BREAKING NEWS: NEW JERSEY COURTS GRANTS SOME RELIEF TO AGUNOS

The New Jersey Supreme Court has just granted a meaningful win for women statewide who are waiting to receive a get.

For decades, the New Jersey judicial system has been shy of getting tangled up in get refusal disputes, saying that they lack any authority to order a husband to provide a Get to his wife.

In the 1996 case of Aflalo v. Aflalo, plaintiff-wife filed for divorce in civil court and defendant-husband asserted that no matter what occurred in the civil divorce action, he would refuse to consent to provide plaintiff-wife with a Get.

The Appellate Division concluded, "It may seem "unfair" that Henry may ultimately refuse to provide a "get." But the unfairness comes from Sondra's own sincerely-held religious beliefs. When she entered into the "ketubah" she agreed to be obligated to the laws of Moses and Israel. Those laws apparently include the tenet that if Henry does not provide her with a "get" she must remain an "agunah." That was Sondra's choice and one which can hardly be remedied by this court. This court has no authority — were it willing — to choose for these parties which aspects of their religion may be embraced and which must be rejected."

Subsequently, in the 2003 case of Mayer-Kolker v. Kolker, the plaintiff-wife sought a court order that the defendant-husband was to cooperate in obtaining a Get, using the argument that the Ketubah that the parties signed compelled the parties to adhere to Jewish law. 

In that case, Plaintiff-wife argued that the parties entered into a Ketubah, which is a Jewish marriage contract, therefore making the parties’ marriage subject to Jewish law. Defendant-husband, however, asserted that the Ketubah that the parties signed did not automatically convey the parties’ adherence to Jewish law, lacked the requisite specificity for enforcement and was silent on the issue of whether a Get would be granted in the event the parties divorced.

The trial court determined that it did not have the authority to compel the defendant-husband to provide plaintiff-wife a Get. The Appellate Division affirmed this ruling, reasoning that the plaintiff-wife failed to establish the effect of the Ketubah that the parties entered into and failed to establish the Ketubah’s mandate of Jewish law with regard to enforcement. Additionally, the Court found that "in giving his wife a "get" a husband must "act without constraint." Indeed, during the proceeding the husband is asked "whether he ordered [the "get"] of his own free will." What value then 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 refuse to comply? Moreover, why should this court order such relief when that is something which the Beth Din will not do? If a "get" is something which can be coerced then it should be the Beth Din which does the coercing. In coercing the husband, the civil court is, in essence, overruling or superseding any judgment which the Beth Din can or will enter, contrary to accepted First Amendment principles."

As previously reported here on FAA News, back in August 2023, the Appellate Division issued a landmark ruling in a case where the defendant-husband had originally, on his own free will, agreed in court to respond to beis din and to be bound by their decision. 

Prior to trial, the parties tentatively reached an agreement on all issues, including each party's obligations with respect to a beis din proceeding to obtain the get that plaintiff sought. With the consent of both parties, before the final Marital Separation Agreement (MSA) was drafted, the trial court took testimony from defendant to confirm his agreement with respect to the beis din provision. Defendant testified that he would respond to any summons received from the beis din and would be bound by any decision the rabbinical court made regarding the get, which was to be decided by that body in accordance with Jewish law. Defendant further testified that he understood he would be subject to sanctions imposed by the Family Part in the event that he did not cooperate with the beis din.

In the Appellate Division proceeding, the defendant, represented pro-se, argued that the trial court had no authority to order him to arbitrate in the beis din; the trial court erred by relying on a "religious document" and by requiring defendant's participation in beis din proceedings; and the trial court violated the First Amendment by ruling on a religious agreement.

In a published ruling, the court disagreed and ruled that the court can enforce such an MSA.

"The legal precedent that this case establishes is that the Family Part judge did not violate the husband's First Amendment rights by ordering him to sign an arbitration agreement with the beis din, to participate in beis din proceedings, and to abide by the beis din ruling, whatever that might be, because the Family Part judge was asked to enforce the MSA which the parties entered into knowingly and voluntarily and is a civil contract, not a religious one," the court wrote.

Following on the heels of this ruling, earlier this year the Appellate Division enforced another such MSA in which the husband consented to go to Beis Din.

The husband then petitioned the state's highest court to review the matter.

The New Jersey Supreme Court has just denied to hear the appeal, keeping in place the Appellate Division's published ruling.

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