December 19, 2007: Supreme Court of Canada overturns Jewish "get" refusal

by Jeffrey Cottrill

A recent ruling from the Supreme Court of Canada may permanently change the course of how Canadian family law handles Jewish divorces -- known as "gets" -- as well as other religious divorces. Last week, the Court awarded a Quebec woman damages in Bruker vs. Marcovitz after her ex-husband refused to grant her a get for 15 years.

Stephanie Bruker, a Jewish woman who legally divorced her husband in 1980, successfully sued him after he refused to give her the get until she was in her mid-40s and past child-bearing.

According to the National Post, the Supreme Court overturned a previous ruling in Marcovitz' favor from the Quebec Court of Appeal, thus rejecting his argument that penalizing him for refusing the get would violate his "religious freedom". Instead, the judges felt that "the public's interest in protecting fundamental values such as equality rights and autonomous choice in marriage and divorce" had "significantly outweighed" the religious issue.

Jewish law permits only the husband to grant a get, even when a court has already made the civil divorce official. If the husband refuses to grant the religious divorce, the wife becomes an "agunah" and is not allowed to remarry within the Jewish community. Some legal jurisdictions have adapted local family law to accommodate religious law, such as New York State, which requires that the religious divorce must precede the official legal divorce.

The consequences of the ruling could have a twofold effect in Canadian law. On one hand, it's great news for the cause of gender equality; Jewish wives (as well as Islamic and Catholic ones) may no longer need to feel trapped in stale marriages due to unequal religious laws. But it's also a sign that religious tradition is rapidly losing power in our society, as far as family and civil law are concerned.

For a mediator's advice on how to deal with post-divorce child access during the Jewish holidays, click here.

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