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Jewish divorce case16th January 2020 Family Law
As family lawyers, we are often mindful that the issues we deal with go right to the very heart of our client’s worlds and affects people across all walks of life. That includes people from various different cultural and religious backgrounds, some of which have certain overlaps with the civil legal issues we deal with. One such issue is the giving of a “get” in Jewish marriages. One recent, interesting case, has brought this to the fore.
Under Jewish law, in order for a divorce to be recognised the husband must voluntarily give his consent by providing a “get” to his wife in front of a Beth Din, a Jewish court. Unlike the marriage, where the civil and religious ceremony can take place at the same time, the Jewish religious divorce process is separate from the civil divorce. This means that a former couple may be divorced in English civil law but not in Jewish law and vice versa.
Problems can therefore arise where a husband refuses to give his wife a get. It can cause women to be stuck in a religious limbo: they are not able to religiously re-marry. In this recent case, although the woman was able to obtain a civil (legal) divorce in this country, without a divorce recognised by her religion, she faced carrying this stigma within her community, especially should she ever form a new relationship, re-marry or have children.
If she had moved on to a new relationship without obtaining the get, any children born to a new partner would be considered illegitimate under Jewish law.
In one recent case, reported in the Jewish Chronicle, a woman has succeeded in using criminal proceedings to obtain a “get” - in what appears to be a landmark case.
The private prosecution
The unnamed woman, who lives in London, began a private prosecution under Section 76 of the Serious Crime Act 2015. The Act made coercive or controlling behaviour a criminal offence where it occurs within an intimate or family relationship. The maximum sentence for those convicted of such an offence is five years’ imprisonment.
Lawyers acting for the prosecution argued that the husband’s refusal of the get involved a serious restriction on his wife’s liberty and was behaviour designed to control and undermine her.
The husband eventually gave the get last month, and the prosecution was subsequently discontinued as it was no longer in the public interest to pursue the case. The prospect of a criminal conviction and prison sentence was sufficient leverage to persuade the husband to consent to divorcing his wife.
The woman is believed to be the first person in the UK to use the criminal justice system in this way. As such, the case has significance not just for Jewish communities but for others who may wish to consider bringing an action against a spouse or former spouse who is refusing to co-operate in divorce proceedings.
It is an interesting case for Family lawyers as well as criminal lawyers. Controlling & coercive behaviour is an increasingly recognised form of abuse and we see it frequently arising in both children proceedings and when dealing with orders to protect an individual from the risk of such harmful and abusive behaviour. Whilst by contrast it is fairly rare for issues to arise in relation to the giving of a get (and in the infrequent cases it does, the Jewish community will usually apply pressure on the husband to provide it) this case adds another tool to the armoury of available remedies for individuals who do encounter this difficulty when getting divorced. It is therefore surely a welcome development.
Interaction between civil and religious divorce
The case also highlights the complexities faced by women of faith, such as Jewish women who are committed to their religion and seek a religious marriage and divorce as well as the civil element.
Under Section 10A of the Matrimonial Causes Act 1973 (which came into force via The Divorce (Religious Marriages) Act 2002),either spouse may apply to the Family Court for an order preventing a decree absolute from being pronounced until a get is obtained.
When advising clients it is important to understand their religious faith and in particular the religious aspects of the divorce, in order to ensure that both elements are dealt with properly. It is always best to commence the religious divorce as soon as possible, even where both parties appear to be co-operative at the outset, as attitudes may change as the divorce progresses.