The Gett: Key to Ending a Jewish Marriage

Issue: When married in terms of both civil and religious law, does terminating the civil marriage also terminate the religious marriage?

Here’s a question from Ruth:

“My husband and I have been married for 11 years, but unfortunately, we have separated for years. In that time, he has been in various other relationships. I eventually met and fell in love with another man and decided to file for divorce officially. In our culture, the husband holds the key to divorce by granting a “gett”, a symbolic document that signifies the release from marital bonds.

However, my husband, fuelled by his displeasure over my newfound love, adamantly refuses to provide this crucial document. He says he will make sure I never marry anyone else. In the eyes of Jewish law, without the gett, I am consigned to the status of what’s known as an agunah, which is a woman chained to a marriage that exists in name alone. I am frustrated and don’t know what to do.

I have pleaded with my husband to the point of even offering to let him have all our joint assets, but despite my efforts, he refuses to grant me a gett. Even my boyfriend, in a gesture of goodwill unbeknownst to me, attempted to bridge the gap by talking to my husband, but it only inadvertently exacerbated the situation. I would welcome any advice.”

From The Legal Desk:

Divorce in Jewish culture, as in most cultures, I suppose, is not a simple or easy process but rather a complicated and intricate one. Thanks for your question, Ruth, and I’m sorry you are faced with such an unfortunate situation. To craft the best way forward for you, let’s take a look at the legals…

The Divorce Act¹ (“Act”) governs divorces and their consequences in South Africa. Section 5A of the Act pertains to marriages with dual validity, signifying they are recognised as both religious and civil marriages. A religious marriage qualifies as a civil marriage if it is monogamous and meets the requirements of the Marriage Act.² In such instances, the religious and civil marriages coexist. The Marriages Act regulates the ramifications of the civil marriage, while those of the religious marriage are determined by the specific religious legal system under which the marriage was solemnised, such as Jewish law in your case.

In situations where a marriage holds dual validity, the termination of the civil marriage is possible under the provisions of the Act. However, it is crucial to note that obtaining a secular divorce order granted in terms of the Act may not automatically dissolve the religious marriage. The specific religion of the parties involved may impose additional conditions for ending the religious marriage, as exemplified in your Jewish marriage.

As you correctly pointed out, Jewish law dictates that a marriage can only be dissolved through a “gett”. For readers not familiar with the concept of a “gett”, it is a document facilitating the divorce between a Jewish couple. The issuance of a gett involves a prescribed process, wherein it must be authored by a scribe, presented by the husband to the wife, and witnessed by both a rabbi and a Jewish court. In cases such as yours, where the husband does not provide the gett, the secular divorce holds no weight under Jewish religious law. This means you would not be able to remarry because the religious marriage continues to exist unless it is dissolved in accordance with the rules of your particular religion.

In your message, you have not clearly stated whether you and your husband are married according to the Marriage Act, i.e., if your marriage has dual validity or if you entered into a strictly religious marriage. This distinction is important because, as I stated above, Section 5A of the Act comes into play for marriages with dual validity but is inapplicable for strictly religious marriages. The dissolution process for a purely religious marriage is determined by the relevant religious legal system overseeing the marriage. In your case, only the prerequisites for dissolving a Jewish marriage would be applicable. Essentially, you would require your husband to provide the “gett” for the dissolution process.

If the marriage has dual validity, the courts could assist you with interim measures that may encourage your husband to give you the gett. For instance, in the Amar v Amar³ case, the court granted a divorce decree based on the Divorce Act. However, recognising the husband’s unwillingness to cooperate in providing a “gett”, the court ordered him to provide maintenance to his wife, even though she was not otherwise entitled to maintenance. He was ordered to continue providing such maintenance until their marriage was terminated by the granting of a gett. If a similar interim arrangement were to be extended to you, it would present your husband with a decision: either provide you with a gett to dissolve your Jewish marriage or continue paying you maintenance until he does so.

My advice is that you approach the courts. Be patient but persistent, and continue to consult with your Rabbi. The Johannesburg Beth Din is the Beth Din (Court of Jewish Law) of the Union of Orthodox Synagogues of South Africa. It provides services to Jewish communities across South Africa and other nations on the continent. The Beth Din primarily concentrates on matters related to family law, including divorce and conversion, and also handles the resolution of financial disputes. Contact them too for assistance.

Written by Theo Tembo