Marriage is a unique institution. It is regulated by state law. But it also can be a religious sacrament. Secular courts normally don’t get involved in religious matters. However, when a marriage goes bad, this dual aspect of marriage can compel courts to intervene.
For example, technically, under Jewish law, only a husband can initiate a religious divorce. This law stems from Deuteronomy 24. The Bible there speaks of the husband, not the wife, starting a divorce. Historically, though, the playing field has been much more level. Where the wife proves adequate cause, Jewish religious courts have pressured the husband to grant a divorce. Of course, a religious court can only pressure the husband to grant a divorce if the court has official authority. Or, at least, if the secular court with official authority will enforce the religious court’s decree.
If no religious divorce is obtained, then, for an Orthodox Jewish woman, this would mean that she could never remarry, even if she procured a divorce in state court.
The secular courts in some countries will enforce the decrees of a religious court. In the United States, however, there is the small matter of the First Amendment. The amendment has been interpreted to create a separation between church and state. Nonetheless, there have been cases here where courts have enforced religious divorce decrees. This has been particularly true where both spouses have signed a contract, agreeing to have their divorce handled in a religious court. State courts have ruled that such an agreement constitutes an arbitration contract. As such, it is as valid as any other arbitration agreement. This despite the fact that the arbitrators are clergyman applying religious law. In such cases, all the secular court does is enforce the religious court’s decision. Therefore, the ruling generally has been that the separation of church and state is not breached.
But what if there is no consent by the parties to arbitrate? Or what if the religious court does not order the husband to grant a religious divorce? Can a secular judge order the husband to grant a religious divorce? A veteran family court judge in Passaic County recently said yes. He ordered a reluctant husband to grant his wife a religious divorce within 45 days, “whether he likes it or not.” Score one for the wife.
But, as Yogi Berra famously put it, it ain’t over till it’s over. The husband appealed. You guessed it. The appellate court reversed the ruling. The higher court found the judge’s order an excessive entanglement by the state in a religious matter.
There is, though, some good news for people who want to marry in a religious ceremony. It may be possible to avoid the risk of not being able to obtain a religious divorce. The appellate court suggested that, if there was a contract between the parties that obligated a spouse to grant a religious divorce upon certain circumstances, then, like any other valid contract, a secular court would enforce it.
The moral of the story is that anyone marrying in a religious ceremony with similar strictures should strongly consider having a prenuptial agreement signed prior to marriage. The agreement should practically speaking, obligate both parties to cooperate in obtaining a religious divorce if a secular one is granted. The prenuptial contract should be drafted jointly by a qualified attorney, and a qualified clergyman. This will insure compliance with both secular and religious law.