Category: Family Law


The amount of intensely personal information safely distributed to the “church family” is not clear in all cases and jurisdictions.  In some jurisdictions, the “confessional privilege” is recognized and not in others.  In some jurisdictions, mandatory child abuse reporting statutes make the extent of confessional privilege unclear.  Can the pastor or priest inform the hierarchy of a confession?  In congregational churches, is there a “confessional privilege” at all and does it extend beyond clergy?  If a small group ministry is involved in drug, alcohol, or marriage counseling, does the “confessional privilege” extend to such a group?  If a member of a church is accused of child abuse, to what extent must other parents be informed or warned, and can they be warned of allegations not confirmed judicially?  Can warnings be given to non-members at all?

In Koster v Harvest Bible Chapel, Slip Op. (Iowa, 2021), the Supreme Court of Iowa affirmed dismissal by the trial court of breach of fiduciary duty and defamation claims against a church and pastor.  Allegations of child abuse were made by a wife against a husband on multiple occasions.  However, subsequent investigations by law enforcement did not confirm the allegations.  The family court hearing divorce proceedings awarded “physical care of the children” to the husband.  Before the family court decision, however, the pastor circulated email to various church leaders and church members, and one non-member that was active in the church, regarding the wife’s allegations and recommended staff, members and the non-member to refrain from accepting the husband’s version of events.  The trial court held the circulation of the emails to staff, members and the non-member fully involved in the church did not constitute publication sufficient to sustain a defamation claim.  The trial court also held there were no facts presented that the pastor knew the allegations were false or recklessly disregarded the truth.  The defamatory statements were potentially linked to internal church disciplinary processes.  Some of the disclosures were by the wife and some arose in small group marriage counseling sessions.  The trial court also held that the fiduciary duty claim required intrusion into church internal management to determine the parameters of such a duty and whether it was breached by the pastor.  The Ecclesiastical Abstention Doctrine, the Court held, deprived the Court of jurisdiction to make such an inquiry into internal church management.

The case reported was alluring because a non-member was informed.  The exact extent of the involvement of the non-member in the church was not specified but the inference in the opinion was that it was sufficient to reach the need-to-know plateau.  Also, the opinion had to deal with the confidentiality that could be expected from small group counseling.  The opinion seemed to indicate little confidentiality could be demanded.  The Court expressly noted the participants did not sign a confidentiality agreement.  The lesson might be that small group members must expect candor not to be cloaked in confidentiality.  In other words, what is revealed in church may not be cloaked by privacy.


While prenuptial agreements are generally outside the scope of the author’s knowledge as well as outside the scope of these reports, this report does not appear to require either divorce law knowledge or a change in focus. Churches have, however, wandered into this area.  Churches may increasingly need agreements to govern the exit of the church from an employment contract with a pastor, a denomination, or a parachurch organization.

In Tilsen v Benson, Slip Op., 2019 WL 6329065 (Supp. Ct. Conn., 2019), the trial court was asked to enforce the alleged Torah law mandate of an even division of marital property based upon a prenuptial agreement known as a “ketubah.” The ketubah apparently had some indicia of a civil contract enforceable in any court between husband and wife. It was signed by both parties and may have been supported by legally cognizable consideration other than personal promises of fidelity. The ketubah contained a dispute resolution clause that required submission of disputes to the “Biet Din,” a Rabbinic Court. A dispute resolution clause requiring arbitration or mediation could be similar. The trial court refused to consider the ketubah because to do so required ecclesiastical entanglement. Indeed, rabbinical experts were being lined up to testify and many of the terms of the agreement were not secular but were religious. To the extent the parties wished to enforce in court a secular provision in the ketubah, which appeared to the court to be a written contract, that might have been possible. But, the provisions based on Torah law were not enforceable in court. Of course, the court rendered no opinion about whether the religious provisions could be enforced in some manner not involving a secular court.

Regardless of denomination, churches struggle with civil ceremonies conducted under secular civil law. The logical solution may someday be considered. The civil ceremony and the church ceremony do not have to be in the least related, except where the parties want it. A parallel solution would be to have ketubahs and similar documents translated into English, rewritten into secular terms by a lawyer, the secular version approved by the appropriate religious authorities and the original religious version kept as well. Both could be signed in parallel. They could incorporate each other by reference. It may be that this has been done but because the case reported involved a thirty year old ketubah it may be that changing practices left it behind.