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Williamson, Amanda --- "An Examination of Jewish Divorce Under the Family Law Act 1975 (Cth)" [2004] JCULawRw 7; (2004) 11 James Cook University Law Review 132

AN EXAMINATION OF JEWISH DIVORCE UNDER THE FAMILY LAW ACT 1975 (CTH)

AMANDA WILLIAMSON *

* LLB (Hons), BCom; PhD candidate at the University of New England; Solicitor of the Supreme Court of New South Wales. This article is based on a thesis previously submitted in fulfilment of LLB (Hons). The author can be contacted at <amanda.williamson@une.edu.au>. The author wishes to acknowledge the assistance of both Professor Eilis Magner and Ms Bronwen Jackman from the School of Law at the University of New England in the preparation of this article.

Abstract

For some members of various religions within Australia, a civil divorce will not leave them in a position where they are free to remarry according to their personal religious preferences. This is due to the additional divorce requirements of some religions. In these cases, as the religious divorce requirements are not met by divorce under the civil system, one party may have the power to withhold a cultural or religious divorce against another spouse’s will, sometimes utilising such things as contact with children and financial arrangements as bargaining tools to barter for the religious divorce. Legislation proposed by the Family Law Council in 2001 to resolve this situation was rejected in 2004 by the Attorney-General. This article examines the reforms suggested by the Family Law Council in detail, as well as considering positions in other jurisdictions, to assess whether an effective approach to facilitating cultural and religious divorce within Australia is possible under the Family Law Act 1975 (Cth).

INTRODUCTION

Marriage, and consequently divorce, is a complex institution with legal, financial, social, and sometimes religious and cultural implications. The Family Court has jurisdiction to deal with legal, financial and some social issues as arising under the Family Law Act 1975 (Cth). As separation of church and state is enshrined in the Australian Constitution,[1] the view has been taken until recently that the court had no jurisdiction that would allow it to consider the religious implications of divorce. In 2001, the Family Law Council issued a report that challenged this view, proposing new legislation to facilitate religious divorce under the Family Law Act.

However, it was indicated by the Attorney-General, Philip Ruddock, that these reforms would not be pursued, as legislation that allowed the Family Court ‘to pressure one partner for a religious divorce would threaten the nation's no-fault divorce system’[2] and would also be ‘unconstitutional’.[3] The position taken here is that these arguments can be countered, and that the reforms proposed in the Family Law Council report should be adopted. It is also suggested that some additional measures should be considered to make these reforms truly effective.

Laws concerning marriage within our society exist at both civil and religious levels and for many people may be governed not only by the Family Law Act, but also the laws and customs of the parties’ relevant religion. The separation of church and state within our jurisdiction has created a problem for some religious groups in Australia whereby religious marriages are recognised under the Family Law Act, yet divorce according to personal ethnic or religious traditions is not. The civil law is therefore unable to place parties bound by such religious marriages in a position where they are free to remarry according to their personal beliefs upon the dissolution of their civil marriage.[4] This may have severe consequences for members of certain religious and cultural groups within the community. Currently, the main problem arises where one party is placed in a position of disadvantage as a result of another party withholding a cultural or religious divorce upon the dissolution of their civil marriage.

Whilst various cultural and religious communities face such difficulties,[5] this article is confined to the difficulties that arise in the Jewish community. This article therefore analyses some problems that might arise due to the conflict between civil and religious divorce legislation within the Jewish community. The article critically evaluates the ability of the proposed Australian reforms to combat issues arising from the conflict between civil and religious divorce laws, and considers various approaches from other jurisdictions as alternative and additional options for reform.

I DIVORCE ISSUES IN THE AUSTRALIAN JEWISH COMMUNITY

Under Jewish law a marriage can only be dissolved upon the presentation of a Jewish divorce document, known as a gett.[6] A gett is generally drawn up by a Beth Din (Rabbinical council)[7] and can only be presented by a husband to a wife. The gett needs to be accepted by the wife for it to be recognised.[8] Without the presentation or acceptance of the gett, the religious divorce is not recognised and the other party is prevented from marrying in a subsequent religious ceremony. Only the husband can grant the gett, and it must be granted voluntarily. A wife must accept the gett for it to be valid, but she can also refuse the gett[9] — if she does so, though, she becomes an agunah (see below). If the granting of the gett is influenced by coercion in any way, it is deemed to be invalid. Thus, it is a formalised (and, it must also be noted, non-religious) procedure requiring the signing and presentation of certain documents, at the free will of the parties, at a specified time and place.[10]

It is the woman who is vulnerable under this system as men can receive special dispensation to remarry without a gett.[11] The wife becomes chained to her husband, and is thereafter referred to as an agunah (literally meaning a ‘chained woman’).[12] A Beth Din can order that a gett be granted under certain circumstances; however, such orders cannot be enforced civilly. This often leaves the weaker spouse at the mercy of the other spouse. Recalcitrant[13] spouses (usually husbands) are placed in a great position of power, and can withhold the gett from the agunah to induce property settlements and increase contact with children:[14]

[i]t can at times be an asset incapable of evaluation. At the height of emotional turmoil that surrounds divorce, a client may be inclined to try to use it against the other, to punish the other, to seek revenge …[15]

Chained wives cannot seek to remarry under the Jewish faith, as without a gett, a subsequent marriage is viewed as adulterous.[16] Additionally, any offspring that are born of subsequent unions are labelled mamsers, illegitimate, and subsequently only able to marry other mamserin or converts themselves.[17]

The Jewish faith is practised by less than one per cent of Australia’s population, equating to approximately one-third of Australia’s non- Christian population.[18] Due to the increasing rates of divorce, it has been noted in the United States that what was once the ‘tragic plight of the few has become a societal problem of statistically significant dimension’.[19] Members of the Jewish community agree that methods used in the Middle Ages to encourage recalcitrant spouses to grant a religious divorce are no longer effective.[20] Canadian Rabbi Reuven Poupko states that, without a central synagogue structure, recalcitrant spouses can move to another separate synagogue despite the imposition of community sanctions,[21] and that this may have resulted in an increased reliance upon the civil system for remedies to deal with the agunah problem.

Reform is certainly required in this area to ensure that recalcitrant spouses are no longer afforded an opportunity to take advantage of the dual system. As religious reform seems impossible, civil reform must be sought to overcome this religious obstinacy. The main difficulty arises where a recalcitrant spouse seeks a civil divorce, without first granting a religious divorce. The effect of this is twofold. First, the wife is generally unable to remarry according to her faith without jeopardising her status (or her children’s status) as a member of that religion. Second, if a religious divorce is eventually afforded by the husband, it may be offered at a high personal or financial cost to the woman, forcing an unfair compromise on property distribution, maintenance and contact with children.

II HISTORY OF CULTURAL AND RELIGIOUS DIVORCE IN AUSTRALIA

While there are clearly a significant number of women potentially affected by the interaction between civil and religious law, it has been noted that Australia remains the only Commonwealth country without actual or pending legislation providing for Jewish religious divorce.[22] There has, however, been much investigation into religious divorce by both the judiciary and the legislature.

