Religious Divorce Bill Signed into Law by New York Governor

A second effort by New York State Assemblyman Sheldon Silver (D. Man.) to obtain legislative relief for Jewish women refused a religious divorce (“Get”) by their husbands and thereby banned from marrying again succeeded when Governor Mario Cuomo signed the measure into law last night.

Both the 1982 and the 1983 bills were approved by the Assembly and State Senate but Silver withdrew his 1982 bill out of fear of a veto by the Governor, though Silver was convinced the bill was constitutional.

Silver said the new law provides a court-enforceable mechanism under which a spouse who starts a civil proceeding to annul a marriage or get a divorce must declare, in a sworn statement, that he or she has taken, or will take, prior to the entry of final judgement for annulment or divorce, all possible steps to remove any barrier to the defendant’s re-marriage following the annulment or divorce.

The Commission on Legislation and Civic Action of Aguth Israel of America, the Orthodox agency, initiated the 1983 bill, as an effort to ease the problem of those Jews who could be barred from marrying again after a divorce. For Orthodox Jews, this becomes a reality if the husband refuses to grant a “Get,” thus blocking his spouse from re-marrying. In some cases, the wife refuses to accept a “Get,” barring her spouse from marrying again.

REQUIREMENTS UNDER THE NEW LAW

The new law requires that any marriage performed by a clergyman should not be terminated by a civil court if there is any barrier to re-marriage, specifically, for an Orthodox couple, a refusal by the husband to give a “Get” or, more rarely, a refusal by the wife to accept a “Get.”

If the clergyman who performed the ceremony verifies that, to the best of his knowledge, the plaintiff has failed to act to remove the barriers to re-marriage for his or her spouse, the court will refuse to grant an annulment or divorce.

The bill was written by Nathan Lewin of Washington, a leading constitutional lawyer. In a reply to a dissenting brief, Lewin rejected the opposition of the American Civil Liberties Union. He declared the new law does not violate the First Amendment.

Both the American Jewish Congress and the Union of American Hebrew Congregations, the association of Reform congregations, urged the Governor to veto the 1983 Silver bill on grounds it was unconstitutional.

PURPOSE OF THE LAW

In explaining his purpose of preparing the law, Silver said that, in its absence, either spouse “may take unconscionable advantage of the other spouse by refusing to accept or participate in a ‘Get’. ” He added that since, in Jewish law, both parties must consent, “the opportunity for engaging in extortion-like practices is obvious.”

He asserted that his measure “confronts a sensitive issue without involving the state in religious disputes and without placing the imprimature of the state on any religion or on religion in general.”

The 1982 bill provided that, in the case of such disputes, the court hearing the divorce action could order the parties to submit the question to a factfinding panel, with authority to determine if a barrier existed and to seek to remove the barrier by mediation. Without a finding submitted by the panel to the divorce court that the barrier had been removed, the court did not have to give the plaintiff a civil divorce.

The Senate version of the 1983 law was sponsored by State Senators Martin Connor (D. Man.), John Marchi (R. Staten Island) and Norman Levy (R. Nassau).