To start at the beginning, a Jewish person is encouraged to meet and marry another Jew. In ultra-orthodox communities this is arranged.
Forced marriages are prohibited so in ultra-orthodox communities the marriage is either arranged through a family friend or relative or by a professional match maker called a shadhan.
Once the prospective bride and groom have been introduced they then decide whether they wish to marry each other. This is usually after several meetings, all of which are chaperoned.
Once a person has found and agreed their future spouse, there is an engagement. Within the more religious communities, a traditional Jewish celebration known as a Vort which literally means “giving ones word” is becoming increasingly popular. This takes place at the engagement party with family and friends present. Nothing is written down, there are words exchanged between the families, which are merely assurances that a future wedding is to take place. A plate is broken generally by the respective mothers and handed out to those who are unmarried.
If an engagement is subsequently broken there is little that can be done in the civil courts. The engagement ring is a gift and need not be returned to the groom. However from the Halachic point of view the guidance of the Beth Din must be sought as there is an oral contract which is considered to be binding. Unless the contract is broken mutually, then the aggrieved party can claim compensation, for example, for money expended on the proposed wedding. It is necessary to obtain a formal release from a Vort before another engagement can be entered into.
As the happy day approaches the couple may consider a pre-nuptial agreement. In the civil courts a pre-nuptial agreement is not binding. The main reason being that the courts feel their jurisdiction should not be ousted by a document which has been written before the marriage has broken down. The courts wish to retain jurisdiction over how finances are divided taking into account all current factors. The validity of a pre-nuptial agreement will also depend on whether it was entered into freely and how long the marriage has lasted. However increasingly pre-nuptial agreements have provided an indication of what the parties intended and on some occasions have been persuasive.
Within Jewish law pre-nuptial agreements are a relatively new concept and are primarily for the purpose of dealing with the Get. Some Rabbi’s encourage it more than others.
On the wedding day the bride and groom enter into a formal marriage contract which is called a ketubah. The Jewish form of marriage is essentially of a contractual nature.
Sadly, sometimes marriages come to an end. Decisions need to be taken over the dissolution of the marriage, children and finances.
In civil law – there are five grounds for dissolution of the marriage, unreasonable behaviour, adultery, two years separation provided both parties agree, five years separation whether or not the other party agrees and desertion which has to be for a period of two years.
The procedure is that a petition for divorce based on any of these grounds is presented to the court by the Petitioner. The Respondent acknowledges the petition which then allows the Petitioner to proceed to the next stage which is to apply for decree nisi. Once this has been pronounced, six weeks later the Petitioner can apply for the Absolute which the court pronounces and the marriage is dissolved. The whole procedure is done by correspondence – no one actually attends court. In certain circumstances, it is possible for the Petitioner to obtain a decree absolute without the Respondent even knowing about it.
Within the religious arena the grounds for the breakdown of the marriage are irrelevant, but the contract must be terminated by way of a Get. The duality which exits at the marriage stage that both the civil and religious ceremonies are conducted at the same time does not apply to divorce. If a Jewish couple do not obtain a Get then they remain married in Jewish law.
The problems with a Get are that just as both parties must freely consent to a marriage, so both parties must freely consent to the marriage being ended. A Get can take place either before or after the Decree Nisi or the Decree Absolute. However if there is no civil divorce then the Beth Din will wish to be sure that the marriage has actually broken down irretrievably. Anyone who has been married under Jewish law requires a Get.
If for any reason a Jewish couple are unable or unwilling to proceed with a religious divorce then according to Halacha the woman is still tied to her former husband. The Hebrew term is Aguna which literally means chained. Were she to remarry civilly, (she cannot of course remarry religiously), her second marriage would be technically adulterous and therefore any children of that marriage would be offspring of a prohibited union and debarred from marrying another Jew. The Hebrew term is Mamzer which loosely translated means illegitimate.
The only civil remedy available is through the Divorce (Religious Marriages) Act 2002 which was specifically passed to assist Jewish spouses to obtain a Get where one of them was not co-operating. The Act came into force in February 2003 and has been successfully implemented. A person can apply for an order that a Decree of divorce is not to be made Absolute until both parties have produced to the court a declaration that they have taken such steps as are required to dissolve the marriage in accordance with those usages. The term Get is not actually used in the legislation but what it means is the court is not obliged to grant the order for the divorce to be made Absolute. The court therefore has discretion to grant an order only if it is satisfied in all the circumstances of the case it is just and reasonable to do so. It is essentially the legislation which provides the framework enabling the court to require the dissolution of a religious marriage before granting the civil divorce.
If the application is successful, that is to say the order is granted not to make the Decree Absolute, the parties will be unable to return to the court until the Get has been obtained.
But what about the other aspects of the marriage break down? The children. In the civil law if the parties are married during the child’s life then both parties have parental responsibility for the child. This means that they can decide where a child lives, be involved in a child’s education, sign a medical consent form etc. Interestingly enough a mother always has parental responsibility for a child. A father only has parental responsibility if he has been married to the mother during the child’s life or if he is on the birth certificate of a child born after December 2003. So an unmarried father of a child born prior to December 2003, whether or not he is on the birth certificate does not have parental responsibility as of right and the father of a child where the parties are not married who was born after December 2003 and is not on the birth certificate does not have parental responsibility either. Are you still with me? A mother can give a father parental responsibility by entering into a parental responsibility agreement or parental responsibility can be ordered by the court. Within Jewish law there is no such thing as parental responsibility.
The issue of child maintenance is dealt with by The Child Maintenance and Enforcement Commission (commonly known as the Child Support Agency). As a rough guide the non-resident parent has to pay 15% of their net pay for the first child and 5% for any subsequent child (up to a maximum of 25%) Overnight stays can be deducted from the payments at the rate of 1/7 for each night per week the child stays over.
Under Halacha there is an obligation for a man to fully support his children. It is therefore the responsibility of the man to ensure that that the children are fed and clothed and for example school fees are paid. Mothers are under no obligation to financially support and maintain their children.
If there is a dispute over where the children are to live then the procedure within the civil courts is that the courts will appoint a child and family reporter to investigate the issues and report back to the court. The wishes of the children become relevant when a child is usually around the age of 10 or earlier if the child is mature. The court will make a decision on what they consider to be in the best interests of the children and the courts are reluctant to separate siblings.
If a case is decided by the Beth Din then under strict Halacha all children under the age of six live with their mother, boys over the age of six should live with their father and girls over the age of six should live with their mother. However the Beth Din does not see these rules as cast in stone and like the civil courts have an overwhelming obligation to consider what is in the best interests of the child.
Where the Beth Din and the civil court differ hugely is on the question of finance. When dividing the assets, the civil courts have a number of factors to take into account including the welfare of the children, the length of the marriage, the needs of the parties.
Under Halacha the situation is very different. There is no requirement for the husband to make financial provision for the wife at all and so for the Beth Din to decide a wife’s financial award she may not receive a fair settlement.
The Dayanim do try to redress this within the rules of Halacha – for example if the house is in joint names the Dayanim will say that the husband has paid the mortgage as a gift to the wife and therefore she should have the house. There is also no limitation on the amount of maintenance which the husband has to pay for the children and therefore the Dayanim include an extra amount which equates to spousal maintenance. But the reality is that if the husband has other assets then the wife has no claim on these.
In conclusion, my advice to anyone consulted by a Jewish client is this:
a) Sort out the Get at an early stage; before the parties become entrenched in lengthy court proceedings otherwise what should be a formality can become a weapon
b) Explain fully to the client the limitations of the Beth Din process in determining financial issues
c) Have an enormous understanding and patience of the cultural pressures that may be influencing the client