For most, a secular divorce marks the end of a marriage. For divorcees who conform to the Jewish Orthodox faith, a secular divorce may not be the end of the line. Even after receiving a secular divorce, an Orthodox Jewish Couple is not considered divorced in the eyes of God until the husband delivers a get, or a Jewish bill of divorce, into his wife’s hands.1 If one spouse refuses or is unable to participate in this religious ceremony, the other becomes unable to remarry within the faith.2 Any subsequent children born to either party is considered mamzer, or illegitimate, and may be subject to ostracism within the religious community.3 While the withholding of or refusal to accept a get can be attributed to a genuine desire for reconciliation, other motivations of the non-complaint spouse may include vindictiveness, spite or an attempt to pressure the other party into settlement of the secular divorce case on terms favorable to this non-complaint spouse.4 In reaction to this issue, the Jewish community and secular courts have considered a number of measures meant to utilize both the authority of the secular court system and of Jewish law to induce both parties’ cooperation in the Jewish divorce process, including the enforcement of Jewish premarital agreements and utilization of religious arbitration panels.
The Halakah on Divorce For someone of the Orthodox Jewish faith, the practice of his religion requires that he not only observe a certain set of beliefs, but also adhere to a set of religious laws and practices, known as the Halakah.5 According to the Halakah, a Jewish couple is not legitimately divorced until the happening of a religious ceremony in which the husband physically delivers a get, or Jewish bill of divorce, into his wife’s hands.6 Upon the delivery of the get to his wife, the marriage is halicalaically terminated. Although the get ceremony technically requires the cooperation of both the husband and wife, the issue of get withholding is particularly arduous for Jewish Orthodox wives, as the wife has no power to induce the Jewish divorce process. Perhaps due in part to the higher incidence of get withholding by the husband, within the Orthodox Jewish community, a wife who is not granted a get by her husband is considered an Agunah, a term which carries the literal meaning “chained” or “anchored” in the Halakah.7
Secular Court Enforcement of Specific Performance of Jewish Premarital Agreements Before taking their vows, many Orthodox Jewish couples enter into Jewish premarital agreements, known as a Ketubahs. The traditional Ketubah is a marriage contract between a woman and man in contemplation of the couple’s marriage that decrees that the marriage is “in accordance with the laws of Moses and Israel,” demonstrating the couple’s commitment before God.8 The execution of a traditional Ketubah serves an important ceremonial purpose for many Jewish couples and is often displayed on the walls of the newly married couple’s home as an expression of devotion to one another. Although espoused as part of religious tradition, ironically, the Ketubah was introduced as one of the first attempts to utilize the authority of secular courts to resolve the issue of get withholding. In these instances, spouses have requested that secular courts compel the non-compliant spouse to either deliver or accept the get by ordering specific performance of the terms of the Ketubah.
These spouses have argued that the traditional Ketubah establishes an implied agreement between both spouses to participate in the get ceremony thereby finalizing the Jewish divorce process. The crux of this argument relies on the common language of the Ketubah which states that the marriage shall be “in accordance with the laws of Moses and Israel,” which establishes that the parties intended for their marriage and divorce to be governed by Jewish law.9
The foremost decision in Illinois regarding the enforcement of religious premarital agreements dealt specifically with the issue of get withholding and ordering specific performance in participating in the get ceremony.10 In Goldman, the trial court entered a Judgment dissolving the parties’ marriage secularly and ordering the husband to participate in the verbal and physical acts necessary to validate the get.11 The husband appealed the portion of the Appellate Court’s order requiring him to participate in the Jewish divorce ceremony, arguing, in part, that requiring him to do so would violate his constitutional rights under the Free Exercise Clause and Establishment Clause of the First Amendment of the U.S. Constitution.12 The Appellate court noted that the record supported the finding that the husband’s withholding of the get could be attributed to his attempt to use the get as a bargaining tool in parties’ custody dispute.13 In presenting her case during trial, the wife called several rabbis as expert witnesses who testified that participation in the get ceremony required secular, rather than religious, action.14 The appellate court held that the trial court’s enforcement of specific performance of the Ketubah did not violate the Establishment Clause, as the enforcement of this agreement was secular in purpose, the primary effect of enforcement was not to advance or inhibit religion, and enforcement did not create excessive entanglement between the secular court and religion.15 Additionally, the court found that enforcement of the premarital agreement did not violate the Free Exercise Clause, because ordering specific performance of the contract required “nothing more than what [husband] promised to do when he signed the ketubah.”16
More recently, the First District Appellate Court upheld a trial court’s order requiring a husband to participate in the get ceremony and for an award of attorney’s fees to wife as Section 137 sanctions against husband.17 In Schneider, several years after the parties were divorced in secular court, the wife sued the husband for breach of contract for his failure to deliver a get to her following the entry of the parties’ Judgment for Dissolution of Marriage.18 The trial court, relying on the Goldman decision, ordered the specific enforcement of the Ketubah in requiring husband to sign the get despite the husband’s continual assertion that Goldman was inapplicable.19 The trial court’s award of Section 137 Sanctions was based on the fact that it found husband’s continual argument regarding the inapplicability of Goldman, after the court had ruled otherwise, was “done solely to harass and cause distress to the Petitioner.”20
While these cases indicate the willingness of Illinois courts to compel a party’s performance in the get ceremony, these cases often involve complicated Constitutional issues and require the extensive use of expert testimony.
