The Michigan Court of Appeals ruled that spouses can enforce a religious marriage contract while filing for divorce.

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Spurned spouses in Michigan, whether Muslim or Jewish, can take note of a recent ruling of the Michigan Court of Appeals.

It involves divorce — specifically, whether a spouse can enforce a religious marriage contract in the state’s civil court system.

In the appeal of a divorce case from Wayne County, a Muslim wife sought to enforce a religious contract made with her Muslim husband calling for a monetary gift to the bride (called a mahr) pursuant to an Islamic marriage ceremony. In ruling in favor of the wife, the court cited as precedent a 1983 New York case enforcing a ketubah, the Jewish marriage contract.

Both Muslim and Jewish marriage traditions are similar in that they provide financial support for the wife. But among their many differences is that the Islamic practice requires the groom to give a monetary gift to the bride before or after the wedding ceremony, while a ketubah mandates continuing support for the wife, even after a divorce.

In the Michigan case, the Muslim wife sought the $50,000 payment required by their particular religious marriage contract but never paid. In the divorce proceedings, the husband’s attorney argued that a Michigan court could not enforce such a religious marriage contract because of the constitutional separation of church and state. The wife’s attorney argued that the monetary provision of the mahr agreement satisfied all requirements of an enforceable civil contract.

When the trial judge ruled in favor of the wife, the husband appealed to the Michigan Court of Appeals. There was no existing case law in Michigan on this point, and there was disagreement among the various other states that had ruled on the issue.

Getting a Get
The New York case that the Michigan court relied upon involved an ex-husband’s refusal to appear before a rabbinical court (beit din) regarding the issuance of a get, or Jewish divorce decree, so that his ex-wife would be free to remarry under Jewish law. By the terms of their ketubah, the husband had agreed to appear before the beit din to settle any disputes.

The New York court ruled that a ketubah met all the requirements of a civil contract and that enforcing it did not violate the separation of church and state. The court ordered then the ex-husband to submit to the beit din, as required by the ketubah.

The New York judges noted that citizens are free to enter into valid contracts — including religious marriage contracts — and have them enforced in court.

Representing the wife in the Michigan case was attorney Roquia Draper, a Muslim who practices family law with the firm Warner Norcross + Judd in Southfield. In her legal research for the case, she came across several appellate decisions in other states that involved ketuvot. She saw a similarity with her client’s position where the wife relied on a religious marriage contract.

“Even though these were different faiths, the concept is still the same,” she said. “A contract in a religious marriage spells out the rights and duties of the parties in the marriage.”

Jewish Perspective
This Michigan appellate decision caught the attention of Jewish attorney William Berlin of Berlin Family Law Group in Troy. “The Michigan ruling does have relevance to Jewish practice,” he said. “We can use this case in regard to ketuvot.”

Berlin noted, however, that the issue of a ketubah rarely arises in local civil divorce proceedings. Monetary and custody issues in Jewish divorces are resolved in the civil court, he said. But the issue of a husband’s refusal to provide a get can become a sticking point.

Rabbis say that under Jewish law, forcing an ex-husband to provide a get by threat — either of violence or by a civil court order under threat of jail — is not permitted; this would be coercion, Berlin said.

But the rabbis found a way around this situation to offer relief for the former wife — the husband is still required under the ketubah to support his ex-wife.

A civil court can order very large punitive compensation from the husband until he supplies a get, Berlin said. Rabbis do not consider this monetary incentive, however steep, to be the bodily coercion of physical harm or confinement and will recognize a get given in response.

Berlin penned an article in the December 2015 issue of the Michigan Family Law Journal advising attorneys in Jewish divorce cases to include a provision in the divorce decree for this financial incentive for the husband to provide a get.

“What we’re also suggesting now is doing more prenuptial agreements that require a get in the case of divorce,” Berlin said. “It makes it easier if there is a divorce to get a get.”

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