[180 NJSuper Page 261] Plaintiff wife moved post judgment for an order requiring the defendant to obtain and pay for the costs of a Jewish ecclesiastical divorce known as a " get."*fn1
The significance of her motion is that only a husband may secure the get and without it the wife cannot remarry under Jewish law.
(1) Whether the parties have entered into a contract enforceable by this court, and
(2) Whether the relief sought by plaintiff would unconstitutionally infringe upon defendant's First Amendment right of exercise of religious freedom.
The parties were married in a Jewish ceremony where they entered into a contract, called a " ketuba ," in which they agreed to conform to the provisions of the laws of Moses and Israel.*fn2 These laws require the husband to give his wife a get when he alleges an act of adultery on his wife's part. In the instant case the husband counterclaimed for divorce on the ground of adultery, giving rise to the wife's claim to require her husband to secure a get. The husband has refused and opposes any order to compel him to do so, claiming that such an order would violate the Establishment of Religion Clause of the First Amendment. The wife asserts that without the get she would be effectively restrained from remarrying in a manner consistent with her religious beliefs.
To compel the husband to secure a get would be to enforce the agreement of the marriage contract (ketuba). A court of equity will enforce a contract between husband and wife if it is not unconscionable to do so and if the performance to be compelled is not contrary to public policy. See Garlinger v. Garlinger , 129 N.J. Super. 37 (Ch. Div. 1974); Schlemm v.
What constitutes an agreement against public policy was defined in Garlinger, supra , where the court said,
An agreement is against public policy if it is injurious to the interest of the public, contravenes some established interest of society, violates some public statute, is against good morals, tends to interfere with the public welfare or safety, or, as it is sometimes put, if it is at war with the interests of society and is in conflict with public morals. 17 Am.Jur. 2d, Contracts , § 179 at 541. [129 N.J. Super. at 40].
In the instant case the ketuba contract requires the participants to comply with certain reciprocal obligations pertaining to the marriage. For example, the wife is to perform the role of homemaker and to supply a dowry; the husband is to support and care for the wife. The ketuba is devoid of any requirement that could be construed to be against public policy. No interest of society is affected or impaired by its provisions, nor does it conflict with public morals. On the contrary, its purpose is obviously to promote a successful marital relationship and its enforcement, therefore, actually advances public policy. The contract simply calls for defendant, in securing a get , to do ...