Religious Law vs. Actual Law

Jewish law has its own rules for marriage and divorce, and some are recognized - and enforced - by state courts. When a couple marries under Jewish law, they sign a contract (called a ketubah) that sets out their obligations in marriage, as well as what would happen in divorce. These prenuptial agreements have been upheld by the Illinois courts.

Under Jewish law, in order to make a divorce official and release the wife from the marriage, the husband has to give her a specific document, called a "get." It's not as easy as it sounds - certain procedures must be followed. Without a get, Jewish law considers a woman an adulterer if she remarries, and any children she has in the second marriage are considered illegitimate. A civil divorce has no effect in ending a marriage under Jewish law. Until a get is given and accepted, the marriage is still valid, and a wife is not free to move on.

In a recent case, a man refused to give his wife a get, even years after they had been divorced in civil court. She sued him, claiming their marriage contract required him to give her a get. She won, but he continued to fight it. She eventually asked the court to sanction him and order him to pay her attorney's fees (almost $55,000), and the judge agreed. He appealed, but the appellate court agreed with the sanctions.

The husband argued that the court was violating the separation between church and state when it ordered him to give his wife a get. But the court's decision wasn't based on religious beliefs or endorsement of Jewish law. It was about the contract.

And the sanctions were about the man using the legal system to harass his wife, or ex-wife. Judges are allowed to impose a punishment on someone who abuses the judicial system. In theory, it prevents people from doing it in the future.

It's not just Judiasm that has to deal with these issues.  I've had many calls over the years from Muslims who were more worried about their religion that what a court would say.  I've talked to Christians who would do anything to get their first marriage annulled so their second marriage could be recognized by their church. 

In general, courts in Illinois won't recognize what a religion says should happen in a case, but they will enforce contracts between two consenting adults as long as that contract doesn't violate other parts of Illinois or U.S. law.


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