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When is a Divorce not a Divorce?

A recent case has highlighted the problems facing married couples seeking a divorce under Jewish law, as Lodders’ family law expert Caroline Dresden explains.

The recent case of Moher v. Moher in the Family Court included claims by a husband he was trapped in a marriage, caught between English law and religious law, in his case, Judaism.

Background

In Jewish law, the document provided for divorce is known as a Get, a handwritten document specifically prepared for each couple, who effect the divorce themselves. Unlike in English law, Jewish law doesn’t require a court decree or grounds for divorce, although there are numerous rules regulating a Get. One of the most important rules is that the Get always has to be written under the supervision of a Beth Din; a Jewish court. The wife seeks the Get but the husband must consent to it.

The case of Moher v. Moher

In this case, the husband was ordered by the court to pay maintenance, until he consented to a Get. He claimed if he were ordered to pay maintenance, he would be giving consent to the religious divorce under duress, which rendered the Get invalid.

The Jewish court has long been alert to the difficulties for a wife not granted a Get, and remaining ‘chained’ to her husband in a religious sense, and this was exactly the situation in this case, as a result of the husband’s claims. In response, the wife stated he had no good reason to withhold the Get, and any difficulty was of his own making.

Get must be granted freely

The crux of the matter in this case is that a Get is only valid if it is granted freely. Given that a Get must be sought by both the divorcing couple, it is a significant problem if one party withholds consent. Whilst the Beth Din has to supervise the writing of the Get, it has ‘no teeth’ to enforce consent.

In English law a financial order is put in place after the Decree Nisi (an order within the divorce proceedings enabling a court to make a final financial order and the date from which the granting of the Decree Absolute, which terminates the marriage, is calculated). Consequently, in this case, as a financial order was in place, prior to the Get, it was possible for the husband to refuse to grant the Get, alleging he was under pressure to provide it as part of his ongoing financial obligation to his wife.

Usually the Jewish Courts arrange a Get to coincide with the Decree Absolute (the court’s final order, officially ending the marriage), upon the basis the payment of funds under an order cannot become effective until a Decree Absolute, but this wasn’t possible in the case of Moher v Moher because of the husband’s lack of consent.

Outcomes

The case went before the Appeal Court, which unanimously rejected the husband’s claims. The judge took the view there was likely to be an impact on the wife if there was no religious divorce. The Court ordered the husband to pay interest on the outstanding lump sum, and periodical payments thereafter.

Under the 2002 Divorce Act, a husband can be prevented from obtaining a civil divorce until he has done what is required to provide a religious divorce. Indeed, Lord Justice Moylan has previously commented the law must have been based on parliament being satisfied that implementation would not make any consequent Get invalid.

This case highlights the husband was not compelled to give the Get, only to pay periodical payments, which terminated upon the provision of the Get.

Additionally, the husband was handed an order under Section 10A of the Matrimonial Causes Act, prohibiting him from applying for Decree Absolute until the parties each filed a declaration stating the couple had taken steps required to dissolve the marriage by means of a Get.

Guidance

Of more general application, the Court of Appeal’s decision has provided guidance that a schedule of the parties’ assets should be created as soon as possible and that this must be given to the court, even in a non-disclosure case. This is important to enable a Judgment that clearly sets out how the award has been calculated.

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Get in touch...

For more information, please contact Caroline Dresden on 0121 200 0890, or via email.