Disclaimer: This article aims to provide educational information surrounding divorce and separation. It is not intended to serve as legal advice. Consult with a lawyer and exercise your discretion before taking action based on the information provided in the blog.
Canada is a country known for its diversity. Our communities are made up of families from various backgrounds, cultures and religions.
This raises questions when it comes to how personal beliefs and customs intersect with Canadian family law.
This article will discuss the role religion plays when it comes to separation and divorce in Canada.
Religious Divorces vs. Legal Separation and Divorce
Many religions have their own teachings and standards around marriage and divorce. Consider a few examples.
Christianity: Some Christian denominations require both a religious and civil divorce before allowing remarriage. For Catholics, divorces are not recognized. Instead, the Church can grant an annulment, meaning the marriage was never valid.
Shariah Law: A divorce can be initiated by the husband (called a Talaq) or by the wife (called a Khula). In either case, the husband must consent to the religious divorce. If not, the wife cannot remarry and any future relationships are considered adultery.
Judaism: A Get (religious divorce) is required to officially dissolve a Jewish marriage. Without it, the marriage remains intact and the wife cannot remarry within the Jewish faith.
An important note: These religious processes are entirely separate from the secular divorce process. A religious divorce or annulment does not automatically dissolve a marriage under Ontario law.
To be clear, even if a religious authority has declared a marriage dissolved, your legal status has not yet changed. To be legally divorced, couples must go through the divorce process under the Divorce Act.
When One Spouse Refuses to Grant a Religious Divorce
What happens if one spouse refuses to grant a religious divorce? For example, a wife may try to obtain the Get, and the husband may refuse.
While the courts cannot directly compel one spouse to grant a religious divorce, they have mechanisms under the Family Law Act (FLA) and Divorce Act to address the issue if it impacts the divorce proceedings.
In practice, most individuals seeking legal divorce rely on the Divorce Act. Under Section 21.1(2) – 21.1(6) of the Divorce Act, if a spouse refuses to remove religious barriers to remarriage, such as withholding a Get or preventing the completion of a religious divorce process, the other spouse has the right to ask the court for help.
The court may dismiss the refusing spouse’s application or strike out any other claims or affidavits that they filed filed. The spouse who refuses to remove the religious barrier can lose their right to seek any further family law claims or participate in their civil divorce process.
However, the court’s authority is limited. The provisions of the Divorce Act only apply when the power to remove the barrier resides with the respondent, the spouse who refuses to grant the religious divorce. If the power to remove the barrier lies with a religious body or official, the court cannot compel action or interfere in the religious practice.
Are religious marriage contracts legally binding?
Religious marriage contracts, like the Mahr in Islam and the Ketubah in Judaism, are part of the marriage process in these faiths. While they hold deep personal meaning, are they legally binding?
The seminal case in this regard is Bruker v. Marcovitz. The Supreme Court of Canada examined the intersection of religious obligations and civil law. In this case, the two parties were married, and after their marriage broke down, they sought a civil divorce.
As part of the separation agreement, they had a clause that required them to meet with a rabbi for a Jewish tradition. However, the husband refused to provide the Get.
The wife, Bruker, sued Marcovitz for breach of contract, arguing he had failed to fulfill the religious obligation outlined in their agreement. The court found that despite its religious nature, this was a case the court could rule on and determined that the contract was enforceable. The decision highlighted that religious or moral obligations could be legally binding if the elements of a contract were met and they did not conflict with public policy or fundamental rights.
Plat Simionati LLP: Helping You Navigate Your Separation and Divorce in Ontario
At Plat Simionati LLP, we work with clients to navigate the legal grounds for divorce, while respecting your faith’s role in your decisions.
If you are considering divorce or any other family law issue, our experienced family law lawyers are here to provide clear, compassionate guidance. Trust Plat Simionati LLP to support you through this challenging journey with professionalism and understanding.