International Journal of Coercion, Abuse, and Manipulation Volume 3 2022 64
Getting the Ghet:
Analyzing the Need for State Intervention in Canadian Jewish Divorces
Lea Lavy
Abstract: A commitment to religious freedom involves respecting the individual’s spiritual choices and obligations.
However, to regard a religious community as an association that members join and quit at will is to miss both the
value of religious association and its potential to limit, and sometimes even to oppress, its members (Moon, 2008).
Through analysis of the judicial reasoning in several Canadian Supreme Court cases, I argue in this article that the
courts are justified in ruling to protect vulnerable group members from oppressive or unjust religious rules, and that
the state is justified in legislating such protections.
In the private sphere, most religious systems impose patriarchal norms on family life (Becker, 1999). In Judaism, the
Jewish Orthodox rabbinical courts have exclusive control over marriage and divorce. These courts almost always
grant to men full control over divorce, which results in gender-based discrimination and violation of female human
rights. Under Jewish law, Halacha, divorce is not a judicial act and may be achieved only at the husband’s will.
When the man refuses to divorce, the wife has no religious recourse and is known as agunah, or “chained wife.”
She is unable to continue her life without a ghet, the religious annulment of the marriage, and civil divorce or
subsequent marriage are not viable options according to Jewish traditions. Practices surrounding the ghet often
ignore the woman’s rights, rights that should be protected by the state and upheld by its courts. In this context, the
role of the state is to alleviate women’s disadvantages as such, secular legal authorities, comprising actors in both
the legislative and judicial systems, should be obligated to ensure equal and fair treatment for women, even in the
sphere of religious tradition.
Keywords: religious freedom, Jewish, religious divorce (ghet), civil divorce, chained wife/agunah, Ketunah,
Halacha
Legal vs. Religious Foundations for Jewish Divorces
Women’s rights are often an issue in legal struggles
over multiculturalism and equality. In the modern
liberal state, individuals have a direct relationship to
the state both as citizens, and also in their affiliation
with the community to which they belong (Shachar,
1998). In many places, multiple-rule systems exist by
which people govern their family lives while operating
within or alongside the civil legal system. In practice,
this parallel operation means that cultural institutions,
wherein many religious and cultural minority
communities retain control or expect to retain control,
are those centrally concerned with the regulation of
women’s conduct in sexuality, reproduction, marriage,
and divorce.
An important role of the State is to alleviate women’s
disadvantage in Canada, and secular authorities are
obligated to ensure equal and fair treatment for women,
even if the basis for inequalities is within religious
tradition. In this article, I argue that Canadian civil
courts should protect the civil rights of women and
prevent abuse that takes place under the pretense of
religious piety. Canadian civil courts should intervene
in the case of Jewish religious divorce practices, and
specifically the giving of a ghet,1 by enacting new
legislation that protects women from abuses that may
result from their religious affiliation, or by defining
ghet refusal as a form of domestic abuse.
Specifically, Canadian courts could be legally justified
to intervene, either by reframing ghet as a form of
domestic abuse or by enacting new legislation that
protects women from abuses that may result from
their religious affiliation, or both. By looking at the
1 A ghet is a writ of Jewish divorce that terminates a Jewish marriage.
The basis for this law is the biblical text that provides that a marriage is
dissolved when the husband “writes a bill of divorcement, hands it to [the
wife], and sends her away from his house” (Deuteronomy, 24:1)—i.e., the
document should be presented by the husband to his wife. According to
Jewish law, a woman who does not receive a ghet is still married, whether or
not a civil divorce takes place.
doi.org.10.54208/1000/0003/004

ISSN: 2710-4028 DOI: https://doi.org/10.54208/0003 65
relationship between Canadian civil courts and the
Beit din (the Rabbinical court), and through the
examination of the judicial reasoning in Bruker v.
Marcovitz, (2007), I claim that the Court’s hesitation
to truly explore the religious matters at issue in Bruker
v. Marcovitz prevents an appropriate legal solution in
other cases of ghet refusal within the Jewish community
in Canada.
