Obstacles to a Religious Divorce

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by | Jun 17, 2020 | Divorce

Many couples choose to marry both under New York’s civil laws as well as in accordance with their religion. In the event of a divorce, this can present a problem if one party objects to a religious divorce. If that happens, the spouses would not be able to remarry under the rules of their religion even though they have a valid divorce under civil laws.

This issue can arise under Jewish law where a divorcing couple must obtain a Get – a document in which the husband agrees to the divorce and returns certain rights to the wife that the husband held during marriage. Without a Get, the couple would remain married under Jewish law and a remarriage would be considered adultery.

Under Catholic law, the parties may wish to obtain an annulment, which is a proceeding that declares a marriage invalid and completely voids the record of the marriage in the church. There are specific grounds for an annulment which must be met. If one party objects, the dispute goes to the church to decide. This church process is different from a civil annulment under New York law, which allows parties to annul their marriage under certain circumstances. A civil annulment is permitted if one or both spouses were under age 18, unable to consent to marriage due to mental incapacity, physically unable to have sexual intercourse, either spouse was incurably mentally ill for at least five years, or the marriage consent was obtained by duress, coercion or fraud. Again, a civil annulment would not be equivalent to an annulment in the Catholic Church.

Marriage is a civil contract under Islamic law and enforceable by New York courts. While refusal to provide a religious divorce is not an issue, there may be concerns in a divorce situation involving treatment of the Mahr, or Mehrieh, a mandatory payment by the groom to the bride at the time of marriage, as separate property of the bride.

New York courts cannot make a religious marriage invalid or force a party to consent to a religious divorce. However, they can put pressure on the refusing spouse by resolving equitable distribution and spousal maintenance against the spouse that refuses. To avoid any potential obstacles to a religious divorce, the parties can also seek to include provisions allowing for a religious divorce in their pre-nuptial agreement.

If you are considering divorce and anticipate obstacles in obtaining a religious divorce from your spouse, contact us to discuss how we can help.

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