Jewish Divorce in Australia: The Get, and What to Do if It Is Refused

If your spouse is holding back a Get, or you have only just learned that your Australian divorce order did not end your marriage under Jewish law, you are not misreading how serious that is. It is one of the hardest positions family law puts people in.

So let me give you the plain answer first. An Australian civil divorce ends your marriage in the eyes of the state. Only a Get ends it under Jewish law. An Australian court cannot order your spouse to give one or to accept one. That is not the end of the road. Where a spouse refuses, a court has now recognised what that refusal does to you, and there are real steps you can take.

This page covers what a Get is, what happens when one is withheld, whether a court can step in, and where to start.

What a Get is, and how it works

A Get, also spelled Gett, is the religious document that ends a Jewish marriage. The husband gives it and the wife accepts it. Both have to do so freely, and that free consent is what the Beth Din exists to confirm.

The Beth Din, the rabbinical court, supervises the whole thing. It oversees the writing and delivery of the document, and issues the certification the community relies on afterwards. The ketubah, the marriage contract signed at your wedding, sits behind the arrangement, and the rules that govern all of it come from Halacha, Jewish religious law.

Here is the structure most people miss. A separation in an observant Jewish family runs on two tracks at once, and they do not talk to each other.

• The civil track. You apply to the Federal Circuit and Family Court of Australia for a divorce order after 12 months of separation. Our divorce lawyers handle this side, along with the property and parenting arrangements that sit beside it.
• The religious track. The Get is arranged and supervised through the Beth Din.

Finishing one does nothing to finish the other. You can hold a sealed divorce order from an Australian court and still be married under Jewish law. Line the two tracks up early rather than finding the gap later.

When a spouse refuses: the agunah problem

A woman who cannot obtain a Get from her husband is described as an agunah, which means chained. If that is you, the civil marriage is over and the religious one is not, and you cannot move on within your community while it stands.

The consequences are not administrative. You cannot remarry under Orthodox Jewish law. Your rabbi or the Beth Din will explain what a later relationship, and children born from it, can mean under Halacha. It is not a small thing. The point for now is that refusal is not a technicality. It holds your life in place.

It runs both ways. A wife can refuse to accept a Get, and in Australia that has reached the Family Court. The asymmetry, though, runs against women, because only the husband can give the Get.

The other pattern we see is refusal used as a bargaining chip: the Get held back until the property split lands where the refusing spouse wants it, or until parenting arrangements are agreed on their terms. Until recently the law had very little to say about that. That has changed.

Refusing a Get can be family violence

This is the development most pages on this topic have not caught up with, and it is the one worth understanding properly.

Family violence under Australian family law is not limited to physical violence. It covers coercive control: behaviour that coerces or controls a family member, or causes them to be fearful.

Family violence is defined in section 4AB of the Family Law Act 1975 as violent, threatening or other behaviour that coerces or controls a family member, or causes that family member to be fearful. The Federal Circuit and Family Court’s family violence overview sets out how the court approaches it.

In Briedis & Saar, the father in a parenting matter threatened to leave the mother a chained woman. The court found that fitted “squarely” within the section 4AB definition, because he was using his power of Get refusal to threaten to strip her of her autonomy and agency.

That matters for you. If your spouse is using the Get as leverage, that conduct itself may be relevant to your family law matter. It is not a separate religious problem happening off to the side. It is behaviour the court has a definition for.

Can an Australian court order your spouse to give a Get?

No. And it is worth being precise about why, because the reason shapes what you do next.

Section 116 of the Constitution protects the free exercise of religion, and it restrains a court from making an order that compels a religious act.

So the court will not order someone to give a Get, and will not order someone to accept one.

You might be thinking that surely there is a way around it, some order that gets the same result. In Idelsohn & Idelsohn, an Orthodox husband tried exactly that. He asked the court to withhold his wife’s property entitlement, about $760,000, until she accepted a Get. The court refused.

Here is the part people do not really appreciate. His application was not turned down because wanting a Get is improper. It was turned down because section 116 stops the court making an order that conditions a spouse’s property entitlement on taking part in a religious process. Trying to route a Get through the Family Court does not work, whichever side of the refusal you are on.

That leaves the question everyone in this position actually wants answered.

What you can actually do if your spouse refuses

There is no single lever that ends a refusal. There are several that work together, and the honest position is that each one does part of the job.

1. Approach the Beth Din. It supervises the Get and can bring religious and communal pressure to bear on a refusing spouse. What it cannot do is compel that person the way a court compels a litigant. For many families it is still the step that moves things.
2. Raise the refusal inside your family law matter. Where the Get is being used as leverage, section 4AB is the reason that behaviour can be put in front of the court rather than left unsaid.
3. Deal with the Get while the rest is still open. Once the property settlement and parenting arrangements are done, there is usually less reason for a refusing spouse to keep negotiating. Raising the Get while the civil matter is still open generally leaves you more room.
4. Consider mediation. A refusal is sometimes about something other than the Get: money, the children, being heard. Sometimes family mediation can reach that where litigation cannot.
5. Heter meah rabbanim, for men only. A husband whose wife will not accept a Get may be able to seek the permission of a hundred rabbis, a limited religious remedy. It is not available to women, and that asymmetry is the heart of the agunah problem.

Some of these will apply to you and some will not. Which combination is worth pursuing depends on where your civil matter is up to and how the refusal is being used.

Where to start: the Sydney and Melbourne Beth Din

The concrete first step is the rabbinical court that covers you.

• Sydney Beth Din: bethdin.org.au
• Melbourne Beth Din: mbd.net.au

Start the religious process alongside the civil one, not after it. Getting legal advice early matters here for a practical reason: the two processes have different timing, and lining them up is much easier before either is locked in.

Preventing it: a halachic prenuptial agreement

Couples can sign a halachic prenuptial agreement before marrying, committing each of them to give or accept a Get if the marriage ends. It makes a later refusal much harder to sustain, because both of you have already committed in advance.

One thing to be clear about. A halachic prenup is a religious commitment. It is not the same instrument as a binding financial agreement under Australian family law, and if you want protection on both sides, that is a conversation worth having before the wedding, not after the separation.

Where to from here

If your spouse is refusing a Get, the worst part is usually the feeling that nobody with any authority is willing to treat it as a real problem. That has shifted. A court has now found that using a Get as a threat fits within the family violence definition, and it can be raised where it counts.

Me and my team can talk through where a refusal sits in your family law matter and what your options actually are. Call 1300 614 732 or send us a message to book a free discovery call. Ten minutes, and you will know where you stand.