Compelling the 'Get'
Serious unfairness and gender bias may happen when it involves parties of Jewish faith in a divorce case. It occurs when the husband refuses to cooperate in obtaining a religious divorce, known as a 'Get'.
Where the husband, and it can only be the husband, refuses, it has a chilling effect on the wife who must either bargain for her husband's cooperation or be unable to remarry. Essentially, the woman remains her husband's wife, under religious law, while he is free to re-marry.
In rectifying the situation, Michigan law is not helpful. Our courts should follow national case law which is more contemporary, well reasoned and provides for fairness.
In Weinstein v Weinstein, our Supreme Court focused on enforcement on an "agreement" by the husband who later reneges. It used the traditional, well established rule that if parties to a divorce sign an agreement, they are thereafter bound by its terms.
The Court stated:
if Plaintiff approves the terms of the divorce decree and signed the property settlement with his 'tongue in his cheek' that tongue must now remain silent.
The other notable Michigan case is Fisher v Fisher. The Court of Appeals struggled with the defendants raising a constitutional issue requiring an overriding interest to justify state action which may result in denial of the exercise of religious freedom.
Fisher was a post-judgment custody dispute. One parent alleged interference by the other with their respective religious practices. The Court of Appeals concluded that it could not order a custodial parent to educate a child in a particular faith or interfere with a non-custodial parent's right to pursue his or her religious activities with their children. This case unfortunately has been cited as support for not compelling a husband to cooperate in the obtaining of the ‘get’.
Other state's case law is well-reasoned. First, New York and New Jersey law is as equally settled as Michigan that an agreement by the husband to obtain the ‘get’ is binding either by specific and can be remedied by specific enforcements or contempt and fine. Defendant's arguments that a court is without jurisdiction to direct him to participate in a religious divorce as a matter of personal conviction and later reneges on an agreement, leaves the court to conclude that he never intended to carry out the terms of any agreement or for a court stipulation and therefore was utilizing the court for his own ulterior motives. Such behavior will not be condoned.
The leading case is Minkin v Minkin. There, the wife moved for a post-judgment order requiring defendant husband to obtain and pay for the cost of the ‘get’.
At hearing, the trial court had testimony from three highly respected Jewish rabbis, one of which was a matrimonial attorney as well who provided extensive analysis regarding the civil rather than religious nature of obtaining a ‘get’. The court provided an extensive analysis of the parties' marital contract. The court concluded that it required the husband to grant the Ketubah when there are allegations of adultery. The court ruled that requiring the husband to get a ‘get’, notwithstanding that there was no 'agreement' in the course of the case, distinguishing it from other case law, was enforcement of the original marital contract. Minkin states:
a ‘get’ does not require a religious ceremony and neither party is required to state any doctrine or creed or even acknowledge his/her religion. Moreover, the acquisition of a ‘get’ is merely a severance of the contractual relationship between the parties and it has no relationship between the parties and God.
The state Supreme Court found the marriage devoid of any requirement that could be construed against public policy because it simply called for the defendant to secure the ‘get’. At appearance before a rabbi to answer questions and give evidence needed by the rabbi to make a decision is not a profession of faith.
The Minkin decision also reviewed the constitutional implication raised by the husband. The United States Supreme Court has ruled that a state may adopt any approach to resolving any religious disputes which does not entail consideration of doctrinal matters. Judicial involvement is permitted to any extent that it can be accomplished in purely secular terms
A similar result is found at the New York case of Avitzur v Avitzur. Here, the court found the marital agreement to be analogous to an antenuptial agreement. It held that enforcement of compelling the Get by a civil court does not violate constitutional prohibition against excessive entanglement between church and state because, "nothing in law or public policy to prevent judicial recognition and enforcement of the secular terms of such an agreement." As a matter of law, the court held there was no proscription against specific performance of the ‘get’ and therefore the contractual obligation that Plaintiff sought was enforceable in a court of a law and equity.
In conclusion, our trial courts are not venturing into the constitutional waters of separation of church and state and ordering a husband in a Jewish divorce to cooperate to obtain the Get. What our trial courts are doing is providing for fairness and taking away a negotiating stall-point which leads to unfairness and gender bias.