Getting a Gett In
Getting a Gett In Australian Courts*
TABLE OF CONTENTS
This article is substantially based on papers delivered by the author at a symposium on "Jewish Divorce and the Plight of the Agunah: The Orthodox Response in England and Australia", which he addressed together with Lord Jacobovits, Emeritus Chief Rabbi of the Commonwealth and member of the House of Lords, in Adelaide on 2 June 1996 and at a conference on "Interfaces of Jewish and Secular Law" at the University of Melbourne on 23 February 1997. Published here with kind permission from the author.
This article considers what the Australian civil legal system can do to assist a spouse who wishes to receive or to grant a gett or Jewish bill of divorce, thereby dissolving the Jewish marriage. It does not advocate reform of halakhah (Jewish law) or halakhic (Jewish legal) solutions. Rather, this article advocates the civil courts giving their support to the religious courts in matters of Jewish divorce. However, for reasons discussed below, it is not suggested that the civil courts should directly order a recalcitrant spouse to grant or accept a gett.
Marriage, in Jewish law, is a contract which is created and terminated by mutually consenting parties. A Jewish marriage is dissolved by the acts of the husband granting and the wife receiving a gett. The parties must respectively grant and receive the gett each of their own free will, otherwise it will be invalid. The role of the Beth Din (rabbinical tribunal) in the termination of a Jewish marriage is supervisory: to supervise the grant and receipt of the gett, in order to ensure that the halakhic minutiae governing this procedure are complied with. Its role, therefore, differs from that of courts in other religious and civil legal systems whose role is declaratory, that is, to dissolve the marriage.
In the absence of consent to a Jewish divorce, the aggrieved spouse may apply to the Beth Din for a determination of whether there are grounds in Jewish law for requiring the recalcitrant spouse to grant or receive a gett and, if in the affirmative, for an order that that party do so. Thereafter, the parties nevertheless remain married until the gett has been granted and received.
In certain circumstances Jewish law requires that a husband grant a gett to his wife. If he refuses, he may be compelled to do so. This is not considered to be compulsion, but rather 'constructive' free will. Where Jewish law requires that a man grant a gett to his wife and authorises that he be compelled to do so, the gett will not be held to have been given by him under unlawful duress, because his own prior refusal to give it was unlawful.1
The circumstances in which the halakhah permits such compulsion are varied and complex; it is not for the civil courts to make such a determination. Neither they nor those who appear before them are qualified to make or advocate such a determination. More importantly, such direct compulsion by a civil court would be likely to invalidate the gett and render the court's good intentions nugatory. Maimonides states that:
Whenever the law requires that a husband be ordered to divorce his wife and he refuses to do so, the Beth Din imposes punishment upon him until he says "I am willing" and the gett is valid. This is so even if he is thus compelled by a non-Jewish court that orders him to act as demanded by the Beth Din and the Jews are putting pressure on him through Gentile hands till he divorces his wife.
Therefore, the type of court order that is advocated is one that requires the parties to submit to the Beth Din and to abide by its determination. If either of the parties fails to appear before the Beth Din as required, or to comply with the directions or determination of the Beth Din, he or she will be in contempt of the civil court and liable to punishment by that court.
Jewish spouses, although divorced at civil law, remain married at Jewish law until a gett has been granted and accepted. Without a gett, a woman will be unable to remarry at Jewish law, and for a man it will be extremely difficult to do so, during each other's lifetime. Such a woman is termed an agunah, literally, a woman 'chained' to an estranged husband from whom she is unable to obtain a gett. Any children born to an agunah will bear the stigma and burdens of mamzerut, or bastardy, and they and their descendants will forever be unable to rectify their situation or to marry other Jews who are either not fellow mamzerim or converts to Judaism.
That which the civil courts in Australia can do is governed by the Family Law Act 1975 (Cth). That Act provides that "proceedings by way of matrimonial cause shall not be instituted except under this Act". 3If proceedings in respect of Jewish divorce constitute a "matrimonial cause" they must be instituted under the Family Law Act in the Family Court of Australia. The relevant definition of "matrimonial cause" in the Family Law Act includes "proceedings between parties to a marriage for an order or injunction in circumstances arising out of the marital relationship".4 In such proceedings the Family Court "may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate".
