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Cross Cultural Issues in Family Law: Jewish Matrimonial Law and Customs in Secular Courts
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Cross Cultural Issues in Family Law: Jewish Matrimonial Law and Customs in Secular Courts

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  • 1. © 2013 Fox Rothschild Cross-Cultural Issues In Family Law: Jewish Matrimonial Law and Customs In Secular Courts Presented by Julia Swain, Esquire
  • 2. Definitions • Halakha (or halacha)- Jewish law • Ketubah (or kettuboh, kettuba)- Jewish marital contract • Get - Jewish divorce instrument
  • 3. Definitions • Heter Me‟ah Rabbanim- „Permission by 100 Rabbis‟ for a husband to remarry where his wife is incapable or unwilling to accept a „get‟ • Beth Din- Rabbinical Court • Agunah (or agunot)- A „tied‟ woman, unable to remarry in the eyes of the Jewish law
  • 4. Definitions • Mamzer- Illegitimate children born to an agunah • Din Torah- Jewish arbitration proceeding • Dayanim- Judges • Moredus- Woman „rebel‟ refusing to submit to Rabbinical authority
  • 5. Three Sects of Judaism Orthodox Conservative Reformed
  • 6. Orthodox • Most traditionalist view of the faith • Governed the Jewish religion for centuries, mainstream until 200 years ago • Believe God spoke/wrote the Torah • Strict interpretation of Jewish rules and customs; Torah not subject to interpretation
  • 7. Conservative • Beliefs are more liberal than the Orthodox, but more traditional than Reformed • Believe that God inspired the Torah but written by man • Follow a fundamental text as interpreted by a Conservative Rabbinical Counsel who consider modern society and multiple interpretations of the Torah
  • 8. Reformed • Reform Judaism is a more recent movement which pushes for the modernization of Jewish traditions, culture, and faith. • Faith based, consider ancient text that may or may not apply to modern times • Each generation can decide level to which rules and customs apply
  • 9. Marriage In Jewish Life • „The ideal human state‟ where a couple join in an institution designed by God to be companions and to procreate. • The husband‟s broad duties within the marriage are outlined in a Jewish marital contract called a ketubah.
  • 10. The Ketubah The Ketubah explicitly states the husband‟s duty to his wife: (1) food (2) clothing, and (3) conjugal rights
  • 11. Ketubah – Historical Implied Duties (1) pay his wife a sum if he divorces her or dies before she does (2) pay her medical bills (3) pay a ransom if she is kidnapped (4) pay her burial costs if she dies before him (5) upon his death, her children inherit her ketubah money before all other estate obligations are distributed (6) allow her to live off of his estate and in his home until she dies or gets remarried (7) support her daughters until they marry
  • 12. Jewish Divorce • Where there is no longer harmony in the home between husband and wife, Jewish law provides a process for divorce. • Jewish divorce involves a proceeding before a Rabbinical tribunal to grant a divorce decree, known as a „get‟.
  • 13. The „Get‟ • „Get‟ is granted by a local Beth Din, in cooperation with the parties‟ Rabbi • After the „get‟ is granted by the Beth Din, it must be willingly delivered by the husband to his wife, who must willingly receive it. • The „get‟ cannot be replaced by a civil divorce. • Without the „get‟ the couple is still married under Jewish law.
  • 14. History of the „Get‟ • Historically, only the husband had power to initiate divorce and issue a „get‟. • This led to concern with the potential for abuse with this power dynamic and the ketubah was created as a marital protection for the wife. • As rabbinical law evolved, women were imbued with the power to accept or not accept the „get‟. • The practical effect = requires the mutual assent of both parties for the Jewish bill of divorce to be issued.
  • 15. Agunah – “In Chains” • If no mutual assent, or a party is absent, the remaining spouse seeking divorce is left „chained‟ to the marriage. • In modern times, the issue commonly involves either a husband unwilling to give the „get‟ out of spite, or a wife who refuses to accept the „get‟. • Wives can petition the Beth Din to have their husband brought before a tribunal of three rabbis for an arbitration hearing known as a „din torah‟.
  • 16. Din Torah • Beth Din is responsible for determining terms for husband to give the „get‟ and wife to receive it. • Ruling is enforceable today only through social sanctions on the party in contempt or through judicial recognition in a secular court. • Social sanctions may be ineffective - the offender may skip from one faith community to another, or leave the observant community all together.
  • 17. The Agunah Problem • Even with a favorable ruling from the Beth Din, a woman‟s divorce is not effected until her husband delivers a „get‟ that has been issued voluntarily. • Without a „get‟, she cannot remarry or date, and her future children are considered illegitimate „mamzerut‟ under Jewish law. • „Mamzerut‟ cannot marry others of the Jewish faith legitimately; cannot be circumcised; and, cannot participate in the major activities of the faith, a fate which passes down to their children
  • 18. Powers of the Beth Din • Arbiter of Jewish law in America • The Beth Din was founded in 1960 to serve the portion of the diaspora, Jews living outside of Israel, living under both secular and religious law. • Today, it is a true arbitration panel, rulings have wide acceptance by secular courts. • The Beth Din handles matrimonial cases, commercial disputes and communal affairs.
