Jurisdiction

In some countries sharia (Islamic) law is practised as the law of the Land. In the USA only secular law governs universally. However, there are instances where persons of particular religions prefer to have their issues resolved outside the American Courthouse. Due to the separation enshrined in the Constitution between State and Religion, there is no automatic right to so do. Thus  the only means sanctioned indirectly by Law to attempt religious tribunal is  via arbitration. The law recognizes the rights of individuals to submit their disputes to arbitration provided specific inalienable rights are adhered to. Since arbitration may be conducted according to rules selected by its process, the usage of a religious code within arbitration  is permissible. Arbitration must however  be agreed to by both parties.

However, as with arbitration generally, the Court  still retains final decision-making over custody (NOT FINANCIAL) issues, and indeed may ignore any custody decision reached elsewhere. Total power remains vested in the US Legal System, for public policy reasons.  On the other side,  the Court lacks the power to insist upon a religious divorce, and yet deprives the arbitration committee of any real coercive strength. The exception is the so called Jewish “Get law’ which has limited application (the Plaintiff only is subject to the Law) and is not completely accepted in the community for whose benefit it may have been legislated. Court is both a superpower yet powerless,  so the upshot is that the two legal systems leave a vacuüm in which unscrupulous people may take advantage.

Much  publicity was engendered regarding the alleged oppressive nature of religious Divorce laws within Judaism.  Oftentimes,  the religious court has the desire but  lacks the power to enforce its decisions in  the few instances of recalcitrant behavior. .Loopholes and lack of sanction exist in all spheres of secular Law too.

With respect to Jewish divorces,  Power existed ironically for instance in European countries centuries ago, or today in Israel (where there are more women resisting divorce than men), but not in the USA today . There are religious courts which use FINANCIAL ‘disincentives’ as a means to procure a Get, but again, many question its efficacy. There may be  novel arguments and strategy possible in Court, but they remain to be tested.

This is a minefield of process where an attorney who understands both sides of the equation and understands the depth of feeling should be consulted so the best course of action can be determined.

_{THIS INFORMATION IS OF GENERAL NATURE ONLY AND NOT TO BE RELIED UPON IN ANY SPECIFIC SITUATION. IN ALL CASES CONSULT AN ATTORNEY FOR PROPER ADVICE}

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