Get-ing the low-down on divorce

Deanna Levine examines the Divorce (Religious Marriages) Act 2002 and how this legislation affects Get - the Jewish form of divorce

In the UK, the form of marriage ceremony entered into by a Jewish couple provides for both civil and religious ceremonies at the same time.

However, in the case of divorce no such duality exists, so unless the couple have a separate Jewish divorce - called a Get - they remain married in Jewish religious law.

The Jewish forms of marriage and Get are essentially of a contractual nature.

Accordingly, the Get requires the co-operation of the spouses if the marriage is to be terminated.

If one spouse does not co-operate with the other, the Divorce (Religious Marriages) Act 2002 can be invoked to facilitate the Get, although the term Get is not used in the legislation.

In brief, the 2002 Act has been passed to assist Jewish spouses to obtain a Get, where one of them is not co-operating with obtaining it and wishes only to have the civil divorce, or where a spouse is making financial or other demands in exchange for the Get that are greater than the arrangements that would be sanctioned by the civil court.

The Act was passed on 24 July 2002 for the benefit of divorcing Jewish couples.

It can also be made to apply to other religions requiring spousal co-operation for divorce - they can arrange for their religious usages to be prescribed under the legislation by statutory instrument.

Other religions initially decided not to make use of the Act, but the facility exists.

The 2002 Act amends the Matrimonial Causes Act 1973 by inserting a new section 10A.

It was brought into force on 24 February 2003 by paragraph 2 of the Divorce (Religious Marriages) Act 2002 (Commencement) Order 2003 (SI 2003 No 186).

By section 10A(1)(a)(i) of the 1973 Act, a spouse who was married in accordance with 'the usages of the Jews' can apply for an order under section 10A(2) of the 1973 Act that a decree of divorce is not to be made absolute until both parties have produced to the court a declaration that they have taken such steps as are required to dissolve the marriage in accordance with those usages.

In other words, if an order is made, husband and wife must first have the Get before the divorce decree is made absolute.

Court discretion

The court is not obliged to grant the order for the divorce not to be made absolute even where a Get is absent - it has discretion to grant it.

This is consistent with other aspects of family law, in which the discretion of the court plays a significant role.

Section 10A(3)(a) of the 1973 Act gives the court discretion whether or not to grant the order and will only grant it if it is 'satisfied that in all the circumstances of the case it is just and reasonable to do so'.

The court would be expected to exercise its discretion in favour of the applicant for the order if the evidence before it satisfied those requirements.

Moreover, by section 10A(3)(b) of the 1973 Act, the court may revoke the order at any time.

Procedural matters

The 2002 Act is essentially a piece of legislation which provides the framework enabling the court to require the dissolution of a religious marriage before granting the civil divorce.

The means whereby the Act of 2002 may be invoked are contained in the many procedural matters which are set out in new rules of court that also came into force on 24 February 2003 - the Family Proceedings (Amendment) Rules 2003.

The Rules of Court 2003 amend the Family Proceedings Rules 1991.

If the application is successful - that is to say, the order is granted not to make the divorce decree absolute - the spouses will not return to the court until the Get has been obtained or the order revoked.

When the Get is obtained, the parties return to the court for the civil divorce to be made absolute.

However, first a declaration is required by the 1973 Act (as amended).

The Rules of Court 1991 (as amended) specify the form and content of the declaration to be made by both husband and wife that they have their religious divorce.

The certificate

Unless the court orders otherwise, a certificate confirming that the Get has been obtained must accompany the declaration under rule 2.45B(1)(d) of the 1991 rules of court.

The certificate has to be given by a 'relevant' religious authority under rule 2.45B(2).

Such an authority would be a court of Jewish religious law, known as a Beth Din.

A question arises - who decides which Beth Din is the 'relevant' one for these purposes? The spouse who has successfully applied for the divorce not to be made absolute is the one who decides that the particular religious authority which has facilitated the arrangements for the Get is acceptable to him or her.

It is useful for solicitors and their divorcing Jewish clients to be aware of the implications of the definition of a 'relevant' religious authority.

There are several movements within Judaism - Orthodox, Masorti (Conservative), Reform and Liberal/Progressive - each of which has its own religious authority.

It would be useful for divorcing husbands or wives who are halachically Jewish - a status that applies to any person whose ancestors on the maternal side were Jewish, as recognised by an Orthodox Beth Din or someone who has undergone a conversion to Orthodox Judaism - to be aware that, if they wish to have their Get universally recognised throughout the Jewish world, only a Get from an Orthodox Beth Din will gain such recognition.

Many divorced husbands and wives who have subsequently wished to re-marry in ignorance of this fact have suffered enormously because of a lack of awareness of this aspect.

Deanna Levine is a dually qualified English and Scottish solicitor and a consultant to London-based solicitors' firm Barnett Alexander Conway Ingram.

She is the honorary secretary of the UK Association of Jewish Lawyers and Jurists and a member of the legal group of the Jewish Marriage Council and represents B'nai B'rith UK on the Board of Deputies of British Jews.