What is a Jewish divorce and when is it required?
In the matters of marriage and divorce, Jewish Australians must take into account the Australian legal system, but also the Jewish law known as Halakhah.
According to Jewish law, a divorce document does not dissolve the marriage. To divorce under Jewish law, the husband must grant a “gett” and present it to his wife. Both parties must agree on the divorce for it to be valid.
As experienced Jewish Divorce Lawyers, we can tell you that there are many complexities that can arise in this process and the wife can be treated unfairly by Australian legal standards, and the Australian Courts are unable to interfere in a religious matter.
Deanna Elsner, our most skilled Jewish Divorce Lawyer in the firm, has extensive knowledge of Jewish Law and Jewish Divorce. She can assist in mediation and negotiations as well as represent you in Court if required. She understands the complexities, sensitivities and repercussions involved in this area.
What is a Jewish Divorce and how do I get it?
In the matters of marriage and divorce, observant Jewish Australians must take into account two different legal systems: not only the Australian legal system but also Jewish law – “Halakhah”.
Jewish marriage is recognised by Australian law. If the marriage has been solemnised by an authorised marriage celebrant, it will be in accordance with s.45(1) of the Marriage Act.
It is a different matter however regarding divorce for Jewish couples.
According to Jewish law, a civil divorce document cannot dissolve a marriage. Divorced under Australian law, Jewish couples may still be married under Jewish law. So how do we fix this?
A Jewish Bill of Divorce is called “gett”. It is the role of the husband to grant a “gett” and the role of the wife to receive the “gett”.
Both must be acting of their own free will, otherwise the gett will be invalid. The rabbinical tribunal, called the Beth Din, has a supervisory role in terminating a Jewish marriage; it ensures that the laws which relate to this procedure are complied with. But it does not dissolve the marriage. That is done by the couple themselves. Unlike Australian law, parenting and property issues are not considered.
The “gett” process can be subverted by a lack of cooperation. A partner in a Jewish marriage can use manipulative behaviour to prevent the marriage from ending.
Some husbands use the process to torment their former wives or to extract financial concessions.
These women can find themselves trapped and unable to re-marry. Any children born subsequently will be viewed as the result of an adulterous union.
A wife can apply to the Beth Din requesting an order to direct the husband to give the “gett” or alternatively the husband can do so.
The Beth Din must then decide whether it would be right to compel the unwilling spouse to comply, given that if the providing spouse is under duress, the “gett” will be invalid.
The Beth Din can request the recalcitrant spouse to attend the rabbinical court. Unfortunately persistent failure to do so can result in a contempt order however this is unenforceable.
Can an Australian Court force a “gett”?
Recourse through Australian Courts is unsatisfactory as it appears that Australian judges are uncomfortable interfering in a religious matter.
If you would like to confidentially discuss your circumstances, please contact Deanna for a free initial consultation with Jewish Divorce Lawyers by calling 03 8393 6569 or email deanna@advocatefamilylawyers.com.au
