Friday, December 14, 2007

Supreme Court of Canada Takes Jurisidiction in Jewish Divorce

The case involved the religious divorce, or get, that ensnarls Jewish couples in particularly nasty divorces.

The Jewish faith holds that it is the husband's prerogative to give or withhold the get. If the husband turns nasty the wife, though divorced under civil law, remains his wife in the eyes of their faith.

In Bruker v. Marcovitz, the parties divorced in 1980. As part of the settlement, Marcovitz agreed to give Bruker the get. When all was said and done he reneged, thinking there was no way she could do anything about it. Finally she sued for damages and won. The Quebec Court of Appeal, however, overturned her victory and so the case worked its way to the Supreme Court of Canada where - she won! Justice Abella wrote the 7-2 majority decision:

"The husband must voluntarily give the get and the wife consent to receive it. When he does not, she is without religious recourse, retaining the status of his wife and unable to remarry until he decides, in his absolute discretion, to divorce her. She is known as an agunah or "chained wife". Any children she would have on civil remarriage would be considered "illegitimate" under Jewish law.

For an observant Jewish woman in Canada, this presents a dichotomous scenario: under Canadian law, she is free to divorce her husband regardless of his consent; under Jewish law, however, she remains married to him unless he gives his consent. This means that while she can remarry under Canadian law, she is prevented from remarrying in accordance with her religion. The inability to do so, for many Jewish women, results in the loss of their ability to remarry at all.

...The provision at the heart of this dispute is Paragraph 12 of the parties’ Consent to Corollary Relief, by which they agreed to appear before the Rabbinical authorities in the City and District of Montreal for the purpose of obtaining the traditional religious Get, immediately upon a Decree Nisi of Divorce being granted. [Emphasis added.]

The issues in this appeal, as mentioned earlier, are whether this obligation constitutes a valid and binding civil obligation under Quebec law and, if it does, whether Mr. Marcovitz is exonerated from liability for failing to perform his obligation on the basis that it violated his freedom of religion."

After holding that the obligation on Marcovitz was contractual and not purely religious and therefore could be remedied in the breach, the Court rejected his claim that an award of damages would violate Quebec's Charter by interfering with his freedom of religion.

"...Despite the moribund state of her marriage, Ms. Bruker remained, between the ages of 31 and 46, Mr. Marcovitz’s wife under Jewish law, and dramatically restricted in the options available to her in her personal life. This represented an unjustified and severe impairment of her ability to live her life in accordance with this country’s values and her Jewish beliefs. Any infringement of Mr. Marcovitz’s freedom of religion is inconsequential compared to the disproportionate disadvantaging effect on Ms. Bruker’s ability to live her life fully as a Jewish woman in Canada."

I'm posting this mainly because it reminds me of my first - and last - matrimonial case. By the time it was over I decided I'd never take another - ever - and I never did.


Anonymous said...

YEah the icing on this cake is that Justice Abella is a Jewish Woman.

Freedom of religion can only be guarenteed under the charter as long as it does not infringe on other's freedoms. This is clear.

You cannot for example, burn the wife of a Hindu on his funeral pyre, or genitally mutilate female teenagers as a "freedom of religion".

As such this man's vindictive infringement on his former wifes' ability to live her life and remarry as a Jew is not guarenteed under the Charter. If he never wants to remarry and consider himself still married, so be it. If he wants to impose that on another, he cannot.


The Mound of Sound said...

Unfortunately, Anon, I don't think this ruling is nearly as broad as you take it. The issue seems to be one of whether this yahoo's contractual obligation could trump his religious freedoms. Even then they couldn't order specific enforcement of his obligation to grant the get, merely allow her to recover damages for his breach. Not being Jewish, I was able to see how this misery can be exploited first hand. I can't condemn Judaism for its beliefs but I think a man who holds his wife hostage like this ought to be utterly repudiated by his own community. That, sadly, doesn't seem to be the case.

Anonymous said...

It isn't repudiated by his own community because it is part of their religious belief system....There, let's be upfront with that. If this is Canada and there are Canadian laws then people who live in Canada ought to live by them.