Andrea M. Alonso and Kevin G. Faley

*Originally published in the

New York Law Journal

December 18, 2015

On Dec. 8, 2015, Pope Francis launched a jubilee year of mercy, one feature of which was the issuance of rules that make the Catholic annulment process easier, cheaper and quicker. The Pope's new rule "fast-tracks" annulments for couples where neither spouse is contesting the annulment.

But couples who benefit from these rules might still face obstacles under New York law.

While the New York Legislature has previously enacted laws that require spouses to remove religious barriers to remarriage prior to the grant of a civil divorce, the statute is not easily applicable to Catholic annulments. The statute was enacted to prevent the withholding of Jewish religious divorces.1 This article explores the statute's limited scope and how it is used to effectuate Jewish religious divorces, and why, as it is drafted, it cannot be similarly used to effectuate Catholic annulments.

Barriers to Remarriage

In 1983, the New York State Legislature enacted Domestic Relations Law Section 253 titled "Removal of barriers to remarriage" to ensure that individuals are able to remarry within their chosen religion following a civil divorce. Pursuant to the statute,

No final judgment of…divorce shall…be entered unless the plaintiff [the spouse commencing the divorce proceeding] shall have filed and served a sworn statement: (1) that to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant's [the other spouse] remarriage following the… divorce.2

The statute further provides:

…[A] "barrier to remarriage" includes…any religious or conscientious restraint or inhibition, of which the party required to make the verified statement is aware, that is imposed on a party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party's commission or withholding of any voluntary act. Nothing in this section shall be construed to require any party to consult with any clergyman or minister to determine whether there exists any such religious or conscientious restraint or inhibition. It shall not be deemed a "barrier to remarriage" within the meaning of this section if the restraint or inhibition cannot be removed by the party's voluntary act.3

Although the statute does not specifically reference Jewish practices, the statute was enacted to prevent a spouse from denying the other spouse a "Get," a Jewish bill of divorce, as a form of economic coercion.4 The statute is intended to "induce or compel Jewish spouses…to 'voluntarily' accede to religious divorces or else be precluded from obtaining a civil divorce decree."

Jewish Religious Divorces

Judaism recognizes the concept of "no-fault" divorce, acknowledging that divorce is, unfortunately, a fact of life. Specifically, under Jewish law, a husband can divorce his wife for any or no reason. However, rabbis have created rules for obtaining a Jewish divorce to "prevent husbands from divorcing their wives recklessly or without proper consideration."5

A Jewish marriage is terminated through the execution, delivery and acceptance of a Get, which is a 12-line document, written by a scribe, in the presence of the Bet Din (the Rabbinic Court of Law generally consisting of three rabbis), and signed by two witnesses.6 Prior to the Get proceeding, each spouse is questioned regarding their desire to divorce. The husband must state that he is giving the Get of his own free will and the wife must state that she is accepting it of her own free will.

After the Get is executed, it is given to the husband, who then places it into the wife's hands, "releasing her from her vows and annulling the marriage contract."7 The Bet Din then cuts and files the Get, and each spouse is given a document that certifies that they are divorced.8

Without a Get, regardless of how long the couple has been separated and the number of civil documents signed, the couple is still married under Jewish law. All sects of Judaism frown upon the withholding of a Get. However, a spouse may deny the other spouse a Get to leverage his or her own power in civil court with regards to custody of the children, spousal support, and other economic support.9

If a man refuses to deliver a Get, the woman is still considered married to her first husband, which will prevent her from having any remarriage recognized under Jewish law and any children she has during a future marriage will be considered illegitimate.10 However, if a woman refuses to accept a Get, the ramifications for men are different. During biblical times, Jewish men were allowed to practice polygamy.11 However, more than 1,000 years ago, a rabbinic decree was issued that forbade polygamy among the Ashkenazi Jews12 and then when the State of Israel was formed during the 20th century, Israeli law prohibited polygamy. Accordingly, today, both Ashkenazi and Sephardic men are required to obtain a Get to have their remarriage recognized.13 However, because polygamy was allowed during biblical times, any child of a Jewish man from a remarriage will not be considered illegitimate (unless the woman he remarries was previously married and never received a Get).

