THE ISSUE

The Family Court (the Court) delivered a decision in May dealing with the granting of a Gett (Jewish Divorce) and the Court's powers in relation to it. This is not the first time the Court has had an opportunity to deal with the issue but this time the Court refused to get involved.

Getting divorced in an Australian Court doesn't free up Orthodox Jewish parties to marry again under Jewish law unless they've obtained a Jewish Divorce (Gett).

SO WHAT'S INVOLVED IN GETTING A GETT?

A Gett has strict formalities that need to be complied with under the supervision of the Rabbinical Court. Once delivery and acceptance have taken place the parties are free to remarry.

Not acquiring a Gett has far reaching impacts especially for the wife as she is effectively held hostage to remain in that "state" until the man changes his mind. She's called an Agunah which translates to being "chained" to her husband. Any children born to her in that "state" are considered bastards and it impacts on who they can marry in the future under Jewish Law. No matter how long she remains separated from her husband she can't remarry. For the husband, it's difficult but not impossible to remarry before he obtains a Gett.

SO WHAT'S THE PROBLEM WITH GETTING A GETT?

In practice what we come across is that one party wants a Gett and the other, knowing it is important to their spouse, uses it as leverage in the Family Court proceedings. The problem is that the Rabbinical Court outside of Israel lacks judicial power so if one spouse wants a Gett and the other refuses it, the Rabbinical Court in Australia can't assist them. These people find themselves turning to the Family Court for help.

THE DECISION OF IDELSOHN

In the case of Idelsohn1 the husband sought an Order from the Court that the wife was only to receive certain money after she "voluntarily elected to do all acts and things necessary and willingly cooperated in the performance of all deeds or actions" to grant the husband a Gett. He tried to use the Family Court Orders to force the wife to cooperate in giving him a Gett. The Court said it couldn't do that.

The Court has previously commented that if they Order a party to grant a Gett it is void because if a Gett is obtained by duress it is void. The Court is saying that if they compel a party to give a Gett that amounts to duress and that duress voids the Gett so it's futile making the Order in the first place.

The Court has said that if it had jurisdiction to require a wife to take any action in relation to a Gett it could only be to order her to submit herself to the Rabbinical Court but the Family Court could not fetter her right to make any application or submission to the Rabbinical Court.

IT'S NOT CONSTITUTIONAL SAYS THE COURT

In Idelsohn's case the Court said that Section 116 of the Constitution provides that the Commonwealth can't make any law establishing any religion, imposing any religious observance or prohibiting the free exercise of any religion.

In Australia there's a clear and separate distinction between religious and civil authorities. It's accepted that the law leaves people to follow their own religious practices and beliefs subject to the operation of the ordinary civil and criminal laws. So because a wife refusing to grant a Gett doesn't amount to criminal behaviour the Court doesn't have the power to make the Order for her to grant the Gett as doing that would be interfering with religious matters.

The Court said the Constitution forbids the Court involving itself in religious matters and if the Family Court made such an Order it would have the effect of elevating Jewish law to the status of civil law which would be in breach of the Constitution.

WHAT DOES IT MEAN FOR CLIENTS?

The effect of this decision is that Family Courts can't assist separating parties to obtain a Gett. This means that parties can't use the obtaining of a Gett as leverage and a bargaining chip in Family Court proceedings.

If securing a Gett is important, it needs to try to be negotiated and obtained separately from the Family Court proceedings at a time when a party still has some negotiating power to try obtain it.

1 Reported as Idelsohn and Idelsohn [2017] FamCA 398 delivered 11 May 2017