Religious Divorce

Religious Divorce, Removal of Barriers Laws and its Impact on Religions in an Ethnically Diverse New Jersey a majority of New Jersey residents identify with a religion.

For the religiously devout, a secular divorce can present a problem when an individual wants to thereafter remarry within their faith.  Remarriage may not be simply a civil matter, but one with significant religious implications and obstacles.  By way of context, many are now familiar with the recent trial in New Jersey of several NY/NJ rabbis who were ultimately convicted on charges of kidnapping and torturing Orthodox Jewish husbands who had refused to sign a Get (religious divorce decree).  The rabbis sought to compel these reticent husbands to “voluntarily” give the Get, which would allow their former wives to remarry in the faith.  Without the document, the women were deemed “agunah”, which is defined as chained women who are stuck in a dead marriage. The heavy handed tactics used by the rabbis evolved in the wake of a small percentage of Jewish husbands using the lopsided power inherent in the Get process to a) deny the wife the opportunity to move on with her life and b) often extort more favorable financial and custodial divorce settlement terms.

New Jersey courts have most recently found that ordering production of a Get stands in conflict with First Amendment principles, and, thus, cannot be compelled.  Other states have found the acquisition of the Get to be a non-religious act, thus avoiding issues of First Amendment violations, and have compelled its production.

New York has enacted legislation that requires litigants filing a complaint for divorce (or those who do not oppose the divorce itself) to sign affidavits that they have “removed all barriers to remarriage.” See DRL §253. Failure to comply with the statute can result in financial sanctions and other punitive effects. However, the statute is not without its shortcomings.  Though the statute is written from a religion-neutral position, its effect in application will manifest itself differently based on the particular faith that is at issue. Because requiring the specific performance of a purely religious activity is a clear violation of First Amendment rights, New York cannot actually force either husband or wife to affirmatively take the necessary steps to “remove all barriers to remarriage”.   Financial sanctions can legally be ordered, which may effectively persuade many individuals to cooperate with the law, but compliance with the action of cooperation cannot be forced.

Interestingly, in New Jersey’s religiously diverse population, there is not always a conflict between religious secular divorce and religious divorce.   Protestant denominations generally (but not always) allow remarriage within the faith and also do not typically require a religious decree to remarry within the faith.

An interesting perspective that would apply to those of the Hindu religion is offered in India, which has implemented religion-specific civil codes that govern religious practitioners. By way of example, Hinduism has no concept of divorce, viewing marriage as a sacred relationship undertaken for life. Nevertheless, Indian law, while recognizing the traditions of Hinduism, also authorizes divorce and nullity to Hindu marriage, in contravention of the religious tenets.

Muslim tradition permits divorce.  When the male initiates divorce it is called talaq and is a simple process.  When the woman initiates divorce, it is called khula.  Khula is a very limited process and often restricts the woman’s child custody rights.  This can result in severely limited practical ability of a Muslim woman to religiously divorce her husband.

A Catholic Annulment and a Mormon Temple Sealing Cancellation both require the subjective approval of religious officers. In the Catholic tradition, marriages are a holy sacrament and divorce is prohibited. The only way to remarry within the faith after a civil divorce is to receive a religious annulment, effectively deeming the first marriage void.  The annulment can be obtained even after many years of marriage, but there is no guarantee that the church will agree to the annulment.  Likewise, a Mormon couple who has been sealed in the temple can be unsealed only under certain conditions (i.e. the woman is ready to be re-sealed to another man, holding temple entrance privileges, etc.). Even then, any cancellation request is subject to approval of the church hierarchy.

In many of the above religious examples, a civil divorce may result in a spouse being left with no religious ability to be remarried in the eyes of their faith. In these situations, there are limits to civil government universally encroaching upon religious practice to guarantee the eradication of agunah-type status in any religion.

Given the protection of religious liberty in this country, there is perhaps no adequate civil solution that can address each religious paradigm as it concerns divorce and to compensate for when a religious tenet unevenly denies individuals the personal liberty of remarriage within their faith.  However, the economic sanctions contained in a “removal of barriers to remarriage” statute will likely drastically reduce the problem.  Perhaps removal to barriers language may even be included in the application for marriage that all New Jersey couples must submit prior to their civilly-recognized marriage.

Civil remedies to ensure religious remarriage will not likely ever be able to be universally applied to all New Jersey religions.  However, implementing appropriate “removal of barrier” legislation containing economic incentive to adhere to the laws may be a step in the right direction.

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