When a couple who practise their Jewish faith separate and wish to “divorce”, there are only two ways to end their status as a married couple – by death or the grant of a Gett. The issuing of the Gett effects the divorce between the Jewish couple according to Jewish Law.
Pursuant to Jewish law (“Halakha”), a “divorce” can be accomplished only by the parties. It is effected by the formal delivery by the husband and the acceptance of the wife of the bill of divorcement (“Gett”) under the supervision of the Rabbinical Court, namely the Beth Din. The parties are divorced and free to marry again once the Gett has been delivered and accepted.
However, outside of Israel, the Beth Din lacks judicial power, therefore, should one spouse seek a Gett and the other refuse, the Beth Din in Australia is unable to assist them. They may however apply to the Family Court for assistance.
What happens if I do not get a Gett?
Without a Gett, a woman will be unable to remarry under Halakha and for a man it is extremely difficult to do so.
Without a Gett, a woman is termed “agunah”, literally meaning one who is “chained” to a man from whom she is unable to procure a Gett. Any child or children born to an “agunah” will bear the stigma and burdens of being illegitimate. It may have consequences that flow through the descendants who forever may be unable to rectify their situation.
Requirements of a Gett
Halakha requires the following specific formalities to be complied with in order for a Gett to be considered valid:
- A divorce document must be written; this is usually done by a professional religious scribe (“sofer”).
- It must have been written on the explicit instruction and with the free-willed approval of the husband, with the specific intention that it is to be used by the man and the wife to that marriage.
- It cannot be initially written with “blanks” to be filled in later.
- It must be delivered to the wife, whose physical acceptance of the Gett is required to complete and validate the “divorce” process.
Can the Family Court of Australia order my ex-partner to grant me a Gett?
The Family Court must consider two factors in determining whether an order should be made.
Firstly, it must be consonant with the requirements of the Jewish Law or otherwise a Gett may be void (for unlawful duress) and the Court’s actions therefore futile.
Secondly, from a public policy perspective, if not a constitutional one, civil courts should not be seen to become involved in religious matters.
Getting a Gett
Where does this leave us?
The Family Court of Australia has been hesitant to assist separating Jewish Parties obtain a Gett.
The Court has entertained applications in relation to Getts in some circumstances but is yet to make a finding that on a final basis that the court has the power to Order parties to attend a Beth Din and do “all acts and things necessary” to obtain a Gett.
For many Jewish Couples who separate it is important to obtain a Gett following the breakdown of a marriage. If securing a Gett is important to you, we can assist you by:
- Negotiating this element or ‘limb’ of your final settlement through mediation or a round table conference outside of court proceedings and document the agreement reached as a consent order; or
- Seeking Orders from the court, to the effect that you and your ex-partner are to attend “when called upon” and declare that such order “not be construed as in any way inhibiting, directing, influencing, or controlling any deliberation, decision, order, decree, direction or recommendation of the said Religious court or in any way inhibiting the Respondent or Applicant in making any application”.
If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 9929 8840.
This post is an overview only and should not be considered as legal advice. If there are any matters that you would like us to advise you on, then please contact us.