\par \tab 
\par \tab \par \tab \tab Andrew Strum
\par \tab \tab \par \tab
\par \tab \tab Getting a Gett In Australian Courts* \par \tab \tab
\par \tab \tab\par \tab \tab by Andrew Strum, B.A., LL.B. (Hons),\~Barrister-at-Law\plain\ltrch\f3\fs20 1 \par \tab \tab
\par \parTABLE OF CONTENTS
\par
1. Introduction
\par
2. Marriage and Divorce in Jewish Law
\par
3. Legal Proceedings for Jewish Divorce
\par
4. Orders of the Family Court under the
\par Family Law Act
\par
5. The Ketubbah: The Contractual Approach
\par
6. Prenuptial Agreements
\par
7. Monetary Inducement: The Approach in
\par the Brett and Steinmetz Cases
\par
8. Proposed Reforms to the Family Law Act
\par
9. Constitutional Considerations
\par
10. Conclusion
\par
\par
11. ENDNOTES
\par
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1. Introduction \par \par \tab \tab
\par \tab \tab This article is substantially based on papers delivered by the author \par at a symposium on "Jewish Divorce and the Plight of the Agunah: The Orthodox \par Response in England and Australia", which he addressed together with Lord \par Jacobovits, Emeritus Chief Rabbi of the Commonwealth and member of the \par House of Lords, in Adelaide on 2 June 1996 and at a conference on "Interfaces \par of Jewish and Secular Law" at the University of Melbourne on 23 February \par 1997. Published here with kind permission from the author.\tab \tab
\par \par \par \parThis article considers what the Australian civil legal system can do \par to assist a spouse who wishes to receive or to grant a gett or Jewish bill \par of divorce, thereby dissolving the Jewish marriage. It does not advocate \par reform of halakhah (Jewish law) or halakhic (Jewish legal) solutions. \par Rather, this article advocates the civil courts giving their support to \par the religious courts in matters of Jewish divorce. However, for reasons \par discussed below, it is not suggested that the civil courts should directly \par order a recalcitrant spouse to grant or accept a gett.
\par \par \par \par2. Marriage and Divorce in Jewish Law \par \par
Marriage, in Jewish law, is a contract which is created and terminated \par by mutually consenting parties. A Jewish marriage is dissolved by \par the acts of the husband granting and the wife receiving a gett. The \par parties must respectively grant and receive the gett each of their own \par free will, otherwise it will be invalid. The role of the Beth Din \par (rabbinical tribunal) in the termination of a Jewish marriage is supervisory: \par to supervise the grant and receipt of the gett, in order to ensure that \par the halakhic minutiae governing this procedure are complied with. \par Its role, therefore, differs from that of courts in other religious and \par civil legal systems whose role is declaratory, that is, to dissolve the \par marriage. \par \par
In the absence of consent to a Jewish divorce, the aggrieved spouse \par may apply to the Beth Din for a determination of whether there are grounds \par in Jewish law for requiring the recalcitrant spouse to grant or receive \par a gett and, if in the affirmative, for an order that that party do so. \par Thereafter, the parties nevertheless remain married until the gett has \par been granted and received. \par \par
In certain circumstances Jewish law requires that a husband grant a \par gett to his wife. If he refuses, he may be compelled to do so. \par This is not considered to be compulsion, but rather 'constructive' free \par will. Where Jewish law requires that a man grant a gett to his wife \par and authorises that he be compelled to do so, the gett will not be held \par to have been given by him under unlawful duress, because his own prior \par refusal to give it was unlawful.1 \par \par
The circumstances in which the halakhah permits such compulsion are \par varied and complex; it is not for the civil courts to make such a determination. \par Neither they nor those who appear before them are qualified to make or \par advocate such a determination. More importantly, such direct compulsion \par by a civil court would be likely to invalidate the gett and render the \par court's good intentions nugatory. Maimonides states that: \par
- Whenever the law requires that a husband be ordered to divorce his
\par wife and he refuses to do so, the Beth Din imposes punishment upon him
\par until he says "I am willing" and the gett is valid. This is so even
\par if he is thus compelled by a non-Jewish court that orders him to act as
\par demanded by the Beth Din and the Jews are putting pressure on him through
\par Gentile hands till he divorces his wife.2
