Individuals of all faiths, cultures, and backgrounds have life cycle rituals and betrothal traditions. Upon divorce, there are rules in place that are based on thousands of years of tradition and religious practice. In many communities, including but not limited to Jehovah’s Witnesses, Orthodox Jews, Muslims, Christians, or Baha’is, the end of a marriage can be a shameful stigma. The rift between the couple is a deep disappointment that affects each individual but also his or her extended family, and even the larger community.
It is not a secret that divorce and family law matters have an emotional intensity that few other legal practice areas have. When you combine stigma, family honor, unresolved anger, and an adversarial legal forum, otherwise simple cases can become very complex to handle, and may end up in protracted litigation. International jurisdictional disputes are also a complicating factor. For example, in many countries in South Asia and the Middle East, a unilateral foreign divorce (without personal jurisdiction on the other spouse) can be easily obtained in a religious tribunal.
It is vitally important to understand where clients are coming from and to respect the cultural and religious context of their lives and their disputes. The lawyer or mediator’s task is to help clients make informed, rational decisions that will shape their future. Religion intersects with the civil divorce process as grounds for divorce, child custody, and financial issues play out in court, and in negotiations out of court. Mediation should be strongly considered as an option to resolve the dispute. This article will explore some common religious disputes in divorce and the benefits of mediation.
Options in Divorce Proceedings
Mediation is a process in which two parties amicably negotiate the terms of divorce and other family law matters with a neutral third party. Issues include child custody, child support, spousal support, and property division, including businesses, investment accounts, tax issues, and debts. In many cases, estate planning can also be part of the picture, including the creation of trusts.
In typical contested divorce proceedings, a judge will be entrusted to make the ultimate decision. There could be dozens of court appearances and time taken from home and work as the case progresses towards trial. If the case goes to trial, there can be weeks of proceedings in court before a ruling is made. Of course, leaving it to a judge involves a large degree of uncertainty and risk. The financial costs can be exorbitant and, in most cases, unaffordable.
By contrast, if both parties can agree on terms they are satisfied with by working with a mediator, they can avoid an outcome with a judge, who may not have a full understanding of religious and cultural issues in the case. The parties can choose to work with a mediator or a lawyer who has expertise in religious divorce issues.
The Jewish Gett
Jewish tradition pertaining to the Gett (Jewish divorce ritual) bestows considerable leverage and unilateral control to the male spouse, which can create a very uneven and sometimes unfair negotiation. For a divorcing Jewish couple, obtaining a Gett is a Biblical mandate, found in Deuteronomy 24:1-3 and comprising one entire Book of the Talmud. It is also an imperative of the highest order for a religious person. The consequences for not complying with the religious procedure cannot be overstated. According to Jewish law, a rabbi may not officiate at the remarriage of either a husband or a wife unless their Gett has been obtained. Furthermore, and most distressing, if the woman were to remarry without having obtained a Gett, her unborn children are considered ineligible to marry another Jewish person. For someone observant, not obtaining a religious divorce decree effectively means she cannot date and cannot have more children. She is chained to her husband.
Under Jewish religious law, a civil decree is not enough for a woman to remarry. With only a civil decree, the community looks upon the woman as still married and not released from her husband, no matter what the secular court may say. In order to end the marriage, the woman must obtain a Gett, which is a writ of religious divorce. The Gett is required whenever a Jewish man and woman, who have lived together as husband and wife, wish to dissolve their marriage. This applies even if it was only a civil marriage, with no religious ceremony.
When the parties agree to mediation, the issue of the Gett can be addressed along with other issues in the case. In many cases, the husband will agree to grant the Gett early on in the proceedings. By contrast, when cases are in litigation, it is much more likely that the granting of the Gett will take place at the end of the case, and in some cases, this takes place years later.
Islamic Divorce and the Mahr
An estimated four million Muslims live in the United States. Like most other Americans, most Muslim Americans have a religious marriage ceremony. For Muslims, this involves a local Imam who solemnizes the marriage consistent with Islamic traditions and law, referred to as Shari'a, which in Arabic is defined as a straight or clear path. Muslim marriage is called Aghd, and marriage contracts include a provision called Mahr (also called Mehrieh or Mehr). Under Islamic law, marriage is considered a civil contract. If an offer of marriage is accepted in the presence of two witnesses, the marriage contract is valid.
Across the United States, secular courts have historically refused to enforce Mahr agreements on several grounds: their religious nature; failure to satisfy the Statute of Frauds; the unfairness to women of unilateral divorce (Talaq); unequal protection under the law for women subject to Mahr; and the separation of church and state. All of these analyses are inconsistent with the civil contract aspect of Islamic law when it comes to Mahr. The Mahr is fundamental to Islamic marriage custom. According to the Koran, a Mahr is a gift that the husband is obligated to give the wife when the contract of marriage is concluded. Upon receipt, a woman's Mahr automatically becomes her separate property. A Mahr is not a dowry or prenup. It is a gift to the Wife enforceable by law.
In recent years, many Mahr agreements have been challenged successfully in U.S. divorce proceedings. Lack of consideration in the agreement, lack of a notary, and other concerns have led to a surge of Islamic prenups. Such prenups today proactively address financial support, enforcement of the Mahr, and consequences of adultery and taking of a second wife during the marriage.
Litigation regarding the Mahr often leads to an “all or nothing” outcome. Resolving Mahr disputes in mediation can help parties move on successfully, with less emotional fallout, while saving tens of thousands of dollars in legal fees.
Secular Remedies
As a civil rights matter, according to the United States Constitution, individuals should not be discriminated against based on their religious practice. Most religious and traditional communities are collectivist in nature; the individual puts the good of the family and community before him or herself. Religious marital contracts preserve those values and beliefs, to the benefit of the collective. Religiously motivated agreements must be interpreted the same as secularly motivated ones, as long as they can be interpreted using neutral principles and without evaluating religious doctrine.
An amicable resolution of religious divorce matters via mediation costs less and is resolved much more quickly. Mediation is also often less emotionally turbulent than litigation since mediators are skilled in building trust, resolving disputes, and helping work through intense emotions that may interfere with reaching an amicable agreement. In addition to saving time and costs and providing more control over future arrangements, mediation generally requires a more streamlined financial disclosure process.
When compared to divorce litigation, mediation can reduce significant costs – both financially and emotionally. This is primarily because mediation does not involve two opposing lawyers representing clients who are “battling” for their own side. Instead, it involves an attorney mediator, who acts as a neutral third party and helps spouses compromise and reach a mutual agreement. In religious divorce matters, it is common to have elders and religious clergy involved in the mediation process, which can make the resolution easier for the parties, their families, and the broader community.