I was at a family law seminar last week where one the speakers was a well known rabbi in northern New Jersey.  The rabbi touched on many subjects, one of which was the “Get”, aka, the Jewish divorce.  In the Jewish religion, a woman may not remarry until she has a Get from her husband, and a divorce in the Family Court does not equate to a divorce in the Jewish religion.  In such an event, she is known as an “Agunah” (anchored).  In fact, the couple are still considered married until the Get is issued.  As a result, should the woman remarry, in the eyes of Judaism it is considered an act of adultery, and any children born therefrom are deemed “mamzerim”  (illegitimate).

We have blogged on this subject before, and links to those articles can be found here and here.  To me, this is always a fascinating subject, and the stirring/confusion that seemed to arise in the seminar room upon its discussion demonstrates that it continues to be of interest from both a practical and intellectual standpoint for many who have encountered the issue in their personal lives or practice.

With that, it was almost coincidental that the Appellate Division just released a new unreported (not precedential) decision in Lowy v. Lowy, where the appellate court found that the trial court exceeded its authority by compelling the husband to give the Get, so to speak.  The parties were divorced in 2004 when the family court issued a dual final judgment of divorce.  Incorporated in that judgment was the decision of the Bais Din – Jewish rabbinical court – which addressed a variety of issues including, but not limited to, custody, child support and asset distribution.  Notably, the rabbinical court’s decision did not require the husband to provide the wife with a Get, simply stating that if the parties arranged for one, that the wife would pay for the “Get fees” incurred.

Several motions to enforce portions of the Bais Din decree followed in the post-judgment period, one of which sought to compel the husband to cooperate in providing the wife with a Get. The resulting order so compelled such cooperation, but the Get was not obtained, leading the wife to file a motion for enforcement of litigant’s rights as to such relief. In her application, the former wife pleaded for relief, “for the sake of equity and justice” to remove “this barrier to her right to continue her life.” The trial judge, in granting the wife’s motion to enforce, directed during oral argument that the husband was going to comply whether he wanted to or not.

In reversing the trial court, the Appellate Division noted, importantly, that the Bais Din never ordered the husband to give a Get, simply detailing who would pay for the related fees should same occur. Thus, it was deemed error for the trial court to rely on the Bais Din’s decision to this point. Once the trial judge lost that authority to rely upon in compelling the Get, the Appellate Division concluded that any decision compelling the Get became one of impermissible interference with one’s religious practice, since there was no religious order or contract compelling the husband to comply.

While the decision did not go into discussion of the wife’s options in light of its ruling, the issue seems to be ever evolving to address the refusing husband who simply may want to hold the divorce against his wife and never “let her go” in the eyes of Judaism. To that end, even where a Bais Din compels the husband to provide a Get (even though in this case, it did not do so), some in the Jewish religion consider a Get in that instance to be questionable since it was issued under pressure. Notably, to even prevent this issue from occurring, some sects of Judaism accept language in the ketubah (Jewish marriage contract), or even in a religious-based prenuptial agreement compelling that a Get will be given in the event of a divorce. No New Jersey court has ruled on the enforceability of such an agreement. Again, there is no unanimous agreement in the Jewish religion on these issues, which is why it continues to evolve with time and result in the situation detailed in Lowy.