A Case Law History

Several cases have dealt with the issue of religious divorce in Australia. In the case of In the Marriage of Shulsinger,[23] the Family Court managed to extract an undertaking from the husband that he would do everything necessary to give his wife a gett in order for her to be remarried according to her faith. It was noted in this case that a civil divorce would be ineffective unless the husband agreed to grant the gett. The husband appealed against the court’s order made in enforcement proceedings, arguing that by virtue of s 116 of the Commonwealth Constitution, the court did not have the power to enforce an undertaking to perform a religious act. This argument was rejected, as the requirement of the undertaking was held to avoid any injustice that would result in the granting of the civil divorce, rather than held to be a tool used to interfere with religious affairs in contempt of the Constitution.[24] Further, it was held that it was the duty of the court to ensure that all parties were afforded the same freedom from the obligations of marriage, which may involve enforcing any undertakings given by the parties to complete a religious divorce, or perhaps even involve the imposition of an injunction.[25] Similarly, in the case of In the Marriage of Gwiazda,[26] Emery SJ ordered a wife to appear before the relevant tribunal to accept a Jewish gett. Both of these decisions were also accepted in the case of In the Marriage of Frey,[27] where it was also noted that ‘provided the need can be shown for the Court to intervene, in order to exercise effectively its jurisdiction in respect of matrimonial causes, it is no objection that the granting of a gett involves proceeding before a religious tribunal’.[28] In the case of In the Marriage of Steinmetz,[29] a lump sum maintenance payment was imposed upon a husband in the event that he continued to refuse to grant a gett. In the event that the gett was given, the sum was to be reduced. The court referred to the earlier case of Brett v Brett,[30] where it was held that if a spouse’s conduct related to the financial resources of the other spouse, it could be taken into consideration when making certain orders. This was applied in Steinmetz[31] as a relevant consideration of the court in awarding maintenance payments under s 75(2)(o) of the Family Law Act. As it was within the husband’s power to prevent the wife from remarrying (and therefore gaining the financial benefits that would accrue from remarriage) it was held that a larger sum of maintenance could be imposed due to the denial of the wife’s right to remarriage.

B Legislative History

In 1992, the Australian Law Reform Commission (ALRC) published a report that noted problems that related generally to divorce proceedings in the Jewish community, particularly with respect to ‘removing barriers to remarriage’.[32] It was proposed that courts exercising jurisdiction under the Family Law Act should be granted discretion to adjourn an application for a divorce where it could be demonstrated that a party had not removed any religious barriers to the other spouse’s remarriage. The Government, in its 1995 Justice Statement, did not support the 1992 ALRC Report. It was felt that the recommendations attempted to administer religious law and to allow them would ‘significantly change the nature of divorce and create unintended consequences for the civil law in relation to divorce’.[33] In 1997 the Attorney-General requested the Family Law Council to conduct an investigation into cultural and religious divorce in Australia.[34] In its letter of advice to the Attorney-General in 1998, the Family Law Council concluded that the difficulties that arose were the symptom of ‘the observance of religious practices’ and that they did not arise ‘from any shortcomings in the Family Law Act’.[35] They recommended therefore that no change in the law was necessary. It was suggested that the courts could ‘legitimately refuse a civil divorce application’ in the event that a religious divorce was refused by one party, on the reasoning that the requirements of s 48 of the Family Law Act had not been satisfied (irretrievable breakdown of marriage).[36]

The Family Law Council reopened the issue in 2000 with the preparation of an issues paper that sought submissions from affected religious and cultural groups regarding non-civil divorce. In addition, information on approaches in other jurisdictions, and advice on the constitutionality of possible amendments to the Family Law Act, were also sought. With respect to issues of constitutionality, the council examined whether amendments could be made without violating s 116 of the Constitution. The Chief General Counsel advised that amendments would be valid provided that they were framed in a broad manner, and concentrated on the removal of barriers to remarriage (by preventing a decree absolute until a religious divorce was effected) rather than ordering the performance of a religious act.[37] In 2001, the Family Law Council compiled the information from the issues paper into their report, Cultural-community Divorce and the Family Law Act 1975: A Proposal to Clarify the Law. The report concludes that reform is required, placing emphasis on the recommendation of possible mechanisms for legislative reform based primarily on the consultations with affected groups, and recommendations from other jurisdictions.[38] Evidently, the input of many affected cultural and religious groups favouring the legislative reform noted in the report illustrates that the current civil system is failing to address matters of cultural and religious divorce. Although reform was recommended as early as 1992,[39] no concrete recommendations for reform have been tabled until this most recent Family Law Council report.

III Proposals for Reform

The Family Law Council accepted a proposal for reform drafted by members of the Jewish community.[40] It was felt that in addition to conserving the council’s own resources, the proposal had been drafted in a careful manner to ensure that duress and compulsion, which might invalidate a gett or religious divorce,[41] would not be a by-product of the reform. The proposal essentially provides for four key areas of judicial discretion:

(1) An Order that the Decree Nisi shall not become absolute until the Court is satisfied that both parties have taken all steps reasonably within their power to remove barriers to remarriage.

(2) An Order requiring a party to appear before a recognised tribunal of the religious or cultural group, and a further Order that parties follow the recommendations of the relevant tribunal provided to the court.

(3) An Order that any application, defence, pleading or affidavit by a party in respect of an application for the payment of maintenance by or to that party be adjourned or struck out, if the party has wilfully refused to remove any barriers to remarriage.

(4) An Order enforcing a prenuptial agreement that encourages the removal of barriers to remarriage in a form approved by the religious / cultural group.[42]

Each of the four key areas of reform is examined in turn below.

A Decree Absolute Conditional upon the Removal of Barriers to Remarriage

The first element of the proposal is similar to the New York approach from the New York State Get Bill (1980). This provision is the main thrust of the proposed Family Law Council legislative reform, charging the court with the discretion to withhold the finalisation of a civil divorce until it is satisfied that all barriers to remarriage have been removed. However, there has been much criticism of this approach in other jurisdictions where it has been implemented without other adequate sanctions. It has been noted, particularly in Canada[43] and New York,[44] that withholding a civil divorce indefinitely may be unfair to the aggrieved spouse. For example, the 1980 New York legislation was found to be useless to Jewish agunot, as recalcitrant husbands were often satisfied not to have a civil divorce. Thus, the legislation may leave the party with neither a religious divorce, nor a civil divorce in order to finalise aspects such as division of property and contact with children.[45] It has been noted that ‘the vast majority of recalcitrant husbands are quite content not to have a civil divorce … many become obsessed with tormenting their wives by any means possible … (taking) pleasure in prolonging the civil litigation to harass and impoverish their wives’.[46] Indeed, commentaries note that a lack of a civil divorce does not ‘slow their [the recalcitrant spouses’] social lives down’,[47] and in fact provides them with the power to hold the grant of the religious divorce over the aggrieved spouse to bargain for ‘maintenance, [and/or] property settlements’[48] or to simply ‘torment the other spouse’.[49]

Statistics from Agunah International, a New York–based agunot support group, have demonstrated that the New York legislation was only effective in one case out of the hundreds of cases they handled.[50] In that one case, the husband was eager to finalise his civil divorce in order to marry a new partner. But allowing the court the discretion to prolong the grant of a civil divorce may be counter-productive where the recalcitrant spouse has no immediate interest in remarrying civilly. Indeed, the National Council of Jewish Women of Australia (NCJWA) expressed concern about legislating in such an ‘open-ended’ manner.[51] NCJWA suggested that the introduction of specific time periods would assist in allowing the aggrieved spouse an opportunity to withdraw the application or to seek alternative remedies.[52] Conversely, the submissions to the Family Law Council from other groups felt that this was not a concern — despite the conflicting evidence from overseas.[53] However, it was agreed that there may be a need for a mechanism to ‘withdraw or revoke the application’.[54]