Jewish spouses, although divorced at civil law, remain married at Jewish \par law until a gett has been granted and accepted. Without a gett, a \par woman will be unable to remarry at Jewish law, and for a man it will be \par extremely difficult to do so, during each other's lifetime. Such \par a woman is termed an agunah, literally, a woman 'chained' to an estranged \par husband from whom she is unable to obtain a gett. Any children born \par to an agunah will bear the stigma and burdens of mamzerut, or bastardy, \par and they and their descendants will forever be unable to rectify their \par situation or to marry other Jews who are either not fellow mamzerim or \par converts to Judaism. \par \par
3. Legal Proceedings for Jewish Divorce \par \par
That which the civil courts in Australia can do is governed by the Family \par Law Act 1975 (Cth). That Act provides that "proceedings by way of \par matrimonial cause shall not be instituted except under this Act".3 \par If proceedings in respect of Jewish divorce constitute a "matrimonial cause" \par they must be instituted under the Family Law Act in the Family Court of \par Australia. The relevant definition of "matrimonial cause" in the \par Family Law Act includes "proceedings between parties to a marriage for \par an order or injunction in circumstances arising out of the marital relationship".4 \par In such proceedings the Family Court "may make such order or grant such \par injunction as it considers proper with respect to the matter to which the \par proceedings relate".5 \par \par
Are proceedings in respect of Jewish divorce "proceedings ... for an \par order ... in circumstances arising out of the marital relationship"? \par The courts have held that "the mere fact that something happens between \par a husband and wife does not mean that it involves 'circumstances arising \par out of the marital relationship' ... [and that] events which raise issues \par of criminal law, industrial law or fiscal law cannot be brought within \par the 'marital relationship' simply because the circumstances involve a husband \par and wife and their children".6 Rather, the proceedings must be as \par a consequence of the act of marriage between the parties and as an exercise \par of the rights, and a performance of the duties, to which the marriage has \par given rise.7 Whether particular circumstances arise out of the marital \par relationship has troubled the courts and in one case, a judge recalled \par 'the answer of a great judge that, though he knew not when day ended and \par night began, he knew that midday was day and midnight was night'.8 \par \par
On one view, the Marriage Act 1961 (Cth) provides that a marriage may \par only be validly created in Australia if it is performed by or in the presence \par of an authorised celebrant. Similarly, the Family Law Act 1975 (Cth) \par provides that a marriage may only be validly dissolved in Australia if \par dissolved by decree of the Family Court of Australia. People who \par undergo a religious marriage in Australia, but not by or in the presence \par of an authorised celebrant, are not married in Australian law. Similarly, \par people who undergo a religious divorce in Australia but whose marriage \par is not dissolved by the Family Court of Australia, are not divorced in \par Australian law. In other words, if people chose to marry or divorce \par in religious law, that should be of no concern to Australian courts. \par \par
The countervailing and, it is submitted, preferable argument, is as \par follows. \par
- The Marriage Act provides that "where a marriage is solemnised by or
\par in the presence of an authorised celebrant, being a minister of religion,
\par it may be solemnised according to any form and ceremony recognised as sufficient
\par for the purpose by the religious body or organisation of which he or she
\par is a minister".9 Thus, where a rabbi, who is an authorised celebrant,
\par solemnises a marriage according to Jewish law, that marriage is a valid
\par marriage in Australian law simply by reason of him being a minister of
\par religion who is an authorised celebrant. No particular form or ceremony
\par is otherwise required to validate the religious marriage at Australian
\par law. On this view, Australian law may be said to indirectly afford
\par recognition to a Jewish marriage. So too, Australian law should take
\par into account the fact that such a marriage cannot be dissolved, in Jewish
\par law, merely by a civil divorce. Further, one of the purposes underlying
\par the Family Law Act is to free the parties to a marriage that has broken
\par down irretrievably, both in law and in fact.10 For the Family Court
\par to dissolve a marriage and to finalise matters relating to property, maintenance
\par and children but to ignore matters relating to a religious divorce, would
\par free the parties from one another as a matter of law, but not as a matter
\par of fact.
