Financially trapped between family law and religious law

 

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 at Stowe Family Law looks at the case in more detail.

A Jewish “property millionaire” husband Mr Alan Moher was recently denied a clean break by the divorce courts, leaving him required to pay his wife, Mrs Caroline Moher, ongoing maintenance despite her being awarded £1.6m, until he granted his wife a Get (a Jewish religious divorce). Having brought his case to the Court of Appeal,  he claims that the 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 media reports throw 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 press, 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.”

Religious divorces are not rare and the interplay between the dissolution of the legal marriage and the religious marriage is to be seen in section 10A of the Matrimonial Causes Act 1973 where the court may order that where the parties were married with the usages of the Jews,  a decree of divorce is not to be made absolute until a declaration is made by both parties that they have taken the necessary steps in accordance of the usages.  The most common use of this provision is by a wife who holds up the pronouncement of decree absolute until the husband has granted her the Get. However what happens if either (a) the husband has no intention of granting a Get nor is he concerned that the marriage will not be dissolved or (b) the marriage has already been dissolved. What leverage can the Court identify to compel the husband to grant the Get?

Charlotte Newman a Solicitor from Stowe Family Law 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.”

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.

Maintenance or periodical payments orders form part of the court’s powers under section 23 (1)(a) of the MCA. The term can be for such period as the court considers appropriate albeit with a duty under section 25A (1) to consider “whether it would be appropriate to exercise its powers so that the financial obligations of each party towards the other will be terminated as soon…as the court considers just and reasonable” and under subsection 2 how long it would be reasonable to make a periodical payments order to last so that the receiving party can “adjust without undue hardship to the termination of his or her financial dependence on the other party.” There is therefore a clear obligation, save where there is financial need, to consider imposing a clean break and dismissing all claims as soon as possible.

However, what if there is no financial need? Mrs Moher after all is also in receipt of a considerable capital sum and it is envisaged that as soon as the Get had been granted, the periodical payments could come to an end, neither therefore suggesting a real need for ongoing payments.

In the then House of Lords judgement in  Miller and McFarlane , Baroness Hale identified that the most common rationale of periodical payments is that the relationship has “generated needs which it is right that the other party should meet.” In the case of SS v NS, Mr Justice Mostyn, a Judge with strong opinions on the reason and purpose for maintenance orders, says “A [spousal maintenance] award should only be made by reference to needs, save in a most exceptional case where it can be said that the sharing or compensation principle applies” and “In every case the court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable”

If however there is no financial need to receive the payments, and the order is therefore intended to encourage the husband to grant the Get and if he will not do so he will  continue to pay the wife maintenance, then does such an order fly in the face of a needs-based justification for continuing payments?

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 a 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?

Is an appeal the correct route to follow? If there is an order for maintenance then there is liberty to apply to vary the order downwards. It might be reduced down to a nominal amount, it surely should be if considered on a pure financial need basis.

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.

What we can see here though is that the Court will do what it can to support the vulnerable party, accepting creative ways to protect that party to ensure that they get what they need to secure an autonomous future for themselves.

Julian Hawkhead is the Senior Partner at Stowe Family Law

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