in the High Court acknowledged the importance of the role played by the Beth Din within Jewish family law. In this case the couple were both devout Orthodox Jews who wanted their dispute dealt with by arbitration in the New York Beth Din. The English court stayed proceedings here to allow a couple to go through arbitration in the religious courts, and once agreement had been reached through the Beth Din arbitration, the High Court approved the agreement reached. The judge in this case steered a careful path by acknowledging that for this couple, arbitration in the religious courts was preferable to litigation. It approved the agreement reached, but stressed that the jurisdiction of the English courts cannot be ousted by religious courts, although religious beliefs will be respected.

Naturally the press had a field day with this decision, saying it opens up the way for sharia and other religious divorces to be recognised by the English courts. That is a long way off! There are no plans for this, but it is interesting that, where appropriate, the services offered by religious courts will be acknowledged by the civil courts.

Another recent case looked at the divergent views of the mother and father of five Jewish children as to the appropriate upbringing for them. The family were all members of the Chareidi or Hassidic Jewish community in North London. The father wanted the children educated in a single-sex ultra-Orthodox school, whereas the mother preferred a more secular co-educational upbringing, albeit still within a Jewish school.

The court looked carefully at the balance between the children’s educational needs and the parents’ way of life. It emphasised the importance of equality of opportunity as a fundamental value of society, and that society (and therefore the court) must aim to bring a child to adulthood in such a way that the child is best equipped to decide what kind of life they want to lead and to give effect to their aspirations. Having explained the role of the court as “judicial parent” the judge decided that the mother’s chosen school would provide superior educational opportunities and would best enable them to make religious choices. (You may recall we looked at this case before when considering the concept of welfare in the family courts.)

The approach which the courts seem to be adopting is recognising the importance of religion and culture to litigants, and accepting that in some cases dispute resolution in religious courts may be best for the family concerned, but stressing that religious courts will in no way replace the jurisdiction of the civil courts. This is combined with downplaying the importance of religious upbringing for children, favouring educational opportunities and choice instead when determining what is in their best interests.

If you would like to discuss any of the above, or have a query about how your religious convictions might be taken into account by the family courts in England and Wales, do give Gail, Adam, Sue or Simon a call on 01223 443333.

Join the discussion One Comment

  • What you write about divorce applies solely to orthodox Jews, there are other streams of Judaism, such as Reform and Liberal. They issue their own “gittin” but these are not recognized by the Orthodox (United Synagogue, Federation of Synagogues and the ultra-orthodox also known as “haredim”). As for the status of being a “mamzer” or “mamzerut” in Jewish law this only applies if the wife was married to someone else, it does not apply if the husband was married to someone else. Furthermore, the Israeli rabbinate has decreed that the status “only” lasts for ten generations. Of course, a mamzer can marry in a non-orthodox synagogue but the marriage may not be recognised. In Jewish law there is also the concept of “dina demalkhuta dina” which means that an exclusively civil marriage must be recognised as a marriage by the Beth Din, as long as both parties are Jewish. This is also the case in Israel, unlike the shariah and Muslim courts that do not recognise other jurisdictions.

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