If two people chose to undergo a Jewish marriage ceremony that is recognised \par as a valid marriage in Australia by reason of the provisions of the Marriage \par Act, the law should not enable one of those spouses to later claim, upon \par the breakdown and civil dissolution of the marriage, that he or she objects \par to undergoing a Jewish divorce on grounds such as a change in beliefs or \par level of religious observance. The implications of the Jewish marriage, \par which was voluntarily entered into, are far too serious to allow supposed \par conscientious objections. \par \par
It is, therefore, arguable that legal proceedings in respect of Jewish \par divorce are proceedings for an order "in circumstances arising out of the \par marital relationship". If so, they are a 'matrimonial cause' and \par are to be brought in the Family Court of Australia. \par \par
4. Orders of the Family Court under the Family \par Law Act \par \par
This was the view in the Family Court in the case of Marriage of G 12, \par where a wife, who refused to accept a gett, was ordered to appear before \par the Melbourne Beth Din. The husband had applied for and was granted \par a civil divorce in the Family Court. He also sought an order that \par the wife comply with all procedures for a Jewish divorce. Evidence \par was given by the Secretary of the Melbourne Beth Din, explaining the nature \par of a gett and the procedures associated with it. The husband argued \par that unless he was able to deliver a gett to his wife, the civil divorce \par granted by the Family Court would be of no use to him as he would be unable \par to remarry according to Jewish law. The judge accepted that: \par
- If this court does have jurisdiction to require the wife to take any
\par action, it could only be to submit to the jurisdiction of the Rabbinical
\par Court. She could not be ordered to consent to any orders or procedures
\par except those involved in the putting into effect of any orders made by
\par that tribunal ... [T]his court could not place any fetter on her right
\par to make any application to or submission to such a tribunal. In like
\par manner the Rabbinical Tribunal could not be required or ordered to grant
\par a gett. 13
The judge recognised the adverse effects of a refusal to make the order \par sought. He further recognised that the making of the order would \par ensure, as far as possible, that the civil divorce granted by the court, \par the purpose of which was to sever the matrimonial relationship and to free \par either party to remarry, would be fully effective. \par \par
If I correctly understand the intention of the Act, then it is \par the clear duty of a judge of this court to proceed - ... within the bounds \par set by Parliament - to ensure that appropriate orders are made fully effective, \par not only in theory but in fact. In this case the husband as a matter \par of law can marry any woman who is free to marry, subject only to the prohibitions \par in the Marriage Act, but as a matter of fact and of practicability he cannot \par do so.15 \par \par
The judge therefore ordered the wife to appear before the Melbourne \par Beth Din and to accept a gett if and when one was ordered by the Beth Din \par and granted by the husband. The order further required her to do \par all other acts and things as might be required of her to give validity \par and operation, according to the Jewish law, to any such grant of a gett \par by the husband or order of the Beth Din. The judge stipulated, however, \par that the order was not to be construed as in any way inhibiting, directing, \par influencing or controlling any deliberation, decision, order or decree \par of the Beth Din. Further, the order was not to be construed as in \par any way inhibiting the wife from making any application, request or submission \par to the Beth Din or, save as provided by the order, to deny her any right \par or privilege that she would otherwise have. \par \par
The decision in Marriage of G has not been considered by the Full Court \par of the Family Court. Whether it will be upheld as a valid or otherwise \par proper exercise of the court's powers therefore remains to be seen. \par \par
5. The Ketubbah: The Contractual Approach \par \par
If court proceedings between a husband and a wife in relation to Jewish \par divorce do not constitute a "matrimonial cause" in respect of which an \par order can be made under the Family Law Act, courts might nevertheless order \par a recalcitrant spouse to submit to the Beth Din and to abide by its determination \par on another basis. \par \par
Courts in other jurisdictions have acted on the basis of the groom's \par words to the bride during the marriage ceremony, in offering the ring to \par her, and replicated in the ketubbah (marriage contract), to be his wife \par "according to the laws of Moses and of Israel" and the bride's acceptance \par of the ring and, thereby, the marriage. Courts have held that the \par bride and groom thereby incorporate, by reference, the entire spectrum \par of Jewish family law, which imposes upon them mutual obligations. \par This is not an entirely new concept. Courts in other jurisdictions \par have recognised and enforced ketubbot as contracts, in respect of the financial \par provisions in the ketubbah. \par \par
