International Journal of Coercion, Abuse, and Manipulation Volume 3 2022 68
who refuses to give consent to a religious divorce
by “dismissing any application by that spouse” and
“strik[ing] out any other pleadings and affidavits filed
by the spouse” (Bruker v. Marcovitz, 2007, SCC 54,
[2007] 3 S.C.R. 607, para. 148). Without delving into
the meaning of the religious doctrine or practice in
its religious context, this kind of enactment provides
the court with a legal backing with regard to the
enforcement of a contract that is based on a religious
norm. And yet, Canadian courts are often reluctant to
intervene in cases of ghet refusal.
Case Studies
A Canadian Jewish woman is faced with a puzzling
dilemma that highlights the complex relationship
between the civil and religious spheres. Under the
civil family-law regime, she may divorce her husband
without his consent whereas under Jewish law, she
must involuntarily remain married to him (Jukier &
Woehrling, 2012, p. 176), which results in a forced
marriage. In places where the judicial system will not
enforce a religious contract, provincial human-rights
legislative outlines should require that an agreement be
enforced in order to counteract a recalcitrant husband.
In 2007, the Supreme Court of Canada made a rare foray
into the religious forum, coming to the aid of a 48-year-
old Jewish woman whose estranged husband had
stubbornly refused for 15 years to grant her a religious
release from their marriage (Bruker &Markovitz,
2007). Married on July 27, 1969, Ms. Bruker and Mr.
Marcovitz signed a prenuptial contract that set out how
they would settle matrimonial disputes if their marriage
broke down. They started divorce proceedings in 1980.
At the time of their civil divorce, which was finalized
in 1981, Mr. Marcovitz and Ms. Bruker entered into
an agreement concerning custody, access, division of
property, and support terms. The agreement included
a commitment to attend a rabbinical court in order
to obtain a ghet. However, Marcovitz did not appear
before the Beit din immediately following the civil
divorce, as he had promised. Indeed, his consent to
a religious divorce came years later, and then only
after Bruker had commenced an action for breach of
contract (Bruker &Markovitz, 2007).
Marcovitz, who was 65 when they split up, refused to
adhere to the prenuptial agreement he had signed. He
also criticized his wife’s devotion to her religion and
accused her of restricting his access to his daughters.
Ms. Bruker sought compensation for the loss she had
suffered as a result of her husband’s failure to give his
consent to the ghet at the time of the civil divorce,
while Mr. Marcovitz argued that his agreement to give
a ghet was not valid under Quebec law, and that he
was protected by his right to freedom of religion from
having to pay damages for breaching the purported
contract. He said the courts could not intrude into
the dispute without violating his religious freedom
guaranteed under the Quebec Charter of Human Rights
and Freedoms. Lawyers for Bruker countered that the
prenuptial agreement was an enforceable contract.
They sought monetary damages on the basis that
Bruker had been unable to remarry, and any children
she might have would not be seen as legitimate within
her faith.
In 1995, Marcovitz relented, agreeing to grant a ghet
to 46-year-old Bruker, unmarried and now past child-
bearing age. However, the court’s opinion was that
enforcing a husband’s agreement to provide a ghet
does not violate his religious freedom (Bruker v.
Marcovitz, 2007, SCC 54, [2007] 3 S.C.R. 607, para.
59). “The enforceability of a husband’s promise to
provide a ghet harmonizes with Canada’s approach
to religious freedom, to equality rights, to divorce
and remarriage generally and had been judicially
recognized internationally” (Bruker v. Marcovitz, 2007,
SCC 54, [2007] 3 S.C.R. 607, para. 63). Accordingly,
the contractual obligation contained in the divorce
agreement was valid and legally binding under Quebec
law (Bruker v. Marcovitz, 2007, SCC 54, [2007] 3 S.C.R.
607, para. 64). Quebec Superior Court found that a
legally binding civil obligation, albeit with religious
undertones, was created between the two parties and
was enforceable (Bruker v. Marcovitz, 2007, SCC 54,
[2007] 3 S.C.R. 607, para. 37). Because Marcovitz had
breached this obligation, a civil court awarded Bruker
damages in the amount of $47,500 (CND)10 on the
basis that her right to remarry and have more children
within her faith was unfairly curtailed.
Supreme Court’s Conflicting Interpretations
The Canadian Charter guarantees freedom of religion.
