Individuals of all faiths, cultures and backgrounds have life cycle rituals and betrothal traditions. Upon divorce, there are rules in place that are based on thousands of years of tradition and religious practice.
Divorce, Culture and Emotions It is not a secret that divorce matters have an emotional intensity that few other legal practice areas have. Jewish tradition pertaining to the Gett bestows considerable leverage and unilateral control to one side, which can create a very uneven and sometimes unfair negotiation. When you combine stigma, family honor, unresolved anger, and an adversarial legal forum, otherwise simple divorce matters can become very complex to handle. International jurisdictional disputes are also a complicating factor.
It is vitally important to understand where clients are coming from and to respect the cultural and religious context of their lives and their disputes. The lawyer’s task is to help clients make informed rational decisions that will shape their future. In many different ways, religion intersects with the civil divorce process: the issues play out in court, in mediation and in negotiation out of court. These issues are shaped by different trends in the culture and community, as well as new solution-based approaches by leaders, religious tribunals and in court.
The Significance of the Gett For a divorcing Jewish couple, obtaining a Gett is a Biblical mandate (Deuteronomy 24:1-3, plus one entire Book of Talmud) and an imperative of the highest order. The consequences for not complying with the religious procedure cannot be overstated. According to Jewish law, a rabbi may not officiate at the remarriage of either a husband or a wife unless their Gett has been obtained. Furthermore, and most distressing, if the woman were to remarry without having obtained a Gett, her unborn children are considered ineligible to marry another Jewish person. For someone observant, not obtaining a religious divorce decree effectively means she cannot date and cannot have more children.
The Intersection Between Religious Divorce and New York Civil Practice
Under New York’s current law, any one married more than six months can file for a “No Fault” divorce. Once a divorce is finalized, the Supreme Court issues a divorce decree, and then either party is free to move on with their lives in every respect, including remarriage.
But under Jewish religious law, a civil decree is not enough for a woman to remarry. With only a civil decree, the community looks upon the woman as still married and not released from her husband, no matter what New York State may say. In order to end the marriage, the woman must obtain a Gett, which is a writ of religious divorce. The writ is a hand written document by a professionally trained scribe, who uses a quill and bottled ink to write 12 Hebrew-Aramaic lines on parchment. The Gett is required whenever a Jewish man and woman, who have lived together as husband and wife, wish to dissolve their marriage. This applies even if it was only a civil marriage, with no religious ceremony.
The Gett procedure itself is pretty straightforward. The ceremony takes about one hour. It begins by the husband instructing the scribe to write the Gett on his behalf for his wife. The scribe, gives the Gett to the husband who then gives it to his wife in the presence of a Beth Din, which is a rabbinical tribunal of three individuals and two witnesses. The wife's acceptance of the document is what makes the divorce effective and final. The document itself simply certifies the fact that the couple are each free to remarry. After the ceremony, the document is destroyed.
The Gett is not an adversarial proceeding. Neither the ceremony nor the document makes any reference to responsibility, blame, or fault. There is no mention of financial or custody details of the marriage. There is no discovery, affidavits, additional hearings or drawn out proceedings. Furthermore, the Gett can be done through proxies or agents, so that the couple does not even have to be present at the same time.
Although the requirements sound simple and easy, Gett refusal is a characteristic of only a small percentage of Jewish divorce cases.
Islamic Divorce and the Mahr It is estimated that there are anywhere from five to eight million Muslims live in the United States, with a large number in the New York area. Like most other Americans, most Muslim Americans have a religious marriage ceremony. For Muslims, this involves a local Imam who solemnizes the marriage consistent with Islamic traditions and law, referred to as Shari'a, which in Arabic is defined as straight or clear path. Muslim marriage is called Aghd, and marriage contracts include a provision called Mahr (also called Mehrieh or Mehr.) Under Islamic law, marriage is considered a civil contract. If an offer of marriage is accepted in the presence of two witnesses, the marriage contract is valid.
Across the United States, courts have historically refused to enforce Mahr agreements on several grounds: due to their religious nature, under the grounds that they did not meet the Statute of Frauds, that unilateral divorce (talaq) is unfair to women, on the grounds that there is an unequal protection under the law for women subject to Mahr, and under laws requiring separation of church and state.
All of these analyses are inconsistent with the civil contract aspect of Islamic law when it comes to Mahr. The Mahr is fundamental to Islamic marriage custom. According to the Koran, a Mahr is a gift that the husband is obligated to give the wife when the contract of marriage is concluded. Upon receipt, a woman's Mahr automatically becomes her separate property. The Mahr is usually divided into two parts: immediate and deferred. The immediate Mahr can be a token or a symbolic gift, like a copy of the Koran, or a mirror, objects of silver, or a carpet. The deferred Mahr is the remainder of the gift which is postponed to an agreed upon date or event. Although the gift is due upon the wife's demand, many women defer the gift until a marital dispute arises or divorce is imminent. A Mahr is intended to assist the wife financially post-divorce. As you might imagine, a valuable deferred Mahr, is a strong deterrent to divorce.