In Canada, marriage is ended by way of a civil divorce, pursuant to the terms of the Divorce Act, which set outs such requirements as:
- At least one of the parties has to have been resident in the province where the divorce application is being made for at least one year
- The parties have to have lived separate and apart for at least one year OR the party seeking the divorce must be able to establish either adultery or unconscionable cruelty by the other party
As well as terminating the marriage, a civil divorce can address what are known as “corollary issues” such as custody and access and support.
Once a person has obtained a civil divorce, she or he is free to marry again.
However, some religions require people to also obtain a religious divorce before they can marry again within the religion. This is the case for some Jewish women.
A Jewish divorce is called a Get. Without it, a woman is considered to still be married to her husband and cannot enter into a Jewish marriage to someone else, even if she has obtained a civil divorce. In fact, any new relationship would be considered adultery.
If she has children in a subsequent relationship without having obtained a Get from her first marriage, those children will be considered mamzer under Jewish law, which means they cannot marry Jews. For this reason, even if a woman is not religious herself, if she has been married as a Jew, she should consider obtaining a Get in order to protect potential future children’s rights under Jewish law.
There are a number of differences between a civil divorce and a Get, including:
- While either the husband or wife can start proceedings for a civil divorce, only the husband can begin the process for a Jewish divorce. This can be challenging for a woman whose husband is abusive and withholds the Get as a means of maintaining power and control.
- A civil divorce requires a one-year waiting period (unless adultery or cruelty can be proven), but there is no waiting period to apply for a Get.
- The two people can remain living in the same house, as long as they are living separate and apart, when an application for a civil divorce is started, but that is not the case when the Get process is initiated.
- One party can obtain a civil divorce with or without the consent of the other, as long as the other party is properly served and provided with the opportunity to tell her/his side of the story. A Get is voluntary – the husband must voluntarily give the Get and the woman must voluntarily accept it.
While civil and religious divorces are completely separate and unrelated, there are some provisions in both the Divorce Act (section 21.1) and Ontario’s Family Law Act (sections 2.4 and 56(5)) that forbid a husband from refusing to grant a Get as a negotiating tool and that allow the court to refuse to listen to his side of a family law case if he refuses to cooperate in initiating a Get.
A 2007 Supreme Court of Canada case (Bruker v Markovitz 2007 SCC 54) ruled that a husband had to pay damages to his wife for his refusal over many years to initiate a Get, contrary to the terms of a separation agreement in which he had agreed to do so. It is an interesting case to read, because the Court’s decision is based largely in the husband’s non-compliance with what it found to be a valid and enforceable domestic contract (the separation agreement), which leaves open the question of how the Court would rule in a case where there was no such contract in place.
If you are working with a woman who wants a Get, but whose husband is refusing to start the process, you can suggest that she speak with a rabbi in your community and/or the closest rabbinical court (Bet Din), for information and assistance. The rabbi or court may be willing to speak with her husband to encourage him to start the proceedings
Family Law Education for Women distributes a booklet entitled “Why do I need a Jewish divorce”, which provides more details about the process of obtaining a Get. You can download or order this booklet from FLEW at www.onefamilylaw.ca.
The content of this booklet was prepared by Jewish Women International Canada, now called Act to End Violence Against Women, which offers legal information services for Jewish women who have experienced abuse.