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.

Same Sex Marriage Debate Over by Ian M. Solloway

Same Sex Marriage Debate Over In Canada, But Questions Still Remain

On December 6, 2006, by a vote of 175 to 123, Parliament defeated a Motion by the Conservative Government calling for a restoration of the so-called “traditional definition” of marriage, thereby effectively putting an end to the debate over same-sex marriage in Canada. Since June, 2003, when the Ontario Court of Appeal struck down the then federal ban on same-sex marriages as a violation of the equality rights of gays and lesbians under The Canadian Charter of Rights and Freedoms, there have been over 12,400 same-sex marriages performed in Canada. In December, 2004, the Supreme Court of Canada, in a reference case put before it by the then Liberal Government, held that the proposed new definition of marriage to include same-sex couples was constitutional.

Notwithstanding the legality of same-sex marriages from a domestic law point of view in Canada, there remains a very practical problem facing same-sex couples who marry in Canada and wish to relocate to a foreign jurisdiction. The problem involves the question of extra-territorial recognition of their union. Under the rules of private international law, the form of marriage is governed by the law of the place of solemnization of the marriage. However, the status or capacity of the couple to marry is governed by the law of the couple’s ante-nuptual domicile.

So, for example, the marriage of two same-sex spouses in Quebec, who were domiciled in Quebec at the time of their marriage, should be recognized outside Canada under private international law since both spouses had the status or capacity to marry under the law of their ante-nuptual domicile. The marriage would certainly be recognized in The Netherlands, Belgium, Spain, South Africa and Massachusetts, the only jurisdictions which, apart from Canada, presently allow for same-sex marriages.

However, were the couple to relocate to one of the other 49 U.S. states which do not permit same-sex marriages, no recognition of the marriage would be afforded to their union. The federal Defence of Marriage Act adopted by the U.S. Congress in 1996, relieves American states of any obligation to recognize same-sex marriages that are lawful in other jurisdictions. Therefore, because the foreign (here, the Canadian marriage) would not be recognized in 49 U.S. states, the couple would not be entitled to the rights and benefits conferred upon opposite-gender married spouses, including, the right to divorce.

Could the couple return to Canada in order to obtain a divorce? The answer is “yes”, provided that the plaintiff spouse can show that either one of the spouses had re-established “ordinary residence” in the particular province for at least one year immediately preceding the filing of the divorce application. The plaintiff spouse would, of course, have to be able to prove one of the grounds set forth under section S.8 of the Divorce Act (i.e. a one year separation, or mental or physical cruelty, or adultery). However, the ground for divorce need not necessarily have occurred in Canada to be invoked.

The question of a U.S. same-sex couple, who wish to come to Canada to take advantage of our law permitting marriage between people of the same gender and then return to United States, is likewise problematic. Given that this type of marriage would not presently be recognized in their home state (except for Massachusetts), the couple might want to reflect on the implications of such a decision before making it a reality.

Therefore, although the same-sex marriage debate may be over in Canada, the extra-territorial legal fall out is still far from settled. We will continue to keep an eye on this matter which is certain to evolve over the months and years to come.