Are proceedings in respect of Jewish divorce "proceedings ... for an order ... in circumstances arising out of the marital relationship"? 5The courts have held that "the mere fact that something happens between a husband and wife does not mean that it involves 'circumstances arising out of the marital relationship' ... [and that] events which raise issues of criminal law, industrial law or fiscal law cannot be brought within the 'marital relationship' simply because the circumstances involve a husband and wife and their children".6 Rather, the proceedings must be as a consequence of the act of marriage between the parties and as an exercise of the rights, and a performance of the duties, to which the marriage has given rise.7 Whether particular circumstances arise out of the marital relationship has troubled the courts and in one case, a judge recalled 'the answer of a great judge that, though he knew not when day ended and night began, he knew that midday was day and midnight was night'.8
On one view, the Marriage Act 1961 (Cth) provides that a marriage may only be validly created in Australia if it is performed by or in the presence of an authorised celebrant. Similarly, the Family Law Act 1975 (Cth) provides that a marriage may only be validly dissolved in Australia if dissolved by decree of the Family Court of Australia. People who undergo a religious marriage in Australia, but not by or in the presence of an authorised celebrant, are not married in Australian law. Similarly, people who undergo a religious divorce in Australia but whose marriage is not dissolved by the Family Court of Australia, are not divorced in Australian law. In other words, if people chose to marry or divorce in religious law, that should be of no concern to Australian courts.
The countervailing and, it is submitted, preferable argument, is as follows.
The Marriage Act provides that "where a marriage is solemnised by or in the presence of an authorised celebrant, being a minister of religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister".9 Thus, where a rabbi, who is an authorised celebrant, solemnises a marriage according to Jewish law, that marriage is a valid marriage in Australian law simply by reason of him being a minister of religion who is an authorised celebrant. No particular form or ceremony is otherwise required to validate the religious marriage at Australian law. On this view, Australian law may be said to indirectly afford recognition to a Jewish marriage. So too, Australian law should take into account the fact that such a marriage cannot be dissolved, in Jewish law, merely by a civil divorce. Further, one of the purposes underlying the Family Law Act is to free the parties to a marriage that has broken down irretrievably, both in law and in fact.10 For the Family Court to dissolve a marriage and to finalise matters relating to property, maintenance and children but to ignore matters relating to a religious divorce, would free the parties from one another as a matter of law, but not as a matter of fact.
In Shulsinger's case11 , the husband, who lived in Australia, refused to grant a gett to the wife, who was an Israeli resident and citizen. The Full Court of the Family Court recognised that although the husband had applied for a civil divorce in Australia, unless he took steps to grant a religious divorce, his wife would effectively be bound by a marriage from the obligation of which he had been forever freed by the civil divorce. The court recognised that it was bound to ensure, as far as it could, that the same freedom was made available to the wife as would be available to the husband. The husband would be able to remarry in Australia, whereas the wife would be unable to remarry in Israel, where the Australian civil divorce would be ineffective without a gett. The court stated that it would be contrary to all notions of justice to allow the husband to seek and obtain a civil divorce while refusing to relieve his wife from their Jewish marriage and to say that the court could do nothing.
If two people chose to undergo a Jewish marriage ceremony that is recognised as a valid marriage in Australia by reason of the provisions of the Marriage Act, the law should not enable one of those spouses to later claim, upon the breakdown and civil dissolution of the marriage, that he or she objects to undergoing a Jewish divorce on grounds such as a change in beliefs or level of religious observance. The implications of the Jewish marriage, which was voluntarily entered into, are far too serious to allow supposed conscientious objections.
It is, therefore, arguable that legal proceedings in respect of Jewish divorce are proceedings for an order "in circumstances arising out of the marital relationship". If so, they are a 'matrimonial cause' and are to be brought in the Family Court of Australia.
