| Canada v. Gettin' The Get | |
| Big news for Agunot or too slippery of a slope? | |
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by AmyGuth, January 3, 2008
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Oh, big news in the world of Agunot this week!
Fear not, Agunot!: Canada will save you. But, should it?Canada doesn't mess with religious matters in its courts so much, but the Supreme Court of Canada ruled that the civil divorce agreement signed by Jason Marcovitz, in which is specifically agreed to give his wife, Stephanie Bruker, a get, was declared a valid contract that overrides his assertion for protection under freedom of religion. (Having never been divorced myself, is it standard in a civil divorce to specify a get to be forthcoming? I would imagine not and that this case could potentially hyper-sensitize civil divorce language if a husband has any inclination towards hesitating on the get, no?) The couple married in 1969 and obtained a civil divorce in 1980, with Marcovitz initially agreeing to give a get and later changing his mind, until 1995 when he did finally give her a get, at which point she was 46 years old, past
child-bearing age for many women, as the court noted.
So, the court awarded his ex-wife almost $50K in damages, on the grounds that her ability to remarry and have more children was blocked by Marcovitz's lack of cooperation. (What, do you think, is a fair settlement for being barred from remarrying and having children or more children? Can you put a price on that, really? And, is it somehow worth more or less in damages if there were no previous children? Discuss.)
Evelyn Brook, president of the Canadian Coalition of Jewish Women for the Get, called the decision "a great relief." The ruling "does not say that he had to give her a get. It simply said that because he didn't, then there are things to forfeit," Brook told JTA. "For every husband who has gone back on his promise" in a divorce settlement, "this makes a difference." While many women's groups are gung-ho about this ruling, yet many in the legal world aren't so sure this is a good thing, as this ruling could be the first bit of tiptoeing into religious meddling by courts.
Marcovitz's complaint and reason he claimed to withhold the get from Bruker was that she'd had breached their civil agreement by becoming less observant and by turning the couple's daughters against him. This decision was reached 7-2 by Canada's Supreme Court, with the dissenting judges stating Marcovitz's promise was nothing beyond a moral obligation and that "finding otherwise will expand courts into areas where they have no jurisdiction", JTA reports this morning.
The Marcovitz/Bruker case was the first to be presented to Canada's Supreme Court since Ottowa's amendment to the Divorce Act in 1990, which prohibited people from creating or maintaining obstacles for their former spouse to marry religiously.
Surely we have an Agunot or two in our readership that could provide some insight here? Surely a few people with greater knowledge of the Canadian legal system than I can offer? Or, with great knowledge of American family law and how, if at all, this ruling could make waves in our courts...?
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Amy Guth is the author of Three Fallen Women, which she is perpetually schlepping around to pimp out. Between travels, she's hard at work on her next novels and is the woman with the pink-stripey hair usually starting up the horah at More... |
Jonathan
My two cents....
Let’s see…where to start. First, full disclosure. I’m a single American male and have never been married, so I am speaking from what I‘ve read and have been told. I am not a lawyer, so don’t take what I say as gospel. With all of the disclosures, here’s my take.
I believe it is fairly common in US divorces to have the giving of a get be part of the divorce agreement. Quite often Jewish men will “ransom” the get from the wife, for either money, the kids, or something else. In essence, the get is just like any other piece of property. It has value and can be negotiated for.
While a case like this could in theory get to the US Supreme Court, I doubt that it would. My gut tells me that marriage laws are much more, though not totally, “federal” in Canada than they are in the US. As such, every US state has its own marriage and divorce laws. I haven’t yet heard of a state that didn’t allow the consummation of a get to be a prerequisite to the final divorce decree, and can't see how a court would say that enforcing a get clause in a divorce agreement is violating the separation of Church and State. In these cases, a get isn't a religious issue, it's a contractual one.
As far as your other queries, I don’t know what a get is worth to anyone. I guess each person has a value they would place on it based upon their own life situation. One would think that CD$50,000 is a pretty low price to stop a woman from remarrying for 15 years or having children (forever), so I think he got off cheap. I know that it is common for pre-nups to have get language included these days, and it’s as enforceable as any other part of the pre-nup is. (It would also be interesting to know if the wife got any of the Canadian Bet-dins involved, and what actions if any, they took.) In the end, wherever the truth lies in that specific divorce, it’s a sad story.
