Thursday, September 20, 2018 -
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A divorce obligation beyond finances

By Margot Freedman Alicks

FOR SECULAR Americans, the concept of divorce revolves around the determination in a courtroom that the civil relationship of marriage has ended.

For Americans of certain faith communities, because the marriage bond has religious significance, the parties to a divorce lack the ability to remarry without committing adultery in the eyes of the faith community, absent completion of a further process governed by religious authorities and rules to terminate or annul the prior or putative marriage.

For those of the Jewish faith, a get is required to effectuate a divorce sufficient to allow the divorcee to remarry, and to permit any real openness in what life can offer post-decree.

Thus, some understanding of these processes will be required to fully advise parties to civil divorce as to their options.

Even where a civil divorce is obtained under the civil law of the country in which the divorce is sought, a Jewish couple must follow the get procedure discussed below in order to effectuate a Jewish divorce valid under Jewish law. If either spouse remarries without a get, he or she would be considered an adulterer under Jewish law.

A get is a divorce document that, according to Halachah (Jewish law), must be willingly and physically delivered by a husband to his wife to secure their divorce.

The essential text of the get is short, providing that the wife is “hereby permitted to all men.” Thus, through physical delivery of a valid get, the wife is no longer a married woman, and the laws of adultery no longer apply. The wife thereby regains the legal rights she relinquished to her husband in her Jewish marriage.

Jewish law requires specific formalities for a divorce document to constitute a valid get. Similar to the strict elements of “offer, acceptance and consideration” in the context of an American common law contract, the get formalities must be strictly observed to ensure validity.

These requirements include the need for the get to be an actual written document. Not only that, the writing is typically performed by a professional religious scribe, and may be performed by a member of the bet din (rabbinical court).

Nor may the document be pre-dated or written on a simple form with “blanks” that may be filled in; rather, it must have been drafted on the husband’s freely given instruction with the specific intent that it be delivered to his wife.

In addition to the many formalities required for the written document, its physical delivery and acceptance is another precise formality that must be observed to ensure validity. Upon the wife’s acceptance of the document, the divorce process is considered complete.

NOTABLE IN its absence from these requirements is any reference to the wife’s consent. Rather, the get must be given of the husband’s free will, but the wife’s consent is not Biblically required. However, it is notable that later rabbinical enactment stipulates that no woman may be divorced against her will.

Also apparent in the requirements is the fact that the procedure provides only for a husband-initiated divorce. While the wife may sue for divorce in rabbinical court, it is very rare that such a court will find just cause to require the husband to grant the wife a divorce as prescribed under Jewish law.

This has at times led to the existence of the agunot, or “chained women” who are left without escape from a marriage where the husband refuses to grant a get. When a wife refuses to accept a get, the “agun” is created — the husband without escape from the marriage.

Jewish wives may find comfort in the knowledge that, where the get has been ordered by the rabbinical court and the husband still refuses to grant it, the marital condition may sometimes be terminated by hafqa’at kiddushin, or annulment.

Often, too, the community will apply significant pressure to the resistant husband in an effort to induce him to submit a get.

However, if the husband continues to resist, the wife is without further recourse and may not remarry without committing adultery. This may be why the phenomenon of the prenuptial agreement geared toward governing any future get has recently been observed in the Jewish community.

The controversy recently surrounding the get highlights the importance of remembering that, where couples have sought the sanction of their faith on a marital union, it may not be enough to think of what is due to the government, but also to consider what is due to one’s faith.

Copyright © 2015 by the Intermountain Jewish News




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