Just in time for the holidays is the problem of religious divorce. Many women are stuck in their former marriages because their secular divorce was not enough to allow them to remarry in their religion. This post looks at the problems and solutions for getting a religious divorce.
The Religious Problem
I’ve written about the issue of religious divorce many times. The religious nature of divorces for many couples, particularly for Muslim and Jewish women, complicates settlement.
That’s because religious courts have no enforcement authority in the United States, and the First Amendment of the Constitution prevents secular courts from intervening in purely religious disputes.
Also, religious authorities are very critical about the secular enforcement of divorce as it can contravene religious law. Among religious people, there’s also a reluctance on using secular courts against their coreligionists, which discourages people from getting help in state court.
Islamic Divorce
The Economist recently reported on Shirin Musa, and her bitter religious divorce experience which ultimately inspired her to help women caught between legal and cultural worlds.
A resident in the Netherlands, Shirin was unhappily married to a man from her native Pakistan. In 2009 a Dutch judge divorced them, but her husband would not grant an Islamic divorce.
Although she lived in secular Europe, her husband’s refusal to grant a religious divorce mattered. If she remarried without a religious divorce, she could be considered an adulteress under Islamic law. She also risked religious punishment if she ever tried to return to Pakistan.
So, Shirin sued her former spouse through the Dutch secular courts. In 2010 she received a landmark judgment: her ex-husband would be fined $295 a day, up to a maximum of $11,795 as long as he refused to cooperate.
The sanction had the desired effect on her ex-husband She then persuaded the Dutch parliament to make holding women in such “marital captivity” a criminal offence, in theory punishable by jail.
Jewish Divorce
Jewish women share a similar problem to Muslim women. Under the strict interpretations of Jewish law, only the husband can grant a divorce document, called a “get.” Without a get, the woman is still religiously married, regardless of how long it’s been since the civil divorce.
Without a get, a Jewish woman can’t remarry and have more children, lest she be declared an adulterer and her children from the second marriage shunned by the community.
Women in this situation can be trapped for years as their childbearing years fade away. In Hebrew, many call them agunot, or “chained women.”
Solutions
First, you may want to secure a religious divorce before even filing a secular divorce. This prevents the husband from using the religious divorce as a bargaining chip.
Securing a religious divorce before filing a civil divorce also prevents another common problem: imams and rabbis stepping in to negotiate large cash payments in exchange for a religious divorce.
Another civil legal remedy is a prenuptial agreement. Under a prenuptial agreement, the spouses could agree to arbitrate the marital dispute, and the husband agrees to pay the wife a set amount per day until he grants a religious divorce.
The Economist article is available here.