Religious Separation and the power of Courts: Idelsohn & Idelsohn
Australia is a multicultural and diverse country. We have a vast array of ethnic and religious groups that each have their own traditions and customs. An interesting issue arises as to whether Australian courts have the power to enforce these customs and religious laws. According to a recent case in the Family Court of Australia, Idelsohn & Idelsohn, there is limited power to do so.
Mr and Ms Idelsohn were married in 2004 and are Jewish. Mr Idelsohn sought an order in the Family Court that his wife support his application for a ‘Gett’, being a Jewish Bill of Divorce. Justice Benjamin refused to make such an order.
A Gett must be given by a husband to his wife and, in order for a Gett to be granted, the wife must accept it. In the current case, the Husband was seeking an order that forced the Wife to accept and effectively grant a Gett.
In determining whether to make such an order, the Court considered a number of cases dealing with this issue. It found that making such an order would have the potential to raise constitutional issues, namely the requirement not to make laws in respect of religion (Commonwealth of Australia Constitution Act(Cth) s 116) with some cases finding similar orders unconstitutional and therefore outside the Court’s jurisdiction (Joachim & Joachim). It is argued, however, that given the wording of section 116, this only restricts the Federal Parliament and not the decision making of courts (Ferro & Kople – refused to make order on other grounds). The Court noted that it has, in the past, ordered that both husbands and wives do things to effect a Gett, indicating they do have the power to make such orders.
In other cases, the Court has sought to remit the matter to, and in some cases ordered parties to attend, a religious court, known as a Rabbinical Court, in order to allow the decision to be made there.
Notwithstanding that orders have been made in previous cases, there has been a shift away from the making of these types of orders. This could be as a result of changing social attitudes to religion as well as an increase in political correctness and a fear of intruding upon religion. Regardless of the reason, the recent decisions of Ferro & Kople and, following that decision Idelsohn & Idelsohn have opted to leave this area alone and not interfere with religious processes.
What this case shows is the growing reluctance of courts to interfere in religious law. Where there is no conflict and therefore no need for the court to rule on such matters, there is a much greater chance they won’t. In Idelsohn, the parties could still obtain a legal divorce, and did so, without the court having to rule on a religious divorce. Religious law and its application to society is an exciting and developing area of law that has the potential to change as social attitudes change.
Ferro & Kople  FamCA 409.
Idelsohn & Idelsohn  FamCA 398.
Joachim & Joachim (unreported, Family Court of Australia, Hase J, 13 September 1996).
The information posted on this blog represents our opinion and should not be taken as legal advice.