International Journal of Coercion, Abuse, and Manipulation Volume 3 2022 72
coerced into unreasonable divorce terms and conditions
both to obtain this religious release from their marriage
and to avoid alienation from their community and its
religious norms (Stone, 2000, p. 171).
In her decision, Abella also noted that there was within
the Jewish community “a consensus that the refusal to
provide a ghet was an unwarranted indignity imposed
on Jewish women and, to the extent possible, one that
should not be countenanced by Canada’s legal system”
(Bruker v. Marcovitz, 2007, SCC 54, [2007] 3 S.C.R. 607,
para. 81). Yet the limited approach adopted at each stage
of the Bruker v. Marcovitz case highlights the notion
that a narrow view in the decision-making process will
not suffice. As such, judicial decision-making is not
insulated from the requirement to determine whether
supporting a religious practice is consistent with public
notions of autonomy and equality in a certain case.
The secular state should not work in a manner whereby
it appears to be a competing authority rather, it should
work as a potential arm of the Jewish legal system
(Martinez-Torron, J., &Cole-Durham, W., Jr., 2015,
p.38–39). At the same time, the state should make sure
that women are treated equally in private, cultural,
and religious life. A Jewish woman has no ability to
obtain ghet under Halacha law without her husband’s
full consent, and she is completely dependent upon his
whims. In addition, a Beit din has no means to require
a man to give his wife a ghet, nor can it provide him
with any incentives to do so. The Jewish community
will not accept any children born to such a marriage
that is only civil and not Jewish. This predicament
leaves many women only with the option of leaving
their faith if they want to remarry and have a new
family (Fishbayn, 2016, p.180). For these reasons,
although most Jewish divorces are uncontested and
mutually agreed upon, when the need arises, the role
of legislation is to protect women from such injustices
while still enabling them to continue to practice their
religion. While commitment to religious freedom
involves respecting an individual’s spiritual choices and
commitments, the state’s obligation is to intervene and
protect vulnerable group members from oppressive
or unjust religious rules (DeCosta, 2009). In the
case discussed previously, the court granted Bruker
compensation, yet she still was unable to lead a full
life. Had the state intervened earlier to help her obtain
the ghet, then Bruker might have been able to remarry
and have children her inability to do so constituted
an injustice that no monetary compensation could
rectify. Now, with the precedent of the Supreme court
ruling in the Bruker case, the courts can help trapped
women escape gender-biased religious traditions, but
only in cases in which a prenuptial agreement also was
signed. In other cases, Jewish women might still find
themselves at the mercy of their divorcing spouse, with
no means to get legal aid from the state.
Abuse in religious communities is not only about
the individual abuser, but also about institutions,
ideologies, structures, and regulating normative
orderings, which abusive men manipulate in their
favour. Framing ghet refusal instead as domestic abuse
and not merely a contractual breach provides the courts
with certain tools that both the social and legal worlds
can use and act upon, rather than dismissing the refusal
as just a religious issue or problem. Furthermore,
framing the ghet refusal as domestic abuse gives tools
to law-enforcement authorities. Then, Section 15 of
the Canadian Charter of Rights and Freedoms, which
guarantees equality without discrimination based on
sex, may be a viable avenue for women denied a ghet to
pursue legal help. As John Tibor Syrtash noted in 1993,
although Canada had not been quick to link Charter
rights and freedoms to issues relating to spouses,
parents, and children, there might be a foreseeable
end to this hesitancy with the Charter’s application
to family-law disputes (such as Jewish divorce Van
Praagh, 1993, p. 233).
Viewing the Ktubah as a different version of a legally
binding nuptial contract will allow legal authorities
to empower religious communities to achieve results
that balance a woman’s right to divorce and her right to
religion without abuse.12 However this balance cannot
be the only solution multiple options must be available
to women—a grab-bag of remedies at their disposal—
to ensure that their right to religion and their right
to divorce both remain intact. Maintaining only one
approach would merely contribute to sustained failures.
Preventing the abuse of a ghet refusal unfortunately will
12 “Family violence is not just physical violence. A person can be
the victim of one or more forms of violence or abuse. Emotional abuse
happens when a person uses words or actions to control, frighten or isolate
someone or take away their self-respect. Emotional abuse is sometimes
called psychological abuse” (Government of Canada, Department of Justice).
https://www.justice.gc.ca/eng/cj-jp/fv-vf/about-apropos.html#emo
coerced into unreasonable divorce terms and conditions
both to obtain this religious release from their marriage
and to avoid alienation from their community and its
religious norms (Stone, 2000, p. 171).
