Religious Divorce in Jewish and Muslim Marriages
Until 1985, the granting of a religious divorce in both Jewish and Muslim marriages was solely within the husband’s control. This meant that a husband could refuse to grant a ghett (Jewish divorce) or talaq (Muslim divorce), effectively preventing a woman from remarrying within her faith. Unfortunately, this power was often misused, leveraged as a tool for pressure or negotiation on matters such as child custody, child support, spousal support, or property division
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Significant reforms were introduced to correct this long-standing injustice. In 1985, the Ontario Family Law Act was amended, followed in 1987 by amendments to the federal Divorce Act. These changes created legal obligations requiring a spouse, traditionally the husband, to take all necessary steps to provide a religious divorce. If they failed to do so, the court could decline to hear or grant relief on related family law issues raised by that spouse, including support, property, and custody.
Judith was directly involved in the development of this legislation under both statutes.
How the Legislation Operates
Under these provisions, even where the parties already have a comprehensive separation agreement or court order settling all issues, a spouse can still return to court to seek a religious divorce. The court will not grant any further relief to the withholding spouse, even if they are simply seeking a procedural order, until they have taken the steps required to enable the religious divorce.
Judges have been clear: if a spouse stands before the court while still withholding the religious divorce, the matter will not proceed. The court will instruct the spouse to return only once the religious barriers to remarriage have been removed.
A Significant Advancement in Justice
This framework has been highly effective in addressing the inequity created by the historical practice in which only husbands could grant a talaq or ghett. The law removes the imbalance of power and prevents the use of religious divorce as leverage in family law disputes.
Importantly, the legislation operates equitably. In Jewish law, a ghett is not complete unless the wife accepts it. If a wife refuses to accept the ghett, thereby preventing the husband from remarrying within the faith, the same legal principles apply: she cannot obtain relief from the court until she permits the religious divorce to proceed.