Jewish marriage can be viewed in Australian law as a contract between \par two parties whose rights and obligations are to be governed by Jewish law. \par It is for the secular courts to enforce the contract by directing the parties \par to do that which Jewish law, by which they have agreed to be governed, \par requires. \par \par
In Stern v Stern16, in the Supreme Court of New York, the husband was \par required to grant a gett by virtue of the Jewish marriage contract. \par The court recognised that Jewish marriage, regarded by Jewish law as a \par contractual relationship, is a contract in civil law, pursuant to which \par the parties deliberately and intentionally bind themselves to conform to \par the provisions of Jewish family law and assume upon themselves the obligations \par defined in those laws. \par \par
There is no question as to the validity of the marriage agreement ... \par and there is no doubt that the wife may assert her rights thereunder insofar \par as they are in conformity with, and not contrary to our civil laws ... \par and if not contrary to public policy should be enforced according to the \par intent of the parties who made the agreement.17 \par \par
The court accepted and acted upon a determination by a Beth Din that, \par in the particular circumstances of that case, `the law of Moses and Israel', \par required the husband to grant a gett to his wife. Therefore, it was \par not the civil court deciding what Jewish law required. The judge \par stated that: \par
- The court in granting a civil divorce to the [wife] would be doing
\par an injustice to her should that be the only relief granted. The wife
\par would then be doomed to being an `aguna' for the balance of her life because
\par of the violations of the marriage contract by the husband. To deny
\par her the specific performance of the Ketuba or marriage contract, would
\par be to penalise [her] for the wrongdoings of the ... husband ... [The
\par husband] has violated the terms and provisions of the Ketuba. [...]
\par The court would be remiss were it not to uphold the honourable fulfilment
\par of its terms affecting the deepest relationship between husband and wife.
\par The contract under discussion was entered into freely and willingly.
\par The wording is adequately plain and reasonably clear, definite, complete
\par and final and should be specifically enforced by the courts.18
In Minkin v Minkin19, in the Superior Court of New Jersey, the wife \par sought a gett from her husband on the basis of the ketubbah. \par The judge held that in undergoing a Jewish marriage ceremony, the parties \par agreed to comply with the provisions of `the law of Moses and Israel', \par which in certain circumstances requires that a husband must give his wife \par a gett. The judge held that to compel the husband to grant a gett \par in circumstances where Jewish law so required would be to enforce the contract \par of marriage. The court accepted that Jewish law cannot be equated \par with religious law only, but that it is comprised of religious laws regulating \par a person's relationship with God, and civil laws regulating the relationship \par between people. The court accepted the evidence of three Orthodox \par rabbis, who were graduates of Yeshiva University in New York and members \par of the Rabbinical Council of America, that marriage in Jewish law is essentially \par a civil contract delineating the obligations of the parties during the \par relationship and that a gett is a severance of that contractual relationship. \par It was further accepted that a gett is a civil document, the granting and \par receiving of which involves no religious acts and no profession of belief, \par but which merely severs all marital bonds. \par \par
The court in Minkin's case ordered the husband to specifically perform \par his contract and to grant his wife a gett. In that case, no rabbinical \par tribunal had ruled that, in the particular circumstances, Jewish law required \par the husband to grant a gett. Rather, the court itself found that \par grounds supposedly existed in Jewish law for requiring the husband to grant \par a gett and ordered him to do so. As submitted above, such a direct \par order by a civil court to grant a gett is inadvisable. \par \par
In Burns v Burns20, in the Superior Court of New Jersey, both the wife \par and the husband had been previously married and they had each been religiously \par divorced from their respective former spouses. A number of years \par later, their marriage broke down and a civil divorce was granted. \par The husband subsequently remarried, without first granting a gett to the \par wife. She also planned to remarry, but wished to first obtain a gett. \par The husband claimed that his religious beliefs were such that he no longer \par believed in the necessity of securing a gett, but that if the wife paid \par $25,000 he would grant her one. The wife applied to the court for \par an order compelling the husband to institute proceedings for a gett. \par The court held that the husband's offer to grant a gett on condition of \par payment demonstrated that his refusal to otherwise grant her a gett was \par not based on his current religious beliefs, but on his desire for monetary \par gain. The court rejected the husband's assertion that his constitutional \par right to practise his religion, free from State interference, would be \par infringed if he were forced to participate in proceedings for a gett. \par \par
