There remain very few areas of family law that are unaddressed by the New Jersey Supreme Court. This article examines one: the role civil (or secular) courts may play when resolving disputes between parties in the context of a Jewish divorce, which requires a husband to grant his wife an ancient ecclesiastical divorce document, known as a “get.”

First Amendment principles of non-interference with religious practices requires courts to avoid decisions between various religious rules, or between rules of secular law and religious law. The role of a court asked to resolve a dispute relating to religion is constitutionally limited to identifying the point at which rights converge so as to ensure respect for freedom of religion. However, tensions between First Amendment considerations and enforceability by civil courts of agreements to discourage religious barriers to remarriage are oftentimes invoked in the context of a ”get.” For 27 years, New Jersey courts have been divided on this issue, creating a dearth of guidance for both attorneys and the judiciary as to how this complex and multifaceted legal paradox should be treated by our courts. The equivocation is not without consequence. While litigants wait for our courts to resolve First Amendment questions surrounding the get, many litigants remain bound to religious marriages, which they are powerless to terminate under both Jewish and secular law.

The origin of Jewish divorce via “get” is rooted in the following biblical passage:

“A man takes a wife and he possesses her. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorce, hands it to her, and sends her away from his house.” —Deuteronomy 24:1–4.

In accordance with Jewish law, no divorce is valid unless the husband delivers the wife a ”get,” a process that only a husband can initiate. See Aflalo v. Aflalo, 295 N.J. Super. 527, 534 (Ch. Div. 1996) (citing Wigoder, The Encyclopedia of Judaism (1989) 210). The imbalance of the Jewish divorce process may give rise to abuse. Indeed, during ancient times when biblical law controlled, husbands were empowered to dissolve marriages at will, without any ongoing financial obligation or responsibility for the wives they abandoned.

A rabbinically created remedy designed to mitigate the harmful effects of the “get” process on women was the ketubah, a Jewish marriage contract, which postdated the “get” by approximately two millennia. The ketubah entitled a wife to marital rights from the husband—including financial support, clothing, food, among other basic necessities—during the marriage and in the event of a separation. Id. at 535-36. The only means by which the husband may invoke to absolve himself of his marital obligations is to deliver his wife a “get.” While this financial penalty incentivized some men to agree to deliver a “get” to their wives, it did not completely eliminate abuses. In fact, to this day, under Jewish law, husbands remain empowered to utilize the “get” to maintain control and keep their wives religiously wedded to them as an Agunah, or as a “chained woman.” For decades, Rabbinical authorities have grappled with the situation, but have been constrained by the interplay between Jewish law and constitutional concerns under the establishment and the free exercise clauses of the First Amendment.

In New Jersey, the issue was addressed in Minkin v. Minkin, 180 N.J. Super. 260 (Ch. Div. 1981), which held that compelling a husband to issue a “get” was a proper enforcement of the ketubah. Minkin ruled under establishment clause principles that “the acquisition of a get is not a religious act,” and compelling a husband to submit to a Rabbinical Court for that purpose would neither “advance nor inhibit religion.” Id. at 262-63. In other words, these cases treated the “get” as a severance document terminating the contractual relationship set forth in the ketubah.

Several years later, in Burns v. Burns, 223 N.J. Super. 219 (1987), the court expanded Minkin when confronting a situation wherein the husband demanded $25,000 from his wife in exchange for his agreement to grant the wife a “get.” In response to the husband’s objection that to grant his wife a “get” would violate his religious mandate to do so voluntarily, the Burns court noted:

“An offer to secure a ‘get’ for $25,000 makes this a question of money and not religious belief. This ‘offer,’ which is not denied by the plaintiff, takes this outside the First Amendment. This so-called offer is akin to extortion.”

Interestingly, the Burns court declined to compel the acquisition of the “get” itself, but rather compelled the husband to submit to the jurisdiction of the Rabbinical Court “and initiate the procedure to secure a ‘get,’” leaving the ultimate decision of whether to grant the “get” to the Rabbinical Court itself.

Then, in Aflalo, 295 N.J. Super. at 527, a trial court again confronted the constitutional issue and rejected the entire premise underlying Minkin. Instead of analyzing the issue under the establishment clause, the Aflalo court held, under the free exercise clause, that ordering the husband to give his wife a “get” was a religious act that would violate the husband’s right to free exercise of religion:

“[Minkin] fails to recognize that coercing the husband to provide the ‘get’ would not have the effect sought[. ...] What value is a ‘get’ when it is ordered by a civil court and when it places the husband at risk of being held in contempt should he follow his conscience and fail to comply?”