Clearly, this provision on its own may be problematic. The very reason it was rejected initially in New York, and later supplemented by punitive clauses (as in Canada), was that there is still too much opportunity for delay and disregard of advice under the provision as is.[55] Additionally, an aggrieved spouse will generally be no better off under such a provision — and may even be unable to obtain either a religious divorce or a civil divorce. Unless the court is given additional powers, such as those utilised in Canada to encourage the recalcitrant spouse via alternative means to grant the religious divorce, the provision to withhold a civil divorce until the court is satisfied that barriers to religious remarriage have been removed may be useless. It is clear that the reform proposed by the Family Law Council is supported by sanctions that embody an intention to promote the removal of barriers to remarriage, in the event that the withholding of a decree nisi is ineffective. However, the reform is lacking in a mechanism to withdraw or revoke the application should the need arise. Thus, it is necessary to examine the remaining three provisions to determine whether they will provide the court with appropriate alternative sanctions to supplement the first provision, in the event that its application fails to secure the removal of barriers to remarriage.

B Order to Appear before a Recognised Tribunal

The second provision reflects both the decision in Gwiazda[56] and provisions under the South African Divorce Amendment Act 1996. Under the South African legislation, the court has the ability to refer cases to an appropriate religious or cultural tribunal for hearing. In Gwiazda,[57] however, the Family Court went beyond referring the case to an appropriate tribunal. A mandatory injunction was granted under s 114(3) of the Family Law Act. Not only was the recalcitrant spouse ordered to appear before a Beth Din, but the court also enforced the tribunal’s orders to accept the gett. It was noted that it was the duty of the court to ‘ensure that appropriate orders are made fully effective, not only in theory but in fact’.[58] In the current proposed reform, an order requiring a party to appear before a recognised tribunal and a further order requiring parties to remove barriers to remarriage as recommended by the relevant tribunal may be imposed, as seen in Gwiazda.[59] It was anticipated in the proposal of the Executive Council of Australian Jewry / Organisation of Rabbis of Australasia (ECAJ/ORA) that the tribunal would serve as another arm of the family law system, and any decisions made there would be supported by a ‘strictly limited application of judicial discretion’. It was submitted that the court would fulfil this by making appropriate orders reflecting the decisions of the relevant tribunal.[60]

This approach, in essence, attempts to streamline both civil and religious/ cultural law. In Israel, religious courts (coexisting with civil courts) are given the power to decide upon family law matters.[61] Whilst this approach would be impractical in Australia, there may be merit in a proposal to grant civil courts the jurisdiction to endorse religious court rulings. It has been suggested, however, that this approach may present some constitutional difficulties.[62] This was one of Attorney-General Philip Ruddock’s objections to the proposed Family Law Council reform.[63] However, the Family Law Council notes the opinion of the Chief General Counsel, who suggested that if amendments were phrased in a manner concerning the ‘removal of impediments to remarriage generally’, rather than ‘having a purpose linked only to the performance of religious observance’, they would be constitutionally valid.[64] Further, in light of the decision in Brandy v Human Rights and Equal Opportunity Commission,[65] a provision requiring appearance in front of a recognised tribunal, and acceptance of the tribunal’s decision upon written recommendation, may be somewhat vulnerable.[66] As with issues concerning constitutional compliance, the construction of such a provision in a non-religious sense would be necessary. For example, it could be required that the court implement the order rather than the religious tribunal, to avoid the problems experienced in Brandy.[67] Thus, the current proposal to enforce appearance at a relevant tribunal as well as to enforce the tribunal’s decisions is constrained by constitutional and administrative law requirements. However, provided that reforms remain framed in a manner that reflects the Chief General Counsel’s recommendations, they might meet such conditions, consequently abating the Attorney-General’s concerns about the constitutionality of the proposed legislation. Despite this, the previous acceptance of decisions such as Shulsinger, Gwiazda and Frey indicates that such constitutional concern may in any case be unfounded.

One other concern noted about the operation of such a provision is the lack of efficacy of religious-based sanctions as recalcitrant spouses are usually ‘dropouts who are no longer members of good standing’ within their religious group.[68] Thus, decisions imposed at the religious level may be ineffective as a sanction to support the first provision, particularly if the spouse no longer desires to be a member of the religious or cultural community.

C Adjourning / Striking Out Applications / Defences in Respect of Maintenance

This provision is indicative of the approach taken both under Canadian legislation[69] and in the case of Steinmetz.[70] The provision would allow the court, if it were not satisfied that barriers to remarriage had been removed, to adjourn or strike out an application for, or a defence against, the payment of maintenance. There has been reluctance to recognise a jurisdiction to impose financial penalties for non-compliance with religious law.[71] Nonetheless, as noted above, under s 75(2)(o) of the Family Law Act a court could take the refusal of a religious divorce into consideration when deciding financial adjustment issues, such as spousal maintenance.[72]

The third provision, however, merely allows for the adjournment or striking out of a maintenance application or defence if barriers to religious remarriage are not removed. This seems to be a premature position in light of the criticised yet accepted stance taken in Steinmetz,[73] which allowed the court to impose a punitive increase in maintenance payments if a party continued to refuse the grant of a religious divorce.

Whilst the third provision is arguably a strong starting point for such legislation, the same punitive element to discourage the recalcitrant party from denying a religious divorce is not present[74] — perhaps due to the reluctance to legislate in a manner that could be seen as coercive (which would invalidate a gett granted under such legislation). As examples from both the Canadian and New York systems demonstrate, this additional punitive mechanism augurs well to encourage recalcitrant spouses to grant a religious divorce, without being coercive. It must also be noted that one of Attorney-General Philip Ruddock’s objections to the proposed legislation is that it is contrary to the no-fault system of civil divorce embodied within the Family Law Act.[75] However, one can look to the acceptance of Steinmetz,[76] and also other commentary which has noted that s 75(2)(o) of the Family Law Act concerns ‘facts or circumstances of a broadly financial nature which the justice of the case requires to be taken into account’[77] and apart from this economic limitation is ‘unrestricted in scope’.[78] Clearly, if the refusal of a religious divorce broadly impacts upon financial matters, as in Steinmetz,[79] then it would not be adverse to the no- fault system as the Attorney-General suggests to take the refusal of the religious divorce into account. It would simply be aligned with current procedures and practices under the Family Law Act. It is arguable therefore that the implementation of the current provision concerning maintenance, as well as an additional provision for more severe financial penalties, would place greater pressure (without being unduly coercive or contrary to the no-fault system of civil divorce) on a recalcitrant party to grant a religious divorce.