This was the view in the Family Court in the case of Marriage of G 12, where a wife, who refused to accept a gett, was ordered to appear before the Melbourne Beth Din. The husband had applied for and was granted a civil divorce in the Family Court. He also sought an order that the wife comply with all procedures for a Jewish divorce. Evidence was given by the Secretary of the Melbourne Beth Din, explaining the nature of a gett and the procedures associated with it. The husband argued that unless he was able to deliver a gett to his wife, the civil divorce granted by the Family Court would be of no use to him as he would be unable to remarry according to Jewish law. The judge accepted that:
If this court does have jurisdiction to require the wife to take any action, it could only be to submit to the jurisdiction of the Rabbinical Court. She could not be ordered to consent to any orders or procedures except those involved in the putting into effect of any orders made by that tribunal ... [T]his court could not place any fetter on her right to make any application to or submission to such a tribunal. In like manner the Rabbinical Tribunal could not be required or ordered to grant a gett. 13
The judge could see no reason why the court should not take into account the effect on the future life of a party of the principles of his or her religion. The court was not being asked to determine what those principles were. Similarly, the court was not being asked to influence in any way any decision that the Beth Din might make or be asked to make. All that the court was asked to do was to ensure that a spouse submitted to the jurisdiction of a tribunal 'set up well beyond time immemorial ... by the religion of which that party is a professed adherent'.14
The judge recognised the adverse effects of a refusal to make the order sought. He further recognised that the making of the order would ensure, as far as possible, that the civil divorce granted by the court, the purpose of which was to sever the matrimonial relationship and to free either party to remarry, would be fully effective.
If I correctly understand the intention of the Act, then it is the clear duty of a judge of this court to proceed - ... within the bounds set by Parliament - to ensure that appropriate orders are made fully effective, not only in theory but in fact. In this case the husband as a matter of law can marry any woman who is free to marry, subject only to the prohibitions in the Marriage Act, but as a matter of fact and of practicability he cannot do so.15
The judge therefore ordered the wife to appear before the Melbourne Beth Din and to accept a gett if and when one was ordered by the Beth Din and granted by the husband. The order further required her to do all other acts and things as might be required of her to give validity and operation, according to the Jewish law, to any such grant of a gett by the husband or order of the Beth Din. The judge stipulated, however, that the order was not to be construed as in any way inhibiting, directing, influencing or controlling any deliberation, decision, order or decree of the Beth Din. Further, the order was not to be construed as in any way inhibiting the wife from making any application, request or submission to the Beth Din or, save as provided by the order, to deny her any right or privilege that she would otherwise have.
The decision in Marriage of G has not been considered by the Full Court of the Family Court. Whether it will be upheld as a valid or otherwise proper exercise of the court's powers therefore remains to be seen.
If court proceedings between a husband and a wife in relation to Jewish divorce do not constitute a "matrimonial cause" in respect of which an order can be made under the Family Law Act, courts might nevertheless order a recalcitrant spouse to submit to the Beth Din and to abide by its determination on another basis.
Courts in other jurisdictions have acted on the basis of the groom's words to the bride during the marriage ceremony, in offering the ring to her, and replicated in the ketubbah (marriage contract), to be his wife "according to the laws of Moses and of Israel" and the bride's acceptance of the ring and, thereby, the marriage. Courts have held that the bride and groom thereby incorporate, by reference, the entire spectrum of Jewish family law, which imposes upon them mutual obligations. This is not an entirely new concept. Courts in other jurisdictions have recognised and enforced ketubbot as contracts, in respect of the financial provisions in the ketubbah.
Jewish marriage can be viewed in Australian law as a contract between two parties whose rights and obligations are to be governed by Jewish law. It is for the secular courts to enforce the contract by directing the parties to do that which Jewish law, by which they have agreed to be governed, requires.
In Stern v Stern16 , in the Supreme Court of New York, the husband was required to grant a gett by virtue of the Jewish marriage contract. The court recognised that Jewish marriage, regarded by Jewish law as a contractual relationship, is a contract in civil law, pursuant to which the parties deliberately and intentionally bind themselves to conform to the provisions of Jewish family law and assume upon themselves the obligations defined in those laws.
