Civil Courts Can Now Enforce The Jewish Law of Get

The Supreme Court of Canada overturned a Quebec Court of Appeal decision and ruled that civil courts have the authority to enforce the Jewish law of Ghet. A Jewish husband who refused to give his wife a Ghet or Jewish divorce was found to be in breach of his contracted obligation in his "separation agreement" to appear before rabbinical authorities and was therefore ordered to pay damages to his wife.

The Quebec Superior Court trial division found that the husband's failure to grant the Ghet kept his wife from remarrying within her community. The trial division ordered the husband to pay $47,500.00 in damages, which included $2,500.00 for each of the 15 years between the Decree Nisi and the Ghet, and $10,000.00 for the wife's inability to have children considered 'legitimate' under Jewish law. This decision was overturned by the Quebec Court of Appeal but restored by the Supreme Court of Canada.

Because only a husband can grant a Ghet, thereby 'releasing' his wife from the marriage, the wife requires his consent to remarry. Justice Abella of the Supreme Court of Canada explained that a wife in this situation "is known as an agunah or 'chained wife'. Any children she would have on civil remarriage would be considered 'illegitimate' under Jewish law... " 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.

In support of the Quebec Superior Court decision, Justice Abella wrote that "To determine whether a particular claim to freedom of religion is entitled to protection, a court must take into account the particular religion, the particular religious right, and the particular personal and public consequences, including the religious consequences, of enforcing that right." Furthermore, she argued that balancing religious rights with public interest "is a well-accepted function carried out for decades by human rights commissions under federal and provincial statutes and, for 25 years, by judges under the Canadian Charter of Rights and Freedoms, to ensure that members of the Canadian public are not arbitrarily disadvantaged by their religion."

Referring to the European Commission of Human Rights, D. v. France, 35 Eur. Comm. H.R.D.R. 199 (1983), Justice Abella noted that there is international support for courts who protect women from husbands who deny their wives Ghets. In this case the ex-wife was awarded 25,000.00 francs for the husband's refusal to grant a Ghet. The husband's application to the Commission that his rights under the European Convention of Human Rights had been violated by the award of damages was rejected, and the court's ruling stood.

Click here to read the full decision of Bruker v. Marcovitz, 2007 SCC 54

Revised March 2015