D Enforcement of Prenuptial Agreements That Relate to the Removal of Barriers to Remarriage

The final provision allows for judicial enforcement of a prenuptial agreement where the parties have agreed to grant a religious divorce upon the dissolution of the civil marriage. Whilst this option has not received total support from religious leaders[80] it is seemingly a most effective mechanism when attempting to ensure that the rights of aggrieved parties are protected at the civil level in the event of the dissolution of the marriage.[81] The case of Avitzur v Avitzur[82] illustrates the upholding of a civil prenuptial agreement where the parties agreed to submit themselves to the Beth Din in the event of dissolution and abide by any decisions made. It was held that as the parties had contractually agreed to a specific method of dispute resolution, the court was able to uphold the agreement. The constitutional and administrative law difficulties noted earlier with respect to ordering appearance in front of a recognised tribunal might not apply, as the court would be enforcing a secular contractual obligation, as opposed to a religious agreement. Indeed, Andrew Strum notes that Jewish marriage can be viewed in Australian law as ‘a contract between two parties whose rights and obligations are to be governed by Jewish law’ and that it is for ‘the secular courts to enforce the contract by directing the parties to do that which Jewish law, by which they have agreed to be governed, requires’.[83] Thus, under Jewish law, if parties reflect wishes to abide by ‘the law of Moses and Israel’[84] in their ketubbah (marriage contract) or a prenuptial agreement, this may enable civil courts to require attendance before a recognised tribunal to complete pre-agreed contractual arrangements, thereby enforcing a civil contract.

Some jurisdictions have introduced prenuptial agreements dealing with religious matters but they have failed to adequately protect the rights of parties as they were not supported under civil law. In the United Kingdom a prenuptial agreement has been developed by the Chief Rabbinate for new couples to sign; however, it is not compulsory, nor enforced by law.[85] As some commentaries note, the fact that the prenuptial agreement is not compulsory means that those signing such an agreement are generally a ‘self-selected group’ — perhaps not parties who would seek to withhold a religious divorce in the event of dissolution of marriage anyway.[86]

Methods to counter the problem have been adopted in the United States, where a number of Rabbis have refused to perform a religious marriage unless a judicially enforceable prenuptial agreement is signed providing for the delivery of a gett upon dissolution.[87] The solution to the implementation of prenuptial agreements in this manner, however, is one that must come from within each individual religious group rather than from the civil system. Despite this, a prenuptial agreement that is actually enforced by the civil system seems a favourable option for reform from the perspective of affected parties.[88] Judicial support for such agreements should ensure that any disregard of the religious jurisdiction or delay in proceedings — the subject of repeated criticism levelled at the United Kingdom system — would not occur.[89] In the event that the first element of the proposal (the removal of barriers to remarriage) was not satisfied, enforcement of prenuptial agreements could be relied upon as a secondary sanction to assist in the removal of barriers to remarriage created by the nature of the religious system.[90]

As prenuptial agreements are not compulsory, an additional mechanism to encourage the signing of such an agreement may be useful to ensure the effectiveness of this provision.[91] As in the United States, if affected religious groups were encouraged to promote prenuptial agreements before the performing of a religious marriage, an increase in such agreements would potentially follow. With more agreements in existence, the court would have a greater opportunity to enforce the removal of barriers to remarriage upon dissolution.

III EVALUATION OF PROPOSED REFORMS

The proposed reforms seem to be a positive step towards solving the problems outlined above. However, some minor alterations may be necessary to ensure that the proposed reforms are useful in both theory and practice. Withholding a civil divorce until religious barriers to remarriage are removed, without providing a greater number of sanctions to support such removal, may have the effect of leaving some aggrieved spouses in no better a position than where they started — chained to a dead marriage. A more effective approach to this problem, combining the current proposed amendments with further contingency-based and secondary sanctions, is required. The following section considers approaches in other jurisdictions that may be of assistance here.

A Approaches in Other Jurisdictions and Alternative Options for Reform

In Canada,[92] New York[93] and South Africa,[94] legislation allows refusal of a civil divorce if a party has not removed all barriers to remarriage, and other supporting sanctions take effect if the refusal of a civil divorce is ineffective. Proposed legislation in England[95] and Scotland[96] also embodies the refusal of a civil divorce until barriers to remarriage are removed; however, both bills lack supporting sanctions and have been criticised for mimicking the problematic 1980 New York legislation.[97] To avoid the same difficulties arising in Australia it is suggested that other mechanisms which seek to encourage the recalcitrant party to grant a religious divorce be explored. Some examples from other jurisdictions are examined below. 1 Primary Sanctions (a) Payment of Compensation In 1992 the New York State Domestic Relations Law[98] was amended to allow the award of compensation to aggrieved spouses for any hardship suffered through the absence of a religious divorce. Prior to this date, the only provision regarding religious divorce concentrated upon the removal of barriers to remarriage. Aggrieved spouses were forced to rely upon actions in either tort or contract to encourage the other spouse to grant a religious divorce.[99] Actions in contract, however, were only effective where the parties had signed prenuptial or separation agreements.[100] Actions in tort were generally based upon the ‘intentional infliction of emotional distress’,[101] which constituted a tort in the relevant jurisdiction. However, in the case of Perl v Perl,[102] an action in tort was denied as it was held that there was not an intentional infliction of emotional distress. Here, the wife brought a claim for damages for the emotional distress she suffered as a result of the husband’s refusal to grant a gett. The Appellate Division of the New York State Supreme Court noted that the wife was required to satisfy that the defendant husband intended for her to suffer emotional distress. It was held that as the defendant’s intention was merely to gain an advantage in bargaining for property and maintenance (with the emotional distress being a by-product of the main dispute) the claim for compensation due to emotional distress was invalid.[103] Thus, where an express intention to cause emotional distress could not be found, a claim in tort for emotional distress as a result of the failure to grant a religious divorce was invalid.

The 1992 New York State Domestic Relations Law introduced the concept of compensation in religious divorce matters (in addition to punitive maintenance claims, as outlined below) and thereby removed the need for claims in tort for an intention to cause emotional distress. Under this legislation, the court is able to take into consideration the actions of a spouse and make an award of an additional compensatory payment over and above punitive maintenance payments. Here, the recalcitrant spouse is not necessarily denied a civil divorce, but if it is clear that they have caused hardship to the other party, they may be required to pay compensation for this hardship — regardless of a lack of intention to cause such harm.[104] This legislation has received mixed support from the Jewish community. Some prominent Orthodox rabbis have argued that the imposition of compensatory financial penalties amounts to coercion under Jewish law (Halakah).[105] Under Jewish law if the gett is not given freely without coercion, it is considered a gett me’usah (gett executed under compulsion) and Halachically invalid, thus the marriage remains religiously undissolved.[106] Some rabbis have also refused to perform marriage ceremonies for women who have received gittin[107] under this legislation, stating that the gittin are under the ‘shadow’ of coercion, and thus invalid.[108] On the other hand, many Orthodox rabbis counter these arguments, and lend support to the validity of gittin that have been obtained under this legislation. Their argument stems from a particular interpretation of Halakah, holding that men who grant a gett influenced by financial factors are ‘lovers of money who seek to avoid support payments and responsibilities … and should not be listened to’.[109] The New York case of Becher v Becher[110] notes the problematic operation of the Domestic Relations Law where provision for overly compensatory sanctions is made. In Becher, a wife waived her rights under the Domestic Relations Law as her husband cited rabbinical authorities that stated that he could not give a kosher (valid) gett due to the provisions of the Domestic Relations Law. It was argued that such a gett would be coerced and therefore invalid. The husband entered the plea that if he gave the gett because of the Domestic Relations Law provisions, he would be damaging his wife who would mistakenly think she was free to have a new relationship.[111] Since the gett would be invalid, she would still be married and would be thus committing a terrible sin if she had a relationship with another man. Mr Becher argued that it would be a misdeed on his part to give the gett in the shadow of the Domestic Relations Law as he would be a party to possibly causing his wife to sin.[112] Mrs Becher thus waived the provisions that would have allowed the judge to grant her compensation and encourage her spouse to grant her a gett as it would be futile;[113] instead, she sought community-based sanctions from agunot support groups.

