December 1, 2007

Damages For Breach of Ghet Undertaking In Divorce Settlement re: Supreme Court by Ian M. Solloway

In a 7-2 decision issued on December 14, 2007, the Supreme Court of Canada ruled in a landmark judgment that civil courts are capable of adjudicating the contractual breach of religious undertakings.

The relevant facts of the case are as follows:

In their divorce settlement agreement (“Consent to Corollary Relief”), the husband Mr. Jason Marcovitz and the wife, Ms. Stephanie Bruker agreed to appear before the rabbinical authorities for the purpose of obtaining the traditional religious Jewish divorce (“the Ghet”) immediately upon the Decree Nisi of divorce being granted. The civil divorce of the Parties pronounced by the Quebec Superior Court became final in 1981 when Mr. Marcovitz was 48 years of age and Ms. Bruker was 31 years of age. Shortly after their divorce, Ms. Bruker, personally and through various Rabbis, called upon Mr. Marcovitz to comply with his obligation to give her the “Ghet” which Mr. Marcovitz refused to do on the grounds that Ms. Bruker’s behaviour since the divorce constituted harassment and an attempt by her to alienate him from his children.

Under Jewish law, a wife cannot obtain a “Ghet” unless her husband voluntarily agrees to give it. Without a “Ghet”, a Jewish woman cannot re-marry religiously. She remains an “aguna”, a woman who is “chained” to her ex-husband.

Moreover, Jewish law considers that any children of an “aguna” who subsequently re- marries civilly to be illegitimate. Despite Ms. Bruker’s repeated requests, Mr. Marcovitz consistently refused to provide a “Ghet” for 15 years following the divorce of the Parties, by which time Ms. Bruker was almost 47 years of age. Ms. Bruker eventually sued Mr. Marcovitz, originally for $500,000.00. She later increased her damage claim to $1,350,000.00, alleging that her ex-husband’s failure to give her a “Ghet” for 15 years constituted a breach of contract which ruined her ability to re-marry within the Jewish faith and to fully proceed with her social and religious life. At trial, the Superior Court judge ruled that the obligation undertaken by Mr. Marcovitz to provide the “Ghet” to Ms. Bruker was one of a civil contract notwithstanding its religious undertones and awarded damages to Ms. Bruker in the amount of $47,500.00, $2,500.00 for each of the 15 years between her civil divorce and the “ Ghet’’ and $10,000.00 for Ms. Bruker’s inability to have children considered “legitimate’’ under Jewish law.

On appeal, Hilton, J.A., writing for the Quebec Court of Appeal, stated that compelling the appearance of an ex-husband before a rabbinical tribunal to obtain a “Ghet” was not within the power of a civil court to properly order. The Court further held that the undertaking of the husband to give a “Ghet” to the wife was a religious or at best a moral rather than a civil obligation which is not justicable by the secular (i.e. civil courts) whether by way of injunctive order for specific performance or by way of an award of damages in the event of a breach.

In overturning the judgment of the Quebec Court of Appeal and restoring the judgment of the trial court, the Supreme Court of Canada ruled that the fact that a dispute has a religious aspect does not in and of itself make the matter non-justicable. The high court held moreover that the promise by the ex-husband to provide a “Ghet” was part of a voluntary exchange of commitments intended to have legally enforceable consequences, negotiated between two consenting adults, each represented by counsel. In short, the said undertaking in a divorce settlement agreement was a valid and binding contractual obligation under Quebec law. The Court was not being asked to determine doctrinal religious issues. Moreover, there was nothing in the Quebec Civil Code preventing someone from transforming his or her moral obligation into a legally valid and binding one which, according to Madame Justice Abella, writing for the majority of the Supreme Court, “puts the obligation appropriately under a judicial microscope”.

The Supreme Court also held that Mr. Marcovitz was not entitled to immunity from damages for his unilateral contractual breach under s.3 of the Quebec Charter of Human Rights and Freedoms. The claim to religious freedom must be balanced and reconciled with countervailing rights, values, and harm, including the extent to which it is compatible with Canada’s fundamental values. The majority of the Court did not accept Mr. Marcovitz’s contention that his refusal to provide Ms. Bruker with a “Ghet” was a result of his religious beliefs. The majority was further of the view that any impairment to Mr. Marcovitz’s religious freedom was significantly outweighed by the harm both to Ms. Bruker personally and to the public’s interest in protecting fundamental values such as equality rights and autonomous choice in marriage and divorce.

What then are the implications of the Supreme Court judgment in the Bruker case? There is no doubt that the landmark judgment represents a watershed in the advancement of the rights of Jewish women who now have the assurance that the failure of a Jewish husband to follow through in a timely manner with his “Ghet undertaking”, agreed to in a divorce settlement may expose him to civil damages.

Jewish women may also seriously wish to consider a “Ghet clause” in their marriage contract, which would afford them the same protection that a “Ghet undertaking” now provides in a divorce settlement Agreement as a result of the Supreme Court decision in Bruker, but obviating the necessity of negotiating such an undertaking in the event of a future divorce.

Similarly, women of other faiths who remain at the behest of their husbands to provide them with a religious divorce should also now ensure that “a religious divorce undertaking” be stipulated in their pre-nuptial marriage contract.