GRAHAM SEGAL, president of Jewish Lawyers Australia, is calling for lawyers acting in family law matters to be more aware of the potential issues that can arise under religious law and how they can be dealt with under state law, particularly in divorce cases.
Currently, the main problem in Jewish divorce cases arises where one party refuses to give or receive what is known as a gett, the document of religious divorce which is served upon the dissolution of the civil marriage.
A gett needs to be presented by the husband to the wife. Without a gett, the parties are not divorced under Jewish law and therefore not free to remarry under the Jewish faith.
“Lawyers acting for Jewish people in a divorce need to be aware of this problem. Even many Jewish lawyers aren’t really aware of the problems that can arise,” Segal said.
“Sometimes clients don’t realise it matters until they want to get remarried. So for those reasons it’s very important that lawyers be aware of these things when they have to advise Jewish divorcees in that area.”
To deal with this issue, the Family Court may issue what is known as a Gwiazda order — named after the case in which the order was first made — which in essence orders the parties to appear before the Jewish ecclesiastical authority and abide by its decision.
However, the issue of religious divorce can also be dealt with prior to marriage — something the Jewish Lawyers Association is trying to promote.
“We are encouraging parties to sign pre-nuptial agreements, not so much dedicated to financial aspects but saying that they do expect to pursue the gett process should their relationship fall apart,” he said.
“The legal relevance of it would be to reinforce the arguments on discretion that the court should make [a Gwiazda] order because the parties will say ‘hey, we agreed to this’.”
Segal said it was important to encourage understanding of the problem and the way to deal with it so people “don’t wake up one day and say ‘I didn’t know about this and now I’ve got problems’.”