Court finds religious divorce threat is family violence: Insights from Briedis & Saar

The recent decision of Briedis & Saar recognises that Gett refusal, the withholding of a Jewish religious divorce, can constitute family violence under section 4AB of the Family Law Act 1975 (Cth).

Background

In this case, the Court was asked to determine whether a child should remain in Australia with the father or relocate to the United States with the mother and her parents. It involved complex issues including international relocation, neurodiversity, and allegations of coercive control.

The mother alleged that the father used threats and financial control to dominate her during and after their relationship. A central piece of evidence was an email sent by the father in 2018, during parenting negotiations, in which he threatened to withhold a Gett unless his demands were met.

What is a Gett?

A Gett is a Jewish divorce. Under Jewish law (known as "Halacha"), a couple is not considered religiously divorced until a Gett is freely given by the husband and accepted by the wife.

Even if a civil (or secular) divorce has been granted, the absence of a Gett renders the woman an "agunah", meaning they are a “chained” woman, unable to remarry within Orthodox Jewish tradition. This status can carry significant religious and cultural stigma, and any children born to an agunah may face restrictions under Jewish orthodox law.

This conduct is commonly referred to as "Gett refusal".

Similar challenges can be observed in other religious communities across Australia, including Islamic, Christian, and Hindu traditions, where religious divorce mechanisms may be used coercively.

Legal recognition and remedies for "Get refusal"

The Federal Circuit and Family Court of Australia has sought to address Gett refusal by incorporating Gett-related provisions into orders, either by consent or by way of judicial determination, that encourage or facilitate the religious divorce process. While these measures may act to encourage compliance with religious obligations, the Court cannot compel the granting of a Gett, as it must be given freely.

The Court’s findings on family violence

In the first instance judgment, the Court found that the father's threat to withhold the Gett, effectively rendering the mother an agunah, amounted to family violence within the definition of section 4AB of the Act.

The Court noted that:

“To threaten to make the mother a chained woman was a truly horrible thing for the father to write… I find the father’s threat to make the mother a chained woman with all the opprobrium, shame, hurt and restraints that attached to that, fits squarely within the s 4AB definition of family violence whereby he used his power of Gett refusal to threaten to deprive the mother of her autonomy and agency.”

The Court rejected the father's claim that the threat was a mistake or made in emotional distress, instead finding it to be part of a broader pattern of coercive and controlling behaviour.

The judgment emphasised that:

• The threat had lasting emotional impact on the mother.
• The father's conduct in refusing the Gett created a power imbalance in the relationship.
• The threat was not an isolated incident but part of a broader pattern of coercive and controlling behaviour.

Key takeaways

This first instance decision is a significant development in the recognition of religious threats as a form of family violence under Australia law. It reinforces the notion/s that:

• Family violence extends beyond physical harm: Threats that undermine a person’s autonomy, particularly in culturally or religiously significant ways, can meet the statutory definition of family violence.
• Context is critical: The Court considered the threat in the broader context of parenting negotiations and the mother’s vulnerability, highlighting the importance of understanding the power dynamics at play.
• Practitioner's should be alert to religious coercion: Legal practitioners should be attuned to how religious practices and obligations may be manipulated to exert control, and ensure such conduct is properly put before the Court.