Abdelhak v. The Jewish Press, Inc., et. al., a recently reported (precedential) decision from the Appellate Division, raises the always interesting issue of Jewish divorce. While the divorce itself was not the main issue in the case, which I briefly discuss below, the case provides a relevant opportunity to discuss Jewish divorces in general and how they have been treated by New Jersey courts.
Under Jewish law, a "Get" is a bill of divorce that a husband gives to a wife in order to "free her" to remarry. A secular divorce will not do the trick, as the couple’s marital status will remain unchanged under Jewish tenets. In such cases, the wife is labeled unceremoniously as an "agunah," or a "chained woman" so to speak. What does that mean to the woman who wants to remarry? The result is dramatic and far reaching, as she cannot remarry (and, simply put, most Conservative and Orthodox rabbis would not even perform a wedding for such a woman); and any children subsequently had with another man are considered children born of adultery. A trickling down effect essentially occurs, where the children, grandchildren, etc., often can only marry other children born in such a situation or persons who converted to Judaism. Unfortunately, this may place the woman in the position of obtaining an inequitable secular divorce settlement to procure the desired Get from the husband.
One question that has created inconsistency amongst New Jersey courts in this area is whether a court can actually compel a husband to submit to the jurisdiction of the "Beth Din" – a rabbinical court of Judaism - to initiate proceedings to procure a Get to issue to his wife without violating the Establishment Clause of the Constitution’s First Amendment. In the 1980s, New Jersey courts, first in the trial court opinion of Minkin v. Minkin, more than once held that compelling a husband to issue a Get was a proper enforcement of the Jewish marriage contract – the "Ketubah." Those cases ruled under the premise that the Get acquisition is not a religious act and compelling a husband to submit to the Bet Din’s jurisdiction would "neither advance nor inhibit religion . . . ." One case held that a one-sided settlement agreement executed by the wife in order to obtain the Get was invalid as a product of duress.
Fifteen years after Minnkin, a New Jersey trial court in the case of Aflalo v. Aflalo, determined that the Establishment Clause did not permit the court to compel the husband to submit to the Beth Din to initiate Get proceedings. The court rationalized that compelling such an act would go against the Jewish notion that a Get must be given willingly, without restraint, in order to – so to speak – set the wife "free." The court added that such an act by the judiciary essentially puts the husband at risk of being held in contempt before the Beth Din even though he is consciously against the act in itself, and supersedes any decision the Beth Din may ultimately render on the issue. Notably, under Jewish law, if the husband fails to comply with the Beth Din’s dictates, it may issue a "seruv" – an order of contempt to a husband who refuses to comply with its order to give his wife a Get. When ordered, all Orthodox Jews must shun the non-compliant husband.
Interestingly, the Beth Din of America – a central rabbinical body – addressed the improper withholding of Gets by creating a prenuptial agreement containing a support obligation formalizing the husband’s obligation under Jewish law to financially support the wife. In so doing, the husband is supposed to be incentivized to issue to the wife a Get should the marriage fail. It creates the sort of civil contractual right upon which it is intended for a court to act and enforce. However, no New Jersey court has actually addressed the enforceability of such an agreement.
Also, no Appellate Division decision has really rule on the Get issue, as one decision within the past few years essentially passed on the issue because the record before the Court was insufficient as to the effect of the particular ketubah at issue and the mandates of Jewish law. The Appellate Division in Abdelhak also did not address the issue, as the real issue there was whether the Court had subject matter jurisdiction to determine whether a husband had been wronged – based on claims including, but not limited to, claims of defamation and intentional infliction of emotional distress – by various parties in relation to his refusal to grant his wife a Get because his wife refused to raise their children as Orthodox Jews.
The Appellate Division ultimately dismissed all of the husband’s claims, finding that it lacked subject matter jurisdiction to rule upon the husband’s claims because they could not be resolved by solely using so-called "neutral" non-religious based doctrine/principles. Simply put, a jury would have had to consider various issues within the context of specific Jewish laws in order to decide upon the husband’s civil court claims. As a result, the Appellate Division concluded that it could not hear the case due to a lack of jurisdiction as to the subject matter before it.
The intertwining of civil and Jewish legal principles and doctrine provides for interesting discussion, especially in light of Abdelhak. The rules involved with a wife procuring a Get are far from simple, as demonstrated by New Jersey courts differing opinions on the issue.