The dispute over this legislation has left a significant division amongst the New York Jewish community with some rabbis unwilling to endorse the legislation and others supporting it wholeheartedly. However, commentary has noted that in some cases the existence of a civil divorce justifies the application of coercion upon a party to grant or accept a gett.[114] In particular, the Talmud notes that a non-Jewish court may coerce a Jewish party to grant or accept a gett so long as such an order is based upon the decision of a Jewish tribunal.[115] Povarsky argues that in the absence of a decision from an appropriate tribunal, where direct coercion is placed upon a party to grant a gett, it will be invalid.[116] However, where such coercion is indirect, such as an imposition of maintenance that, upon the subsequent granting/acceptance of a gett would be reduced, the gett would be valid.[117] This is because the order regarding maintenance was made for a purpose other than for directly obtaining the gett.[118] Representatives from the Orthodox rabbinical community have stated support for such indirect coercion:

If a secular judge imposes the responsibility upon a husband, when he refuses to give his wife a get, to make a payment of money to her for her mezonot (maintenance) and all of her needs, is such a get considered a get me'useh (a get executed under coercion)? Behold, until he divorces his wife, he is responsible for her mezonot (basic provisions) and all of her needs according to the law, and she is even permitted to petition the secular courts for an order to compel him to provide her with mezonot and all of her needs, and even though secular courts will order more than would a rabbinical tribunal, because those courts would compel him to support her even if she works and makes money, when those courts order him to provide her with her mezonot and all of her needs under any circumstances, it is obvious that if he divorces her in order to rid himself of his responsibility, that such a get is not considered a get me'useh, and that it is a valid gett le'catchila (without any hesitations).[119]

Thus, a gett delivered under indirect coercion that is tied to maintenance payments and the general upkeep of the aggrieved spouse is Halachically valid. On the other hand, a gett delivered under direct coercion (for example, as noted earlier, compensation payments) would be Halachically invalid. Povarsky notes that the 1992 New York legislation is problematic as it allows for compensation to be awarded purely as a result of hardship suffered from the failure of a party to grant a gett.[120] As the court’s intention is directed purely towards compelling a party to grant a gett, rather than maintaining and supporting someone whom a party is still married to, the gett could be construed as invalid.[121] Arguably, if the compensation is directed at easing the pain and suffering an individual has experienced by not being able to freely remarry, rather than at promoting a party to grant a gett, a gett that is delivered in anticipation of a reduced payment amount could still be seen as valid.[122] Ultimately this would depend upon the construction of the secular court’s decision and whether emphasis was placed upon compensating the party or upon bargaining with the recalcitrant spouse to grant a gett.[123]

Conclusively, this example from the Jewish community highlights that particular religious groups may deem a provision for the payment of compensation as somewhat coercive where it is solely focussed upon the grant of divorce. It may also lead to the introduction of an element of fault into the proceedings which (as noted earlier) would be contrary to the ideals of the Family Law Act. If the payment can be distinguished or related to maintenance, it may be able to be construed as indirect pressure, in which case religious divorces granted under it would maintain their validity. The controversy surrounding the 1992 New York legislation illustrates the difficulties that some Jews may face in recognising a divorce granted under such legislation where any element of coercion is construed from a particular decision. To overcome this difficulty, it appears advisable that compensation over and above punitive maintenance or support payments (see below) should not be utilised as a sanction, so as not to eventually negate the granting of the religious divorce. This would also ensure that the legislation complies with the requirement of no-fault proceedings under our civil system of divorce.

(b) The Award of Punitive Maintenance Payments Canada has successfully adopted the award of increased maintenance payments where a party refuses to grant a religious divorce. Divorce legislation in Canada is governed by the Divorce Act 1985 (Can), which now allows judges to order higher alimony and child support payments against a spouse who is maintaining a barrier to another spouse’s religious remarriage.[124] The legislation also works retrospectively, in that a spouse who was divorced prior to the passing of the amendment may bring about a claim for an increase in support or maintenance payments. Essentially, a significant maintenance or child support payment is imposed upon a party, which may be reduced if the recalcitrant party later agrees to grant a religious divorce.[125]

The main users of this provision have been members of the Jewish community. During the drafting of the legislation, Canadian rabbis and members of the Jewish community were consulted to ensure that the provision could not be construed as duress or coercion.[126] A gett granted in order to release a recalcitrant spouse from this financial responsibility indicates that the spouse has no desire to continue the union with the partner.[127] Thus, as previously noted, an order for increased maintenance or child support that would be later decreased with the granting of a gett would not be seen as coercion within the Jewish community. As a reflection of this sentiment, the Canadian legislation has received much support from the Jewish community, with the head Orthodox synagogue in Toronto issuing a support statement in 1996 noting that the legislation had rabbinical support both in Canada and in Israel.[128] In addition, no challenges to the validity of any gittin granted under this legislation have been mounted in the Canadian Jewish community.[129]

The 1992 New York State Domestic Relations Law also introduced the power to award increased maintenance payments where a party refused to grant a religious divorce. In the case of Gindi v Gindi,[130] a relatively high alimony payment was imposed upon a recalcitrant husband who refused to give his wife a gett, even though the duration of the marriage was short. The payment was to be subsequently reduced upon the grant of the gett, and the wife was later remarried in an Orthodox Jewish synagogue. This outcome is similar to the Australian case of Steinmetz[131] discussed earlier, whereby an increased maintenance payment was implemented successfully to encourage the grant of a gett.

(c) The Punitive Restriction of Contact with Children

Indirect financial pressure is not the only mechanism utilised under the Canadian legislation to encourage a party to grant a religious divorce. Under the 1990 amendments to the Act, contact with any children of a marriage may also be restricted, or any applications or affidavits concerning contact with children may be struck out completely, if it can be shown that a spouse is withholding a religious divorce and that such withholding is adverse to the child or children’s ‘best interest’.[132] This provision clearly raises the issue of the ‘best interest’ of the child, which illustrates another applicable sanction. Here, the court may weigh up whether the prevention of a spouse’s religious divorce by another spouse will adversely affect the well-being of any children of the union. Obviously, if withholding the civil divorce were not in the best interest of the child, then the sanction would not be applicable.

