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:
a. 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
b. 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.
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 it’s
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 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.