There is no question as to the validity of the marriage agreement ... and there is no doubt that the wife may assert her rights thereunder insofar as they are in conformity with, and not contrary to our civil laws ... and if not contrary to public policy should be enforced according to the intent of the parties who made the agreement.17
The court accepted and acted upon a determination by a Beth Din that, in the particular circumstances of that case, `the law of Moses and Israel', required the husband to grant a gett to his wife. Therefore, it was not the civil court deciding what Jewish law required. The judge stated that:
The court in granting a civil divorce to the [wife] would be doing an injustice to her should that be the only relief granted. The wife would then be doomed to being an `aguna' for the balance of her life because of the violations of the marriage contract by the husband. To deny her the specific performance of the Ketuba or marriage contract, would be to penalise [her] for the wrongdoings of the ... husband ... [The husband] has violated the terms and provisions of the Ketuba[...] The court would be remiss were it not to uphold the honourable fulfilment of its terms affecting the deepest relationship between husband and wife. The contract under discussion was entered into freely and willingly. The wording is adequately plain and reasonably clear, definite, complete and final and should be specifically enforced by the courts.
The court in Stern's case directly ordered the husband to grant a gett to his wife because a rabbinical tribunal had already declared that, in the circumstances, Jewish law required him to divorce her. However, where a rabbinical tribunal has not yet determined the matter, the civil courts cannot nor should not decide what is required by Jewish law in the circumstances. The preferable approach, therefore, is that taken by the Family Court of Australia in Marriage of G, for the court to order the recalcitrant spouse to appear before the Beth Din for determination of whether Jewish law requires him or her to concede to the Jewish divorce demanded by the other spouse and to comply with its determination.
In Minkin v Minkin19, in the Superior Court of New Jersey, the wife sought a gett from her husband on the basis of the ketubbah. The judge held that in undergoing a Jewish marriage ceremony, the parties agreed to comply with the provisions of `the law of Moses and Israel', which in certain circumstances requires that a husband must give his wife a gett. The judge held that to compel the husband to grant a gett in circumstances where Jewish law so required would be to enforce the contract of marriage. The court accepted that Jewish law cannot be equated with religious law only, but that it is comprised of religious laws regulating a person's relationship with God, and civil laws regulating the relationship between people. The court accepted the evidence of three Orthodox rabbis, who were graduates of Yeshiva University in New York and members of the Rabbinical Council of America, that marriage in Jewish law is essentially a civil contract delineating the obligations of the parties during the relationship and that a gett is a severance of that contractual relationship. It was further accepted that a gett is a civil document, the granting and receiving of which involves no religious acts and no profession of belief, but which merely severs all marital bonds.
The court in Minkin's case ordered the husband to specifically perform his contract and to grant his wife a gett. In that case, no rabbinical tribunal had ruled that, in the particular circumstances, Jewish law required the husband to grant a gett. Rather, the court itself found that grounds supposedly existed in Jewish law for requiring the husband to grant a gett and ordered him to do so. As submitted above, such a direct order by a civil court to grant a gett is inadvisable.
In Burns v Burns20, in the Superior Court of New Jersey, both the wife and the husband had been previously married and they had each been religiously divorced from their respective former spouses. A number of years later, their marriage broke down and a civil divorce was granted. The husband subsequently remarried, without first granting a gett to the wife. She also planned to remarry, but wished to first obtain a gett. The husband claimed that his religious beliefs were such that he no longer believed in the necessity of securing a gett, but that if the wife paid $25,000 he would grant her one. The wife applied to the court for an order compelling the husband to institute proceedings for a gett. The court held that the husband's offer to grant a gett on condition of payment demonstrated that his refusal to otherwise grant her a gett was not based on his current religious beliefs, but on his desire for monetary gain. The court rejected the husband's assertion that his constitutional right to practise his religion, free from State interference, would be infringed if he were forced to participate in proceedings for a gett.
A true religious belief is not compromised as the amount of money offered or demanded is increased. An offer to secure a `gett' for $25,000 makes this a question of money not religious belief. This `offer' ... takes this issue outside the First Amendment. This so-called `offer' is akin to extortion.21
The court held that the parties' ketubbah was evidence that they had contracted to be bound by Jewish law.