Religious Arbitration Panels After realizing the constitutional concerns in asking courts to intervene in religious affairs, there was a push within the Orthodox Jewish community to modify Ketubahs to include language that would give the Beth Din, a Jewish arbitration panel, power to resolve any marital disputes, including participation in the get ceremony.21 Through this approach, the courts could simply enforce the secular arbitration clauses of the Ketubah agreements requiring parties to submit to the jurisdiction of Jewish arbitration panels, leaving all questions of religious law to the Beth Din.
Halakhic courts, known as Beth Din22 have existed in the Jewish community for at least a thousand years and have operated throughout Europe since the Middle Ages.23 In the United States, there are several large, well-established panels, including the Beth Din of America and the Jewish Conciliation Board. Rabbis at local synagogues have also established smaller religious tribunals. These panels operate under the Halakah, or Jewish law.24 Each tribunal is free to develop its own procedure for hearing a dispute.25 Some of the larger arbitration panels, including the Beth Din of America, have published rules and guidelines online.26
Although there is no formal requisite to be an arbitrator, the panel generally consists of three rabbis, one picked by each party and the third picked as a neutral.27
The source of power and judicial enforceability of those decisions handed down by a Beth Din is found in federal and state arbitration acts, which allow parties to agree to forgo secular court, and instead have legal issues resolved by arbitration panels.28 The arbitration model allows for Rabbis to be placed in a position of judge or arbitrator, free to enforce Jewish law in divorce proceedings. Although secular courts face constitutional challenges in seeking to compel a party to participate in a get ceremony, the Beth Din does not. Through their power as arbitrators, Rabbis are able to impose monetary penalties upon parties who are unwilling to participate in get ceremonies, thereby encouraging participation through threat of substantial monetary penalties.29
Enforcement of Arbitration Clauses When courts have decided to enforce the arbitration clause of Ketubah agreements, they have done so by relying on neutral principles of law.30 This approach was developed in Avitzur, a case decided by the Court of Appeals of New York, which marked the first time a state’s highest court addressed the validity of these arbitration clauses in Jewish prenuptial agreements.31 In this case, a husband and wife were married in a traditional Jewish ceremony after signing a Ketubah containing an arbitration clause.32 After the parties were granted a secular divorce, the wife sought to compel the husband to go before the Beth Din to resolve issue of his withholding of the get, but the husband refused.33 The Court of Appeals affirmed a lower court’s order compelling the husband to appear before the Beth Din, despite the husband’s contentions that this would lead to excessive government entanglement with religion.34
The court found the Ketubah agreement to “constitute nothing more than an agreement to refer the matter… to a nonjudicial forum.”35 The Court of Appeals found this agreement should be treated with just as much “dignity” as any other civil contract requiring parties to submit to a nonjudicial dispute forums, as long as the enforcement did not violate public policy of the state.36 The court justified its enforcement of the religious contract because it relied on “neutral principles of contract law,” leaving all substantive issues relating to the religious divorce for the Beth Din.37
Limiting the power of the Beth Din Although the early arbitration clauses found in Ketubahs provided relief to those whose spouses refused to participate in get ceremonies, the referral of all divorce issues to Beth Din panels has proven problematic. The reason for the progressive movement towards arbitration clauses limiting the power of the Beth Din to handle a smaller scope of divorce issues can be attributed to two primary dangers of empowering the Beth Din unfettered jurisdiction to resolve divorce issues, namely the absence of set standards or laws by which to decide these issues and the limited judicial review of the panel’s decisions.
