cross cultural issues in family law: jewish matrimonial law and customs in secular courts
TRANSCRIPT
© 2013 Fox Rothschild
Cross-Cultural Issues
In Family Law:
Jewish Matrimonial Law
and Customs In Secular
Courts
Presented by Julia Swain, Esquire
Definitions
• Halakha (or halacha)- Jewish law
• Ketubah (or kettuboh, kettuba)- Jewish marital
contract
• Get - Jewish divorce instrument
Definitions
• Heter Me‟ah Rabbanim- „Permission by 100
Rabbis‟ for a husband to remarry where his wife
is incapable or unwilling to accept a „get‟
• Beth Din- Rabbinical Court
• Agunah (or agunot)- A „tied‟ woman, unable to
remarry in the eyes of the Jewish law
Definitions
• Mamzer- Illegitimate children born to an agunah
• Din Torah- Jewish arbitration proceeding
• Dayanim- Judges
• Moredus- Woman „rebel‟ refusing to submit to
Rabbinical authority
Three Sects of Judaism
Orthodox
Conservative
Reformed
Orthodox
• Most traditionalist view of the faith
• Governed the Jewish religion for centuries,
mainstream until 200 years ago
• Believe God spoke/wrote the Torah
• Strict interpretation of Jewish rules and customs;
Torah not subject to interpretation
Conservative
• Beliefs are more liberal than the Orthodox, but
more traditional than Reformed
• Believe that God inspired the Torah but written by
man
• Follow a fundamental text as interpreted by a
Conservative Rabbinical Counsel who consider
modern society and multiple interpretations of the
Torah
Reformed
• Reform Judaism is a more recent movement
which pushes for the modernization of Jewish
traditions, culture, and faith.
• Faith based, consider ancient text that may or
may not apply to modern times
• Each generation can decide level to which rules
and customs apply
Marriage In Jewish Life
• „The ideal human state‟ where a couple join in an
institution designed by God to be companions
and to procreate.
• The husband‟s broad duties within the marriage
are outlined in a Jewish marital contract called a
ketubah.
The Ketubah
The Ketubah explicitly states the husband‟s duty to
his wife:
(1) food
(2) clothing, and
(3) conjugal rights
Ketubah – Historical Implied Duties
(1) pay his wife a sum if he divorces her or dies before she does
(2) pay her medical bills
(3) pay a ransom if she is kidnapped
(4) pay her burial costs if she dies before him
(5) upon his death, her children inherit her ketubah money before all
other estate obligations are distributed
(6) allow her to live off of his estate and in his home until she dies or
gets remarried
(7) support her daughters until they marry
Jewish Divorce
• Where there is no longer harmony in the home
between husband and wife, Jewish law provides
a process for divorce.
• Jewish divorce involves a proceeding before a
Rabbinical tribunal to grant a divorce decree,
known as a „get‟.
The „Get‟
• „Get‟ is granted by a local Beth Din, in cooperation with
the parties‟ Rabbi
• After the „get‟ is granted by the Beth Din, it must be
willingly delivered by the husband to his wife, who must
willingly receive it.
• The „get‟ cannot be replaced by a civil divorce.
• Without the „get‟ the couple is still married under Jewish
law.
History of the „Get‟
• Historically, only the husband had power to initiate
divorce and issue a „get‟.
• This led to concern with the potential for abuse with this
power dynamic and the ketubah was created as a marital
protection for the wife.
• As rabbinical law evolved, women were imbued with the
power to accept or not accept the „get‟.
• The practical effect = requires the mutual assent of both
parties for the Jewish bill of divorce to be issued.
Agunah – “In Chains”
• If no mutual assent, or a party is absent, the remaining
spouse seeking divorce is left „chained‟ to the marriage.
• In modern times, the issue commonly involves either a
husband unwilling to give the „get‟ out of spite, or a wife
who refuses to accept the „get‟.
• Wives can petition the Beth Din to have their husband
brought before a tribunal of three rabbis for an arbitration
hearing known as a „din torah‟.
Din Torah
• Beth Din is responsible for determining terms for husband
to give the „get‟ and wife to receive it.
• Ruling is enforceable today only through social sanctions
on the party in contempt or through judicial recognition in
a secular court.
• Social sanctions may be ineffective - the offender may
skip from one faith community to another, or leave the
observant community all together.
The Agunah Problem
• Even with a favorable ruling from the Beth Din, a woman‟s
divorce is not effected until her husband delivers a „get‟ that
has been issued voluntarily.
• Without a „get‟, she cannot remarry or date, and her future
children are considered illegitimate „mamzerut‟ under Jewish
law.
• „Mamzerut‟ cannot marry others of the Jewish faith
legitimately; cannot be circumcised; and, cannot participate in
the major activities of the faith, a fate which passes down to
their children
Powers of the Beth Din
• Arbiter of Jewish law in America
• The Beth Din was founded in 1960 to serve the portion of
the diaspora, Jews living outside of Israel, living under
both secular and religious law.
