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Religious divorce: Do you know your rights as well as your rites?

Complex international jurisdiction disputes are a perennial source of complexity in modern family law, particularly in cases involving high net worth individuals operating in an increasingly global economy. But the sometimes uneasy intersection of secular and religious law requires careful handling.

Recent months have seen a plethora of incidents reported in the international press involving, in particular, Jewish and Muslim matrimonial law. Firstly, there was the astonishing scandal involving Brooklyn rabbis who accepted money from desperate wives to force their husbands to grant them a get, the formal notification of divorce that a husband must give to a wife. This included a woman in Israel who was finally able to end her marriage after 14 years with a gay husband when the Chief Rabbi David Lau intervened in the case and exercised his powers as a judge on the Supreme Rabbinical Court. On the other side of the coin, an Israeli woman found herself in trouble with the law for refusing to accept a get from her husband; an extremely rare situation, while the reverse can be fairly common.

The consequences can be very difficult in these instances, because without a formal religious divorce, practising Jews will be unable to remarry in an orthodox context. Any children born of a marriage that did take place would be considered mamzer, or illegitimate. This status is then inherited, making it a social and spiritual burden for successive generations.

In English law, there are remedies available. Section 10A of the Matrimonial Causes Act seeks to address this problem as it allows either party to apply to the English courts to prevent decree absolute – the final stage in the dissolution of a marriage – being given until such time as steps have been taken to dissolve the marriage in accordance with Jewish law. If as couple have had both a religious and a civil marriage in England, it is useful for lawyers to understand the full situation in order to advise accordingly.

It is important to remember however, that all marriages and divorces in England and Wales must comply with the formalities required by English law. A recent report by women’s charity Aurat, which examined the status of Muslim wives in the English midlands, showed that these women’s situations were complicated by a misunderstanding about the legal status of ‘marriages’ that are not carried out in accordance with English law. Many women interviewed for the report claimed that they had found themselves in the unenviable situation of seeing their marriage break down, only to be told that they did not have the same rights – in particular for financial remedies – as their legally married counterparts.

The balance between religious and civil law can thus be uneasy, but information and clarity is key to navigating these muddy waters. Aurat’s report, which is introduced by Baroness Cox, is one way to help achieve this. There are also explorations on the subject being made in feature films. A film that premiered at Cannes last year to glowing critical appraisals sheds some light on the experience of women in the Jewish divorce process. Gett: The Trial of Viviane Amsalem, follows the difficulties faced by the eponymous character, played by the film’s co-director Ronit Elkabetz, in securing a divorce from her husband.

It may be hoped that the publicity surrounding some of these cases, and their representations in the arts, may go a long way to helping alert both legal practitioners around the world, and potential clients, of the complexities they may encounter in this area.

If you would like to know more about the issues covered in this article, Vardags offers a free consultation to qualifying individuals.

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