In studying the laws of Moses and Israel this court finds there are various circumstances which would require the husband to secure a `gett' [to] his wife ...
The parties no longer live together. Mr. Burns has remarried. He ... sought the [civil] divorce. He has chosen another for his wife and married her under civil law, yet under Jewish law the [husband] and the [wife] are still married. The [husband] must release the [wife] from the ketubbah and put an end to that relationship. The judgement of divorce provided for the parties to `be divorced from the bond of matrimony ... and each of them, be freed and discharged from the obligation thereof'. For the court to compel the [husband] to submit to the jurisdiction of the Jewish ecclesiastical court, the `Bet Din', and initiate the procedure to secure a `gett' is within the equity powers of this court to do what ought to be done. [...] The ultimate decision of whether a `gett' is to be granted is that of the `Bet Din' and not of this court.22
The court therefore ordered the husband either to submit to the Beth Din either personally or by an agent on his behalf.
There has been much discussion in recent years about prenuptial agreements providing for Jewish divorce in the event of marital breakdown. As indicated above, if proceedings with respect to Jewish divorce are considered to "arise out of the marital relationship" and to therefore constitute a matrimonial cause, such proceedings may only be instituted under the Family Law Act. In such a case, the court may make such order as it considers proper. A prenuptial agreement will be largely superfluous, as the Family Court can make the order sought without the need for any such agreement as the basis for the order. This occurred in Marriage of G, without any prenuptial agreement. A prenuptial agreement would, nevertheless, be relevant evidence of the parties' intentions at the time of entering into their Jewish marriage.
If, however, proceedings with respect to Jewish divorce do not constitute a matrimonial cause, then as the approach based on the ketubbah has not been tried in Australia, a prenuptial agreement may be crucial as it might be enforced as in any court as an ordinary contract. Similarly, if the parties marry in Australia but later settle elsewhere, where the principles of family law are different, a prenuptial agreement may be all that an aggrieved spouse has to rely upon.
In Avitzur v Avitzur23, the bride and groom had entered into a prenuptial agreement that, in the event of the breakdown of their marriage, they would submit to the jurisdiction of the Beth Din at the request of either party and would abide by its directives. The Court of Appeals of New York State held that the wife only sought to compel her husband to perform a secular obligation to which he had contractually bound himself. There was contractual consent to a specific mediation device. The court was not imposing a religious observance. It was merely ordering compliance with a dispute resolution agreement. An order of specific performance would not involve the court in any doctrinal issue. The court would be enforcing a contractual duty, not a religious one. There would be no interference by the State with religious authority or vice versa. Whether the wife was entitled to a religious divorce was to be decided by the forum chosen by the parties in their contract for resolving the matter, namely by the Beth Din, and not by the court.
A completely different approach was adopted in the United Kingdom in the case of Brett v Brett24 and followed in Australia by the Family Court in the case of Steinmetz25. That approach is to award the wife a greater amount by way of property settlement or spousal maintenance than she would otherwise receive, unless the husband grants her a gett within a specified time. The rationale in this approach is that by the husband's refusal to grant a gett to his wife, he is precluding her from remarrying and having another husband to support her. Under the Family Law Act, a party to a marriage is liable to maintain the other party, to the extent that he or she is reasonably able to do so, if that other party is unable to support herself or himself adequately for any adequate reason.26 By refusing to grant a gett, a husband precludes his wife from remarrying and benefiting from that right to support; he therefore remains liable to support her.
In considering issues of property settlement or spousal maintenance, the Family Court must take into account a number of specified matters, including "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account".27 In the Steinmetz case, the Family Court held that by reason of the husband's refusal to grant a gett to his wife, her capacity to remarry was affected and thereby the possibility of her obtaining other support was reduced. This was a "fact or circumstance which, in the opinion of the court, the justice of the case required to be taken into account". The judge ordered the husband to pay to the wife, by way of lump sum spousal maintenance, within three months, the sum of $4,000.00. However, the order provided that, if within that time the husband had granted the wife a gett, then the payment would be reduced to $2,000.00.
