Aflalo v. Aflalo
295 N.J. Super. 527, 685 A.2d 523 (1996)
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Rule of Law:
Civil courts cannot compel an individual to perform a religious act, such as providing a 'get' (Jewish religious divorce), as such an order would violate the First Amendment's Free Exercise Clause by entangling the judiciary in religious doctrine and practice.
Facts:
- Sondra Faye Aflalo and Henry Arik Aflalo were married on October 13, 1983, in Ramle, Israel, and have one child, Samantha.
- Sondra filed a complaint seeking a dissolution of their marriage.
- Henry opposed the divorce and initiated reconciliation efforts with The Union of Orthodox Rabbis of the United States and Canada (the "Beth Din").
- During settlement negotiations for their civil divorce, Henry refused to provide Sondra with a "get," a Jewish bill of divorcement, which is necessary for Sondra to remarry under Jewish law.
- Henry stated under oath that while he desired reconciliation, he would follow the recommendations of the Beth Din and provide the "get" if that was the outcome of their religious proceedings.
- Sondra appeared unwilling to settle the civil divorce case without Henry's cooperation in obtaining a "get" and had not appeared in response to the Beth Din's summons for reconciliation, though her counsel stated she responded in writing.
Procedural Posture:
- Sondra Faye Aflalo filed a complaint in the Superior Court of New Jersey, Chancery Division, Family Part, seeking a dissolution of her marriage to Henry Arik Aflalo.
- Henry Arik Aflalo filed an answer to the complaint.
- The matter was placed on the court's active trial list.
- During a settlement conference, Henry's attorney moved to be relieved as counsel due to a religious conflict with his client's stance on providing a 'get'.
- Sondra requested the court, as part of the eventual judgment of divorce, to order Henry to cooperate in obtaining a Jewish divorce, potentially through coercive means like limited or supervised visitation.
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Issue:
Does a civil court have the authority to compel a husband to provide a 'get' (Jewish religious divorce) to his wife, or to compel his appearance before a religious tribunal for that purpose, without violating the First Amendment's Free Exercise Clause?
Opinions:
Majority - Fisher, J.S.C.
No, a civil court does not have the authority to compel a husband to provide a 'get' or to compel his appearance before a religious tribunal for that purpose, as such an action directly infringes upon the First Amendment's Free Exercise Clause. The court reasoned that ordering a 'get' constitutes governmental entanglement in religious beliefs and practices, which is prohibited. The court rejected the reasoning of prior cases like Minkin v. Minkin, which viewed a 'get' as a non-religious, civil act or as a contractual obligation from the 'ketubah' (marriage contract) that could be specifically enforced. Instead, this court found that determining whether an act is 'religious' involves an inquiry into religious law, which civil courts are forbidden from doing under the First Amendment principles outlined in Serbian Eastern Orthodox Diocese v. Milivajevich and Presbyterian Church v. Hull Church. Furthermore, the court emphasized that a 'get' must be given willingly and without constraint according to Jewish law, rendering a civil court-ordered 'get' religiously invalid and coercing the husband's conscience. The court also distinguished the present case from Avitzur v. Avitzur, which permitted enforcement of an agreement to appear before a Beth Din, noting that Sondra had not honored a similar request from the Beth Din in this case, and even that limited relief still involved inappropriate entanglement.
Analysis:
This case reinforces the strict separation of church and state, particularly regarding the judiciary's role in compelling religious acts. It signals a departure from prior New Jersey trial court decisions and New York precedent that attempted to categorize a 'get' as a civil contractual obligation. The decision limits the remedies available to individuals seeking religious divorces in civil courts, potentially encouraging reliance on legislative solutions (like New York's Domestic Relations Law § 253) or purely religious tribunals for such matters, rather than judicial coercion. It highlights the complexities arising when civil divorce law intersects with deeply held religious beliefs, affirming that religious freedom takes precedence over the perceived 'unfairness' of a religious doctrine.
