Jewish divorce in Australia: how civil law and Jewish law work together

Observant Jewish couples in Australia wishing to get divorced must seek both a civil and a religious divorce. Let’s take a look at how these can work together.

For observant Jewish Australians, divorce isn’t just a matter of filing the paperwork with the Australian government – it also carries deep religious significance. While Australian family law governs the legal dissolution of marriage through the Family Law Act 1975, Jewish couples who follow traditional religious practices are also bound by Jewish law, known as ‘Halakha’.

This dual framework means that should you wish to get divorced as an observant Jewish Australian, you’ll need to obtain both a civil divorce and a Jewish divorce. This intersection of civil and religious obligations can sometimes create additional challenges, particularly if one party refuses to give or receive a Gett.

In this article, we’ll look at the key differences between a civil and Jewish divorce, the processes involved for divorce under Jewish law and the recourse available should one party refuse to give or receive a Gett.

 

Divorce in Judaism

Jewish divorce can be organised in Australia through a recognised Jewish religious court, known as a Beth Din. The court is comprised of a panel of rabbis, who supervise the process and ensure it complies with Halakha. 

It’s important to understand that a Beth Din does not confer a divorce and cannot order that a divorce be granted. Its role is limited to making sure that the procedural requirements of the divorce process are satisfied under Jewish law. 

In Australia, there are Beth Dins in both Sydney and Melbourne, which service the couples in other states as well.

 

What is a Jewish divorce?

Civil divorce and Jewish religious divorce are two distinct processes. But they’re equally important for Jewish couples because this allows them to secure both legal and religious recognition that the marriage has ended.

There are only two ways for a Jewish marriage to end. The first is on the death of one spouse, and the second is through a Gett. 

Even if a couple obtains a divorce under Australian law, they will not be considered separated or eligible to remarry under Jewish law until a Gett has been granted. The term is used to describe both the actual divorce document – which is known as the Gett – and the process of giving and receiving the Gett which leads to the divorce. 

 

How to obtain a Gett

The Gett is a formal document, and it must be given freely by the husband and accepted freely by the wife. There are three steps to obtaining a Gett:

1. The couple must complete the correct paperwork.
2. They must arrange the date that the Gett will be obtained.
3. They must attend the Gett day.

On the Gett day, a ‘Sofer’ or scribe will write out the document, and the husband will hand it to the wife. The handing over of the Gett is called the ‘Mesirah’. This allows for a formal moment of closure, marking the end of the marriage.

 

What if you fail to obtain a Gett?

In order to divorce under Jewish law, the husband must grant the Gett and the wife must accept it. Should either fail to do so, then the couple will remain ‘chained’ to the marriage. 

It is most common for the woman to find that she’s unable to obtain a Gett from her husband at the end of her marriage. And there is no other recourse under Jewish law. She simply is unable to be divorced from her husband.

This situation could lead to significant implications for herself and her children. Most significantly, she will be considered an ‘agunah’, meaning a ‘chained woman’. This effectively means she is still bound to her spouse and unable to remarry. It may also mean that any children could be considered illegitimate under Jewish law, which can have devastating consequences.

Agunah status was originally introduced at a time when many Jewish husbands hadn’t returned from war or sea. If they couldn’t prove to be dead, then the wife must remain in the marriage. Today, however, it can be used as a form of control when a husband refuses to cooperate in ending the marriage. 

Of course, the wife may also refuse to accept a Gett, and this will also mean that the husband remains bound to the marriage. However, Jewish men have access to a loophole under Jewish law – ‘Heter meah rabbanim’. This allows a man to obtain a divorce without a Gett if he receives the support of 100 rabbis. 

Because a woman has no access to this loophole, and the consequences are so dire, experts agree that withholding a Gett is far worse for women than for men.

 

Will Australian Courts intervene?

Jewish women seeking redress to Gett refusal have occasionally made an application to the Family Court. The Court has sometimes included ‘Gett clauses’ in Court orders and consent orders. However, this approach has been applied inconsistently, and Jewish women have no certainty in their ability to go to the Courts for recourse. 

The Commonwealth of Australia has recognised that family violence is a fundamental violation of human rights. Many experts believe that Gett refusal is a form of family violence within the Jewish community under sections 4AB(1) and (2) of the Family Law Act. This may be a route of recourse in the future.