The limitation of this approach is that it does not secure the appearance by the parties to appear before the Beth Din nor their compliance with its directions. This approach merely provides an incentive to grant or receive a gett.
The Australian Law Reform Commission, in its report on "Multiculturalism and the Law"28, considered the issue of the removal of religious barriers to remarriage. The Commission recommended that the Family Law Act be amended to provide the following remedy.
Assume that a husband who refuses to grant a gett to his wife applies to the Family Court for a civil divorce or other relief, such as division of property. The Family Court would not grant the civil divorce or would adjourn the other proceedings, except where those proceedings related to the welfare of a child, until the court were satisfied of one of three matters:
Firstly, that the gett has been granted; or
Secondly, that the husband has genuine grounds of a religious or conscientious nature for not granting the gett; or
Thirdly, that there are circumstances because of which the civil divorce should be granted or the court should continue the hearing of the other proceedings, even if the court is not satisfied of one of the two preceding matters.
This recommendation has not been enacted nor is there any indication that it is likely to be adopted by Federal Parliament in the near future. The limitation of this approach is that it too does not secure the appearance by the parties before the Beth Din or their compliance with its directions. Further, it would only assist a wife who wants to receive a gett or a husband who wants to grant a gett, where it is the other, recalcitrant, spouse who is seeking the civil divorce or property settlement or spousal maintenance.
Section ll6 of the Australian Constitution provides that "the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion ...".
In only providing that the Commonwealth "shall not make any law", it is submitted that the Constitution only restricts the legislative power of the Commonwealth, that is, the Federal Parliament. It does not restrict the executive or judicial powers of the Commonwealth nor does it constrain the States of Australia.29
However, in the recent unreported decision of Marriage of J30, where the husband applied for orders in relation to the acceptance of a gett by the wife, a case not dissimilar to Marriage of G, Hase J, in the Family Court of Australia at Melbourne, stated:
It is proposed by the husband that the wife in this case attended [sic] the Melbourne Beth Din where she would accept a Bill of Divorcement. It is clear, in my view, that the relief which is sought is an imposition of a religious observance, which is forbidden by s 116 of the Australian Constitution and is referred to by Latham CJ in Adelaide Company of Jehovah's Witnesses Incorporated v The Commonwealth  67 CLR 116 at 123:
The prohibition in s 116 operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion. No Federal law can impose any religious observance. Defaults in the performance of religious duties are not to be corrected by Federal law - Deorum injuriae Diis curae. Section 116 proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion.
The section of the Constitution specifically forbids imposing any religious observance.31
It is respectfully submitted that what Hase J ommitted to state was that sec 116 only specifically forbids the Federal legislature imposing any religious observance and not the Federal judiciary from so doing. That is what Latham CJ held, in the passage referred to by Hase J, by the statement that no Federal law can impose any religious observance. To interpret sec 116 as applying to the Federal judiciary or executive, rather than merely the legislature, is to blur the separation of powers in the Constitution between these three institutions.
Hase J cited and adopted the following passage of Carmichael J in Evers v Evers  17 FLR 296 at 302:
... The Commonwealth cannot confer on the courts which it creates powers which the Commonwealth itself is prohibited from exercising. It follows that the court cannot prohibit the free exercise of any religion. It is implicit in this last statement that the court cannot discriminate against any person for holding any religious belief or exercising his religion.32
It is submitted, however, that sec 116 does not prevent a court exercising jurisdiction under Commonwealth legislation (eg, the Family Law Act) from adjudicating on the conduct of parties based on religious beliefs and practices, when this is necessary for the effective exercise of its jurisdiction.33
Hase J continued:
In my view, the substance of the claim which is hidden in contractual terms is that the wife be ordered to participate in an observance when she, against her wishes, will be obliged to willingly receive a Bill of Divorcement.
In my view, this is a religious problem and it is not a matter for this Court, which is a Commonwealth court, which in my view, does not have the jurisdiction.
