132:, a court cannot enter a judgment of annulment or divorce unless any barriers to religious remarriage by a spouse, the removal of which are within the control of the other spouse, have been removed. Section 253 of the Domestic Relations Law (the so-called "First New York Get Law") provides that, in a contested divorce, any applicant whose marriage was solemnised by a religious celebrant must file a statement that:
60:—of his own free will. Sometimes a Jewish woman can be held in a so-called "limping marriage" when her husband refuses co-operation in the religious form of divorce. She may have received a civil divorce but cannot remarry within her religion, meaning that for all intents and purposes, she may not be able to remarry at all—a phenomenon known as
66:. Where one party has the power to grant or withhold a religious divorce, that power can be used as a bargaining tool to pressure the other party to agree more favourable divorce terms. A parallel problem—sometimes called "male agunah"—can arise when the wife refuses to respond to the husband's attempts to initiate the
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If I correctly understand the intention of the Act, then it is the clear duty of a judge of this court to ensure that appropriate orders are made fully effective, not only in theory but in fact. In this case the husband as a matter of law can marry any woman who is free to marry, subject only to the
231:
Section 5A of the
Divorce Act, 1979 provides that the court may refuse a divorce decree if one spouse does not take steps necessary to dissolve the marriage (or to allow the other spouse to remarry) in accordance with religious custom. The court may also make any other order which it finds to be
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unless it receives the statements and, even then, final judgment cannot be entered if the person who solemnised the marriage swears that, to his or her knowledge, the applicant has failed to take all steps within his or her power to remove all barriers to the other party’s religious remarriage.
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process, such as refusing to appear before a rabbinical tribunal for the proceeding. Although the consequences are not as serious for the man, the result can still be a form of extortion to agree to agree to the other party's demands.
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So-called "Gwiazda Orders" are now occasionally used when necessary to produce a fair result by requiring the parties to refer their problems to the local Beth Din. The
Australian Law Commission has proposed that the
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which held that as the substance of the obligation was religious in nature, the obligation was a moral one and was therefore unenforceable by the courts. The
Supreme Court's decision, written by Justice
198:, impose any civil or criminal fines or other penalties, or to grant any further relief, and withhold the final legal civil dissolution of a marriage of Jews or of other person by means of granting the
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permits the Court hearing the divorce to strike out the application, pleadings and/or affidavit evidence of a party creating a barrier to the religious remarriage of their spouse.
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In an uncontested divorce both parties must file such a statement or waive the obligation of the other party to do so. The court cannot enter a final judgment of divorce or
116:, restored the trial decision of Mass J., who had ordered a total of $ 47,500 in damages: $ 2,500 for each of the 15 years that the husband had refused to grant the
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should not become absolute and, in any other proceedings except those relating to a child, the court should have the power to adjourn the proceedings.
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until a declaration made by both parties that they have taken such steps as are required to dissolve the marriage in accordance with rabbinical law.
275:
189:
233:
223:. The husband attempted to apply for it under s9(2) of the Matrimonial Causes Act 1973, but was denied until the get had been granted.
266:, the marriage would be declared null retroactively—it would be as if the couple were never married from a Jewish legal perspective.
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are civil legal remedies against a spouse who refuses to cooperate in the process of granting or receiving a Jewish legal divorce or
487:
Feldman, M, "Jewish Women and
Secular Courts: Helping a Jewish Woman to Obtain a Get" (1989–90) 5 Berkeley Women’s Law Journal, 139.
315:
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he or she has taken, or will take, all steps within his or her power to remove all barriers to the other spouse’s remarriage; or
436:"Statutes promoted by the Department of Justice and Constitutional Development which have been enacted since 27 April 1994"
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120:, and $ 10,000 for Ms. Bruker’s inability to have children considered “legitimate” under Jewish law.
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441:. Department of Justice and Constitutional Development (South Africa). March 1, 2010. p. 7
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185:
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prohibitions in the
Marriage Act, but as a matter of fact and practicability he cannot do so."
