Could New York's "Get Law" Apply to a Husband Who Refuses to Pronounce Talaq?

Every state in America wrestles, in one form or another, with the same uncomfortable problem: a couple can be fully divorced under civil law while one spouse remains religiously married, unable to remarry, because the other spouse refuses to complete a religious step the civil court has no power to order. New York addressed this directly more than forty years ago with a statute originally aimed at one specific community — but written in language broad enough that it may reach much further than most people realize, including to Muslim wives facing a husband who simply will not pronounce talaq.

The Origin Story: A Law Written for One Problem, in Neutral Language

New York's Domestic Relations Law §253, enacted in 1983, is commonly known as the "Get Law" because of the specific problem that drove its creation. According to detailed case commentary discussing the statute's legislative history, available through DivorceNY's legal analysis of the statute's purpose and application, the New York legislature's own Governor's Memorandum of Approval described the problem in stark terms: the "tragically unfair" situation in which a Jewish husband refuses to provide a religious divorce document, the get, despite an already-finalized civil divorce — leaving his ex-wife religiously "chained" to a marriage that, for every practical secular purpose, no longer exists.

What the Statute Actually Says — And Why the Wording Matters Enormously

Here is the detail that makes this statute relevant far beyond the Jewish community it was designed to protect. According to the official statutory text published by the New York State Senate's official legislation database, DRL §253 never mentions Judaism, a "get," or any specific faith by name. Instead, it requires any party seeking a divorce or annulment to swear they have taken "all steps solely within his or her power to remove all barriers to the other party's remarriage." The statute defines "barrier to remarriage" expansively as "any religious or conscientious restraint or inhibition... imposed on a party to a marriage... by reason of the other party's commission or withholding of any voluntary act." A husband's withholding of talaq — a voluntary religious act entirely within his power, which leaves his wife religiously unable to remarry — fits this statutory language about as precisely as language can fit a fact pattern its drafters likely never specifically contemplated.

The Constitutional Tension: Avitzur and Its Limits

Before exploring how far this might extend to talaq, it's essential to understand where New York courts have actually drawn constitutional lines. The seminal case is Avitzur v. Avitzur, 58 N.Y.2d 108 (1983), discussed in detail by Long Island Family Law and Mediation's analysis of marital agreements involving Jewish law. In Avitzur, New York's highest court enforced a husband's prior contractual promise — made as part of the ketubah, the Jewish marriage contract — to appear before a specific rabbinical tribunal if a religious divorce dispute arose. Crucially, the court framed this as enforcing a secular contractual obligation using "neutral principles of law," not as a court ordering a religious act directly. The wife wasn't asking the court to compel a get; she was asking it to enforce a promise her husband had already made to attend a hearing.

Where Courts Have Pulled Back: The Masri Decision

A 2017 case, Masri v. Masri, reveals the real constitutional limit. According to the full decision available through Justia's New York case law archive, the court refused to increase a husband's spousal maintenance obligation as financial pressure to induce him to give his wife a get, holding that doing so "would violate the First and Fourteenth Amendments" by using civil court coercion to force a religious act. The court was explicit: applying "coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce [him] to perform a religious act would plainly interfere with the free exercise of his... religion." This same reasoning would apply with equal force to a court trying to financially pressure a Muslim husband into pronouncing talaq — the First Amendment problem doesn't depend on which religion is involved.

A.W. v I.N.: The Statute Tested in a Real, Contested Case

A more recent 2020 decision shows the statute actually being litigated on its merits. According to the full ruling available via Justia's archive of New York court decisions, in A.W. v I.N., a husband sought to stay the entry of his divorce and condition his wife's receipt of $100,000 from his retirement account on her appearing before a rabbinical court and accepting a get from him — a striking reversal of the statute's original purpose, since here it was the husband, not the wife, claiming he was the one religiously unable to remarry. The court noted that DRL §253's own subsection 9 explicitly states "nothing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue" — meaning a court applying the statute must work entirely with secular, verifiable facts (did the party take available, non-religious steps?) without ever adjudicating whether a religious obligation was properly fulfilled.

Mapping This Onto a Talaq Refusal Scenario

Putting these pieces together produces a genuinely useful, if untested, legal pathway. A Muslim wife in New York whose husband refuses to pronounce talaq — leaving her, in her own and her community's understanding, still religiously married despite a finalized civil divorce — could potentially invoke DRL §253's plain language requiring her husband to swear, under oath, that he has taken all steps solely within his power to remove that barrier before any final divorce judgment can be entered. What the statute almost certainly cannot do, per Masri's reasoning, is have a court financially punish him for failing to comply once he's made that sworn statement — the court cannot adjudicate the religious sufficiency of what he did or didn't do, and cannot coerce him through maintenance or property awards into performing the religious act itself.

Why a Nikah Contract Should Address This Directly Instead

Given these real constitutional limits on what any court — applying DRL §253 or otherwise — can do to compel a religious divorce act, the far more reliable protection is contractual, agreed at the time of the nikah itself. Following the Avitzur model directly: a nikah contract that includes the husband's advance agreement to pronounce talaq promptly upon a civil divorce, or to delegate that authority (tafwid al-talaq) to the wife under specified conditions, creates a secular contractual obligation a court can enforce using neutral principles of law — exactly the legal mechanism New York's courts have already validated for the Jewish community, and one available to any couple willing to write it into their own marriage contract from the outset.