We applaud a recently reported decision by a New York appellate court, which enforced the terms of a prenuptial agreement requiring parties to a halachic marriage to go before a Beis Din to decide marital disputes. In the case cited, the Beis Din ordered the husband to give a get by a certain date, and failing that, to make regular monetary payments to his wife which were to be held in escrow until he gave a get.
These are the facts as presented by the court in its decision:
Prior to marrying in a Jewish ceremony, the petitioner (wife) and the respondent (husband) entered into a prenuptial agreement which contained an arbitration clause pursuant to which they agreed to submit any controversy or claim arising thereunder to arbitration before a Beis Din, a rabbinical tribunal. When the relationship deteriorated, the parties submitted their dispute to arbitration before a Beis Din made up of three Rabbis, who issued an award which granted the petitioner maintenance of $10,000 per month, and awarded the petitioner $150,000, covering all of the respondent’s obligations to the petitioner up until the day of the award, to be held in escrow until the petitioner accepted a religious divorce, known as a get, and directed the respondent to arrange for the issuance of a get by November 20, 2017.
The petitioner commenced this proceeding to confirm the award, contending that the respondent did not arrange for issuance of a get, and demanding judgment for $150,000 plus $10,000 for each month thereafter that the respondent failed to arrange for issuance of a get. The respondent cross-petitioned to vacate the award, claiming that his obligation to the petitioner terminated when she allegedly left the marital residence. He further claimed that the petitioner refused to accept the get in order to prolong his obligation to pay maintenance. However, no evidence was submitted that he arranged for issuance of a get.
The petitioner, in opposition, asserted that the respondent failed to provide her with a get, and since he was in default of that provision, he was obligated to pay her $10,000 per month until confirmation of the arbitration award.
The court went on to conclude that “the respondent’s obligation to pay maintenance continued because he failed to arrange for issuance of a get and termination of the marriage….”
The decision has many shaking their heads that a secular court would not be troubled with having to decide a case with issues revolving around the termination of a marriage according to Jewish religious law. Yet it has been the law in New York since the early 1980s that a court can, fully consistent with notions of separation of church and state, decide cases with religious practice in the background if the same can be accomplished by the application of neutral principles of law.
As the New York State Court of Appeals, New York’s highest court, explained the rationale in the seminal case of Avitzur v. Avitzur: “No doctrinal issue need be passed upon, no implementation of a religious duty is contemplated, and no interference with religious authority will result.”
In the recent case the court was simply called upon to enforce an arbitration award arising out of an arbitration in which both parties had agreed to participate. Indeed, the court only touched upon the get issue insofar as it acted to implement what the religious tribunal had ordered. In point of fact, though, it is not usual that both sides proceeded to Beis Din arbitration pursuant to the agreement and award issues; rather, one party generally refuses to go despite an agreement to do so.