A true religious belief is not compromised as the amount of money offered \par or demanded is increased. An offer to secure a `gett' for $25,000 \par makes this a question of money not religious belief. This `offer' \par ... takes this issue outside the First Amendment. This so-called \par `offer' is akin to extortion.21 \par \par
The court held that the parties' ketubbah was evidence that they had \par contracted to be bound by Jewish law. \par \par
In studying the laws of Moses and Israel this court finds there are \par various circumstances which would require the husband to secure a `gett' \par [to] his wife ... \par \par
The parties no longer live together. Mr. Burns has remarried. \par He ... sought the [civil] divorce. He has chosen another for his \par wife and married her under civil law, yet under Jewish law the [husband] \par and the [wife] are still married. The [husband] must release the \par [wife] from the ketubbah and put an end to that relationship. The \par judgement of divorce provided for the parties to `be divorced from the \par bond of matrimony ... and each of them, be freed and discharged from the \par obligation thereof'. For the court to compel the [husband] to submit \par to the jurisdiction of the Jewish ecclesiastical court, the `Bet Din', \par and initiate the procedure to secure a `gett' is within the equity powers \par of this court to do what ought to be done. [...] The ultimate \par decision of whether a `gett' is to be granted is that of the `Bet Din' \par and not of this court.22 \par \par
The court therefore ordered the husband either to submit to the Beth \par Din either personally or by an agent on his behalf. \par \par
6. Prenuptial Agreements \par \par
There has been much discussion in recent years about prenuptial agreements \par providing for Jewish divorce in the event of marital breakdown. As \par indicated above, if proceedings with respect to Jewish divorce are considered \par to "arise out of the marital relationship" and to therefore constitute \par a matrimonial cause, such proceedings may only be instituted under the \par Family Law Act. In such a case, the court may make such order as \par it considers proper. A prenuptial agreement will be largely superfluous, \par as the Family Court can make the order sought without the need for any \par such agreement as the basis for the order. This occurred in Marriage \par of G, without any prenuptial agreement. A prenuptial agreement would, \par nevertheless, be relevant evidence of the parties' intentions at the time \par of entering into their Jewish marriage. \par \par
If, however, proceedings with respect to Jewish divorce do not constitute \par a matrimonial cause, then as the approach based on the ketubbah has not \par been tried in Australia, a prenuptial agreement may be crucial as it might \par be enforced as in any court as an ordinary contract. Similarly, if \par the parties marry in Australia but later settle elsewhere, where the principles \par of family law are different, a prenuptial agreement may be all that an \par aggrieved spouse has to rely upon. \par \par
In Avitzur v Avitzur23, the bride and groom had entered into a prenuptial \par agreement that, in the event of the breakdown of their marriage, they would \par submit to the jurisdiction of the Beth Din at the request of either party \par and would abide by its directives. The Court of Appeals of New York \par State held that the wife only sought to compel her husband to perform a \par secular obligation to which he had contractually bound himself. There \par was contractual consent to a specific mediation device. The court \par was not imposing a religious observance. It was merely ordering compliance \par with a dispute resolution agreement. An order of specific performance \par would not involve the court in any doctrinal issue. The court would \par be enforcing a contractual duty, not a religious one. There would \par be no interference by the State with religious authority or vice versa. \par Whether the wife was entitled to a religious divorce was to be decided \par by the forum chosen by the parties in their contract for resolving the \par matter, namely by the Beth Din, and not by the court. \par \par
7. Monetary Inducement: The Approach in the Brett \par and Steinmetz Cases \par \par
A completely different approach was adopted in the United Kingdom in \par the case of Brett v Brett24 and followed in Australia by the Family Court \par in the case of Steinmetz25. That approach is to award the wife a \par greater amount by way of property settlement or spousal maintenance than \par she would otherwise receive, unless the husband grants her a gett within \par a specified time. The rationale in this approach is that by the husband's \par refusal to grant a gett to his wife, he is precluding her from remarrying \par and having another husband to support her. Under the Family Law Act, \par a party to a marriage is liable to maintain the other party, to the extent \par that he or she is reasonably able to do so, if that other party is unable \par to support herself or himself adequately for any adequate reason.26 \par By refusing to grant a gett, a husband precludes his wife from remarrying \par and benefiting from that right to support; he therefore remains liable \par to support her. \par \par
