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Religion and divorce — the struggles women of faith still experience

By January 19, 2018October 25th, 2021No Comments

Religion and divorce remain a controversial topic — read our update on the difficulties faced by Muslim and Jewish women who wish to divorce. If you personally need assistance with a divorce or other family law matter, please do not hesitate to contact us (02) 6223 2400 for compassionate advice.

IN OUR SECULAR SOCIETY, and thanks to past family law reform such as the no-fault divorce, it is not onerous to obtain a divorce, for husbands or wives. It may well be emotionally traumatic, and costly if a protracted court fight takes place over children or property, but our civil divorce law is gender neutral and drafted to be fair to both parties.

Spare a thought then for women of faith, in particular Muslim or Jewish women, for whom obtaining a divorce in 2018 is still a far from straightforward process.  For the religiously committed, both a civil and a religious marriage is necessary, and when relevant, both a civil and a religious divorce. And this can be harder for women of faith than men to achieve.

In Westernised countries, governments continue to struggle with how to help their female citizens of faith navigate the intersection of civil law and religious laws, in circumstances where religion and divorce still favours husbands.

Religion and divorce as a Muslim woman

In Islam, husbands can divorce a woman simply by pronouncing the “triple Talaq”, which can even be done in by the husband in private.  Wives wishing to divorce who find their husband refuses to pronounce Talaq can still seek a Sharia divorce, but this is a complicated process for women, involving engagement with a Sharia council and ultimately the decision of an Imam, who may have a personal relationship with the husband.

In some countries, like England, Islamic women still have their rights as a married woman threatened if their religious marriage was not properly registered under civil law as well: as one article puts it, “This severely prejudices their rights to maintenance and possibly capital asset distribution, as well as being denied rights of inheritance and pensions”.  In Australia, de facto laws mean a Muslim woman is somewhat etter protected in such a situation.

Elsewhere, reform is under way. For example, in what is seen as a historic move, Greece has just made the practice of Islamic Sharia law in family disputes optional for its Muslims: “For family law matters, Greek Muslims generally seek recourse to Muftis for things like divorce, child custody and inheritance. Rights groups say it is a system that frequently discriminates against women.”

Religion and divorce as a Jewish woman

Jewish women can’t instigate a religious divorce—only husbands are able to do this.  And the religious divorce, called a ‘Get’, may be refused by the husband: “Get refusal is often about controlling the life of a spouse, even after the marriage is over. Get refusal may be used to extort financial concessions and used effectively as blackmail in a dispute over children”.   While the Jewish Beth Din, which provides private, non-legal dispute resolution, can apply pressure on a husband who refuses a Get, whereas in the past, ostracism from the Jewish community was an effective tool, these days, “sanctions may not be as effective because the social fabric and authority of the Jewish community has changed.  Factors such as the geographic mobility of recalcitrant husbands have greatly increased and recalcitrant men may leave the community which knows of their refusal, or be indifferent to social communal consequences.”

Without a religious divorce, a Jewish woman remains ‘aguna’, literally ‘chained’, to her husband.  While she can remarry under civil law, such a second marriage is regarded as adulterous and any offspring of it, illegitimate ‘mamzer’. This has consequences for the children, who can then not marry within the Jewish community.  The plight of the ‘agunot’, chained women, means religion and divorce remains an issue in Australian Jewish communities today.

In the UK, matters are also complicated by the fact that they do not yet have no-fault civil divorce laws as we do here in Australia.  Although the majority of divorces there are based on ‘unreasonable behaviour’, adultery petitions still represent 11% of cases in the UK and can have implications for women of faith, since for Jewish people, adultery is considered an extremely serious sin.  Last year, the UK’s Ministry of Justice also released a revised version of its divorce petition, which now devotes a full page to the naming and detailing of information regarding someone a spouse has committed adultery with. Expert commentators have suggested this may encourage more ‘adulterous co-respondents’ being named, with potential ramifications for those individuals too.  Therefore family law practitioners in the UK are being warned to consider the wider repercussions of adultery petitions and the naming of third parties as adulterous co-respondents.

In terms of Get refusal, in the UK, specific clauses in their Matrimonial Causes Act 1973 afford some leverage in the obtaining of a Get.  Parties, usually the wife, can apply to prevent a decree absolut being issued until a Get is obtained, so that a civil divorce can’t be achieved while keeping a wife religiously ‘chained’.  But this will only work to apply pressure if the spouse actually cares about a civil divorce.

In Australia, a family court decision last year confirmed that Australian family courts will not assist separating parties to obtain a Get. While the case involved the more unusual reversal of a wife refusing her husband a Get, with the husband attempting to have the family court withhold the wife’s property settlement until she agreed to a Get, what is noteworthy is that the court ruled this would be unconstitutional.

Family law practitioners here therefore increasingly try to use creative means to pressure spouses to agree to a Get. This may mean having couples sign a prenuptial agreement stating that if the marriage breaks down, parties will be civil and readily give or receive a Get. While prenuptial agreements can legally only deal with financial matters, and therefore such a clause has no binding legal effect, it helps signify intention and can also apply psychological pressure to parties.

Elsewhere, an Australian family lawyer has been helping a client obtain a Get by arguing Get refusal is a form of spousal abuse, under the clause in Victoria’s Family Violence Protection Act wherein it is considered abuse to stop your partner keeping connections with their spiritual beliefs and practices:

“The magistrate agreed with [the lawyer]’s argument that Get refusal stopped a woman from moving on with her Jewish life.  ‘This is just stepping in the waters,’ [the lawyer said]. ‘The next step would be to make it clear in the Intervention Order that his failure to comply with the beth din in granting the Get is a breach of the order. And that would be recognised immediately by police…Then we’d be on the same terms as Israel. There, the secular courts can take certain steps. Cancelling credit cards, cancelling driver’s licences, all the way up until imprisoning someone until he complies with the ruling of the beth din.’”

Do you need advice in relation to religion and divorce, and how Australia’s family law operates in relation to religious marriages and divorces?  Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.

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