  • 19. The „Get‟ Process • Beth Din is the primary organization capable of managing the „get‟ process. • The Beth Din arranges for at least three rabbis to preside over each tribunal. • Tribunal can meet with the parties together, separately, or travel to the parties as necessary to effect the divorce. • Beth Din has the power to summon unwilling parties who stipulated to have matrimonial disputes handled by the Rabbinic court in a prenuptial or postnuptial agreement.
  • 20. Heter Me‟ah Rabbanim • Formal, complex process to force wife to accept „get‟ • If wife refuses to participate in process and/or to accept „get‟, she is a „moredus‟ (rebel) • Beth Din then writes a petition for Heter Me‟ah Rabbanim • Permission from 100 Rabbis for husband to re- marry
  • 21. The „Get‟ – Gender Differences • If woman refuses to submit to „get‟ process – she can be forced – or be excommunicated upon death, „cherum‟ • Husband cannot be forced to submit to „get‟ process – Husband can still re-marry – Wife left in agunah
  • 22. Beth Din Rulings • Beth Din rulings in the matrimonial sphere are subject to state statutory and common-law. • Impartial Rabbinic tribunals can rule on: – the „get‟ – distribution of property – alimony – child custody – child support
  • 23. Caution - Custody • Beth Din follows Tender Years Doctrine • Rabbinical law maintains traditional gender roles • During a child‟s “tender years”, father‟s time will be limited • Exception – if father is the more observant Jew, he could get more (most or all) of the Jewish holidays
  • 24. Beth Din Hearings • Beth Din hearings are similar to the civil litigation process. • Proceedings are recorded and available for transcription. • Provisions for pre-hearing discovery requests from the parties or the Beth Din itself • Parties may also stipulate to facts or issues in advance and must provide notice of anticipated witnesses that will be called.
  • 25. Beth Din Rulings and Decrees • Beth Din rulings are enforced through recognition by civil courts • Beth Din issues decrees formalizing community sanctions by withholding privileges: – burial rites – marriage rites – shul membership – social acceptance
  • 26. Rabbinical Matrimonial Law In Modern Times • In modern society, Rabbinical law scholars recognize that the ketubah does a poor job of regulating the post-marital financial responsibilities of the parties. • Couples are increasingly turning to prenuptial agreements in addition to the ketubah, which are more specific on dispositions of property, and also can be used to prevent the refusal to give and accept a „get‟.
  • 27. Beth Din Marital Agreements • Beth Din Form Prenuptial Agreement – Cannot contract rights, property and obligations that parties do not have at time of agreement – Arbitration agreement only, agreement to submit marital dispute to Beth Din in future – No financial disclosure – Can be done as a postnuptial agreement
  • 28. Overview of Standard Provisions • Parties agree to submit post-marital disputes to Beth Din for binding decision • Beth Din decision shall be fully enforceable in civil court • Beth Din has exclusive jurisdiction over „get‟, ketubah and tena‟im (Jewish prenup) • Beth Din jurisdiction over support and custody is optional
  • 29. Overview of Standard Provisions • Beth Din can award costs and fees, including reasonable counsel fees • Jewish law (halakah) applies • Husband agrees to pay $150 per day ($4,562.50/month; $54,750/year)so long as parties married, even if wife has separate earnings
  • 30. Best Practices • Sign Beth Din prenup and standard civil prenup with financial disclosures and appropriate waivers • Civil prenup should include consequences for either party‟s failure to give or accept „get‟ • Consequences should be economic
  • 31. Economic Consequences • Waiver of spousal support, APL and alimony by wife for failure to accept „get‟ • Increased spousal support, APL and alimony payment (amount certain) by husband for failure to give „get‟ • Forfeiture of assets for failure to accept or give „get‟ • Both sides represented by counsel
  • 32. Cultural Considerations • Men do not shake hands with women • Men and women do not show affection • Women often cover heads, dress conservative • Language - no profanity, no off-color humor • No smoking • Be careful offering food, even if kosher • Respect Shabbat and other important Jewish holidays • Annually alternate Jewish holidays for Orthodox families
  • 33. Special Thanks Norman Perlberger, Esquire Beth Din Client Advocate and Advisor NY, PA, IL, MN, and TX Note - Beth Din advocates and advisors must be Orthodox because they are bound by Rabbinical authority.
  • 34. Presented by: Julia Swain, Esquire Fox Rothschild, LLP 2000 Market Street, 20th Floor Philadelphia, PA 19103 215-299-2794 Direct 215-299-2000 Main 215-299-2150 Facsimile jswain@foxrothschild.com www.foxrothschild.com