Article

Getting a get in Scotland

13 March 06

How the new religious provision in the Family Law (Scotland) Act will particularly benefit Jewish clients

by Deanna Levine

 

In his article entitled “Quiet Revolutions” in January’s edition of The Journal (page 20) Kenneth Norrie refers to what he describes as the “religification” (a somewhat curious neologism) of Scottish family law. Fortunately, the Scottish Parliament proved itself to be somewhat more compassionate than he in realising that the civil law can indeed be invoked to assist the plight of divorcing Jewish couples, as has been happening for some years in Canada and South Africa, as well as England and Wales. Separation of church and state may be appropriate in many spheres of political endeavour, but it is interesting to note that America, the official home of such separation, has enacted similar legislation in New York State.

The new Scottish provision

The Family Law (Scotland) Act 2006 received Royal Assent on 20 January 2006. Accordingly, certain fundamental changes are soon to be made to the divorce laws of Scotland that will affect Jewish spouses. An amendment concerning religious divorce – in this context meaning Jewish divorce – was made by section 15 of the Act, adding a new section 3A to the Divorce (Scotland) Act 1976. A recent parliamentary answer disclosed that a commencement date is expected in the late spring or early summer.

Section 3A provides for “Postponement of decree of divorce where religious impediment to remarry exists”. The impediment is caused by the husband refusing to grant the “get” (Jewish divorce) or the wife refusing to accept it. Although most Jewish divorces are obtained without difficulty, each case of refusal potentially entails very serious problems, including the inability to remarry according to the laws of Orthodox Judaism. Simply expressed, the new law provides that, if one spouse is not co-operating with obtaining the get, the other spouse (“the applicant”) may apply to the court for the decree of divorce to be postponed until the get has been obtained. The application may be made “notwithstanding that irretrievable breakdown of a marriage has been established”.

The court’s discretion

The court will have discretion whether or not to grant the order postponing the decree, and will only grant it if satisfied that the applicant is prevented from entering into a further religious marriage because the husband refuses to grant the get or the wife refuses to accept it (cf section 3A(2)), and that “it is just and reasonable” (subsection (1)(b)(ii)) to grant the order postponing the decree of divorce.

Section 3A will assist Jewish spouses in achieving their objective of obtaining the get where one of them is not co-operating and wants the civil divorce, but not the get.  While not every spouse will be able to benefit from this law, it will undoubtedly help most spouses who find themselves in this invidious situation – despite Professor Norrie’s comments to the contrary – as experience in other jurisdictions demonstrates.

Recall of postponement

The court can recall the postponement at any time. This would normally happen when the get has been obtained, following which, the civil divorce would be granted. Before recalling a postponement, the court may require a certificate to be given by “a relevant religious body” (section 3A(5)). The “religious body” will effectively be a Beth Din (court of Jewish religious law: plural Batei Din), which may be required by the court to certify that the get has been obtained. The spouse who has made the successful application for postponement will be the one who considers that the “relevant” Beth Din is acceptable (subsection (6)).

Which religious body?

Readers will benefit from being alert to the implications of this definition, as there are several groupings within Judaism, the original and mainstream one being known as Orthodox or traditional Judaism. It follows that the “relevant religious body” (or Beth Din) that certifies that the get has been obtained may be Orthodox, or non-Orthodox, the latter being Masorti (Conservative) or Reform, as each Beth Din provides its own form of get. The Union of Liberal and Progressive Synagogues (ULPS) is another such “religious body” which is non-Orthodox, but it permits a couple to remarry without a prior religious divorce. 

The need for recognition

It would be useful to be aware that, if divorcing spouses who are Halachically Jewish (i.e. their ancestors on the maternal side were Jewish, as recognised by an Orthodox Beth Din, or they have undergone a conversion to Orthodox Judaism) wish to have their get universally recognised throughout the Jewish world, only a get from an Orthodox Beth Din will suffice. A get from any other Beth Din does not gain this universal recognition. Civilly divorced spouses who have subsequently remarried and gone on to have children in ignorance of this fact have suffered enormously (especially the children subsequently born to the divorced wife) due to a lack of awareness of the religious laws. In-depth coverage of these issues is to be found at www.gettingyourget.co.uk, an e-book about Jewish divorce which contains articles, forms and explanations for solicitors and which has received judicial endorsement from Lady Cosgrove.

For other religions too

This law could be equally applicable to other religions whose members have similar difficulties when divorcing, but so far no other religion has opted for this.

Deanna Levine MA LLB NP is a dual qualified Scottish and English solicitor and consultant to Barnett, Alexander Conway Ingram, London. She is Honorary Secretary of the United Kingdom Association of Jewish Lawyers and Jurists and a member of the Family Law Group of the Board of Deputies.

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