In considering issues of property settlement or spousal maintenance, \par the Family Court must take into account a number of specified matters, \par including "any fact or circumstance which, in the opinion of the court, \par the justice of the case requires to be taken into account".27 In \par the Steinmetz case, the Family Court held that by reason of the husband's \par refusal to grant a gett to his wife, her capacity to remarry was affected \par and thereby the possibility of her obtaining other support was reduced. \par This was a "fact or circumstance which, in the opinion of the court, the \par justice of the case required to be taken into account". The judge \par ordered the husband to pay to the wife, by way of lump sum spousal maintenance, \par within three months, the sum of $4,000.00. However, the order provided \par that, if within that time the husband had granted the wife a gett, then \par the payment would be reduced to $2,000.00. \par \par
The limitation of this approach is that it does not secure the appearance \par by the parties to appear before the Beth Din nor their compliance with \par its directions. This approach merely provides an incentive to grant \par or receive a gett. \par \par
8. Proposed Reforms to the Family Law Act \par \par
The Australian Law Reform Commission, in its report on "Multiculturalism \par and the Law"28, considered the issue of the removal of religious barriers \par to remarriage. The Commission recommended that the Family Law Act \par be amended to provide the following remedy. \par \par
Assume that a husband who refuses to grant a gett to his wife applies \par to the Family Court for a civil divorce or other relief, such as division \par of property. The Family Court would not grant the civil divorce or \par would adjourn the other proceedings, except where those proceedings related \par to the welfare of a child, until the court were satisfied of one of three \par matters: \par
-
\par
- \par Firstly, that the gett has been granted; or \par \par
- \par Secondly, that the husband has genuine grounds of a religious or conscientious \par nature for not granting the gett; or \par \par
- \par Thirdly, that there are circumstances because of which the civil divorce \par should be granted or the court should continue the hearing of the other \par proceedings, even if the court is not satisfied of one of the two preceding \par matters. \par
9. Constitutional Considerations \par \par
Section ll6 of the Australian Constitution provides that "the Commonwealth \par shall not make any law for establishing any religion, or for imposing any \par religious observance, or for prohibiting the free exercise of any religion \par ...". \par \par
In only providing that the Commonwealth "shall not make any law", it \par is submitted that the Constitution only restricts the legislative power \par of the Commonwealth, that is, the Federal Parliament. It does not \par restrict the executive or judicial powers of the Commonwealth nor does \par it constrain the States of Australia.29 \par \par
However, in the recent unreported decision of Marriage of J30, where \par the husband applied for orders in relation to the acceptance of a gett \par by the wife, a case not dissimilar to Marriage of G, Hase J, in the Family \par Court of Australia at Melbourne, stated: \par
- It is proposed by the husband that the wife in this case attended
\par [sic] the Melbourne Beth Din where she would accept a Bill of Divorcement.
\par It is clear, in my view, that the relief which is sought is an imposition
\par of a religious observance, which is forbidden by s 116 of the Australian
\par Constitution and is referred to by Latham CJ in Adelaide Company of Jehovah's
\par Witnesses Incorporated v The Commonwealth [1943] 67 CLR 116 at 123:
The section of the Constitution specifically forbids imposing any religious \par observance.31 \par \par
It is respectfully submitted that what Hase J ommitted to state was \par that sec 116 only specifically forbids the Federal legislature imposing \par any religious observance and not the Federal judiciary from so doing. \par That is what Latham CJ held, in the passage referred to by Hase J, by the \par statement that no Federal law can impose any religious observance. \par To interpret sec 116 as applying to the Federal judiciary or executive, \par rather than merely the legislature, is to blur the separation of powers \par in the Constitution between these three institutions. \par \par
Hase J cited and adopted the following passage of Carmichael J in Evers \par v Evers [1972] 17 FLR 296 at 302: \par
- ... The Commonwealth cannot confer on the courts which it creates
\par powers which the Commonwealth itself is prohibited from exercising.
\par It follows that the court cannot prohibit the free exercise of any religion.
\par It is implicit in this last statement that the court cannot discriminate
\par against any person for holding any religious belief or exercising his religion.32
Hase J continued: \par
- In my view, the substance of the claim which is hidden in contractual
\par terms is that the wife be ordered to participate in an observance when
\par she, against her wishes, will be obliged to willingly receive a Bill of
\par Divorcement.