However, the Supreme Court has stated on many
10 Canadian dollar.

ISSN: 2710-4028 DOI: https://doi.org/10.54208/0003 69
occasions that freedom of religion can be limited when
it interferes with the fundamental rights of others (R.
v. Big M Drug Mart Ltd., [1985] 1 SCR 295, supra at
page 337 Syndicate Northern Vs. Amsalem, 2004, SCC
47, [2007] 2 SCR 551, supra at paragraph 62 Trinity
Western v. British Columbia College of Teachers, 2001,
SCC 31, [2001] 1 SCR 772, supra at paragraphs 29–
31). Marcovitz claimed that Bruker’s sincerity of belief
was in question and therefore, as a nonobservant
Jew, she did not need the ghet to move on with her
life. But the court declined to investigate the religious
aspects behind Marcovitz’s refusal to provide a ghet
and to look into Bruker’s sincere beliefs and practice.
Religious elements did not prevent judicial analysis of
the consent contract. The Court stated, “The object
...is the juridical operation envisaged by the parties
...” (Bruker v. Marcovitz, 2007, SCC 54, [2007] 3
S.C.R. 607, para. 55 1412). Markovitz promised to
remove the religious barriers to remarriage (Bruker v.
Marcovitz, 2007, SCC 54, [2007] 3 S.C.R. 607, para.
47). This judgment demonstrated that the court held
there was a valid and lawful contract between Bruker
and Markovitz, intended to have enforceable legal
consequences, without the court having to delve into
religious doctrine. Thus, the court may take jurisdiction
so long as the dispute concerns the legal rights of the
parties in a contractual sense.
Historically, as suggested previously, the purpose of
the Ktubah was to ensure that a woman’s rights were
protected during the marriage, and that if she is
divorced or widowed, she will not remain penniless
(Gaster &Gross, 1974). In modern practice, although
the Ktubah has no real monetary value, it is a significant
symbolic and spiritual part of the marriage ritual, and
its absolution can come only in the form of a ghet.
Further, until a ghet has been granted, both parties
remain married under Jewish law. As a result, when
a husband refuses to give his wife a ghet, he prevents
her from remarrying and condemns her and any future
offspring she has to live on the sidelines of Judaism.
The judicial opinions expressed by the Supreme Court
of Canada in Bruker v. Marcovitz failed to address
these intricacies and instead viewed the Ktubah
more broadly, as a religious agreement between two
consenting parties that is not legally binding (Bruker
v. Marcovitz, 2007, SCC 54, [2007] 3 S.C.R. 607, para.
174). Instead, the Court ruled only on the legal validity
of a civil prenuptial agreement that deals with religious
matters.
Writing for the majority in this case, Madam Justice
Abella held that Marcovitz’s commitment in the
prenuptial agreement was binding and thus legally
enforceable. Her view was that the courts, as their
empowerment to referee religious disputes provided,
must “take into account the particular religion, the
particular religious right, and the particular personal
and public consequences—including the religious
consequences—of enforcing that right” (Bruker v.
Marcovitz, 2007, SCC 54, [2007] 3 S.C.R. 607, para.
18). Abella (who was Jewish herself and might have
had greater insight than some others on the court into
the complications and inequalities faced by divorced
Jewish women) stated,
This represented an unjustified and severe
impairment of her ability to live her life
in accordance with this country’s values
and her Jewish beliefs. Any infringement
of Mr. Marcovitz’s freedom of religion
is inconsequential compared to the
disproportionate disadvantaging effect on Ms.
Bruker’s ability to live her life fully as a Jewish
woman in Canada. (Bruker v. Marcovitz, 2007,
SCC 54, [2007] 3 S.C.R. 607, para. 93)
Judge Abella said that the prenuptial agreement the
couple signed was akin to a binding contract: “. ..In
my view, an agreement between spouses to take the
necessary steps to permit each other to remarry in
accordance with their own religions, constitutes a valid
and binding contractual obligation under Quebec law”
(Bruker v. Marcovitz, 2007, SCC 54, [2007] 3 S.C.R.
607, para. 16). Justice Abella’s judgment acknowledged
that, in the interest of public policy, it was necessary to
remove the barriers to religious divorce and remarriage.
Justices J. Deschamps and J. Charron disagreed. They
argued that the form of the agreement, the contract,
did not count. Even though it looked like a civil
contract, its essential foundation was a religious ritual.
From their perspective, because religion was involved,
the State could not interfere. The two systems, religious
law and civil law, were parallel and could not overlap.
Writing for the dissent, Justice Deschamps framed
the case differently than the majority and observed
that the primary question before the Supreme Court