“And this that you shall have from me is a scroll of divorce, and a letter of leave, and a bill of dismissal to go to marry any man that you wish” Babylonian Talmud (85b).
Two recent decisions emanating from New York divorce courts manifest the confusion which secular tribunals experience when adjudicating matrimonial issues with religious consequence.
Cohen v. Cohen
This was a Putnam County divorce. The parties proceeded to trial on financial issues. The judgment of divorce directed the husband to provide the wife with a Get and indicated that he would not receive his share of marital property until he did so. The husband appealed.
The trial court was reversed on appeal. The appellate court opined that the husband was not required to provide a Get under New York State law (referring to Domestic Relations Law Section 253). He therefore could not be punished financially for his failure to do so.
Domestic Relations Law Section 253 (entitled Removal of Barriers to Remarriage) reads in pertinent part as follows:
“Any party to a marriage…..who commences a proceeding….for a divorce, must allege in his or her verified complaint: …..that to the best of his or her knowledge, that he or she has taken or that he or she will take, prior to the entry of final judgment, all steps solely within his or her power to remove any barrier to the defendant’s remarriage following the annulment or divorce……”
In the instant case the wife was the plaintiff and, as such, the party who filed a verified complaint. It was only she who was required to provide a statement that she would remove any barrier to the husband’s remarriage. The Cohen court seemed to focus on this requirement, which would apply to the plaintiff-wife who had commenced the divorce. However, the court’s decision seems to ignore other portions of the Domestic Relations Law which empower the court to penalize a spouse who will not cooperate in the termination of a marriage religiously.
Domestic Relations Law Section 236 (B) (5) indicates that when distributing marital property, the court shall, where appropriate, consider the effect of a barrier to remarriage as a factor in rendering its decision. In fact, the very court which decided Cohen had previously allowed for financial penalties to a recalcitrant defendant-husband who would not provide a Get.
A.W. v. I.W.
This Nassau County divorce had a factual scenario different than most Get related matters. Here, the parties resolved all custodial and financial matters in a written agreement. No mention of a religious divorce was made in the agreement.
When the husband sought to appear with the wife before a Beth Din, the wife refused to cooperate. The husband applied for relief in the secular court and advised that court that he could not remarry religiously until the wife received a Get. Among other grounds for relief raised by the husband was the fact that the wife, as plaintiff in the divorce, was required to provide a sworn statement of removal of barriers to remarriage.
The Nassau trial judge engaged in a lengthy analysis of the interplay between secular law and religious doctrine. The court than ruled against the husband and indicated that it could provide him with no relief. The court attached a good deal of significance to the fact that the parties had made no mention of the need for a Get in their written settlement agreement. The court then ruled that its ability to require the wife to participate in a religious ritual would constitute an unconstitutional infringement upon her rights under the First Amendment. In his decision, the trial judge noted that the wife claimed that the parties had not been married in a proper Jewish ceremony and, therefore, there was no need for a Rabbinical Court to terminate the marriage. The court seemed to adopt this argument in determining that the wife needed take no further action to remove any barriers to the husband’s remarriage. What appears peculiar about this ruling is that the secular court seemed to be agree with the wife on a matter of religious interpretation. This was notwithstanding the fact that that court wished not to be ruling on religious issues at all. It will be interesting to see if this matter is appealed to a higher court.
These are among the many cases which have interesting and, at times, unexpected results. The matrimonial practitioner must be well versed in the law and ready to address these complex scenarios as they occur.