While legal proceedings are always required for a civil divorce judgement to be rendered throughout the world, in some religions a religious divorce is also required for spouses to re-marry within their faith. For instance, in Judaism, for a spouse to re-marry, more specifically a woman for the reasons explained hereinbelow, she must be given a bill of Jewish divorcement, more commonly referred to as a get in Judaism, by her husband, which is the religious document officialising the religious divorce between the spouses. Unless given a get and even if divorced civilly, an orthodox woman cannot re-marry within her faith, regardless of how long the spouses have been civilly divorced for. However, before delving further into the topic, it is important to note that the get is only required in cases where both spouses are Jewish.
If not contested by both parties, the actual procedure for a get is quite simple. The get document is written by a scribe (referred to as a Sofer in Judaism) and is a twelve-line document that is dated and witnessed, expressing the will of the husband to release his wife from the ties of their marriage. Each get document is tailormade to the couple in question. Furthermore, although the get can be written in any language, providing it still contains all the key elements, the custom is that it be written in Aramaic. Once the document is ready, the parties attend the Jewish tribunal (the Beth Din) with their respective witnesses and the ceremony must be performed in the presence of religious officers, being rabbis. During the ceremony, the husband hands the get to the wife (by dropping the document in her cupped hands) in the presence of the witnesses, at which point the marriage is dissolved providing that the wife consents to receive the get. She is then to raise the document and take a few steps. Which is a reference that is symbolic to the steps that are also taken at the time of the marriage.
This process has been described by clients, as being unpleasant. As it requires you to spend time in a room with your ex-spouse, in silence waiting prior to your appointment, as well as waiting for the ceremony to take place. It is important to be prepared that it may be awkward and uncomfortable, however it is the final step before starting your next chapter.
The reason for the focus on the religious divorce in Judaism is that while most religions, such as Islam, have their procedure for religious divorce, the get has been the object of numerous judgments over the years in Québec and throughout the world as opposed to other religions, most notably by the Supreme Court of Canada in Bruker v. Marcovitz on the issue of damages and other judgements with respect to man’s refusal to give a get, because the get can only be granted by the husband. Unfortunately, because of the sway a man holds in the context a Jewish divorce, the get has often been used as “leverage” in the context of the civil divorce. Another reason is also because it must be given by the man’s own free will, without coercion. As a result, some women remained tied to their husband through religious marriage despite being divorce civilly and cannot remarry so long as the get is given. In Judaism, these women are typically referred to as Agunah, which means a “chained woman” in Hebrew because she remains bound to her husband through marriage under Judaism.
Although religious authorities often intervene in cases of recalcitrant husbands, the Court also have had to intervene on numerous occasions over the year in this respect. Now, in Canada, although a Court cannot render an order forcing a husband to grant his wife a get (because it would effectively make it invalid under Jewish law (referred to as halacha in Judaism) since it not given by the man’s own free will), Section 21.1 of the Divorce Act provides a mechanism which safeguards the wife’s rights in this respect without necessarily impeding on the husband’s religious “prerogatives” in Judaism and thereby rectifying any inequality in this respect. Although Section 21.1 makes no reference to any religion in particular, it is clear that the section was added to address the challenges faced by an observant Jewish woman whose husband refused to give the get.
Under section 21.1, the wife may serve a sworn statement to the husband calling upon him to remove all barriers to the remarriage. The husband then has fifteen (15) days (or longer if the Court decides to extend the delay) following receipt of the sworn statement to file his own affidavit confirming that the barriers to religious remarriage were removed and satisfy the Court in any other way it deems necessary, or contests the request. If the husband does not fulfill its requirement and provide no justifiable grounds as to why the barriers should not be removed, the Court may dismiss any and all proceedings filed by the husband in the civil divorce proceedings, including applications affidavits, so long as the barriers are not removed. However, the Court may refuse to exercise its power to dismiss or strike out proceedings where the spouses who refuses to remove the barriers does so because he has “genuine grounds of a religious or conscientious nature”.
What constitutes “genuine grounds of a religious or conscientious nature” has been the object of several judgment by the Courts. For instances, in Droit de la famille – 3558, Honorable Justice Décarie J.S.C. rejected the argument that the coercive nature of the request under Section 21.1 of the Divorce Act meant that the get could not be given freely and that, as a result, no rabbinical court would ratify the agreement, because it was inconsistent with previous arguments made by the husband and could not be viewed as “genuine grounds of a religious or conscientious nature”. In Droit de la famille – 2296, Honorable Justice Tannenbaum, J.S.C. ruled that consenting to provide a get only once a civil divorce judgment is rendered does not constitute “genuine grounds of a religious or conscientious nature”.
Furthermore, in addition to being able to render judgment pursuant to Section 21.1 of the Divorce Act, thereby leaving the husband defenseless in divorce proceedings to his wife’s claims, whether they be custodial, alimentary or with respect to the partition of assets, the Supreme of Canada in Bruker v. Marcovitz, recognizes the Court’s authority and ability to render judgement on damages with respect to religious obligations. In this case, Mr. Marcovitz and Mrs. Bruker entered into a full divorce agreement on all aspects, but also included an undertaking on Mr. Marcovitz to attend the Beth Din for the purposes of obtaining a get. Mr. Marcovitz followed through with his undertaking fifteen (15) years later and after Mrs. Bruker sued him for breach of contract. Following the get, Mrs. Bruker amended her proceedings to seek compensation for the loss she suffered as a result of remaining tied to Mr. Marcovitz through their Jewish marriage for fifteen (15) years following their divorce. The Superior Court granted the motion and awarded Mrs. Bruker $ 57,500 in total damages. The Court of Appeal then reversed the trial’s judge’s decision on the basis that the secular Courts could not intervene with respect to obligations that are religious in nature. The Supreme Court finally maintained the award granted in Superior Court and confirmed that the obligation was enforceable, despite it containing religious elements.
In other countries, such as Israel, because religion is intertwined with government in some capacity, the sanctions are much more severe in that a man who refuse to give a get, and even women who refuse to receive it could be indicted or face prison for several years. Although sanctions given by the Canadian Courts are not as intense, the fact remains that Section 21.1 of the Divorce Act in addition to precedent created by the Supreme Court of Canada to seek damage safeguards the woman’s rights in the context of a Jewish divorce and threads the line with that is permissible under Jewish law.