The major benefit of a sanction of this kind, according to a number of commentaries, is that it is a non-financial penalty.[133] One of the major disadvantages linked to the 1992 New York State Domestic Relations Law is that it fails to provide for situations where financial penalties are futile. For example, in many unreported cases from the New York jurisdiction, recalcitrant spouses have been ‘judgment proof’ in that there they have no traceable income or significant financial assets, and any existing assets have already been transferred, concealed or dissipated.[134] In these cases, the Domestic Relations Law is meaningless as there are no assets or income from which the judge may award payment to the agunah.[135] As with provisions for punitive maintenance awards, the issues of coercion and duress may also be alleviated, because the primary focus of the provision is on the welfare and ‘best interests’ of the children and not on pressuring the recalcitrant spouse to grant the religious divorce. The acceptance of such an approach, however, has been only briefly explored in Australia, and its use would be extremely cautioned given the sensitive nature of proceedings concerning children. If it were adopted, it would most certainly need to be linked solely to the best interests of the child, and nothing more. 2 Secondary Mechanisms

Outside these primary sanctions, there are secondary orders that a court may potentially utilise to assist an aggrieved spouse in overcoming problems in obtaining a religious divorce. In addition to referral to appropriate religious tribunals, a court may also order parties to participate in specialised ecclesiastical counselling or mediation. In the United Kingdom, for example, steps are being taken by the Jewish community to ensure that the National Family Mediators Association has a number of Jewish mediators on its register to provide a specialised service to Jewish couples requiring mediation.[136] There has also been effective lobbying to ensure that Jewish counsellors are also recognised within the family law system and that parties are directed to the applicable services when required.[137]

The provision of these services and the support provided by the civil system by way of referrals may not be a total solution to the agunot problem, but United States Judge Myrella Cohen acknowledges that they often ease the strain and take the hostility and acrimony out of the additional religious divorce proceedings.[138] Alternatively, if a strict adoption of this suggestion is not favoured, administrative changes may be made at both the civil and religious level to embody these reforms informally. At the civil level, appropriate training of court staff to provide information and referral to alternative services in the event of a religious divorce matter may be an effective change. Judge Cohen points out that this approach is also needed by the applicable religious group.[139] The correct and informal provision of information and referral to support services can be another effective mechanism in the first stages of religious divorce proceedings to ensure that parties receive the additional support they require throughout the process.

Finally, it is important to note that the 1990 amendments to the Canadian Divorce Act 1985 allowed for retrospective claims under the religious divorce provisions.[140] Thus, civil divorces that occurred prior to these amendments can still be reviewed if any issues regarding barriers to remarriage remain outstanding. Consequently, settled maintenance claims and contact with children may be re-examined if a barrier to remarriage is still apparent. This has greatly increased the capability of the legislation, ensuring that aggrieved spouses, regardless of the date of their civil divorce, can seek a just result.[141]

V SHAPING AN APPROPRIATE SYSTEM

It is submitted that some minor alterations to the suggested sanctions may be necessary to ensure the efficacy and effectiveness of the reforms proposed by the Family Law Council to manage the conflict of civil and religious divorce, particularly with respect to the agunah problem. In light of the above discussion, it is suggested that the removal of barriers to remarriage would comprise the core of the legislation in this area, allowing the court to withhold a civil divorce until it is satisfied that parties have removed barriers to remarriage. This component of the legislation has enjoyed success in other jurisdictions, particularly where appropriate supporting sanctions are made available to allow the court to place indirect pressure on the recalcitrant spouse to grant a religious divorce, in the event that withholding the civil divorce is unsuccessful. The opportunity for an aggrieved spouse to withdraw an application at any stage should also be provided to allow the party to have greater control over the proceedings.[142] It is also recommended that a retrospective element be added to the proposed Australian reforms to allow for decisions to be made on divorces settled prior to enactment. It is recommended that the first element of the proposed reforms be altered to allow for withdrawal of an application and that it also contain a retrospective element.

A Supporting Sanctions

Whilst the constitutional validity of the power of the court to order appearance before a recognised tribunal remains to be fully tested, this provision would tentatively enable the court to order a recalcitrant spouse to appear before a relevant tribunal and accept the decision of that tribunal. Obviously, this provision would only be of use if the recalcitrant spouse is still an active member of the religious group[143] or if a relevant tribunal exists in Australia. The decision in Gwiazda,[144] however, illustrates that such a provision can be successful where the recalcitrant spouse is still an active member of a particular religious group. Thus, it is recommended that the second element of the proposed reforms remain unchanged.

On its own, the power to strike out or adjourn applications for maintenance payments may provide insufficient pressure to encourage the grant of a religious divorce in some cases. As in Canada, a secondary punitive provision would enable the court to order a higher payment against a spouse who was preventing another spouse’s religious remarriage.[145] The amount may be reduced at a later stage if the recalcitrant spouse removes barriers to remarriage.[146] This provision would enable the court to place additional pressure on the recalcitrant spouse without imposing the direct coercion or duress that a compensatory payment would impose. Some concern has been expressed in the Australian Jewish community, however, that the mere existence of an additional, more punitive clause could be deemed as coercion — therefore, further examination of whether it does actually amount to coercion is required. Authority from overseas, plus the case of Steinmetz,[147] points to a conclusion that it would not be considered as coercion; however, apprehension has been expressed by some Australian rabbinic authorities that it may. Thus, it is recommended that the third provision in the current proposed amendments be retained, but with examination of whether it can be extended further to allow for an additional punitive element. Ultimately, if such additional reform were adopted, where the first element (striking out or adjourning) is ineffective, the more punitive component of the provision could be utilised to place the required amount of pressure upon the recalcitrant spouse. If the mere existence of such a provision amounted to coercion in any of the relevant religions covered by such legislation, then it would need to be abandoned. In the event that a recalcitrant spouse is ‘judgment proof’,[148] a non- financial sanction should be considered (such as preventing contact with children) to ensure that appropriate pressure can still be levied upon a recalcitrant spouse. However, the prevention of contact with children can only be used if the withholding of a religious divorce is found to be adverse to the child’s best interest,[149] and as already noted the use of such prevention as a non-financial sanction would be cautioned due to the nature of such matters. If the withholding of a religious divorce is not adverse to the child’s best interest, the sanction simply cannot be applied. Therefore, in addition to the already included financial provision, a non- financial provision would also be recommended. Whether the prevention of contact with children is appropriate as a sanction needs to be fully examined by a suitable body, such as the Family Law Council, or concerned religious groups.

Currently, a provision exists within the proposed reform allowing for the judicial enforcement of prenuptial agreements. The major weakness in this proposed reform, however, is that there is no mechanism to encourage the implementation of prenuptial agreements in the first instance. Thus, no alteration to the substance of this reform is recommended, as it is a reform that must be implemented at the level of each individual religion. Experience in the United States of America has been that rendering prenuptial agreements as a condition precedent to marriage within some Jewish communities has had the effect of increasing the number of prenuptial agreements that can be enforced in the event of dissolution. This outcome may be achieved via lobbying of affected religious groups which is supported either within the legislation or accompanying policy documents.

Finally, other secondary mechanisms may be adopted at both the civil and religious level to enhance the ability of the family law system to manage cases of religious divorce. At the judicial level, it would be recommended that legislation in this area allow the court to refer religious divorce cases to appropriate forums such as ecclesiastical counseling or religious mediation. Outside the legislation, steps could be taken by relevant groups to ensure that other support services are maintained at an informal level. This may include the accommodation of religious groups by way of appropriate training of court staff, and promotion of relevant support networks to affected groups.

VI CONCLUSION

Against the argument for reform to the extent recommended in this article remains the proposition that the law should not seek to involve itself in religious affairs. In its 1992 report, Multiculturalism and the Law, the ALRC noted a number of distinct arguments against reform in the area of religious divorce. It was deemed that civil and religious law should remain separate, and that Western cultural principles should not be ‘superimposed on traditional religious cultures’.[150] This is certainly aligned with the Attorney-General’s recent sentiment that the courts should not be involved in religious issues.[151] Others have argued that the refusal of religious divorces goes beyond the realm of the interaction of civil and religious law, constituting a human rights issue.[152] Certainly, without any level of reform, parties not in power in religious divorce situations will remain at a severe disadvantage under the difficult interaction between civil and religious law. Other considerations, such as the best interests of the child, may also come to the fore, particularly where children who are born outside of a religious divorce may have a certain stigma attached to them as a result, such as Jewish mamserin.