If I am incorrect and it is a discretionary matter, then in my \par view, the relief should be refused and it is a matter for the religion \par to apply its own laws or to change them if they wish.34 \par \par
Whilst the facts in Marriage of G and Marriage of J are similar, the \par respective decisions of Emery J and Hase J, both at first instance, are \par diametrically opposed. In Marriage of Shulsinger35, the husband argued \par that for the Family Court to hold him in contempt for not abiding by his \par undertaking to the Court, to do all necessary acts and things required \par to give his wife a gett, would be be unconstitutional. On appeal, \par the Full Court of the Family Court held that the undertaking and its enforcement \par did not involve any infringement of sec 116 "as that section is properly \par understood".36 \par \par
Similarly, there are the competing decisions of two State Supreme Courts, \par under the former Matrimonial Causes Act 1959 (Cth). Hase J referred \par to and relied upon the decision of Carmichael J, at first instance, in \par the Supreme Court of New South Wales, in Evers v Evers. However, \par in Kiorgaard v Kiorgaard and Lange37, a judge of the Supreme Court of Queensland, \par exercising Commonwealth Jurisdiction under the Matrimonial Causes Act 1959, \par had granted custody of a child to the mother and granted access to the \par father. The father adhered to the teachings and practices of the \par religious sect known as "The Exclusive Brethren". In respect of the \par father's access, the trial judge had ordered: \par
- that when the [father] has access to the said child she is not to be
\par present at any meeting of members of the religious group or persuasion
\par ... and that during such periods of access the [father] shall not ... himself
\par instruct the said child in scripture or religious matters and that he shall
\par secure her from any instructions in scripture or religious matters from
\par any member or members of the religious group or persuasion ...38
In Marriage of N40, it was argued by the appellant that religious considerations \par had dominated the custody proceedings in the Family Court to an inappropriate \par extent. An application for special leave to appeal to the Hight Court \par of Australia involved, inter alia, the question of the applicability of \par sec 116 of the Constitution to judges of the Family Court of Australia.41 \par The High Court rejected any applicability of sec 116 to judges exercising \par Commonwealth jurisdiction. Gibbs CJ stated: \par
- How can [sec 116] possibly apply to a judge? It speaks only to
\par the validity of Commonwealth laws ... The only argument could be
\par that the Family Law Act imposes a religious observance.42
In relation to Evers v Evers, whilst the High Court did not expressly \par hold the principle ennunciated by Carmichael J to be incorrect, nevertheless, \par it is submitted that such a conclusion is implicit in their Honours' decision. \par Moreover, Gibbs CJ commented that, had the Family Court held that it was \par constrained by s 116, then special leave to appeal to the High Court would \par have been granted.44 It is therefore submitted that sec 116 does \par not, nor could it by its wording, constrain judges exercising Commonwealth \par jurisdiction. To the extent that Hase J, in Marriage of J, held to \par the contrary, it is respectfully submitted that his Honour erred. \par \par
In summary: \par
-
\par
- \par If proceedings with respect to Jewish divorce are within the exclusive \par jurisdiction of the Family Court under the Family Law Act, that court can, \par in the exercise of its powers under that Act, order a spouse to appear \par before the Beth Din and to comply with any determination and directives \par of the Beth Din. \par \par
- \par If proceedings with respect to Jewish divorce are not within the exclusive \par jurisdiction of the Family Court under the Family Law Act, a court might \par nevertheless order a spouse to appear before the Beth Din and to comply \par with any determination and directives of the Beth Din on the basis of the \par parties' Jewish marriage contract. \par \par