While secular court judges rely on standards and guide-lines set forth in the laws of each state, traditional Jewish law does not have any set standards for deciding domestic relations issues, including spousal support and division of the marital estate.38 Moreover, decisions by arbitration panels are incredibly difficult to overturn, limiting the recourse a husband or wife has to appeal the Beth Din’s decision. The decisions of arbitration panels can only be overturned if the court finds: 1) that the award was procured by corruption, fraud or undue means, 2) there was evident partiality or corruption of the arbitrators, 3) the arbitrators excluded material evidence from consideration, or 4) that the arbitrators exceeded their powers.39
The opportunity for review is also restrained by the fact that the Beth Din decisions are inherently religious, causing religious question doctrine issues.40
For that reason, more recently, Jewish scholars have advocated the use of carefully drafted arbitration contracts, separate from the traditional Ketubah, which often narrow the range of issues to be decided by the Beth Din. One of the most widely recognized arbitration contracts is the Beth Din of America’s Arbitration Agreement, titled “The Prenup.”41
Although the enforcement of Ketubahs by secular courts and the use of Beth Din for resolving issues related to the dissolution of marriage are good faith attempts to provide relief to those who are denied a get by their spouse, neither approach is without problem. While secular courts have been willing to enforce Ketubahs and require specific performance of participation in the get ceremony, the legal foothold for these decisions are shaky, often requiring courts to come dangerously close to First Amendment violations. Alternatively, deferring the decisions of all issues related to a divorce to the Beth Din does not afford divorcing couples the protection of the predictability and ability to appeal decisions of secular courts. By encouraging Orthodox
Jewish couples to sign Ketubahs with arbitration clauses specifically referring issues of the get to the Beth Din while granting secular courts the jurisdiction to hear the remaining issues of the divorce, the authority of secular court system and Jewish law will be best utilized within their respective roles.
1 Irving Breitowitz, The Plight of the Agunah: A Study in Halacha, Contract, and the First Amendment, 51 Md. L. Rev. 312, 319 (1992).
2 See Id. at 319, citing Deuteronomy 23:22 (explaining that under Biblical law, the consequences for a wife’s adulterous relationship were much more severe than that of the a husbands).
3 Id. at 323-324.
4 Id. at 314-315; See In re: the Marriage of Goldman, 196 Ill. App.3d 785, 554 N.E.2d 1016 (Ill. App. Ct. 1990).
5 Susan Metzger Weiss, Sign at Your Own Risk: The “Rca” Prenuptial May Prejudice the Fairness of Your Future Divorce Settlement, 6 Cardozo Women’s L.J. 49, 52 (1999).
6 Supra note 1 at 321.
7 Supra note 1 at 313.
8 Supra note 1 at 343.
9 Supra 1 at 339.
10 This decision of the First District Appellate Court of Illinois case was the first appellate case finding a ketubah to be an implied contract requiring a husband to give his wife a get (Supra 1 at 345).
11 In re: the Marriage of Goldman, 196 Ill. App. 3d 785, 554 N.E.2d1016 (Ill. App. Ct. 1990).
12 Id. at 791.
13 Id. at 795.
14 Id. at 789.
15 Id. at 951, citing Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971).
17 See In re the Marriage of Schneider, 945 N.E.2d 650, 348 Ill.Dec. 881 (Ill. App. Ct. 2011).
18 Id. at 652.
19 Id. at 654.
20 Id. at 656.
21 A common arbitration clause added to the Ketubah is known as the “Lieberman Clause.”
22 Hebrew for “House of Judgment.”
23 Michael C. Grossman, Is This Arbitration?: Religious Tribunals, Judicial Review, and Due Process, 107 Colum. L. Rev. 169, 180 (2007).
24 Id. at 180.
25 Supra note 10 at 180.
26 See Services- Geirus Protocols and Standards, Beth Din of America, http://www.bethdin.org/services.asp (Last visited August 13, 2014).
27 Supra note 1 at 326.
28 Supra note 1 at 361.
29 Caryn Litt Wolfe, Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration Systems and Their Interaction with Secular Courts, 75 Fordham L. Rev. 427, 469n.175 (2006), citing RUAA §23, cmt. C P 3, 7 U.L.A. 80 (2000).
30 Supra note 1 at 363.
31 Supra note 1 at 361-362.
32 Avitzur v. Avitzur, 446 N.E.2d 136 (1983).
33 Id. at 137.
34 Id. at 138.
35 Id. at 138.
38 Rivka Haut, Judging the Judges: A Call for Beit Din Reform in America, JOFA Journal, Summer 2005, at A10.
39 Supra 29 at 443, citing 9 U.S.C. § 10(a).
40 See generally Supra note 23.
41 Rabbinic Endorsements- The Origin of the Prenup, The Prenup, http://theprenup.org/rabbinic.html (last visited August 13, 2014).
Kelly Petersen is an associate with Anderson & Associates, P.C., where she concentrates her practice in family law. She serves as a member of the Associate Board of Directors of LifeSpan. Ms. Petersen received her Juris Doctorate from DePaul College of Law and her undergraduate degree from the University of Wisconsin-Madison.