It is a small but meaningful victory for Jewish women. In Bruker v. Marcovitz, 2007 SCC 54, the Canadian Supreme Court, with a majority opinion writted by Justice Rosalie Abella, ruled 7-2 in favor of Stephanie Bruker that her ex-husband, Jessel Marcovitz, owed her $47,500 for reneging on an obligation to grant her a “get.”
The story goes as follows:
Married on July 27, 1969, Ms. Bruker and Mr. Marcovitz of Montreal signed an agreement determining how they would settle matrimonial disputes if their marriage collapsed. It included a commitment to attend a rabbinical court in order to obtain a get.
However, when they did split up in 1980, Mr. Marcovitz refused to adhere to the agreement he had signed. According to Globe and Mail, he also ridiculed his wife’s devotion to her religion and accused her of restricting his access to his daughters. He said the courts could not intrude into the dispute without violating his religious freedom guaranteed under the Quebec Charter of Human Rights and Freedoms.
The report said that lawyers for Ms. Bruker countered that the agreement was an enforceable contract. They sought monetary damages on the basis that Ms. Bruker had been unable to remarry and any children she might have would not be seen as “legitimate” within her faith.
In 1995, Mr. Marcovitz relented, agreeing to grant a get. But by this time, Ms. Bruker was 46, unmarried and past child-bearing age.
Translation: a Jewish man divorcing his wife withheld from her the right for her to remarry as a Jewish woman for 15 years, squandering her youthful and child-bearing years. It appears, if the Globe and Mail is to be believed, that he did so out of anger and spite. He may have done it because he could. Why the hell not?!
Ms. Bruker must have been 31 years old at the time of the divorce, still young, fecund and marriageable. At 46, she may still have been marriageable but the odds of childbearing were practically nil. Marcovitz must have known this. He must have known that he was stealing her best years, but he chose to do it anyway. Did she withhold access to the children? None of the information in the articles I read expressed this but I can’t imagine that the couple could not have come to an amicable agreement had he provided the get release his wife needed.
In my humble opinion (and I stress that this is my opinion only), this man’s actions are practically criminal, but in Jewish law he was and is within his rights.
Jewish law permits a man to hold this threat and punishment over his wife for as long as he deems fit. The woman can do absolutely nothing about it. Despite rumors that sometimes rabbis will send well-meaning goons to threaten a recalcitrant husband into giving a get, in the first place there should be no need for such an action and in the second place is the fact that the goons are often unsuccessful. In many cases, the rabbis also condone the practice of withholding the get by supporting egregious buyouts by the wife’s family.
Children are also often destroyed by fathers’ vengeful acts of withholding a get because they will not be raised in a household that includes a new father or breadwinner and the anger of the original divorce hangs over their heads like a heavy rain cloud.
Actually, within Canadian law, Marcovitz also would have been within his rights had he not come into a civil contract with his wife. This is, however, not the product of Canadian civil law but rather the result of the judicial respect Canadian civic law provides to religious laws. Make no mistake that this is the only reason this case favored the wife – a civil agreement between the husband and wife. The Court, as did the lower court in Quebec before it, was able to rule that the civil agreement trumped the religious law dictating actions between the divorcing couple. However, such civil agreements do not always exist, and even if they do, the victory is hollow when it comes 25 years after the original divorce.
“The public interest in protecting equality rights, the dignity of Jewish women in their independent ability to divorce and remarry, as well as the public benefit in enforcing valid and binding contractual obligations, are among the interests and values that outweigh Mr. Marcovitz’s claim that enforcing paragraph 12 of the consent would interfere with his religious freedom.
“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 on 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 effect on Ms. Bruker’s ability to live her life fully as a Jewish woman in Canada.”
That part in bold is probably the precedent-setting section because it places a burden on those adhering to and ruling according to religious laws to consider the civil laws involved because they appear to trump religious laws.
Abella, who came to Canada as a child from Europe, is married to historian Irving Abella, and is the first Jewish woman to sit on the Canadian Supreme Court. Regarding this case, she further wrote:
that courts are empowered to referee religious disputes provided they “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.
However, two justices, both women, dissented from the majority opinion:
Judge Deschamps noted in her dissenting reasons that, under both Canadian and Quebec law, nothing prevented Ms. Bruker from remarrying if she chose to do so.
“Only her religious rights are in issue, and only as a result of religious rules,” she said. “Where religion is concerned, the state leaves it to individuals to make their own choices. It is not up to the state to promote a religious norm. This is left to religious authorities … In short, contract law cannot be relied on to enforce religious undertakings.”
“If the violation of a religious undertaking corresponds to the violation of a civil obligation, the courts can play their civil role. But they must not be put in a situation in which they have to sanction the violation of religious rights.”
My thoughts? Religious laws have no place in our society. They often stand in stark contrast to civil laws which have evolved over time, sometimes at great social cost and upheaval. The separation of church and state, or religious law and state, is a desirable and worthy goal whether referring to the USA, Canada, Israel or for that matter, Iran and Saudi Arabia. Not everybody shares the same beliefs, not everybody wishes to live under religious laws, not everybody benefits or enjoys the equality and freedoms our societies provide when they live under religious laws.
When a state sponsors, permits or accepts a secondary legal system in which individuals are judged according to different standards than those of the state’s legal system, it is enabling multiple systems of law, some of which contradict the most important precepts guiding that nation’s judicial system.
Even when an individual seeks or prefers to be guided by their religious law, they should not be permitted to do so in a secular society with its own laws. In many cases, the pressures which exist in a community can overwhelm those individuals who would benefit the most from freedom from religious laws. Essentially, the state is agreeing to restrict their options in marriage, divorce and other civil matters. If you are about to go through a divorce I would recommend you learn more about London and other locational family lawyers to support you. Overall, the state, by allowing these secondary legal systems to exist, tacitly condones the restriction of freedom of these individuals and becomes an accomplice to injustices such as this one where a woman is apparently punished by her husband until her options have entirely, uh, dried up.