In her decision, Abella also noted that there was within
the Jewish community “a consensus that the refusal to
provide a ghet was an unwarranted indignity imposed
on Jewish women and, to the extent possible, one that
should not be countenanced by Canada’s legal system”
(Bruker v. Marcovitz, 2007, SCC 54, [2007] 3 S.C.R. 607,
para. 81). Yet the limited approach adopted at each stage
of the Bruker v. Marcovitz case highlights the notion
that a narrow view in the decision-making process will
not suffice. As such, judicial decision-making is not
insulated from the requirement to determine whether
supporting a religious practice is consistent with public
notions of autonomy and equality in a certain case.
The secular state should not work in a manner whereby
it appears to be a competing authority rather, it should
work as a potential arm of the Jewish legal system
(Martinez-Torron, J., &Cole-Durham, W., Jr., 2015,
p.38–39). At the same time, the state should make sure
that women are treated equally in private, cultural,
and religious life. A Jewish woman has no ability to
obtain ghet under Halacha law without her husband’s
full consent, and she is completely dependent upon his
whims. In addition, a Beit din has no means to require
a man to give his wife a ghet, nor can it provide him
with any incentives to do so. The Jewish community
will not accept any children born to such a marriage
that is only civil and not Jewish. This predicament
leaves many women only with the option of leaving
their faith if they want to remarry and have a new
family (Fishbayn, 2016, p.180). For these reasons,
although most Jewish divorces are uncontested and
mutually agreed upon, when the need arises, the role
of legislation is to protect women from such injustices
while still enabling them to continue to practice their
religion. While commitment to religious freedom
involves respecting an individual’s spiritual choices and
commitments, the state’s obligation is to intervene and
protect vulnerable group members from oppressive
or unjust religious rules (DeCosta, 2009). In the
case discussed previously, the court granted Bruker
compensation, yet she still was unable to lead a full
life. Had the state intervened earlier to help her obtain
the ghet, then Bruker might have been able to remarry
and have children her inability to do so constituted
an injustice that no monetary compensation could
rectify. Now, with the precedent of the Supreme court
ruling in the Bruker case, the courts can help trapped
women escape gender-biased religious traditions, but
only in cases in which a prenuptial agreement also was
signed. In other cases, Jewish women might still find
themselves at the mercy of their divorcing spouse, with
no means to get legal aid from the state.
Abuse in religious communities is not only about
the individual abuser, but also about institutions,
ideologies, structures, and regulating normative
orderings, which abusive men manipulate in their
favour. Framing ghet refusal instead as domestic abuse
and not merely a contractual breach provides the courts
with certain tools that both the social and legal worlds
can use and act upon, rather than dismissing the refusal
as just a religious issue or problem. Furthermore,
framing the ghet refusal as domestic abuse gives tools
to law-enforcement authorities. Then, Section 15 of
the Canadian Charter of Rights and Freedoms, which
guarantees equality without discrimination based on
sex, may be a viable avenue for women denied a ghet to
pursue legal help. As John Tibor Syrtash noted in 1993,
although Canada had not been quick to link Charter
rights and freedoms to issues relating to spouses,
parents, and children, there might be a foreseeable
end to this hesitancy with the Charter’s application
to family-law disputes (such as Jewish divorce Van
Praagh, 1993, p. 233).
Viewing the Ktubah as a different version of a legally
binding nuptial contract will allow legal authorities
to empower religious communities to achieve results
that balance a woman’s right to divorce and her right to
religion without abuse.12 However this balance cannot
be the only solution multiple options must be available
to women—a grab-bag of remedies at their disposal—
to ensure that their right to religion and their right
to divorce both remain intact. Maintaining only one
approach would merely contribute to sustained failures.
Preventing the abuse of a ghet refusal unfortunately will
12 “Family violence is not just physical violence. A person can be
the victim of one or more forms of violence or abuse. Emotional abuse
happens when a person uses words or actions to control, frighten or isolate
someone or take away their self-respect. Emotional abuse is sometimes
called psychological abuse” (Government of Canada, Department of Justice).
https://www.justice.gc.ca/eng/cj-jp/fv-vf/about-apropos.html#emo
