- Section 116 of the Constitution provides that the Commonwealth shall not make any laws establishing any religion from imposing any religious observance or for prohibiting the free exercise of religion.
- Certain religions require not only a civil divorce but a religious one too.
- The Family Court has said it cannot assist litigants to obtain a religious divorce given the constitutional limitations imposed by s 116.
Getting divorced under the Family Law Act 1975 (Cth) (‘the Act’) does not free up Orthodox Jewish parties to marry again under Jewish law unless they have obtained a Jewish Divorce (‘Gett’). The same is true for Muslim women.
So what, if anything, can a party to proceedings in the Family Courts do when their spouse refuses them a religious divorce, as this has implications for the woman’s ability to remarry in her religious faith?
There have been a number of cases over the years grappling with this issue which has brought the limits of the Court’s power into sharp focus.
What’s involved in getting a Gett?
A Gett has strict formalities that need to be complied with under the supervision of the Jewish Rabbinical Court (‘Beth Din’). Once delivery and acceptance have taken place the parties are free to remarry under Jewish law.
Not acquiring a Gett has far reaching impacts especially for the wife, as she is effectively held hostage to remain in that ‘state’ until the man changes his mind. She’s called an ‘Agunah’ which translates to being ‘chained’ to her husband. Any children born to her in that ‘state’ are considered illegitimate and it limits who they can marry in the future under Jewish Law. She cannot remarry no matter how long she remains separated from her husband. For the husband, it is difficult but not impossible to remarry under Jewish law before he obtains a Gett.