ClickCease Religious divorces: Exploring women’s rights – SplitEasy

Can I sue my husband for not granting me a religious divorce?

Can I sue my husband for not granting me a religious divorce?

Stephanie Bruker married Jason Marcovitz on July 27, 1969.  They both considered themselves to be religious Jews.  After 11 years of marriage, Stephanie commenced divorce proceedings in 1980.  She was 31 years old and Jason was 48 years old.  

With the assistance of separate lawyers, the couple reached an agreement on all matters.  Their agreement included terms regarding the custody of their two children, child support and spousal support.  The agreement also stated that they would appear before the Beth Din to obtain a Get immediately after the civil divorce.

Under Jewish law, a wife cannot remarry unless her husband agrees to give her a Get.  A Get is a Jewish divorce.  Only a husband can give one.  A wife cannot obtain a Get unless her husband agrees to give it.  Under Jewish law, he does so by releasing his wife from the marriage and authorizing her to remarry.  

The process of Get takes place before 3 rabbis in what is known as a Beth Din, or rabbinical court.  The husband must voluntarily give the Get and the wife consents to receive it.  When the husband does not, the wife 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 a 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.  However, under Jewish law, she remains married to him unless he gives his consent.  

How inconsistencies between Canadian law and Jewish religious law can rob women of their rights in marriage

The implication of Get is that while a woman 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 vast majority of Jewish husbands freely give their wives a Get.  Those who do not, however, represent a long-standing source of concern and frustration in Jewish communities. 

Stephanie’s civil divorce was granted on February 9, 1981.  Stephanie then made many requests for a Get.  Jason consistently refused to provide a Get.  This went on for 15 years.  In July 1989, nine years after the civil divorce, Stephanie began legal proceedings against Jason claiming damages in the amount of $500,000 for her inability to remarry and for being prevented from having children under Jewish law.  

Jason argued that Stephanie had repudiated the agreement by continually seeking increases in child support and obstructing his relationship with the children.  The case was scheduled to be heard on December 6, 1995.  On December 5, 1995, Jason appeared before the Beth Din and granted Stephanie a Get.  He was 63 years old and Stephanie was 46 years old. 

Stephanie still continued with her claim for compensation.  In the end, she was awarded $2,500 per year for each of the 15 years between the civil divorce and the Get, plus $10,000 for her inability to have children under Jewish law.  The total of her award was $47,500.

Jason appealed this decision to the Quebec Court of Appeal.  The trial decision was reversed.   The appellate court found that Jason’s obligation was religious in nature and could not be enforced by the courts.  

This issue ended up in the Supreme Court of Canada.

On December 14, 2007, the Supreme Court of Canada decided that civil courts should address the gender discrimination that arises from religious barriers to remarriage.  It was decided that Jason was not immune from liability for his breach by invoking his freedom of religion.  The Supreme Court ruled that Jason’s claim to religious freedom must be balanced and reconciled with Stephanie’s countervailing rights, values and harm.  

The Supreme Court decided that, in this case, any impairment to Jason’s religious freedom was significantly outweighed by the harm both to Stephanie personally, and to the public’s interest in protecting fundamental values such as equality rights and a woman’s autonomous choice in marriage and divorce. 

The legal divorce system is complex and costly. Do you need help filing for a divorce?

SplitEasy has simplified the legal divorce procedure. Our service helps you file divorce papers online. Here’s how it works.