The Enforcement of Islamic & Jewish Marriage Contacts & Agreements in Civil Courts in Pennsylvania

May 19, 2020

Traditionally, Civil Courts (County and State Courts in Pennsylvania, as
well as Federal Courts) have been reluctant to enforce religious contracts in their Courts, because of Constitutional issues surrounding the First Amendment separation of Church and State. In the area of Family Law, and specifically in discussing, negotiating and resolving Divorce issues, these religious based issues can arise.
In Pennsylvania, when faced with the enforcement of a religious agreement, such as a:

  1.  Mahr (also spelled Maher) in an Islamic Marriage Certificate. A Mahr is a promise by a Groom to pay a Bride a certain monetary amount, a piece of Gold or another object, either at the time of marriage or the time of Divorce. Some Islamic scholars say the Mahr is incident to marriage and is not a divorce issue; others disagree; or
  2. Obtaining a Get (a Jewish Divorce, which is addressed in a Ketubah, or Jewish marriage contract). In traditional Jewish Law, a Groom must agree to give a Get, or Divorce, to his Wife. If he refuses, she may not get remarried in the Conservative and Orthodox sects of the Jewish Faith, because she is still married, even if divorced in the civil world.

there is no guiding law concerning these issues.

How a Religious Divorce Can Affect a Civil Divorce

There is no Statute (passed by the State Legislature and signed by the Governor) or Case law, in Pennsylvania, speaking to whether these contracts are enforceable in a Civil Court.
As a result of there being no law telling Judges and Lawyers whether to, or how to, interpret or enforce these agreements, each County Court is left to its own devices in deciding what to do with these contracts. Some County Court Judges enforce these agreements and some do not.
Judges look to other state law to see how other Judges and Courts are addressing this issue. For example, New Jersey seems to enforce the Mahr; California does not. What is a person to do? Risk having the issue decided in a civil court, by a Judge who simply has little or no guidance in how to decide the issue? Without guidance in the form of law, any Judge would be leery to decide the issue.

Collaborative Law & the Enforcement of a Religious Agreement

Collaborative Law is the perfect place to resolve the issue. In Collaborative,
each party chooses their own Collaboratively trained attorney, financial expert and/or therapist to help the parties through their property, custody, support and other issues. Collaborative Professionals are chosen based on the needs of the parties. Not every case requires a Divorce Coach, Therapist, Financial Expert of other participant to resolve your issues. You and your Collaborative Professional will decide whom to incorporate onto your Collaborative Team.
In Collaborative, you, your partner and your Team will discuss, explain, investigate and negotiate a resolution of your concern without the stress of Court and Judges. You move at your pace and not at the pace of a Court schedule and Court dates. You develop and craft your own Agreement, which works for both parties. You don’t guess at what the law is or should be; rather, you simply decide what is best for you, your spouse or partner and your joint future

About Lee Schwartz, Esquire

Lee A. Schwartz, Esquire is the owner of Peaceful Separation and Divorce in Philadelphia. He practices Collaborative Law and Mediation in the area of Family Law in the five-county Philadelphia area, with over thirty years of experience. Lee practices Collaborative Law and Mediates divorce, custody, support, alimony and division of property concerns and has been doing so for over twenty-five years. As part of his practice, Mr. Schwartz has been engaged by attorneys to arbitrate Custody related disputes for their clients.
He is also trained as a Parenting Coordinator and has been appointed as a Guardian Ad Litem and as a Parenting Coordinator by Judges in the Court of Common Pleas of Philadelphia County.
Click here to learn more about Lee Schwartz, Esq.