The Aflalo court also noted an establishment clause concern in cited in the dissent in Avitzur v. Avitzur,446 N.E.2d 136 (N.Y. Ct. App. 1983), cert. denied 464 U.S. 817 (1983):

Even the limited relief that the majority of four approved required inquiry into and resolution of questions of Jewish religious law and tradition and thus inappropriately entangled the civil court in the wife’s attempts to obtain a religious divorce.

Notably, the Avitzur majority reached a different conclusion than Aflalo—and the U.S. Supreme Court denied certiorari.

Since Aflalo, only one decision has thoroughly examined the “get” issue, Mayer-Kolker v. Kolker, 359 N.J. Super. 98 (App. Div. 2003), where the Appellate Division acknowledged the disagreement between Minkin and Aflalo, but declined to offer a substantive resolution. The court explained that to the extent that the decision in Minkin was based on the validity of the ketubah, the trial court was unable to rule on the issue until it made a finding as to the particular requirements of the ketubah in question. Arguably, based on the divergent holdings of Minkin and Aflalo, and the Mayer-Kolker court’s analysis, it appears that the panel was more inclined to adopt Minkin’s rationale. Simply put, if the Mayer-Kolker court had believed that Aflalo “got it right,” then there would have been no need for findings related to the ketubah, as, under Aflalo no court could compel a husband to provide a “get” regardless of the interpretation of a ketubah. Yet, without that clear instruction from the Appellate Division or the Supreme Court, the issue remains largely unresolved as to whether New Jersey courts deem the act of compelling a husband to deliver his wife a “get” is violative of First Amendment principles—or whether a secular court may even compel a husband to appear at the Bet Din.

The struggle to resolve disputes arising under biblical law against modern-day secular strictures often manifests as a ministerial function of the courts wherein attempts are made to interpret documents dating back millennia. Compounding the issue is the lack of unanimous consensus among Rabbinical authorities about any aspect of Jewish law, let alone the interpretation and application of a ketubah and “get.” Accordingly, mechanisms to resolve these questions necessarily require the court’s intertwinement with religious doctrine, with opposing rabbis frequently testifying as expert witnesses on the subject to offer their subjective religious stance concerning biblical doctrine.

It is difficult to conceive of another area of law where this inquiry would be countenanced. On the one hand, if individuals wish to be bound by religious law—and shielded from civil court— they may opt for arbitration in Rabbinical Court. However, absent that approach, a fair question arises as to whether the interpretation of religious scripture and application of Mosaic law should control a secular court. As a result of the deadlock between Jewish law and First Amendment concerns, alternative mechanisms for the prevention of "get”-related coercive control may provide relief, for example, the recently proposed A1475, which seeks to amend New Jersey’s Prevention of Domestic Violence Act to include provisions that would include “coercive control” as a factor for a domestic violence judge to consider when deciding whether to issue a restraining order. The bill revises the definition of domestic violence to include “coercive control” and defines it to mean a pattern of behavior that is designed to deliberately and/or improperly remove the plaintiff’s liberty, freedom, bodily integrity, and/or human rights. According to the Americas Conference to End Coercive Control, similar bills have been introduced in New York, Florida, Maryland, South Carolina and Washington. In fact, recently a Superior Court of Los Angeles County judge applied the newly added provisions to the California Domestic Violence Prevention Act to deem a man’s refusal to give his wife a “get” not only an act of per se domestic violence, but also as a factor in the context of the court’s decision to award custody of the parties’ children to the wife. See Esther Macner, “California ruling deemed step forward for Jewish women stuck in abusive marriages.”

While these statutes cannot eliminate coercive control in the context of an unfounded “get” refusal, they may provide relief. However, even the most narrowly tailored coercive control statute may implicate First Amendment (free exercise) principles, which caused the Aflalo court great concern. By way of example, is the husband’s refusal to provide a “get” based on a fundamental religious belief or tenet such as an Orthodox husband refusing to appear before a non-Orthodox Bet Din, or is the refusal grounded in financial extortion or desire to control—or should it even matter in a secular court? In the absence of guidance from our Supreme Court, attorneys, trial court judges, and Jewish women remain in limbo.

Reprinted with permission from the March 3, 2023 issue of The New Jersey Law Journal© 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.