Jewish Divorce and Australian Law — A Complete Guide to the Get, the Beth Din and the Family Court

Two legal systems, one marriage

Most legal systems in the world separate civil and religious marriage to some degree. Australia is no exception. A Jewish couple who marry in Melbourne typically have two distinct legal events on the same day: a chuppah officiated by a rabbi (which creates a marriage in halacha), and a registration of marriage under the Marriage Act 1961 (Cth) (which creates a civil marriage). The two events overlap in practice but are legally independent.

The same is true when the marriage ends. An Australian civil divorce — granted by the Federal Circuit and Family Court of Australia (FCFCA) after a 12-month separation — ends the civil marriage only. It does not touch the halachic marriage. The halachic marriage is ended by a get: a document of religious divorce written by a sofer (scribe), granted by the husband, received by the wife, and administered by a Beth Din.

Until both events have happened, the parties are in an asymmetric legal position: divorced under one system, still married under the other. For practising Jewish couples — and particularly for the wife — this is not a theoretical problem. It affects remarriage, the religious status of any children, and full participation in Jewish communal life.

What a get actually is

A get (גט) is a document specifically prescribed by halacha. Its physical form, the materials it is written on, the wording, and the manner of delivery are all regulated by traditional Jewish law. The get is not a generic religious certificate — it is a precise legal instrument.

The get is prepared at the direction of a Beth Din (rabbinical court) by a qualified sofer. The husband, in the presence of the Beth Din, instructs the sofer to write the get specifically for him and for his wife. Once written, the get is handed by the husband to the wife — physically — in the presence of the Beth Din and witnesses. The wife receives the get. From that moment, the parties are halachically divorced.

Three elements matter legally: (1) the husband must grant the get voluntarily; (2) the wife must receive it voluntarily; (3) the act must be witnessed and administered properly. A get given under duress — even just-enough duress that the Beth Din considers it coerced — may be invalid, with the practical consequence that the wife is still halachically married despite having gone through the ceremony.

This is the doctrinal root of the agunah problem we will return to: because the act must be voluntary, an Australian civil court cannot directly compel a get.

Why a civil divorce alone is not enough

For a couple who are no longer practising Judaism in any meaningful way and who are confident that neither party will want to remarry within an Orthodox framework, a civil divorce alone may suffice in practical terms. Many Reform and Progressive Jewish couples take this view.

For Orthodox or traditional couples, and for any couple whose children may later wish to marry within an Orthodox framework, the get matters. Without a get, the wife remains halachically married — she cannot remarry under Orthodox auspices. Any children she has with a subsequent partner are halachically considered mamzerim (a serious religious status with significant restrictions on whom they may marry within Orthodox Judaism). This is not symbolic — it is a real consequence that travels down the generations.

For the husband, the get also matters but the consequences are less severe. Under traditional halacha, a man may technically have more than one wife (the prohibition on polygamy in the Orthodox world is rabbinic, not biblical, and dates from the Cherem of Rabbeinu Gershom around the year 1000 CE in Ashkenazi communities). However, all major Australian Orthodox communities apply the cherem and a husband who has not given a get cannot remarry under Orthodox auspices either.

In practice, the get matters to both parties. It just matters more, and more catastrophically, to the wife.

The Melbourne Beth Din

The Melbourne Beth Din is the main Orthodox rabbinical court in Melbourne. Other Australian cities have their own Beth Din institutions — the Sydney Beth Din, for example — and an Orthodox couple can in principle approach any recognised Beth Din. Most Melbourne couples use the Melbourne Beth Din because of proximity and community familiarity, and the working relationship between the Beth Din and the Family Court is something the firm navigates regularly.

The Beth Din is independent of any synagogue. It functions as a religious court — its dayanim (rabbinical judges) preside over get proceedings, conversion processes, mediation of community disputes, and certain ritual matters such as the validation of conversions from outside Australia. The Beth Din does not act for either spouse and is not equivalent to a lawyer — its function is judicial.

Beth Din proceedings are not bound by the Evidence Act or by the procedural rules of the FCFCA. They are governed by halachic procedure, which is in many respects more flexible (and faster) than civil litigation. A cooperative get can be arranged and completed within a few weeks of first contact. An uncooperative get can take years.

For Reform and Progressive Jewish couples, the relevant institution is different. Progressive Judaism Australia has its own rabbinic processes, and a number of Progressive rabbis administer Progressive gittin (the plural of get) recognised within the Progressive movement — though not necessarily within Orthodox communities. If you are unsure which framework applies to your situation, this is one of the first questions to discuss with your lawyer.

The agunah problem — when the husband refuses

An agunah (אגונה) — literally 'a chained woman' — is a wife whose marriage has ended in practice but who cannot obtain a get from her husband. Historically the term referred to women whose husbands had vanished (gone to war and not returned, lost at sea, abandoned the marriage in another country) but the same word now applies to women whose husbands are present and able but refusing to grant the get.

The agunah problem is one of the most painful unresolved issues in modern Jewish law. The internal halachic solutions are limited: a Beth Din can pressure a recalcitrant husband, in some cases through siruv (formal community censure), in extreme cases through historical mechanisms such as harchakot d'Rabbeinu Tam (social and communal restrictions). It cannot, halachically, simply declare the marriage ended without a get.

Australian civil law also cannot directly compel a get because the act must be voluntary. However, Australian Family Courts have, in some cases, taken get refusal into account in property settlement — recognising it as a relevant factor in the assessment of future needs, contributions, or sometimes simply as evidence of the recalcitrant party's overall conduct toward the relationship's resolution. The leading Australian case law in this area, while not abundant, has been increasingly willing to give the issue weight.

