Civil Recognition of Jewish Divorce - The Relationship Between State and Religion

The Relationship Between State and Religion

Jewish communities sometimes experience marriage and divorce difficulties while resident outside Israel. One of the most common divorce difficulties is that a spouse can be held in a limping marriage when the other spouse refuses co-operation in the religious form of divorce (see Agunah). A civil divorce obtained through local courts entitles the parties to remarry, but the capacity to remarry is considered a religious question in some religions, including Judaism. Where one party has the power to grant or withhold a religious divorce, this power can be used as a bargaining tool to pressure the other party to agree more or less favourable terms for residence and contact with children, and for maintenance and property settlements. Such provisions produce a conflict between the human rights of each spouse to be free to divorce, or remarry, children's right to support, and custody or visitation, regardless of the parents' relations or religion, and the general right of people to practise their religion (see Article 18 of the United Nations Universal Declaration of Human Rights which is repeated almost word for word in Article 9(1) European Convention on Human Rights, International Covenant on Civil and Political Rights and the United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief). They may also breach sex discrimination laws in some states. The difficulty is that most countries operate under constitutions based on a separation between church and state which forbid governments from interfering in the practice of religion within their territory unless the behaviour of one or more parties is in breach of the local civil or criminal law. Thus, for example, in Rhodesia, the case of Berkowitz v Berkowitz (1956) (3) SA 522 (SR), held that it was inappropriate to use contempt proceedings to force a husband to grant a get because anything concerned exclusively with religious formalities was outside the jurisdiction of the secular courts.

Nevertheless, the majority of Western states do, to some extent, make the secular court's response to matrimonial proceedings conditional on the relevant party taking the steps necessary to complete a religious divorce on fair terms, so that either the court will impose excessively generous orders for maintenance and property settlement, or deny access to a civil decree or to ancillary relief until the religious formalities have been completed.