Granting time to allow for reinterpretation of religious law is another argument against reform cited by the Family Law Council,[153] to which Freeman notes that religious authorities ‘can only tackle the problem on an individual, case-by-case basis’.[154] Additionally, debate over exposure to constitutional and administrative law objections, in light of s 116 of the Constitution and Brandy’s Case respectively, is another issue that has been raised against the imposition of reform. However, the Family Law Council notes that, whilst not infallible, amendments made in line with the recommendations of the Chief General Counsel would be valid.[155]

The legislation proposed by the Family Law Council has been carefully drafted in consultation with religious groups to ensure their acceptance of it, and also with the guidance of a variety of legal advisors to ensure as far as possible constitutional compliance and adherence to the ideal of ‘no- fault’. This paper has outlined the problems associated with the present system, and it is clear that reform of either or both civil and religious law is needed in this area. The main thrust of the proposed Australian legislation is the delay of an order for a Decree Nisi until the Court is satisfied that both parties have removed barriers to remarriage. There are provisions to order parties to appear before recognised tribunals to enforce the removal of barriers to remarriage, provisions to strike out applications and defences to payments of maintenance, and provisions to enforce prenuptial agreements. It is submitted that these reforms should be pursued without delay, in addition to continued examination of the other minor recommendations for further reform noted throughout this paper. Examination of other reform could include whether additional punitive remedies enable the court to place further pressure, in an indirect manner, on recalcitrant spouses to remove barriers to remarriage in the event that the initial sanctions are rendered inefficient for reasons highlighted earlier. The introduction of secondary mechanisms, whether formally implemented or unofficially communicated in an effort to clarify the law, could also assist by granting parties an additional support network throughout the difficult subsequent religious divorce proceedings.

The implementation of the reforms proposed by the Family Law Council, along with consideration of these additional remedies, may not only enable parties to be placed in a position where they may remarry according to their religious beliefs but also ensure that they do not suffer any major disadvantage in the process.

[1] Commonwealth Constitution s 116.

[2] V Walker and M McKinnon, ‘Divorce Will Stay Secular: Ruddock’, The Australian, 19 January 2004, 4.

[3] Ibid.

[4] Family Law Council, Cultural-community Divorce and the Family Law Act 1975: A Proposal to Clarify the Law Report to the Attorney-General prepared by the Family Law Council, August 2001, 3.

[5] For example, the Muslim community.

[6] K Burke, ‘Legal Push for Jewish Women’s Divorce’, Sydney Morning Herald, 12 February 2002, 6. ‘Gett’ is also spelt ‘get’ in other countries.

[7] Beth Din is also spelt Beit Din in other countries.

[8] H Jacobus, ‘Getting Together’, Jewish Chronicle, 11 August 2000 22.

[9] S Katzenberg and J Rosenblatt, ‘Getting the “Get”’, (March 1999) Family Law 165.

[10] Rabbi Jonathan Reiss, ‘Jewish Divorce and the Role of Beit Din’ (1999) Winter 5760 Jewish Action reprinted in Jewish Law Articles <http://www.jlaw.com/Articles/divorcebeit.html> at 6 June 2002.

[11] Katzenberg and Rosenblatt, above n 9.

[12] Ibid. ‘Agunot’ is the plural of ‘agunah’.

[13] The term ‘recalcitrant’ has been adopted from usage in various articles to describe spouses who withhold religious divorces. See for example S Aranoff, ‘Orthodox Jewish Divorce — Imbalance in Bargaining Power: An American Response’, in S Silberstein-Swartz (ed), A Leadership Dialogue: Voices of British and American Jewish Women Community Leaders (2001) 42; Jacobus, above n 8, and A Strum, ‘Getting a Gett in Australian Courts’ (1997) 12 Australian Family Lawyer 21.

[14] Katzenberg and Rosenblatt, above n 9.

[15] Ibid.

[16] Jacobus, above n 8.

[17] Ibid.

[18] Family Law Council, above n 4, 5.

[19] Rabbi J David Bleich, ‘A Suggested Antenuptial Agreement: A Proposal in Wake of Avitzur’ (n.d.) Jewish Law Articles <http://www.jlaw.com/Articles/antenuptial_agreement1.html> at 14 May 2002.

[20] F Kraft, ‘Agunot Vigil Draws Largest Turnout’, The Canadian Jewish News, 19 March 1998, 2. Where communities were once able to use methods such as refusal of burial rights and employment rights, such sanctions are now futile.

[21] N Joseph, Interview with Rabbi R Poupko, Toronto Beit Din, in Untying the Bonds — Jewish Divorce, videotape produced by the Canadian Coalition of Jewish Women, Montreal, Canada, 1998.

[22] Jacobus, above n 8.

[23] (1977) 2 Fam LR 11,611.

[24] Ibid 11,616–7. This issue is examined in greater detail below.

[25] Ibid.

[26] Unreported, 23 February 1983.

[27] 12/11/1984 FamCt 65/84.

[28] Ibid 11 (Evatt CJ, Lindemayer and Nygh JJ).

[29] [1980] FamCA 49; (1980) 6 Fam LR 554.

[30] [1961] All ER 1007.

[31] In the Marriage of Steinmetz [1980] FamCA 49; (1980) 6 Fam LR 554.

[32] Australian Law Reform Commission, Report No 57, Multiculturalism and the Law (1992), Chapter 5.

[33] Government Justice Statement, May 1995.

[34] Family Law Council, above n 4.

[35] Advice to Attorney-General, 3 August 1998, Attachment A, 9 <http://www.law.gov.au/agd/WWW/flcHome.nsf/Page/Letters_of_Advice_Letters _Civil_and_Religious_Divorce> at 20 April 2005.

[36] Ibid.

[37] Chief General Counsel, ‘Constitution, s 116 and Proposals on Religious Divorce — Further Opinion’, 3 March 1999, 8. Here, it was considered whether amendments to remove barriers to remarriage would violate s 116 of the Constitution. It was concluded that amendments must be phrased in a manner that concerned the ‘removal of impediments to remarriage generally, rather than ‘having a purpose linked only to the performance of religious observance’. It was suggested finally by the Chief General Counsel that legislation in a similar manner to s 55A (arrangements for children) of the Family Law Act 1975 (Cth) would be a desirable option, requiring certain factors to be satisfied before a decree nisi becomes absolute.

[38] Family Law Council, above n 4, 37.

[39] Australian Law Reform Commission, above n 32.

[40] Ibid 28.

[41] Dr Chaim Povarsky, ‘Intervention by Non-Jewish Courts in Jewish Divorces’

(August 1994) Jewish Law Report 1.

[42] Australian Law Reform Commission, above n 32, 28–9.

[43] Jacobus, above n 8.

[44] Aranoff, above n 13, 45.

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] Ibid.

[49] Ibid.

[50] Ibid.

[51] National Council of Jewish Women of Australia, Submission to the Family Law Council, 2, as cited in Family Law Council report, above n 4.

[52] Ibid.

[53] Executive Council of Australian Jewry / Organisation of Rabbis of Australasia, Consultations with the Family Law Council, Melbourne, 10 July 2001, as cited in Family Law Council report, above n 4.

