Avitzur v. Avitzur, 58 N.Y.2d 108

CASE: Woman sues for specific performance to force her ex-husband to live up to the terms of their ketubah by appearing before a Beth Din.

FACTS: After 22 years of marriage, the defendant and the plaintiff were granted a civil divorce. Because they were married according to Jewish law, they signed a Ketubah before their marriage ceremony. Part of this Ketubah, or agreement spelling out the obligations and intentions of the respective parties as well as a provision recognizing the power of the Beth Din of the Rabbinical Assembly to counsel them in light of Jewish tradition. Under Jewish law, only a man can grant a divorce, or a Get. Until he does, the woman cannot remarry within the faith to anybody but a convert. Their children will then also be considered on-par with converts. In order that a Get may be obtained, the plaintiff and the defendant would have to appear before the Beth Din, per the dictates of their ketubah recognizing that body has having authority to consel the couple in the matters concerning their marriage. The husband refused to appear before the Beth Din, leaving the woman in a state of marital limbo (making her an agunah). Defendant's motion to dismiss was denied at trial court, a ruling that was overturned in the Appellate Division; plaintiff appealed to highest court.

BOAZ ARGUES:

• Resolution of the dispute and any grant of relief to plaintiff would involve the civil court in impremissible consideration of a purely religious matter.
• Enforcement of the terms of the Ketubah would violate the constitutional prohibition against excessive entanglement between church and state, because the court must necessarily intrude upon matters of religious doctrine and practice.

SUSAN ARGUES:

• Defendant signed a contract which binds him to the Beth Din as the forum for resolving disputes relating to their marriage.
• Relief granted does not require the court to order defendant to grant the Get, just to subject himself to a jurisdiction to which he had legally bound himself before the marriage.

COURT SAYS: Plaintiff has to appear before the Beth Din.

HOLDING: Order forcing defendant to appear before a Beth Din, as he agreed to in his pre-marriage Ketubah, is not an impermissible entanglement between church and state because the Ketubah acts as a secular contract to which the defendant must adhere.

RATIONALE:

• The order forces the man to simply appear before a dispute-resolution panel to which he agreed before he married his wife; it does not force any particular outcome on the husband and, therefore, does not constitute an excessive entanglement.
• Agreements binding couples to other alternative dispute resolution forums have been upheld as constitutionally permissible, and this one is no different.
• In short, this matter can be settled as a secular contract matter and need not approach the territory of religious dogma.

DISSENT: The court cannot rule on this matter without delving impermissibly into Jewish law and custom. As the dissent sees it, this is essentially a battle of conflicting interpretations of the ketubah. The wife says that the document imposes an obligation on the husband to appear before the Beth Din at the summons alone of the other party despite a reference to the summons of the Beth Din. The husband, on the other hand, says there is nothing in the document which explictly compells him to appear before the Beth Din because an earlier request by him for convocation of such a body was refused. The court has injected itself into this debate by taking the side of the wife, justifying her interpretation of the document and, as such, delving into religious law and tradition.

Additionally, nothing in the document reveals an intention on the part of either party that the civil courts would have jurisdiction over this matter in the event of the refusal to issue a get.

T O P