Adam Shprintzen
From an entirely
From an entirely non-legalistc standpoint, however, I can only wonder that this example could theoretically inspire agunot in the United States to seek some level of legal protection. However, I think that would also presuppose a a woman who was also planning on leaving her community, as I would imagine that such a challenge would not be met with much enthusiasm by the powers that be in such communities.
tarfon
Correction
I am married. I'm also a lawyer, but (a) I don't practice family law (which includes divorce law), and (b) in any event, no one should rely on this post for legal advice. Further, no one should rely on this post for conclusive halachic advice -- the halachic issues here are difficult, and anyone needing advice (e.g., contemplating divorce, or contemplating marriage) should _absolutely_ consult a competent and halachically-knowledgeable rabbi.
Contrary to Jonathan's speculation, I believe it probably is _uncommon_ in U.S. divorces for any agreement to specifically obligate the husband to give the wife a get. First, it would be difficult to get a U.S. court (state or federal) to grant specific enforcement of the promise (i.e., to issue an order compelling the husband to give the get as he promised), because such an order could be considered an order to perform a religious act, and such an order would violate the Establishment Clause of the First Amendment. Second, such a specific obligation could create _halachic_ problems -- under the halacha, if a get was given under compulsion of the law, that very fact could render the get invalid.
My understanding of how this issue is addressed in the U.S. is that a prenuptial agreement states that, if the couple should (God forbid) get a civil divorce, and if the husband does not give the wife a get within some specific period of time, he would be obligated to pay her some specific amount of support until the time when he does give her a get. The theory is that U.S. courts would likely treat that as an ordinary financial-terms prenup, and would have no problem ordering him to pay the money as specified, payment of money not normally being considered a religious act. Further, since the halacha obligates the husband to support his wife (and remember, if there's no get, they're still married under halacha, notwithstanding the civil divorce), the civilly-enforced support clause would not be deemed to be "compulsion" to give a get (as long as the amount specified is not outlandish).
To respond to Adam, agunot and folks sympathetic to them _have_ sought legal protection in the U.S. New York State had a "get law" a number of years ago, but it had constitutional issues and halachic issues. IIRC, the law was amended in order to address those issues. I have not kept tabs on either statutory or judicial developments in this area; others may wish to supplement what I've said here.
Because of the importance and delicacy of this issue, I will repeat my caveat and exhortation from above -- anyone needing to take action in this area (e.g., anyone contemplating either divorce or marriage) should _absolutely_ consult a competent and halachically knowledgeable rabbi.
Anonymous
<p>The <a
<p>The <a href="http://en.wikipedia.org/wiki/Get_(conflict)">Wikipedia</a> <a href="http://en.wikipedia.org/wiki/Get_%28divorce_document%29">pages</a> on this are worth reading. So -- especially, as a matter of fact -- is the Supreme Court of Canada <a href="http://www.canlii.org/en/ca/scc/doc/2007/2007scc54/2007scc54.html">decision</a> being discussed. It's very clearly written. And it requires no legal or halakhic knowledge to go through</p>
<p>Whether marriage and divorce are federal or provincial in Canada is a bit complicated, but provinces generally play a significant role in everything that matters, while the federal government plays a large role; again, <a href="http://en.wikipedia.org/wiki/Canadian_family_law">Wikipedia discusses ably.</a>
David Strauss
Re: Religious burdens
"What, do you think, is a fair settlement for being barred from remarrying and having children or more children?"
I honestly think he owes her nothing from a civil standpoint, notwithstanding the prenup. It was not his refusal to grant a get that prevented her from remarrying but her own religious values. What he did is cruel, but it's the civil equivalent of me removing all the black tiles from a hallway and someone complaining that they couldn't get to the restroom because they can only walk on black tiles. The state should never coerce people into "playing nice" with other people's religious beliefs.
Canada's 1990 law on obstacles to religious marriage is absurd because it allows nonsensical state coercion in religious affairs.
Let's assume the following:
1. The woman needs a get to remarry under her religion.
2. Under her religion, the granting of a get is under the man's discretion.
3. The woman, under her religion, has no ability to grant herself a get or initiate any procedure that would result in one.
How, then, is the state's action to obtain her a get, an action clearly performed on her behalf and initiated by her, consistent with her own religious beliefs? How is the state a privileged source of coercion to force him to grant a get?
Now, the obligation in the prenup seems like a valid legal requirement (the law should be blind to the religious significance of contractual agreements), but it may not be valid under Jewish law, which is what the woman supposedly is trying to affirm.
Anonymous
And if you read the lower
And if you read the lower court decisions, Ms. Bruker had many affairs with men who were married and or non-Jewish. Her adherence to Jewish religious law was not consistent. Make me wonder whether this case was more about a fight with her ex-husband and her inability to find a suitable mate.
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