Woman wins case
by: Ron Csillag - Last updated: 2008-01-01
In a landmark decision that could provide relief to agunot, Jewish women whose husbands deny them a Jewish divorce, Canada's highest court sided with a woman whose husband had refused for 15 years to grant her a get, a religious writ of divorce.
Making a rare foray into religious matters, the Supreme Court of Canada ruled that the civil divorce agreement Jason (Jessel) Marcovitz signed, in which he agreed to grant his wife Stephanie Bruker a get, was a valid legal contract that trumps his claims of freedom of religion. The vote was 7-2.
The court awarded approximately $47,800 to Bruker, now 58, on the basis that her right to remarry and have more children within her faith was blocked by her ex-husbands vindictiveness.
While the ruling was widely applauded by womens groups, some legal scholars and the courts dissenting justices cautioned that the court may have set a precedent for state infringement of freedom of religion.
But 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."
The Jewish couple from Montreal was married in 1969 and had a civil divorce in 1980. While Marcovitz initially agreed to grant his wife a get as part of the divorce agreement, he later changed his mind.
Bruker sued Marcovitz, arguing that without a get she could not remarry according to Jewish law. Also, under Jewish law, any children she would have had outside of a Jewish marriage would have been considered illegitimate.
Marcovitz finally gave Bruker a get in 1995, when she was 46 years old, past child-bearing age for most women, as the court noted.
This "dramatically restricted the options available to her in her personal life," said the court's ruling, written by Justice Rosalie Abella. "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."
The husband's refusal to give the get "was based less on religious conviction than on the fact that he was angry at Ms Bruker," the ruling said.
A lower court initially had found for Bruker. But last year, Quebec's Court of Appeal overturned the judgment, saying it was purely a religious matter protected by Quebec's Charter of Human Rights and Freedoms.
Marcovitz also had argued that the reason he withheld the get was because his wife had breached their civil agreement by becoming less observant and by turning the couples daughters against him.
In their dissent, two Supreme Court judges warned that Marcovitz's promise to provide his wife with a get was a "purely moral obligation," and that finding otherwise will expand courts into areas where they have no jurisdiction.
The high court ruling was closely watched by Jewish women across Canada, including Canadian-born women living in the United States whose husbands have refused to grant them the get they need to be able to remarry within Judaism.
This was the first such case to come before Canada's Supreme Court since Ottawa's adoption in 1990 of amendments to the Divorce Act, which prohibited anyone from maintaining barriers to the religious remarriage of their spouse.