- \par The importance of prenuptial agreements will depend on whether proceedings \par with respect to Jewish divorce are or are not within the exclusive jurisdiction \par of the Family Court. If they are, then there may be little need for \par prenuptial agreements; the Family Court may make orders without the need \par for such an agreement as their basis. If proceedings with respect \par to Jewish divorce are not within the exclusive jurisdiction of the Family \par Court, then, as the approach based on the ketubbah remains untested in \par Australia, a prenuptial agreement which might be enforced as an arbitration \par agreement may be very important. \par \par
- \par Both the amendment to the Family Law Act recommended by the Australian \par Law Reform Commission and the approach of increasing a wife's spousal maintenance \par or property settlement if the husband refuses to grant her a gett, whilst \par solutions to a certain degree, ultimately do not get the husband before \par the Beth Din. \par
\plain\ltrch\f3\fs20 \plain\ltrch\f2\fs20 * BA/LLB (Hons), Barrister-at-Law. This article is substantially \par based on papers delivered by the author at a symposium on "Jewish Divorce \par and the Plight of the Agunah: The Orthodox Response in England and Australia", \par which he addressed together with Lord Jacobovits, Emeritus Chief Rabbi \par of the Commonwealth and member of the House of Lords, in Adelaide on 2 \par June 1996 and at a conference on "Interfaces of Jewish and Secular Law" \par at the University of Melbourne on 23 February 1997. He is the author \par of "Jewish Divorce in Australian Family Law: The Enforceability of Jewish \par Nuptial and Prenuptial Contracts" (1991) 17 Monash University Law Review \par 182; and "Jewish Divorce: What Can The Civil Courts Do ?" (1993) \par 7 Australian Journal of Family Law 225. \par \par
\plain\ltrch\f3\fs20 \plain\ltrch\f2\fs20 1 For further discussion, see A Strum, "Jewish Divorce in Australian \par Family Law: The Enforceability of Jewish Nuptial and Prenuptial Contracts" \par (1991) 17 Mon LR 182 at pp 184-191. \par \par
2 Yad Ha-Hazakah, Hilkhot Gerushin, 2:20. \par \par
3 Sec 8(1)(a). \par \par
4 Para (e), sec 4(1). \par \par
5 Sec 114(1). \par \par
6 Re Dovey; Ex parte Ross [l979] FLC 90-6l6, approving Mills [l976] \par FLC 90-079. \par \par
7 Re Dovey; Ex parte Ross [l979] FLC 90-6l6. \par \par
8 Pearlman v Pearlman [1984] FLC 91-500 per Wilson J at p 79,064. \par \par
9 Sec 45(1). \par \par
10 Sections 48(1),64(1)(ba) and 81. See also Marriage of G (Family \par Court of Australia at Melbourne, unreported, No M10631 of 1992, delivered \par 23/2/83, per Emery J). \par \par
11 [1977] FLC 90-207. \par \par
12 Family Court of Australia at Melbourne, unreported, No M10631 of \par 1992, delivered 23/2/83, per Emery J. \par \par
13 Id p 6. \par \par
14 Id pp 10-11. \par \par
15 Id pp 14-15. \par \par
16 (1981) 4 Jewish Law Annual 272, 273; New York Law Journal, 8 August \par 1979, at 13, col. 5. \par \par
17 Id p 274. \par \par
18 Id pp 273-4. \par \par
19 (1981) 434 A 2d 665. \par \par
20 (1987) 536 A 2d 438. \par \par
21 Id p 440. \par \par
22 Id p 441. \par \par
23 (1983) 446 NE 2d 136. \par \par
24 [1969] 1 All ER 1007. \par \par
25 [1980] FLC 90-801. \par \par
26 Sec 72. \par \par
27 Family Law Act 1975, sec 75(2)(o). \par \par
28 ALRC Report No 57, 1992. \par \par
29 For further discussion, see A Strum, "Jewish Divorce in Australian \par Family Law: The Enforceability of Jewish Nuptial and Prenuptial Contracts" \par (1991) 17 Mon LR 182 at pp 243 - 249. \par \par
30 No ML8858 of 1992, delivered 13/9/96. \par \par
31 Id pp 35 - 36. \par \par
32 Id p 36. \par \par
33 See RD Lumb and KW Ryan, The Consitution of the Commonwealth of Australia \par Annotated (3rd ed, Sydney: Butterworths, 1981), para 724. \par \par
34 Marriage of J, above, p 36. \par \par
35 (1977) 2 Fam LR 11,611. \par \par
36 Id p 11,617. \par \par
37 [1967] Qd R 162. \par \par
38 Id p 165. \par \par
39 Ibid. \par \par
40 [1981] FLC 91-111. \par \par
41 Unreported, No M96 0f 1981, delivered 5/3/82, per Gibbs CJ, Stephen \par and Mason JJ. \par \par
42 Id p 3. \par \par
43 Ibid. \par \par
44 Id pp 3, 7. \par \par \par \tab
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