Aflalo v. Aflalo
295 N.J. Super 527, 685 A.2d 523 (1996)
- Henry and Sondra were married in Israel.
- Sondra later filed for dissolution of the marriage.
- However, Henry didn’t want a divorce and refused to provide a “get.”
- Without such a divorce, the wife remains an “agunah” (a “tied” woman) and may not remarry in the eyes of Jewish law. If she remarries without a “get” she is considered to be an adulteress because she is still halakhically married to her first husband; any subsequent children are considered to be “mamzerim” (illegitimate) and may not marry other Jews.
- Sondra sought to have the court order Henry to cooperate.
Whether an order may be entered which would impact on Sondra’s securing of a Jewish divorce.
No. Such an order would violate the Free Exercise Clause of the First Amendment.
- “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
- Here, compelling Henry to provide the get would violate husband’s right to free exercise of religion.
- “The court is not unsympathetic to Sondra’s desire to have Henry’s cooperation in the obtaining of a get. She, too, is sincere in her religious beliefs. Her religion, at least in terms of divorce, does not profess gender equality. But does that mean that she can obtain the aid of this court of equity to alter this doctrine of her faith?” NO!
- The court also rejected Minkin and other cases holding that the get is not a religious act:
- Those cases examined the problem against the backdrop of the Establishment Clause and not the Free Exercise Clause;
- How could a get not involve the court in religious beliefs when the court was required to choose between the conflicting testimony of the various rabbis?;
- The order would directly affect the religious beliefs of the parties; and
- Even if the court was to compel Henry, it wouldn’t be effective because the religion requires that the husband willingly and voluntarily provide the get.
- Compelling action before a religious tribunal (“Beth Din”) was also shot down because:
- Still inquiring into questions of Jewish religious law and tradition; and
- Sondra has never sought relief in the Beth Din and in fact has not appeared in response to the summons forwarded to her by the Beth Din regarding Henry’s pursuit of reconciliation.
- “It may seem ‘unfair’ that Henry may ultimately refuse to provide a ‘get.’ But the unfairness comes from Sondra’s own sincerely-held religious beliefs. When she entered into the ‘ketubah’ she agreed to be obligated to the laws of Moses and Israel.”
Rule: Where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church.
Rule: A court order forcing defendant to produce a get in order to permit a Jewish divorce is unconstitutional in that would violate husband’s right to free exercise of religion.