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Op-Ed

Jewish Divorce Laws Threatened in Tallahassee

By David Barkey
Southeastern Area and National Religious Freedom Counsel of the Anti-Defamation League

This article originally appeared in South Florida Sun Sentinel on April 3, 2013

This op-ed was co-written with Carlos Osorio of the International Law Section of the Florida Bar, and Howard Simon, Executive Director of the American Civil Liberties Union of Florida

Legislation on a fast track in Tallahassee threatens to derail Florida's role as an international trade hub by complicating and destabilizing the personal and commercial lives of foreign nationals sent here from such important partners as Israel, Latin America and elsewhere.

The culprit is Senate Bill 58, pending in a Senate Committee chaired by Sen. Eleanor Sobel, D-Hollywood. The Bill seeks to prohibit the "application of foreign law."  It should be exhibit No. 1 in the museum of unintended consequences.

Take, for example, our relationship with Israel.  Our two countries are important allies and have a bond based upon shared democratic values and strategic interests, especially the rejection of terrorism.  The Legislature and successive governors have demonstrated Florida's overwhelming bipartisan support for Israel.

But unlike the U.S., Israel does not maintain a strong separation of government and religion.  Under Israeli law, rabbinical courts have sole jurisdiction over Jewish marriage and divorce.  The Israeli government only recognizes marriages and divorces of Jews that are issued by such courts.  In the Jewish faith only a man has the right to obtain a divorce, called a "Get," and give it to his wife. 

Now comes SB 58 that would ban any use of Israeli law in Florida family courts.  Florida courts, arbiters, or administrative agencies would be prohibited  from recognizing divorces and related matters granted in Israel to Jewish couples.  

The bill would require Florida officials to tell any Jewish person divorced in Israel, including Israeli Nationals living in Florida or Jewish Floridians with dual citizenship, that if you live in Florida you will not be able to rely on any legal proceeding, contract or court ruling secured in Israel.

Why would anyone risk coming (or any international business risk sending their employees) to Florida under the conditions created by SB 58?  For such persons, this legislation would obstruct remarriage, revision of alimony, and custody agreements in Florida. 

SB 58 would make life precarious and unpredictable for any immigrant or foreign national residing here. 

Say an Argentinian couple living in Miami wants to dissolve their marriage in Florida, but they have a prenuptial agreement (called an "antenuptial" agreement in Florida) that holds that Argentine law applies and that the dispute will be resolved by arbitration.

Currently, Florida law governing the dissolution of marriages states that "[t]he court may enforce an antenuptial agreement to arbitrate a dispute in accordance with the law and tradition chosen by the parties."

But SB 58 dictates that "[a]ny court [or] arbitration [tribunal]. . . decision violates the public policy of this state and is void and unenforceable if the court [or] arbitration [tribunal] . . . bases its ruling or decision …in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges guaranteed by the State Constitution or the United States Constitution."

In other words, unless Argentine law governing prenuptial agreements grants the couple "the same fundamental liberties, rights, and privileges guaranteed by the" Florida and U.S. Constitutions — which is highly unlikely — then a Florida court's decision applying Argentine prenuptial law is void and unenforceable.

Set aside the likely unconstitutional nature of this law and its impracticability, the damage to Florida's reputation will be substantial.

Foreign businesses and investors will think twice before coming to Florida: why would they risk doing business here if they'll be barred from resolving business disputes by agreed-upon foreign laws, as has been our custom, but instead, contrary to their agreement, must resolve their disputes according to Florida law?

And while the detrimental impact of this legislation is clear, the need for it is completely unsubstantiated. The bill's sponsor has not pointed to one Florida case demonstrating a need for SB 58. 

Readers should contact their local representative or senator immediately to urge rejection of Senate Bill 58.

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