If I am incorrect and it is a discretionary matter, then in my view, the relief should be refused and it is a matter for the religion to apply its own laws or to change them if they wish.34
Whilst the facts in Marriage of G and Marriage of J are similar, the respective decisions of Emery J and Hase J, both at first instance, are diametrically opposed. In Marriage of Shulsinger35, the husband argued that for the Family Court to hold him in contempt for not abiding by his undertaking to the Court, to do all necessary acts and things required to give his wife a gett, would be be unconstitutional. On appeal, the Full Court of the Family Court held that the undertaking and its enforcement did not involve any infringement of sec 116 "as that section is properly understood".36
Similarly, there are the competing decisions of two State Supreme Courts, under the former Matrimonial Causes Act 1959 (Cth). Hase J referred to and relied upon the decision of Carmichael J, at first instance, in the Supreme Court of New South Wales, in Evers v Evers. However, in Kiorgaard v Kiorgaard and Lange37, a judge of the Supreme Court of Queensland, exercising Commonwealth Jurisdiction under the Matrimonial Causes Act 1959, had granted custody of a child to the mother and granted access to the father. The father adhered to the teachings and practices of the religious sect known as "The Exclusive Brethren". In respect of the father's access, the trial judge had ordered:
that when the [father] has access to the said child she is not to be present at any meeting of members of the religious group or persuasion ... and that during such periods of access the [father] shall not ... himself instruct the said child in scripture or religious matters and that he shall secure her from any instructions in scripture or religious matters from any member or members of the religious group or persuasion ...38
The father argued on appeal that the order infinged the provisions of sec 116 of the Constitution because the Court was exercising Commonwealth jurisdiction and that "what the Commonwealth Parliament cannot do directly cannot be done by any subordinate instrumentality"39. The Full Court of the Supreme Court of Queensland held that the order did not infringe the provisions of sec 116.
In Marriage of N41 The High Court rejected any applicability of sec 116 to judges exercising Commonwealth jurisdiction. Gibbs CJ stated:
How can [sec 116] possibly apply to a judge? It speaks only to the validity of Commonwealth laws ... The only argument could be that the Family Law Act imposes a religious observance.42
Counsel for the appellant submitted in response that the Family Law Act might permit the Commonwealth, through its judicial arm, to impose a religious observance by authorising a judge, in the exercise of his jurisdiction under the said Act, to do so. Gibbs CJ rejected this argument because the Family Law Act does not say anything about authorising a judge, in the exercise of Commonwealth jurisdiction, to impose a religious observance.43
In relation to Evers v Evers, whilst the High Court did not expressly hold the principle ennunciated by Carmichael J to be incorrect, nevertheless, it is submitted that such a conclusion is implicit in their Honours' decision. Moreover, Gibbs CJ commented that, had the Family Court held that it was constrained by s 116, then special leave to appeal to the High Court would have been granted.44 It is therefore submitted that sec 116 does not, nor could it by its wording, constrain judges exercising Commonwealth jurisdiction. To the extent that Hase J, in Marriage of J, held to the contrary, it is respectfully submitted that his Honour erred.
If proceedings with respect to Jewish divorce are within the exclusive jurisdiction of the Family Court under the Family Law Act, that court can, in the exercise of its powers under that Act, order a spouse to appear before the Beth Din and to comply with any determination and directives of the Beth Din.
If proceedings with respect to Jewish divorce are not within the exclusive jurisdiction of the Family Court under the Family Law Act, a court might nevertheless order a spouse to appear before the Beth Din and to comply with any determination and directives of the Beth Din on the basis of the parties' Jewish marriage contract.
The importance of prenuptial agreements will depend on whether proceedings with respect to Jewish divorce are or are not within the exclusive jurisdiction of the Family Court. If they are, then there may be little need for prenuptial agreements; the Family Court may make orders without the need for such an agreement as their basis. If proceedings with respect to Jewish divorce are not within the exclusive jurisdiction of the Family Court, then, as the approach based on the ketubbah remains untested in Australia, a prenuptial agreement which might be enforced as an arbitration agreement may be very important.