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ordered a reluctant wife to appear before the Beth Din in
Melbourne. Emery J. observed that:
103:, a condition of a contract between two spouses that required the husband to give his wife a
504:
Stern, Marc D. "A Legal Guide to the
Prenuptial Agreement for Couples about to Be Married",
245:
519:
400:
200:
378:"Cultural-community Divorce and the Family Law Act 1975: A proposal to clarify the law".
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the other spouse has waived in writing the applicant’s obligation to file the statement.
251:
129:
113:
513:
469:
192:, relates to Jewish divorce. The Act allows a Court discretionary right to award any
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within 6 months of any secular court's divorce. Were the man to refuse to give a
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stipulation that the marriage is only valid on the condition that the man gives a
254:, does not deal with secular law, but instead inserts, at the time of marriage, a
173:
505:
53:
341:
Esther
Schonfeld, "The Male Agunah – The Untold Story" (December 24, 2009).
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In case law, there have been a number of cases regarding the provision of a
146:
468:
Colman, Gene C. & Posen Joseph M. "Jewish
Marriage and Ontario Law",
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Katzenberg, S, & Rosenblatt, J, "Getting the Get", (March 1999),
62:
47:
343:
http://www.schonfeldandgoldring.com/the-male-agunah-the-untold-story
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John
Kleefeld and Amanda Kennedy (2008). "‘A Delicate Necessity’:
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219:. As she had not been granted a get, she did not apply for a
215:, the wife petitioned for a civil divorce and was granted a
480:
Freeman, Michael, "The Jewish Law of Divorce", (May 2000),
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Freedman, E, "'Religious Divorce in Israel", (April 2000),
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just. This provision was added in 1996 as a result of the
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was enforceable. The court overturned a decision from the
463:
Broyde, Michael J., "The New York Get Law: An Exchange",
490:
Jacobus, Helen, "Getting together", (August 11, 2000),
56:, a man must grant his wife a Jewish divorce—a
8:
250:The Lieberman clause, developed by Rabbi
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396:
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276:Divorce (Religious Marriages) Act 2002
190:Divorce (Religious Marriages) Act 2002
353:Divorce Act, RSC 1985 c. 3 at s. 21.1
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423:O v O (Jurisdiction: Jewish Divorce)
52:For a divorce to be effective under
298:and the Problem of Jewish Divorce"
234:South African Law Reform Commission
18:Civil recognition of Jewish divorce
180:United Kingdom (England and Wales)
158:In Australia, the Family Court in
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304:http://ssrn.com/abstract=1937546
300:Canadian Journal of Family Law
184:Within the United Kingdom, in
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236:'s report on Jewish divorce.
195:damages under Tort remedies
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243:
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109:Court of Appeal of Quebec
28:Legal responses to agunah
482:International Family Law
475:International Family Law
97:Supreme Court of Canada
93:Bruker v. Marcovitz,
84:Since 1990 Canada's
413:No. M10631 of 1992
363:Bruker v. Marcovitz
296:Bruker v. Marcovitz
240:Clauses at marriage
99:ruled that, in the
535:Jewish marital law
380:FAMILY LAW COUNCIL
321:Yeshiva University
101:Province of Quebec
395:Missing or empty
211:: in the case of
186:England and Wales
160:Gwiazda v Gwiazda
16:(Redirected from
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525:Conflict of laws
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327:15 February
316:"agunahinc"
217:decree nisi
174:decree nisi
86:Divorce Act
75:By location
530:Family law
514:Categories
499:Family Law
458:References
445:August 28,
397:|url=
54:Jewish law
425:2 FLR 147
366:3 SCR 607
282:Footnotes
154:Australia
147:annulment
388:cite web
270:See also
256:halakhic
130:New York
124:New York
520:Agunot
501:, 165.
188:, the
80:Canada
63:agunah
48:Agunah
42:Agunah
484:, 58.
477:, 20.
439:(PDF)
213:O v O
447:2012
401:help
329:2014
95:the
264:get
260:get
209:get
128:In
118:get
105:get
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386:{{
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