Legal and Religious Issues in Jewish Divorce

Issues concerning marriage and divorce are governed by state law and the wisdom of the courts who interpret such laws. This may seem surprising given how intimate and personal the marital relationship is. However, some of the oldest laws in human history have attempted to regulate marriage.

For example, the ancient set of rules known as the Ten Commandments contains the following rules: “Thou shalt not commit adultery” and “Thou shalt not covet thy neighbor’s wife.” These commandments seem to be concerned with preserving and protecting the familial bonds that stem from marriage. Since then, authorities—from organized religion to secular governments—have established rules regulating marriage.

The ritual and ethical aspects of marriage in the United States stem from a Judeo-Christian moral tradition. However, jurisdictions in the United States now regulate marriage based on secular motivations that merely coincide with the values established from Christianity and its predecessor, Judaism.

Although the government and religion operate distinctly from each other in the United States, this does not mean that marriage is a purely secular undertaking for many private individuals. Many Americans still have weddings in churches, and still follow religious rites and rules regarding marriage.

However, because the legal incidences regarding marriage are strictly under the auspices of state law, any religious prerequisites for obtaining a legal marriage or divorce are superfluous to the requirements listed under state law.

This is consistent with the U.S. Constitution and the various state constitutions. Under the First Amendment to the United States Constitution, “Congress shall pass no law…respecting an establishment of religion, or prohibiting the free exercise thereof…”

For example, if a state law required people to get married in a church, it would be considered an unconstitutional state act respecting an establishment of religion. As a result, marriage and divorce are things any person from any religion—or no religion at all—can obtain.

However, private individuals can still agree to the terms of their marriage and divorce, so long as those terms do not violate public policy. This is also the result of the religious freedom protected by the First Amendment and its state constitution counterparts.

For example, if state law prohibited people from getting married in a place of worship, the law would be considered an unconstitutional state action infringing on an individual’s free exercise of religion.

Talmudic Divorce in Judaism

The laws of each state governs the requirements for obtaining a divorce in its jurisdiction. For example, in Florida, a person seeking a divorce generally need only comply with certain residency requirements and allege that the marriage has been irretrievably broken. Individuals who have obtained a divorce have terminated their marriage and are therefore free to remarry.

Conversely, in the Talmudic tradition of Judaism, a husband is required to issue a “get” and deliver it to his wife, before two witnesses, to obtain a divorce that allows the parties to subsequently remarry. A get is a special religious document written in Hebrew where the husband declares his intention to free his wife to marry another man.

Thus, as state law govern citizens within a state’s borders, Jewish law governs members of the religion. Although a Jewish couple who gets a divorce in accordance with state law can legally marry whomever they wish, certain sects that still follow the Talmudic tradition of issuing a “get” may still forbid the couple from remarrying, or otherwise face religious sanctions or even ex-communication.

The Intersection of Jewish Divorce and State Divorce

A problematic issue that arises from the Talmudic divorce tradition of issuing a get stems from the control a husband has in such a situation. A husband could refuse to issue a get to his wife, binding her to a failed marriage and preventing her from remarrying.

To address this issue, the Rabbinical Council of America—an organization of Orthodox rabbis—developed a kind of private premarital agreement known as a halakhic where both parties agree to appear before the Beth Din—a Jewish religious legal court—if one spouse requests a get. A halakhic also obligates a husband to pay spousal support until they comply with Jewish divorce requirements.

However, a premarital agreement’s provisions must comply with state public policy. There are constitutional questions as to the scope of the court’s power to compel a party to appear for the Beth Din, particularly when Jewish law requires the parties to voluntarily submit to the Beth Din’s authority. While a halakhic would evidence the voluntariness of the parties’ agreement to appear before the Beth Din, compelling a party to do so has been considered an unconstitutional violation of the repudiating party’s religious freedom.

When religion is such a vital aspect of your life, these issues are important to discuss with an experienced advisor—both legally and spiritually. Because Judaism is a religion with a rich and expansive legal tradition that covers its members, the importance of discussing these issues with an appropriate authority cannot be understated.

Contact The Virga Law Firm, P.A.

If you have questions or concerns about a legal dispute involving Florida family law, you should consult an experienced attorney from The Virga Law Firm, P.A. We are dedicated to representing you and your family’s legal interests in divorces and other family law matters.

Call us at (800) 822-5170 or contact our office online to schedule an appointment about your case today.

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