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A rabbinical court in Israel on Thursday sentenced to five years in prison a man who for years has refused to give his wife a divorce. ... In Orthodox Judaism, a marriage cannot be undone unless the man consents to a get — the Hebrew word for divorce. Rabbinical courts — which in Israel function as family courts as part of the judiciary and have executive powers — cannot force a man to give his wife a get but they can impose harsh punishments on men the judges determine are unjustly withholding a get and turning their wives into what is known in Judaism as agunot, or “chained women.” ... “I will never give her a get. Even if she gives me back the apartment and the property, my tefillin and prayer shawl, she will not receive a get,” he told the court.

A woman who does not receive a get is called an “agunah,” or chained woman, and cannot remarry. If she does remarry without a get, her children are considered “mamzerim,” or bastards.

On the second article Sara Hill comments: "The Rabbinate only has jurisdiction over Jews. I suppose the Imams have jurisdiction over Moslems and the Christian authorities have jurisdiction over Christians but I don't know the exact details."

What are the legalities of this? In particular, are Jews (usually by birth) and Catholics (baptised as children) subject to religious courts even if they are not religious?

  • A bastard (child without a father) is not a mamzer. – LOIS 16192 Feb 6 '17 at 3:26
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The article "Enforcement of Religious Courts' Judgments Under Israeli Law" (Asher Maoz, Journal of Church and State 1991) is useful in understanding the legal underpinnings of this question. The beginning point is the Palestine Order in Council 1922 (this is from the UK Privy Council), where religion-based courts are established, so sect. 52 is about Muslim courts, 53 (later repealed) is about Jewish courts and 54 is about Christian courts. Section 53 was replaced with Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, stating that marriage between Jews follows Jewish law, and says that rabbinical court has exclusive jurisdiction. Article 6 of that law allows a district court enforce a final judgment by a rabbinical court by imprisonment. Muslim courts similarly have exclusive jurisdiction over Muslims, though it is wider (it pertains to all matters, not just marriage).

Actual enforcement apparently involves the Chief Execution Officer. Basic Law 15 gives the Supreme Court supervisory power over all courts, including religious courts. So rabbinical courts don't have unfettered power to do whatever they want (under Jewish law), but there is direct state sanction of imprisonment as a penalty for not obeying a rabbinical court decision, there is non-religious execution of court orders, and there is secular supervision. Since civil marriage is non-existent in Israel, there is no choice (if you want to have the wedding in Israel) but to go to the recognized religious authorities, which seems to make Cyprus a popular wedding venue. A Roman Catholic divorce is not possible in Israel, a Muslim one is, and I really cannot tell about the various Orthodox Christian churches.

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    I wonder what happens if during litigation, one or both parties renounces his religion or converts to a different religion. Does the rabbinical court lose jurisdiction and therefore have to dismiss the case? Or if a person is sentenced to imprisonment by a rabbinical court, and while imprisoned, renounces or converts - is he released? – Nate Eldredge Feb 6 '17 at 5:04
  • Can you clarify, are these religious courts part of the Israeli government like the regular state courts, or are they controlled by religious organisations? – Keith McClary Feb 15 '17 at 20:51
  • That's hard to say. The (secular) supreme court supervises the religious courts so they are "controlled" by the government to some extent. Their power is officially recognized by the government and is "special" compared to e.g. Rotary or Yesh Din. Religious courts are more governmental in Israel than e.g. Sharia court is in the US (not at all), but I don't know what the defining line for "part of the government" is. – user6726 Feb 15 '17 at 21:07
  • The Wikipedia article says the government appoints them (but not whether it pays them or provides the courtrooms and staff). It mentions a strange jurisdictional twist that might interest @NateEldredge . – Keith McClary Feb 18 '17 at 4:35
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I cannot answer for other religions, but for Jews the answer is yes. That is a Jew is like a citizen of a country (such as the United States) and is therefore subject to the laws of that state. As a result, a Jewish man and woman are not legally divorced according to Jewish law unless the man has given the woman a get (jewish legal divorce). While the law you reference can only be enforced in Israel, it applies to all Jews no matter where they live. It cannot be discarded by the individual not matter how irreligious they might be.

Note that the legal term mamzer refers only to a child born to a married (by Jewish law) woman fathered by a man who is not her husband or to the product of incest (as defined by Jewish law). As such it is similar but not the same as the term bastard. Thus, if a woman who is married (by Jewish law) separates from her husband, but does not divorce him (by Jewish law) she is still married no matter what anyone else claims (including secular law). Thus, any children by another man are mamzerim and any second marriage is invalid. According to Jewish law, the first husband cannot stay married to her and must divorce her, while she is forbidden to marry the second man once she has been divorced.

  • Is it correct that there are no civil marriages in Israel, thus you must go elsewhere for the marriage if you're not in one of the state-recognized religions? – user6726 Feb 5 '17 at 16:52
  • @user6726 It is not exactly a "state recognized religion" but that each religion is subject to its own laws and hierarchy. There is no such thing as a secular or "civil" jurisdiction that can recognize marriage or divorce as in France, the United States, or Canada. As in England, the state recognizes an official hierarchy for each religion and would have them operate as part of the Ministry of Religions in order to give them an "official" authority. I do not know what an unrecognized religion would be. – sabbahillel Feb 5 '17 at 17:20
  • This does not answer the question as I understood it: What authority does a religious authority have to imprison a person? I can tell you that in the United States the answer is: none! – feetwet Feb 5 '17 at 17:28
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    Yazidism, Hinduism and Lutheranism are not, AFAIK, officially recognised in Israel, so Hindus cannot marry in Israel. Whereas in the US, the government imposes no religious conditions on legally-recognized marriages, so you can marry if you are atheist, Zoroastrian, Santaria, or whatever, and religious law is irrelevant to the legal status of a marriage (though a get-less divorce in the US is only legally-recognized and not religiously recognized). – user6726 Feb 5 '17 at 17:37
  • @feetweet That is because in the United States, the state does not recognize the authority of the religious courts of any religion. As a result, people who go to religious courts must sign an arbitration agreement which is a legal contract to follow the ruling of the court and can be enforced. In Israel, the Rabbinical courts do have the governmental authority for the circumstances specified. Note that the laws involved are very carefully drawn. – sabbahillel Feb 5 '17 at 17:40

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