[54] Ibid.

[55] Jacobus, above n 8.

[56] In the Marriage of Gwiazda, unreported, 23 February 1983.

[57] Ibid.

[58] Ibid 14–15 (Emery SJ).

[59] Ibid.

[60] E Freedman, ‘Religious Divorce in Israel’ [April 2000] International Family Law 19. Cited by Executive Council of Australian Jewry / Organisation of Rabbis of Australasia, in consultations with the Family Law Council, Melbourne, 10 July 2001.

[61] Ibid.

[62] Australian Law Reform Commission, above n 32, 30. The constitutionality of such an approach has not been fully tested.

[63] Walker and McKinnon, above n 2.

[64] Above n 37.

[65] [1995] HCA 10; (1995) 127 ALR 1.

[66] Family Law Council, above n 4, 32. The Family Law Council notes that the decision in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 127 ALR 1 raises concern where an administrative body enforces a decision as an order of a court upon the registration of that decision in a court, without a de novo (new) hearing by the court.

[67] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 127 ALR 1.

[68] Aranoff, above n 13, 44.

[69] Divorce Act 1985 (Can), s 21.2.

[70] In the Marriage of Steinmetz [1980] FamCA 49; (1980) 6 Fam LR 554.

[71] Family Law Council, above n 4, 23. See also the judgement of Nygh J in the case of In the Marriage of Woolley, [1981] FamCA 3; (1981) 6 Fam LR 577.

[72] In the Marriage of Steinmetz [1980] FamCA 49; (1980) 6 Fam LR 554.

[73] Ibid.

[74] Aranoff, above n 13, 44.

[75] Walker and McKinnon, above n 2.

[76] In the Marriage of Steinmetz [1980] FamCA 49; (1980) 6 Fam LR 554.

[77] A Dickey, Family Law (4th ed 2002) 494. Dickey explores in detail the current interpretation of the application of s 75(2)(o) and notes that it is broad and flexible and may concern many issues.

[78] Ibid.

[79] In the Marriage of Steinmetz [1980] FamCA 49; (1980) 6 Fam LR 554.

[80] National Council of Jewish Women of Australia, Submission to the Family Law Council, 1, as cited in Family Law Council report, above n 4. Some members of the rabbinical community have not given their support to this element of the proposal.

[81] See generally A Strum, ‘Jewish Divorce in Australian Family Law’ [1989] MelbULawRw 14; (1991) 17 Melbourne University Law Review 182; Strum, ‘Getting a Gett in Australian Courts’, above n 13. Strum examines the use of the prenuptial agreement, and the contractual ketubbah (marriage contract), in extensive detail with an analysis of a number of cases where prenuptial agreements and other premarriage contractual agreements have come before various courts in Jewish divorce cases.

[82] 446 NE 2d 136 (1983).

[83] Strum, above n 13.

[84] See Stern v Stern (1981) 4 Jewish Law Annual 272. Here, a husband was required to grant a gett as it had been previously agreed in the ketubbah that parties would subject themselves to ‘the law of Moses and Israel’. It was held that the court could enforce this as a civil contractual agreement, by requiring the husband to comply with the directions of the Beth Din, which were to deliver the gett. Similar outcomes were evident in the cases of Minkin v Minkin, 434 A 2d 665 (1981) and Burns v Burns, 536 A 2d 438 (1987). See generally Strum, above n 13, for a more comprehensive discussion of these cases.

[85] M Cohen, ‘The Agunot Controversy’, in Silberstein-Swartz (ed), A Leadership Dialogue, above n 12, 37.

[86] Aranoff, above n 13, 42.

[87] Ibid.

[88] National Council of Jewish Women of Australia, Submission to the Family Law Council, 1, as cited in Family Law Council report, above n 4.

[89] Strum, above n 81, 183.

[90] Strum, above n 13.

[91] Aranoff, above n 13, 46.

[92] Divorce Act 1985 (Can), s 21.2(2).

[93] Domestic Relations Law 1992 (New York), s 523.

[94] Divorce Amendment Act 1996 (South Africa).

[95] Divorce (Religious Marriages) Bill 2002 (UK).

[96] Family Law Bill (Consultation Paper), Scottish Council of Jewish Communities, 2001.

[97] See generally Aranoff, above n 13; Jacobus, above n 8.

[98] Domestic Relations Law 1992 (New York), s523.

[99] Povarsky, above n 41.

[100] Ibid.

[101] Ibid.

[102] 512 NYS 2d 372 (1987).

[103] Perl v Perl, 512 NYS 2d 372, 376 (1987).

[104] Povarsky, above n 41.

[105] Jacobus, above n 8.

[106] Aranoff, above n 13, 46.

[107] Gittin is the plural of gett.

[108] Jacobus, above n 8.

[109] Ibid.

[110] 706 NYS 2d 619 (2000).

[111] Becher v Becher, 706 NYS 2d 619, 620 (2000).

[112] Ibid.

[113] Ibid.

[114] Povarsky, above n 41.

[115] Ibid.

[116] Ibid.

[117] Ibid.

[118] Ibid.

[119] Ibid, quoting Rabbi M Feinstein in Igrot Moshe Even Haezer (1985) vol 4, 106.

[120] Ibid.

[121] Ibid.

[122] Aranoff, above n 13, 47.

[123] Ibid.

[124] Divorce Act 1985 (Can), s 21.2(2).

[125] Divorce Act 1985 (Can), s 21.2(3).

[126] Jacobus, above n 8.

[127] Povarsky, above n 41.

[128] Jacobus, above n 8.

[129] Aranoff, above n 13, 42.

[130] (2001) 31 NYLJ 3.

[131] In the Marriage of Steinmetz [1980] FamCA 49; (1980) 6 Fam LR 554.

[132] Divorce Act 1985 (Can), s 21.2(3). The concept of ‘best interest of the child’ is also utilised in Australia following the decision in B v B (1981) 7 FamLR 1011 at 1012–13, whereby the best interest of the child is of paramount consideration in determining factors relating to the development and well-being of the child.

[133] See generally Aranoff, above n 13, and Jacobus, above n 8.

[134] Aranoff, above n 13, 47.

[135] Ibid.

[136] Cohen, above n 85, 38.

[137] Ibid.

[138] Ibid 37.

[139] Ibid.

[140] Divorce Act 1985 (Can) s 21.2 [141] Jacobus, above n 8.

[142] National Council of Jewish Women of Australia, Consultations with the Family Law Council, Melbourne, 10 July 2001, as cited in Family Law Council report, above n 4.

[143] Aranoff, above n 13, 44.

[144] In the Marriage of Gwiazda, unreported, 23 February 1983.

[145] Divorce Act 1985 (Can), s 21.2(2).

[146] Divorce Act 1985 (Can), s 21.2(3).

[147] In the Marriage of Steinmetz [1980] FamCA 49; (1980) 6 Fam LR 554.

[148] Aranoff, above n 13, 47.

[149] Divorce Act 1985 (Can) s21.2(3); B v B (1981) 7 Fam LR 1011, 1012–13.

[150] Australian Law Reform Commission, above n 32, [5.34].

[151] Walker and McKinnon, above n 2.

[152] Ibid.

[153] Family Law Council, above n 4, 32.

[154] M Freeman, ‘The Jewish Law of Divorce’ International Family Law [May 2000] 59.

[155] Family Law Council, above n 4, 32.

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