Both the amendment to the Family Law Act recommended by the Australian Law Reform Commission and the approach of increasing a wife's spousal maintenance or property settlement if the husband refuses to grant her a gett, whilst solutions to a certain degree, ultimately do not get the husband before the Beth Din.
The civil courts have varied in their approaches to disputes relating to Jewish divorce. However, judges have generally recognised that without their assistance, although the parties may be legally free to remarry after a civil divorce, they very often are not free to do so as a matter of fact, being conscience-bound by the requirements of Jewish law. Such a position detracts from the efficacy of a civil divorce. The general approaches discussed above are, it is submitted, acceptable in both Jewish and civil law. Whether this will be so in practice in Australia, however, lies, initially with the parties and their legal advisers, and ultimately with the judiciary and the rabbinate.
* BA/LLB (Hons), Barrister-at-Law. This article is substantially based on papers delivered by the author at a symposium on "Jewish Divorce and the Plight of the Agunah: The Orthodox Response in England and Australia", which he addressed together with Lord Jacobovits, Emeritus Chief Rabbi of the Commonwealth and member of the House of Lords, in Adelaide on 2 June 1996 and at a conference on "Interfaces of Jewish and Secular Law" at the University of Melbourne on 23 February 1997. He is the author of "Jewish Divorce in Australian Family Law: The Enforceability of Jewish Nuptial and Prenuptial Contracts" (1991) 17 Monash University Law Review 182; and "Jewish Divorce: What Can The Civil Courts Do ?" (1993) 7 Australian Journal of Family Law 225.
1 For further discussion, see A Strum, "Jewish Divorce in Australian Family Law: The Enforceability of Jewish Nuptial and Prenuptial Contracts" (1991) 17 Mon LR 182 at pp 184-191.
2Yad Ha-Hazakah, Hilkhot Gerushin, 2:20.
3 Sec 8(1)(a).
4 Para (e), sec 4(1).
5 Sec 114(1).
6 Re Dovey; Ex parte Ross [l979] FLC 90-6l6, approving Mills [l976] FLC 90-079.
7 Re Dovey; Ex parte Ross [l979] FLC 90-6l6.
8 Pearlman v Pearlman  FLC 91-500 per Wilson J at p 79,064.
9 Sec 45(1).
10 Sections 48(1),64(1)(ba) and 81. See also Marriage of G (Family Court of Australia at Melbourne, unreported, No M10631 of 1992, delivered 23/2/83, per Emery J).
11  FLC 90-207.
12 Family Court of Australia at Melbourne, unreported, No M10631 of 1992, delivered 23/2/83, per Emery J.
13 Id p 6.
14 Id pp 10-11.
15 Id pp 14-15.
16 (1981) 4 Jewish Law Annual 272, 273; New York Law Journal, 8 August 1979, at 13, col. 5.
17 Id p 274.
18 Id pp 273-4.
19 (1981) 434 A 2d 665.
20 (1987) 536 A 2d 438.
21 Id p 440.
22 Id p 441.
23 (1983) 446 NE 2d 136.
24  1 All ER 1007.
25  FLC 90-801.
26 Sec 72.
27 Family Law Act 1975, sec 75(2)(o).
28 ALRC Report No 57, 1992.
29 For further discussion, see A Strum, "Jewish Divorce in Australian Family Law: The Enforceability of Jewish Nuptial and Prenuptial Contracts" (1991) 17 Mon LR 182 at pp 243 - 249.
30 No ML8858 of 1992, delivered 13/9/96.
31 Id pp 35 - 36.
32 Id p 36.
33 See RD Lumb and KW Ryan, The Consitution of the Commonwealth of Australia Annotated (3rd ed, Sydney: Butterworths, 1981), para 724.
34 Marriage of J, above, p 36.
35 (1977) 2 Fam LR 11,611.
36 Id p 11,617.
37  Qd R 162.
38 Id p 165.
40  FLC 91-111.
41 Unreported, No M96 0f 1981, delivered 5/3/82, per Gibbs CJ, Stephen and Mason JJ.
42 Id p 3.
44 Id pp 3, 7.