Whereas the obtainment of a Get has no bearing on the civil status of married persons, it does affect whether a "religious official or institution would refuse to solemnize the remarriage or lend sanction to it for religious purposes."14 Given this, it is not uncommon for Jewish spouses to include clauses in prenuptial agreements or separation agreements indicating that in the event of divorce, it is agreed that the husband will give a Get and the wife will accept the Get. Generally, these clauses have been enforced by civil courts as contractual provisions. As for the breaching party, the courts have imposed fines or withheld civil economic relief.15 Where there is no contractual provision, DRL §253 comes into play, and the court may withhold economic distribution or disproportionately distribute marital assets until a Get is executed, delivered, and accepted.16

Catholic Religious Divorces

An annulment, similar to a Get, is the religious process by which a couple dissolves a Catholic marriage. An annulment is, essentially, a finding by a Church tribunal that a marriage never existed. Without an annulment, both spouses are barred from remarrying in the Catholic Church.

An annulment is a judgment made by a Catholic clergy that the marriage was not valid due to defective consent. Specifically, an annulment declares that one of the following five elements of a Catholic marriage was missing at the time of marriage.

(1) the spouses are free to marry; (2) they freely exchange their consent; (3) in consenting to marry, they have the intention to marry for life, to be faithful to one another and be open to children; (4) they intend the good of each other; and (5) their consent is given in the presence of two witnesses and before a properly authorized Church minister.17

The Catholic Church presumes that marriages are valid and lifelong. Without an annulment, a Catholic cannot remarry in the Church and cannot receive Communion.18 While a civil divorce does not preclude a Catholic from receiving sacraments if the person never remarries, if a Catholic does remarry after a divorce without obtaining an annulment, he or she will not receive the sacraments.19

To obtain an annulment, the person seeking an annulment must submit a petition, including written testimony about the history of the marriage and a list of witnesses familiar with the marriage to the Church tribunal. The petition must also include, among other things, a certified copy of the civil divorce decree or civil annulment decree. The tribunal then contacts the other spouse who has a right to be involved and can contest the annulment, but whose involvement is not necessary for the case to move forward.20 During the process, the tribunal "examines the events leading up to, and at the time of, the wedding ceremony, in an effort to determine whether what was required for a valid marriage was ever brought about" and "a representative of the Church, called the defender of the bond, argues for the validity of the marriage."21 Once the tribunal has reached a decision, the decision is reviewed by a second tribunal.

Pursuant to Pope Francis's new rule, after a non-contesting couple files an annulment petition, the case will be heard as soon as 30 days and at most 45 days later. Moreover, the new rules eliminate the need for the annulment to be confirmed by a second tribunal. The previous process of requiring two confirming decisions took between 12 and 18 months or longer.22 In addition, the new system is expected to be free, aside from legitimate costs that will go to maintaining the tribunal process.23

Section 253: What Now?

At first glance, it might seem that DRL §253 applies to Catholic annulments, just as they do to Jewish Gets, given that they are both barriers to remarriage in a chosen religion. However, the statute specifically states that it applies only where the barrier can be removed by a spouse's voluntary act and it does not require a spouse to consult with a religious official to determine if there is an impediment to a religious divorce. Moreover, the statute states that "no final judgment of…divorce shall…be entered unless…" Notably, the annulment process requires that the petitioner present a decree of civil divorce or annulment prior to the tribunal considering the annulment. Accordingly, it is clear that the statute, as written, does not apply to annulments.

However, with the Pope's new rule, by which Catholic annulments will be easier, cheaper and quicker to obtain, will the courts decide to play a role in this process? While the court has no power over the Church's ultimate annulment decision, the courts may play a role when couples include in their civil divorce and/or annulment agreements that they will not contest an annulment. It seems practical that the courts should uphold separation and/or divorce agreements that include such provisions.

Although the language of DRL §253 is not easily applicable to annulments, this statute should be kept in mind when drafting separation and/or divorce agreements and before filing divorce papers. While it is well settled that the refusal of one spouse to give the other spouse a Get is a "barrier to remarriage," the Pope's recent ruling prompts the question of whether a spouse's failure to consent to an annulment is similarly a "barrier to remarriage." In light of the Pope's announcement, it will be interesting to see what new types of cases are brought before the courts seeking a religious annulment under DRL §253.

