Authority of Divorce Courts to Require a Religious Divorce
Posted on : July 15, 2016, By: Christopher Hildebrand
Divorce Court’s Authority to Require a Jewish Divorce
Arizona law allows the divorce court to address the financial and custody issues in a divorce. But can a court order a spouse to undertake a religious ceremony?
In Victor v. Victor, 177 Ariz. 231, 866 P.2d 899 (1993) the Court of Appeals reviewed that issue. It had to decide whether a trial court can order someone to undertake a religious divorce proceeding.
Facts of the Case
Arizona Community Property Law.
Mrs. Victor and Mr. Victor were married in 1976 in an Orthodox Jewish ceremony. As part of their marriage, they entered into a ketubah. This is a document that records the financial obligations imposed on the husband by Jewish law. Both parties signed the ketubah, but they did not get it acknowledged.The document under Jewish law required for a divorce is called a “get.” To obtain a get, a husband starts a proceeding before a Jewish tribunal. Under Jewish law, a wife is not deemed divorced until she received a get even if she gets a civil divorce. She cannot get remarried and any children she has in a subsequent marriage are considered illegitimate.
Husband brought an action for civil divorce. However, he refused to initiate proceedings for a get, despite repeated requests by the wife. She brought this action seeking to have a judge compel the husband to obtain a get. The trial court ruled that it did not have the authority to do this and wife appealed.
The Court’s Equitable Powers
Mrs. Victor first claims that the trial court has authority to order the husband to obtain a get under its equitable powers. The Court of Appeals noted that the court has only the powers found in the statutes. It has no equitable power beyond its legal authority spelled out in the statutes, e.g. to divide property, determine child custody, etc.
Nothing suggests that a court has authority to require spouses to undergo religious proceedings as part of a divorce.
Ketubah as Prenuptial Agreement
Wife’s second argument is that the ketubah that she and her husband signed should be viewed as a premarital agreement. Under it, husband agreed to act in accordance with the moral precepts of Jewish law. If viewed in that light, she argued, the trial court can specifically enforce the get agreement.
Community Property Law in Arizona.
The Court of Appeals determined that the ketubah was executed with the proper formality to be a prenuptial agreement. It was executed in Florida and it complied with the formalities of that state.
Unlike Arizona, Florida does not require that a prenuptial agreement is acknowledged. However, the Court next looked at its specificity.
In Arizona, provisions of a prenuptial agreement must be sufficiently specific to be enforceable. Here, the Court found that the ketubah was lacking.
The specific provisions of the ketubah apply to the couple’s finances. They do not require the husband to obtain a get to divorce.
Mrs. Victor points to language requiring the couple to comply with the “laws of Moses and Israel.” This, the Court found, was too vague to enforce. It contained nothing to suggest that a husband who signs must obtain a get to obtain a divorce.
The Court of Appeals affirmed the trial court ruling.
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