Historically in Canada, however, the state’s judiciary
system and legislatures operate in separate spheres
from religious communities. In principle, it is not
the role of the secular courts to intervene in the
operation of religious organizations, or to interfere
in their autonomous governance (Jukier, 2012, p.
159). Consequently, courts generally have enforced
the prohibition against litigating religion. As Justice
Lacobucci of the Supreme Court of Canada stated,
“the State is in no position to be, nor should it become,
the arbiter of religious dogma” (Syndicate Northcrest
v. Amselem, 2004, SCC 47, [2007] 2 SCR 551, para.
50). Therefore, the secular courts in Canada have
refrained from intervening in what they deem to be a
religious dispute (Jukier &Woehrling, 2012, p. 163).
The negative aspect of this position is that often, where
religious tribunals are influential, the Charter of Rights
and Freedoms is compromised.
The application of the Charter to the issue of Jewish
divorce may be even more complicated in practice
because of the Charter’s limited application to non-
government actors (Jukier &Woehrling, 2012, p. 165).
Generally, the development of a litigation strategy for
Orthodox Jews is coloured by the belief that Jewish
law forbids litigation between two Jews in civil court
(Halacha).2
1
Instead, opposing parties who bring a
dispute before a religious court are essentially agreeing
to arbitration. The decision that the contesting parties
make, however, is not just between adjudication in a
civil or a religious court. Jewish communal judgment
and adjudication of disputes in accordance with
Halacha goes back to biblical times and still operates
today in many European countries and the United
States (Wolfe, 2006, p. 458). The Beit din is the
2 Halacha describes the Jewish legal framework through which
Orthodox Jews govern their lives. It is an all-consuming body of Jewish
religious law that governs every aspect of life. Halacha is based on rabbinic
analysis and interpretation of biblical verses, Talmudic discourse, and earlier
rabbinic examination of those texts and questions. Orthodox Jews take upon
themselves the observance of Halacha in all things, including disputes that
would ordinarily be resolved in civil court.
rabbinical court that performs this function. The most
common function of the Beit din is jurisdiction in
divorce proceedings (a ghet).
Generally, a Beit din is composed of three observant
Jews, most often rabbis, who judge cases based on
Jewish law with little regard for the civil implications.
The functions of this court have long focused on
divorce and business affairs, but the Beit din also deals
with Jewish community issues. These issues include
certifying caterers and restaurant businesses as kosher
deciding on medical ethics for Jewish patients issuing
verdicts on breach of contract in disputes between
traders and in tenancy cases ruling on who is a Jew
and deciding on the legitimacy of religious conversions.
Some of these decisions are decrees on personal issues
of faith and are nonbinding, but a Beit din’s jurisdiction
over Jews’ issues encompasses numerous important
areas of life (such as the institution of marriage [Wolfe,
2006, p. 438]).
A Jewish wedding is a legal marriage contract finalized
according to contractual principles. The parties execute
a marriage contract that is sealed with a Ktubah,3
1
often
written in Aramaic. The Ktubah binds the marriage
and includes requirements for adequate food, clothing,
shelter, and regular intercourse (Broyde, 2011, p. 165)
it also specifies the sum of a payment for the wife in
the event of death or divorce (traditionally, the sum
necessary for the woman to support herself for one
year [Epstein, 1927, p. 163]). This contract also ensures
maintenance and protection for the woman in case of
mistreatment, neglect, or refusal of rights (such as the
right to adequate sustenance and the right to be sexually
satisfied by her husband [Gaster &Gross, 1974, p.
13]). Unlike the Muslim marriage contract, which is
negotiated between the parties and is therefore unique
to them and their relationship, the Ktubah is standard,
based on the Torah’s articulation of a husband’s duties
toward his wife. Thus, like many business contracts,
the Ktubah exists to outline expectations and protect
both parties involved if those expectations are not met.
Dual Legal Relationships
When one marries in a Jewish ceremony in the Anglo-
American legal world, two legal relationships are
3 A Ktubah is an ancient Jewish marriage contract (https://www.
myjewishlearning.com/article/the-ktubah-or-marriage-contract/) See
urther discussion about the Ktubah later in this article.