 

Differences under Orthodox, Conservative or Reform Judaism

There are some differences in the treatment of divorce, depending on whether the couple adhere to Orthodox, Conservative or Reform Judaism. Orthodox Jews, for example, strictly observe Halakha and believe that a wife can’t obtain a divorce without her husband’s consent, with no exceptions.

Conservative Judaism is a little more flexible, and although it encourages the use of a Gett, individuals here may accept a civil divorce as a religious divorce as well. Reform Judaism is the most liberal, often allowing a civil divorce to dissolve the marriage and not requiring rabbinical involvement at all.

 

Civil divorce vs Jewish divorce – the key differences

There are a number of differences between a civil divorce in Australia and a Jewish divorce. 

A civil divorce is governed by the Family Law Act 1975 and is under the jurisdiction of the Family Court. The Court can also help divorcing couples navigate parenting and property matters. Couples need to be separated for at least 12 months to obtain a divorce. Only one party needs to want the divorce.

In comparison, a Jewish divorce will be processed in a Beth Din. The court plays a supervisory role, rather than making or enforcing any decisions. This rabbinical court does not deal with parenting or property matters – this is left to the secular courts. 

For observant Jewish Australians, a civil divorce is not enough for religious recognition of the end of the marriage. The couple will also need to obtain a Gett in a Beth Din. And both parties need to accept the divorce of their own free will.

 

How Australian Family Lawyers can help

Navigating the intersection of civil and religious Jewish divorce can be complicated. But our team has decades of experience working with clients in Jewish communities across Sydney, Melbourne, Brisbane and beyond.

We understand the unique challenges you might face in these matters, and we’re here to guide you through civil divorce proceedings confidently, while respecting and supporting the Jewish law requirements as well. 

We can refer you to trusted rabbinical authorities, such as local Beth Din, and connect you with culturally informed counselling services. And we can also help you resolve property, parenting and financial matters in the Family Court system in a way that respects both your legal rights and religious values. 

Together, we can navigate your divorce respectfully and legally

It is possible to navigate both civil and Jewish law requirements smoothly. Our team can help you find a respectful path forward that honours your rights, responsibilities and beliefs.

Speak to our family law team today for confidential advice on Jewish divorce in Australia. Call the team at 1300 470 243 or request a call back via the form below.

 

 

FAQs

What is the Jewish divorce document called?

A Gett is the formal document that formalises the end of a marriage under Halakha.

 

What is the purpose of the ‘ketubah’?

A ketubah is a traditional Jewish marriage contract. It outlines the responsibilities of the husband to the wife, including financial obligations in case of divorce or widowhood.

 

What happens if a Gett is withheld?

‘Gett refusal’ is when one spouse refuses to participate in the Jewish religious divorce process. Under Halaka, a divorce requires both the husband to grant the Gett and the wife to accept it. If one party refuses, the other remains bound to the marriage. 

If a husband refuses to grant his wife a Gett, this has significant emotional, financial and religious consequences on the wife. Not only is she prevented from remarrying under Halakha, but she also has to face social stigma within the Jewish community. Her children from the marriage may also be affected, and may even be considered illegitimate. Gett refusal can leave the wife feeling powerless and isolated.

If a woman refuses to accept a Gett, the man will also remain in the marriage. However, he does have a workaround through a mechanism called Heter Meah Rabbanim, where, with the consent of 100 rabbis, he can be issued a divorce without his wife’s agreement. This loophole is not available for women.

Currently, there is no secular recourse under Australian law, as the Court typically leaves this to religious courts, though there have been instances where this has been handled in Court orders. Currently, experts are arguing that Gett refusal is a form of family violence within the Jewish community, and this may be an avenue of recourse in the future.

 

Why seek legal and religious advice early?

For Jewish couples navigating separation and divorce, early guidance from both a family lawyer and a rabbinical authority is crucial. These two systems operate independently, and the interplay between them can be complex and challenging. But both must be addressed in order for a Jewish couple to be divorced. 

This complexity extends beyond just obtaining a Gett. It also includes a myriad of cultural and religious traditions and expectations. Seeking both legal and religious advice early for a Jewish divorce helps you:

• Avoid delays and excess costs
• Clarify expectations around property, finances and custody
• Protect your family and allow for remarriage
• Minimise emotional and community stress
• Resolve issues with compassion, fairness and finality