• Today, it is a true arbitration panel, rulings have wide
acceptance by secular courts.
• The Beth Din handles matrimonial cases, commercial
disputes and communal affairs.
The „Get‟ Process
• Beth Din is the primary organization capable of managing
the „get‟ process.
• The Beth Din arranges for at least three rabbis to preside
over each tribunal.
• Tribunal can meet with the parties together, separately, or
travel to the parties as necessary to effect the divorce.
• Beth Din has the power to summon unwilling parties who
stipulated to have matrimonial disputes handled by the
Rabbinic court in a prenuptial or postnuptial agreement.
Heter Me‟ah Rabbanim
• Formal, complex process to force wife to accept
„get‟
• If wife refuses to participate in process and/or to
accept „get‟, she is a „moredus‟ (rebel)
• Beth Din then writes a petition for Heter Me‟ah
Rabbanim
• Permission from 100 Rabbis for husband to re-
marry
The „Get‟ – Gender Differences
• If woman refuses to submit to „get‟ process
– she can be forced
– or be excommunicated upon death, „cherum‟
• Husband cannot be forced to submit to „get‟
process
– Husband can still re-marry
– Wife left in agunah
Beth Din Rulings
• Beth Din rulings in the matrimonial sphere are
subject to state statutory and common-law.
• Impartial Rabbinic tribunals can rule on:
– the „get‟
– distribution of property
– alimony
– child custody
– child support
Caution - Custody
• Beth Din follows Tender Years Doctrine
• Rabbinical law maintains traditional gender roles
• During a child‟s “tender years”, father‟s time will
be limited
• Exception – if father is the more observant Jew,
he could get more (most or all) of the Jewish
holidays
Beth Din Hearings
• Beth Din hearings are similar to the civil litigation
process.
• Proceedings are recorded and available for
transcription.
• Provisions for pre-hearing discovery requests
from the parties or the Beth Din itself
• Parties may also stipulate to facts or issues in
advance and must provide notice of anticipated
witnesses that will be called.
Beth Din Rulings and Decrees
• Beth Din rulings are enforced through recognition
by civil courts
• Beth Din issues decrees formalizing community
sanctions by withholding privileges:
– burial rites
– marriage rites
– shul membership
– social acceptance
Rabbinical Matrimonial Law In
Modern Times
• In modern society, Rabbinical law scholars
recognize that the ketubah does a poor job of
regulating the post-marital financial
responsibilities of the parties.
• Couples are increasingly turning to prenuptial
agreements in addition to the ketubah, which are
more specific on dispositions of property, and
also can be used to prevent the refusal to give
and accept a „get‟.
Beth Din Marital Agreements
• Beth Din Form Prenuptial Agreement
– Cannot contract rights, property and obligations
that parties do not have at time of agreement
– Arbitration agreement only, agreement to submit
marital dispute to Beth Din in future
– No financial disclosure
– Can be done as a postnuptial agreement
Overview of Standard Provisions
• Parties agree to submit post-marital disputes to Beth Din
for binding decision
• Beth Din decision shall be fully enforceable in civil court
• Beth Din has exclusive jurisdiction over „get‟, ketubah and
tena‟im (Jewish prenup)
• Beth Din jurisdiction over support and custody is optional
Overview of Standard Provisions
• Beth Din can award costs and fees, including reasonable
counsel fees
• Jewish law (halakah) applies
• Husband agrees to pay $150 per day ($4,562.50/month;
$54,750/year)so long as parties married, even if wife has
separate earnings
Best Practices
• Sign Beth Din prenup and standard civil prenup
with financial disclosures and appropriate
waivers
• Civil prenup should include consequences for
either party‟s failure to give or accept „get‟
• Consequences should be economic
Economic Consequences
• Waiver of spousal support, APL and alimony by wife for
failure to accept „get‟
• Increased spousal support, APL and alimony payment
(amount certain) by husband for failure to give „get‟
• Forfeiture of assets for failure to accept or give „get‟
• Both sides represented by counsel
Cultural Considerations
• Men do not shake hands with women
• Men and women do not show affection
• Women often cover heads, dress conservative
• Language - no profanity, no off-color humor
• No smoking
• Be careful offering food, even if kosher
• Respect Shabbat and other important Jewish holidays
• Annually alternate Jewish holidays for Orthodox families
Special Thanks
Norman Perlberger, EsquireBeth Din Client Advocate and Advisor
NY, PA, IL, MN, and TX
Note - Beth Din advocates and advisors must be Orthodox because they
are bound by Rabbinical authority.
Presented by:
Julia Swain, Esquire
Fox Rothschild, LLP
2000 Market Street, 20th
Floor
Philadelphia, PA 19103
215-299-2794 Direct
215-299-2000 Main
215-299-2150 Facsimile
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