By BENITA ARDENBAUM Family Law Attorney
For Jewish couples, the end of a marriage may involve two separate processes, which is the civil divorce and the Get required under Jewish law.
Ideally, these processes take place alongside each other, allowing both spouses to bring the marriage to an end and move forward with their lives.
But what happens when one spouse refuses to co-operate?
A Get is the religious document required to dissolve a Jewish marriage. Traditionally, it is given by the husband and accepted by the wife. Without it, a civil divorce may bring the legal marriage to an end, but the wife may still be regarded as married under Jewish law and unable to remarry within the faith. This creates an obvious imbalance of power.
In difficult divorces, the Get can become caught up in the wider conflict between the parties. It may be withheld because of anger or resentment, or used as leverage in negotiations over money, property or children. At that point, something that should allow both people to bring their marriage to a close can instead become another means of continuing the conflict.
South African law has recognised this difficulty. Section 5A of the Divorce Act 70 of 1979 provides an important safeguard. Although the legislation does not specifically refer to a Get or to Jewish marriages, it deals with circumstances where a civil divorce would leave one spouse unable to remarry according to the rules of their religion. In simple terms, the court has a discretion to refuse to grant the civil divorce until the spouse who is able to remove that religious barrier has taken the necessary steps to do so. The court may also make another order that it considers just.
The court is not granting the Get and is not deciding a question of Jewish law. Rather, section 5A recognises that there may be a very real injustice in allowing one spouse to obtain the benefit of a civil divorce while deliberately preventing the other from being free to remarry according to their faith.
There is, however, an important practical point, and that is the question of whether the Get should be raised at the beginning of the divorce process. Section 5A is most useful while the divorce is still before the court. If the civil divorce is finalised without the Get having been addressed, the position may become considerably more difficult to resolve.
For anyone going through a Jewish divorce, the Get should therefore not be treated as something to attend to once the lawyers have finished with everything else. It forms an important part of bringing the marriage to an end.
Divorce is already an emotionally difficult process. Neither the civil nor religious process should be used to punish, control or gain an advantage over the other spouse.
Ultimately, ending a marriage should be about closure, and allowing both people to leave the marriage with dignity and the freedom to begin the next chapter of their lives.
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