Lawmakers in New York should be thinking about what, if any, effect the new rules will have on the laws currently in place that require spouses to remove religious barriers prior to the grant of a civil divorce and what, if any, amendments may be necessary to ease the process for Catholics seeking annulment.


1. N.Y. DOM. REL. LAW §253, Practice Commentaries.

2. N.Y. DOM. REL. LAW §253.

3. N.Y. DOM. REL. LAW §253(6).

4. McKinney's 1983 Session Laws of New York, pp. 2818-19.

5. Tracey R. Rich, Divorce, JUDAISM 101 [hereinafter JUDAISM 101], last accessed on December 6, 2015.

6. Understanding the Process of Getting a Get: Get Basics, GET YOUR GET [hereinafter GET YOUR GET], last accessed on Oct. 13, 2015.

7. Id. Each spouse may appoint someone, meeting certain qualifications, to deliver or accept the get on his or her behalf if it is not possible or desirable to have the couple appear before each other. See JUDAISM 101, supra note 5.

8. See Naftali Silberberg, Outline of the Beth Din Divorce Proceedings, CHABAD.ORG, last accessed on December 6, 2015.

9. See Get Refusal, JWI. last accessed on December 6, 2015.

10. See GET YOUR GET, supra note 6.

11. See Alexandra Leichter, The Effect of Jewish Divorce Law on Family Law Litigation, INTERNATIONAL ACADEMY OF MATRIMONIAL LAWYERS [hereinafter The Effect of Jewish Divorce Law], last accessed on Nov. 19, 2015.

12. See GET YOUR GET, supra note 6; Susan Weiss, Divorce: The Halakhic Perspective, JEWISH WOMEN'S ARCHIVE: SHARING STORIES INSPIRING CHANGE, last accessed on November 19, 2015.

13. In some countries outside of Israel, some Sephardic rabbis do not require men to obtain a Get to make a divorce valid. See The Effect of Jewish Divorce Law, supra note 11.

14. N.Y. DOM. REL. LAW §253, Practice Commentaries.

15. See e.g., Avituzar v. Avituzar, 58 N.Y.2d 108, 115 (1983) (Court enforced the couple's Jewish marriage contract, which required that the couple appear before a Jewish tribunal for marital difficulties, founding its decision on "neutral principles of contract law"); see also Kaplinsky v. Kaplinsky, 198 A.D.2d 212 (2d Dept. 1993) (court ordered term of imprisonment and withholding of economic benefits for husband's failure to deliver Get in accordance with judgment of divorce); Waxstein v. Waxstein, 80 Misc.2d 784 (Sup. Ct. Kings Cnty 1976) (husband not to get stock and deed to marital residence until he complied with separation agreement and obtained a Get).

16. See Pinto v. Pinto, 260 A.D.2d 622 (2d Dept. 1999) (wife awarded 100 percent of the marital property if the husband did not deliver a Get within a specified time period); Schwartz v. Schwartz, 235 A.D.2d 468 (2d Dept. 1997) (defendant forfeited his right to any distributive award when he delivered the plaintiff a Get "solely to extract economic concessions from the plaintiff"); S.A. v. K.F., 22 Misc.3d 1115(A) (Sup. Ct. Kings Cnty 2009) (court exercised its discretion and disproportionately distributed the marital assets until the husband delivered a Get).

17. Frequently Asked Questions—Annulments, ARCHDIOCESE OF NEW YORK [hereinafter Frequently Asked Questions], last accessed on Dec. 6, 2015.

18. Kelly Frazier, "Pope Francis Reforms the Procedures for Marriage Annulments of the Roman Catholic Church," WORLD RELIGION NEWS, Sept. 14, 2015  [hereinafter  Pope  Francis  Reforms],

19. Annulment—Frequently Asked Questions, ST. PATRICKS—YORKTOWN, last accessed on Dec. 7, 2015.

20. See Annulments in the Catholic Church, THE DIOCESE OF ROCKVILLE CENTER, THE CATHOLIC COMMUNITY OF LONG ISLAND, NEW YORK, last accessed on December 6, 2015.

21. See Pope Francis Reforms, supra note 18.

22. See Frequently Asked Questions, supra note 17.

23. See Jim Yardley and Elizabetta Povoledo, "Pope Francis Announces Changes for Easier Marriage Annulments," THE NEW YORK TIMES, Sept. 8, 2015,