Background
In the recent case of Idelsohn & Idelsohn [2017] FamCA 398 (11 May 2017), the Family Court of Australia preserved national secularism when an application by an Orthodox Jewish husband to force his wife to grant him a Jewish divorce, was refused.
After 15 years of marriage, the couple divorced under Australian civil law. However, Mr Idelsohn wished for his wife to also attend the Beth Din, or Sydney’s Jewish religious court, to complete the religious divorce proceedings. According to Orthodox Jewish law, a married couple is released from matrimony only through the transmission of a Bill of Divorce (the ‘gett’) from the husband to wife. The wife must accept the ‘gett’. Both husband and wife must perform these acts in order for the Jewish divorce to be affected.
Jewish law further states that a civil divorce cannot serve as a substitute for a ‘gett’. In Jewish law, a Jewish couple who are divorced under civil proceedings but lacking in effective and mutually accepted ‘gett’ remain 100% married.
The entire ‘gett’ procedure is to be performed in front of the Beth Din. In the Orthodox Jewish community, men and women are unable to remarry at Jewish law without a ‘gett’. Furthermore, women divorced under civil but not Jewish law are characterised as ‘agunah’, or, ‘chained’. Children born to Agunah and men who are not the ‘chained’ woman’s original husband are known as ‘mamzers’ – a term loosely translated as ‘bastard’. Under Jewish law, a mamzer is prohibited from marrying most members from the Jewish community.
In this case, the wife refused to receive her husband’s ‘gett’ and attend the Beth Din. Mr Idelsohn then sought an application to the Family Court to withhold her share of the property pool, an amount totalling $760,000, until both parties confirmed that the ‘gett’ has been granted.
The Court’s Decision
Section 116 of the Australian Constitution states that the Commonwealth of Australia shall not legislate in respect of religion. Under this section, the Commonwealth is prohibited from making ‘any law for establishing any religion, or for imposing any religious observance’.
The Court found that Mr Idelsohn’s application was designed to force his wife to cooperate with the religious Jewish divorce process and ordered the wife could not be made to consent to any rabbinical court order. The wife argued that if ordered to comply with the Mr Idelsohn’s application, this could contravene Section 116 of the Australian Constitution. As noted earlier, Section 116 provides that the Commonwealth cannot make any law to impose religious observance. Making such a religious order would also elevate Jewish law to the status of civil law in Australia. In doing so, this would establish a precedent for other legal systems, such as Sharia law, to enter Australian civil courts.
Primarily, the Court declared civil courts, such as the Family Court, should not interfere with religious matters that do not involve behaviour that breaches civil or criminal law.
It is of interest that Mr Idelsohn does have a legal remedy available to him under Orthodox Jewish law. There is a loophole available to men should their wives refuse to cooperate with the Jewish divorce proceedings, known as ‘heter meah rabbanim’ (the permission of a hundred rabbis). This loophole allows a man to obtain his Jewish divorce through gaining the support of 100 rabbis.