Jewish Divorce and the Right to Choose

Jewish Divorce and the Right to Choose

On Sunday I watched a Channel 4 documentary called Revelations: Divorce - Jewish Style. It focused upon the get: this is a divorce document, presented by a husband to a wife who accepts it. They are then divorced in Jewish law. In a previous post I described the Jewish get in detail, emphasising how important it is for a divorce lawyer to ensure that any religious divorce takes place before the Degree Absolute is obtained.

Jewish divorce was not presented favourably in this programme, which dwelt upon the plight of the agunah: the word used to describe a Jewish woman who has not yet received a get and is thus “chained” to her marriage. Unfortunately the programme-makers appeared to have a patchy understanding of Jewish divorce law and that imbalanced the programme. They omitted one of the most important points about Jewish divorce: that it must be strictly consensual. There is no court process. There are no findings of fault and no court orders.  Both spouses must agree to divorce in Jewish law, and thus this protects one spouse from being divorced against his or her will. If one party does not consent, the couple cannot divorce. So far from being unfair simply to women, in strict Jewish law, both men and women will find themselves in the same predicament.

I posted a comment about this on the Family Law Week blog, but I wanted to write here about the impact of all religious marriages on divorce. The subject of faith arouses passions in many people, including those who do not have a faith or do not agree with or understand the faith of others. I have never actually concerned myself with anybody else’s faith, only my own. Life is more pleasant that way!

However, consider this situation. A client recently came in to see me. His wife had left him. He was painfully honest, recognising that there had been faults on both sides. His wife had met someone else and sought a divorce. However this client told me that he did not believe in divorce. He refused to go through with it and “give her freedom to remarry”. He was a devout Christian and divorce did not accord with his religious beliefs.

I advised him that if his wife initiated divorce proceedings against him, she would very likely succeed. The state would grant her a divorce. He left the office a deeply unhappy man, who wished with all his heart to turn back the clock. He told me he married his wife for life, for better or for worse, and intends to stick to his vows. He will oppose a divorce even if he is ultimately unsuccessful.

So with him very much in mind, I pose a rather odd question for a divorce lawyer:

This man has voluntarily taken marriage vows in a religious ceremony; is it right for him to be divorced if he does not agree to it?

Should a marriage come to an end when one party wants to divorce but the other, for any number of reasons, does not? Should the state interfere, given that it does not interfere when they wish to marry?

We divorce lawyers regularly give advice to our clients. If they believe the marriage has irretrievably broken down they will be able to obtain a divorce regardless of the wishes of their spouse. Provided a petitioner can demonstrate to a court that the marriage has indeed broken down irretrievably, a divorce will follow.

But should a civil court be able to order a divorce against the objections of one party, when both parties have also voluntarily entered into a religious marriage and vowed to stay married for life, until parted by death?

Ironically, Jewish law does not require those vows. Jewish law recognises that marriages do breakdown and will recognise divorce. In the vast majority of cases - and certainly every one in which I have ever been instructed - the religious and civil divorce processes run smoothly in tandem, ordered by the civil court and overseen by the religious court. Problems only arise when one party wishes to remain in the marriage and, although unable to avoid a civil divorce, can still refuse a religious divorce. This can create a “limping marriage” in which where the parties are, oddly, married and divorced at the same time.

(From a practical perspective, please note - which the TV programme did not — that this potential problem can be defused if the parties enter into an appropriate prenuptial agreement prior to marriage.)

Where there is a separate religious divorce process, the civil court has no power to compel a party to agree to a religious divorce. If there is a delay in obtaining the religious divorce because one party refuses to consent, under section 10A of the Matrimonial Causes Act 1973, providing the couple were married in England, it is possible for an application to be made for a final civil decree of divorce (Decree Absolute) to be postponed until the religious divorce is in place. If consent to a religious divorce is still not forthcoming, the family courts have been known to take various steps including the setting of maintenance payments at a higher level, to “encourage” the payer to give his consent to the religious divorce.

In France, where there is a strict separation of Church from State, there must always be a civil marriage ceremony and if required, a separate religious marriage ceremony.

I asked the well known Paris based family lawyer, Veronique Chauveau, how French civil law treats the refusal by one party to agree to a religious divorce. She advises me that this may be regarded by the court as an Abus de Droit under Article 1383 of the Civil Code and the person who refuses would become liable to pay substantial damages. This would generally provide the impetus to consent.

Again, the state would clearly do its best to ‘encourage’ a spouse to consent to the religious divorce.

But if the marriage has taken place on certain terms, with both parties acting voluntarily and on a religious basis, should the State interfere at all? Should pressure be placed by the state on a spouse to divorce, if that spouse has entered into the marriage solemnly vowing that it is for life or on the strict understanding that divorce will only take place if both spouses agree?

Western society increasingly disapproves of fault based divorce processes, in favour of the more civilised basis of mutual consent. This very process has been in place within Judaism, for more than 2000 years. It works well in most cases but as it is based entirely on mutual consent, the ‘default position’, when there is no agreement, prevents a divorce. State law, on the other hand, will permit a divorce as the ‘default position’.

Which is right?

As I said, this is an odd question for a divorce lawyer to pose, working within the civil system and occasionally confronted by religious divorce.

I return to my client. Some would regard him as fighting like Canute against the tide. English family law certainly would. But is the balance skewed wrongly against him? If he wishes to remain true to his vows, should he prevail? Is he entitled to remain married?

Nicknamed "The Barracuda" for her tenacity, Marilyn Stowe is one of the UK’s most sought after divorce lawyers, and is the senior partner at Stowe Family Law.