As a Jewish businessman criticises the Family Court for putting him in a catch-22 situation that allegedly traps him between family law and religious law, Julian Hawkhead, Senior Partner joins us on the blog to look at the case in more detail.
“A recent article in the press told of a Jewish “property millionaire” husband Mr Alan Moher who was denied a clean break by the Court. This left him required to pay his wife, Mrs Caroline Moher, ongoing maintenance despite her being awarded £1.6m until he granted his wife a Get (Jewish religious divorce). He protested to the Court of Appeal that he was being discriminated by being denied the clean break because he had religious faith-based objections to granting his wife the Get.
The decision of the Court of Appeal is awaited but the article throws up some interesting questions. Why should the Court make a clean break award conditional upon the husband granting his wife the religious divorce she seeks? Why should money and the full legal and religious termination of the marriage go hand in hand?
A Get is a Jewish certificate of divorce granted by the husband to his wife which will permit her to remarry in a Jewish religious ceremony and returns her rights to her that a husband holds on marriage. It is essential to a woman who holds Orthodox Jewish beliefs. A Get must be given of the husband’s free will.
In this case, the husband has argued that the conditional discharge of a maintenance order upon him granting his wife a Get means that he is not acting of his own free will. As a result, he does not consider the Jewish religious authorities would accept the Get he presented as valid in any event.
According to the article, the husband’s counsel Brent Molyneux QC was quoted as saying that the Get “is something which has to be given freely, after financial ties between the parties have come to an end” and “ The husband is thus left in a position where, due to the element of compulsion placed on him by the order of the court, he is unable to grant a valid Get.” By way of a summary of the husband’s case he said: “It is wrong for the wife to receive a financial benefit and the husband a financial penalty by virtue of their religious beliefs.”
However, was this just clever wordplay? Religious divorces are not rare. The pronouncement of a Decree Absolute is the certificate of the Courts of England and Wales that the marriage has been legally dissolved. However, in certain faiths and indeed in some countries, a legal certificate of divorce is not enough to fully dissolve all marital links between husband and wife. The Get is one such example.
Why then is a religious divorce withheld in this way? It can be for several different reasons. In some instances, the party who withholds the issuing of the religious divorce has such fundamental beliefs based on their religion that they feel a marriage cannot be ended. So, whilst they can do nothing ultimately to stop the legal divorce, if the ability to grant the religious divorce remains within their power then they will hold onto it. This will prevent their spouse from being able to remarry within the same faith in the future.
Sometimes withholding has financial motives: that the spouse who could grant it uses their ability to do so, to try to secure a better financial settlement knowing that their spouse is so desperate for the religious divorce that they would make financial sacrifices to obtain it. Others are just being obstructive, knowing it will cause their spouse the most amount of upset.
In other situations, when it is the husband who wants the legal divorce, but the wife is concerned that he will not grant the Get or another religious divorce, it is possible for the Court to make an order holding up the pronouncement of Decree Absolute until that religious divorce has been granted.
Charlotte Newman, Solicitor from the Stowe Family Law office in Leeds office comments
“It is true to say that the Orthodox Jewish divorce law, rests power with the man. However, the Beth Din have, and continue to work with many women being denied a Get and unable to move on with their lives.
These women have often been termed ‘Agunot,’ which translates to chained women. The effects of being in this situation can be more far-reaching than being unable to remarry within the faith; the children of the new marriage may also find themselves in difficulty marrying in an Orthodox Synagogue.
As such, the Beth Din has seen the refusal of a husband to provide a Get a form of abuse and caseworkers work with wives to ‘unchain’ them, allowing them to live freely. I personally second this view and (reluctantly) agree that a financial consequence may be the only way to ensure that the husband, in this case, stops using religion to justify his behaviour and perhaps as a wider issue, distract the court from his other behaviour within the proceedings”.
There will be different opinions on the husband’s motives, the wife’s counsel Sally Harrison QC indicated that the option to link the termination of the husband’s maintenance obligations with the granting of a Get was the option of last resort. He had been asked to simply promise to the Court that he would do so, and he had apparently refused. This would suggest that the husband’s account of his reasons for not granting the Get are disingenuous however the Court of Appeal is yet to make its own determination.
What we do see here though is that the Court will do what it can to support the vulnerable party, accepting creative ways to protect them or ensure that they get what they need to secure an autonomous future for themselves.
The issue over the Get is part of a wider appeal made by the husband against the financial award made in favour of his wife. Indeed, the quantum of the maintenance order of £1,850 is small amount when compared to the costs the parties will have incurred in proceeding to the Court of Appeal (probably running into the hundreds of thousands of pounds) in which case why is this issue even being pursued.
Looking at the wider commentary on the case it would seem the husband had failed to provide financial disclosure or to co-operate with the Court process. As a result, it was not possible to get a full picture of his financial resources. Nevertheless, the husband claims that the award of £1.6m represents 85% of the overall wealth.
But is this true? The husband’s conduct was described as “appalling and contemptuous”. Such dishonest behaviour never finds favour with the Court and I cannot count the number of people who have thought they could mislead the Court by hiding or transferring assets and failing. Dishonesty is probably the worst trait to take into Court with you as it tarnishes everything you try to persuade the Court about. I suspect that this is another litigant who has tried and failed.
We have a team of expert lawyers who specialise in untangling complex financial situations and dealing with difficult divorce scenarios. If any of the issues I have commented on in this article affect you, whether it is a dishonest spouse, or you are stuck in a marriage and do not know what your options are to get out of it, do get in touch with me to discuss your situation.”