Divorce is a complex process that intertwines personal emotions and legal protocols.
Across the globe, the intersection of religious practices and civil laws presents a fascinating confluence of traditions, values, and regulations.
This duality—where age-old religious tenets meet modern legal frameworks—calls for a deeper exploration to understand its multifaceted layers.
As with a Jewish divorce, the landscape becomes even more intricate when considering religious aspects. This article aims to provide a comprehensive overview of Jewish divorce within Australian law.
What Is a Jewish Divorce?
At its core, a Jewish divorce, commonly called a Get, represents the ritualistic conclusion of a Jewish marriage.
Governed by Jewish law or Halakha, the process requires the husband to provide his wife with a written document, the Get, symbolising the formal termination of their religious marital bond.
Only upon receipt of the get is the couple deemed divorced in the eyes of the Jewish community.
How Does a Jewish Divorce Differ from a Civil Divorce in Australia?
A Jewish divorce is fundamentally a religious procedure, while a civil divorce pertains to the legal dissolution of a marriage as acknowledged by the Australian state.
Securing a get is imperative for Jewish individuals desiring to remarry within their faith. It is crucial to recognise, however, that this religious divorce is distinct from and does not negate the necessity for a civil divorce in Australia.
For more detailed information on civil divorce procedures, the Australian Government’s Family Court website offers a wealth of resources.
Can One Remarry in the Jewish Tradition Without a Get?
No, within the Jewish tradition, one cannot remarry without obtaining a Get.
The Get is a formal Jewish divorce document. Without it, the couple remains married under Jewish law, even if civilly divorced.
If someone remarries without a Get, the subsequent marriage is not recognised religiously, and any offspring might face challenges within the Jewish community. In Australia, Jewish people must secure a Get and a legal divorce to remarry.
Can Jews Divorce?
Yes, as with other religious communities, Jewish individuals can have religious and civil divorces.
The Jewish faith acknowledges that marriages, for various reasons, might not endure, and thus, provisions within Jewish law facilitate their termination.
Yet, to be acknowledged as divorced in both religious and civil contexts, one must navigate both the Jewish divorce process and the Australian legal system.
What Constitutes the Jewish Divorce Process in Australia
Embarking on a Jewish divorce in Australia involves religious and secular stages that our divorce lawyers are more than capable of handling.
- Commencement: The process can be initiated by either spouse, but it is the husband’s prerogative to present the get.
- Beth Din (Rabbinical Court) Participation: The Beth Din, typically comprising three rabbis, supervises the process to guarantee adherence to Jewish law.
- Presentation and Acceptance of the Get: The husband must willingly offer the get, and the wife, in turn, must willingly accept it. The act of presenting and accepting, observed by Beth Din, crystallises their religious separation.
- Secular Divorce Procedures: Parallel to the religious procedure, the duo must also traverse the Australian Family Court system to dissolve their marriage legally. This encompasses lodging a divorce petition, ensuring a separation duration of at least 12 months, and addressing related considerations such as property division and child custody.
How Is a Religious Divorce Attainable if One Party Is Reluctant?
This scenario can pose significant challenges. Unlike civil amicable divorce in Australia, which doesn’t hinge on mutual consent, a get mandates the voluntary involvement of both the husband and the wife.
A refusal from either side can culminate in a situation, especially difficult for women, termed “agunah”, which translates to being religiously “anchored” to the marriage.
In such predicaments, avenues like community intervention, rabbinical mediation, and counselling might be explored to reach a resolution.
How Does the Australian Legal Framework Support Those Seeking a Jewish Divorce?
The Australian ethos deeply respects and acknowledges religious freedoms and traditions. While the Family Law Act 1975 doesn’t itemise specifics about religious divorces, Australian courts do comprehend the cultural and religious gravitas of the get. On occasions, judges have incorporated the granting of a get into their verdicts, particularly in property settlements, to prevent the misuse of the get as a bargaining tool.
The Orthodox Jewish husband’s request in the case of Idelsohn & Idelsohn  FamCA 398 (11 May 2017)
After 15 years of marriage, the couple divorced under Australian civil law. However, Mr Idelsohn wished for his wife to attend the Beth Din, or Sydney’s Jewish religious court, to complete the religious divorce proceedings.
According to Orthodox Jewish law, a married couple is released from matrimony only by transmitting a Bill of Divorce (the ‘gett’) from the husband to the wife.
The wife must accept the ‘gett.’ Both husband and wife must perform these acts for the Jewish divorce to be affected.
Jewish law further states that a civil divorce cannot substitute for a ‘gett’. In Jewish law, a couple who are divorced under civil proceedings but lacking an effective and mutually accepted ‘gett’ remain 100% married.
The entire ‘gett’ procedure will be performed before the Beth Din. In the Orthodox Jewish community, men & women cannot remarry at Jewish law without a ‘gett’.
Furthermore, women divorced under civil but not Jewish law are characterised as ‘agunah,’ or ‘chained.’ Children born to Agunah and men who are not the ‘chained’ woman’s original husband are known as ‘mamzers’- loosely translated as ‘bastard’.
Under Jewish law, a mamzer is prohibited from marrying most Jewish community members.
In this case, the wife refused to receive her husband’s ‘gett’ and attend the Beth Din. Mr. Idelsohn then sought an application to the Family Court to withhold her share of the property pool, totalling $760,000, until both parties confirmed that the ‘gett’ had been granted.
The Court’s Decision
Section 116 of the Australian Constitution states that the Commonwealth of Australia shall not legislate regarding religion. Under this Section, the Commonwealth is prohibited from making ‘any law for establishing any religion, or imposing any religious observance’.
The Court found that Mr. Idelsohn’s application was designed to force his wife to cooperate with the religious Jewish divorce process and ordered the wife not to be made to consent to any rabne Section 116 of the Australian Constitution.
As noted earlier, Section 116 provides that the Commonwealth cannot make any law to impose religious observance.
Such a religious order would also elevate Jewish law to civil law in Australia.
This would establish a precedent for other legal systems, such as Sharia law, to enter Australian civil courts.
Primarily the Coubinical court order. The wife argued that if ordered to comply with Mr. Idelsohn’s application, this would contravert declared civil courts, such as the Family Court, should not interfere with religious matters that do not involve behaviour that breaches civil or criminal law.
Interestingly, Mr. Idelsohn has a legal remedy available to him under Orthodox Jewish law. A loophole is available to men should their wives refuse to cooperate with the Jewish divorce proceedings, known as ‘heter meah rabbanim’ (the permission of a hundred rabbis).
This loophole allows a man to obtain his Jewish divorce by gaining the support of 100 rabbis.
Facing The Complexities Of A Jewish Divorce In Australia?
Ensure your rights are protected both legally and religiously. Trust Justice Family Lawyers – blending a deep understanding of Australian law with sensitivity to Jewish traditions.
Your peace of mind is just a consultation away. Connect with us now and navigate an amicable divorce with confidence.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.