Some jurisdictions overseas — notably New York and parts of Canada — have introduced specific 'get laws' that condition civil relief on resolution of religious impediments to remarriage. Australia has not done so, but the practical effect of careful family court strategy can sometimes approximate the same result.

The most effective tool against the agunah problem is preventative: the halachic prenuptial agreement, which we will turn to.

Halachic prenuptial agreements

The halachic prenup is the single most effective community-level solution to the agunah problem that has been developed in the modern Orthodox world. Pioneered by the Rabbinical Council of America (RCA) and now standard practice in many Modern Orthodox communities globally, the prenup is a document signed by both parties at the time of marriage in which the husband undertakes to pay ongoing maintenance to his wife at a specified daily rate from the moment they live apart until he grants the get.

The maintenance figure is set high enough to create real incentive — typically in the order of $200 per day, indexed to inflation — without being punitive. The point is not that the agreement is ever invoked: it is that knowing he will face an ongoing financial obligation effectively removes the leverage a recalcitrant husband might otherwise have.

Empirically, the RCA prenup has been extraordinarily effective. Communities that have adopted it widely have seen the agunah problem largely vanish. The Melbourne Beth Din and the Modern Orthodox community in Melbourne have increasingly encouraged the practice, and a number of Charedi communities have either adopted it or are debating doing so.

Crucially for Australian couples, the substance of a halachic prenup can be reflected in a Binding Financial Agreement (BFA) under the Family Law Act 1975 (Cth), making it civilly enforceable. The two documents — the halachic prenup and the BFA — sit side by side, addressing the same risk through different mechanisms. We discuss the drafting of both on the firm's dedicated Jewish prenuptial agreements page.

Sequencing the civil and the religious

When a Jewish couple separate, the question of order matters. There are three broad sequencing options.

Option one: get first, then civil divorce. This works well in cooperative separations where both parties are committed to resolving things cleanly. The get is obtained shortly after separation, civil divorce follows after the standard 12-month separation period, and property and parenting are negotiated alongside. The advantage is that the religious side is resolved early and stays out of the negotiation. The disadvantage is that once the get is given, the wife has lost any leverage tied to it.

Option two: simultaneous or coordinated. The get is arranged to coincide with — or follow shortly after — the filing of the civil divorce application. This gives both parties an incentive to cooperate on both fronts simultaneously. It is often the sensible default in matters that are not deeply cooperative but not openly hostile.

Option three: civil divorce first, get later. This is rarely advisable. Once the civil divorce is in place, the husband may have less practical incentive to complete the religious side, and the wife is left in the chained position with the only leverage being the (limited and uncertain) prospect of further Family Court action.

The right sequence depends on the particular relationship, the personalities involved, the religious importance attached to the get by each party, and any financial or parenting leverage that is in play. There is no formula — only the practical judgement that comes from running these matters before.

Family Court interaction with the Beth Din

The FCFCA does not require a get and will not refuse to grant a civil divorce because the get has not been arranged. Equally, the Beth Din does not require a civil divorce — it will administer a get even if no civil application has been filed. The two institutions are formally independent.

But they interact in practice. Where there is a parallel parenting dispute, the Court will want to know about religious observance — including whether children are being brought up in accordance with the parents' faith, what arrangements exist for Shabbat and chag, and how schooling decisions are being made. Where the children attend Jewish day schools (Mount Scopus, Bialik, Yeshivah, Beth Rivkah, King David, Leibler Yavneh, ARC), this is a matter the Court has substantial information about and takes seriously.

Where the property pool includes business interests in kosher food, religious goods, or community institutions, the Court will treat these in the same way as any other commercial assets, but the realistic prospects of sale (particularly in a small community) will be relevant to valuation and to whether assets are retained by one party in lieu of cash.

Where one party has refused a get, the Court may consider it as part of the section 75(2) factors in property settlement — particularly where the agunah is the financially weaker party and the refusal is being used as leverage. This is not automatic and the cases are fact-specific, but the principle is established.

Practical issues that come up regularly

Out-of-state or overseas husbands. A get requires the husband's physical presence (with limited exceptions) at the time of granting. Where the husband is overseas or interstate, arrangements can be made for the get to be administered at a different Beth Din, with the Melbourne Beth Din coordinating. This adds time and cost but is routine — the Australia–Israel corridor in particular comes up regularly in this firm's matters.

Conversion issues. Where one party converted to Judaism, the validity of the conversion can be questioned by some Beth Din authorities, which in turn raises questions about whether a halachic marriage actually existed and whether a get is needed. This is highly technical and requires Beth Din-level input.

Civil divorce already finalised. Where a civil divorce has been finalised years ago and a get was never obtained, it is still possible to arrange the get later. It is just harder — the husband has had years to lose interest in cooperating and the leverage available through the civil process has expired.

Children of subsequent relationships. As noted, halachic remarriage without a get can have severe consequences for children born of a later relationship. If you are an agunah and considering a new relationship, the religious-status implications for any children deserve specific Beth Din advice before any decisions are made.

What to do if you are facing this now

If you are at the beginning of a separation, the first conversation should cover both the civil and the religious sides at once. Even if you are not particularly observant, the issues are best identified early — they may not affect you, but they may affect your children's children. A 30-minute consultation usually resolves whether the get is relevant in your situation and, if so, how it should be sequenced.

If you are already in the middle of a civil separation and the get has not been discussed, raise it now. The longer it is left, the harder it gets.

If you are an agunah whose husband is refusing the get, you have more options than you may realise — Beth Din pressure mechanisms, civil-law strategy, community-level engagement. None is guaranteed. All require careful coordination between your lawyer and your Beth Din. The first step is mapping out what leverage actually exists in your matter, which is the core of the get coordination work this firm offers.

Frequently asked questions