Canadian society is a multicultural one, which includes people from a myriad of religious backgrounds.
Canadian family law courts recognize both secular and faith based religious marriages.
For example, marriages performed in accordance to Islamic, Sikh or Jewish religious laws are valid and binding marriages, recognized in Canada.
Problems arise where parties obtain a divorce in Canada, i.e. they obtain a civil divorce, but their particular religion does not recognize their Canadian divorce.
This means that because their Canadian civil divorce is not recognized under their particular faith, the parties continue to remain married!
Canadian courts have grappled with this issue, particularly for Iranian Canadian litigants who married under Iranian Islamic laws, obtained a Canadian divorce but remain married under Iranian Islamic laws.
Notwithstanding a Canadian divorce, Iranian Islamic law does not recognize the Canadian divorce and the parties remain married under the law in Iran.
Women unfortunately are disproportionately affected as a result of this. Women face discrimination and barriers which may include but is not limited to:
- barriers to remarriage;
- barriers to exit for example exit from Iran to visit family, and
- barriers to autonomy and self determination because they remain married.
There have been some very interesting jurisprudence all across Canada in the area of a religious divorce.
The Divorce Act is federal jurisprudence and is applicable in every province in Canada.
Interestingly, section 21.1 of the Divorce Act specifically contemplates the removal of barriers to religious remarriage.
One of the most seminal cases involving a religious divorce was in Bruker v. Marcovitz, 2007 SCC 54 (CanLII), [2007] 3 SCR 607 which involved a Jewish Get. This case involved the parties who were married in 1969. Divorce proceedings were commenced in 1980 and three months later, the parties negotiated a Consent to Corollary Relief. Clause 12 of the agreement stated that the parties agreed to appear before the rabbinical authorities to obtain a Jewish divorce, or “Get”, immediately upon the granting of the divorce. The Canadian divorce was final in 1981.
The husband refused to cooperate or grant the Get. The wife could not obtain the Get unless her husband agreed to grant it. The courts found that without a Get the wife married, and is unable to remarry under Jewish law. The wife sought her Jewish divorce or Get for 15 years and the husband repeatedly refused by which time the wife was almost 47 when she came before the Supreme Court of Canada (she was 31 at the time of the civil divorce). The wife sought damages for breach of the agreement. The husband argued that his agreement to give a Get was not valid under Quebec law and that he was protected by his right to freedom of religion from having to pay damages for its breach.
The Supreme Court of Canada sided with the wife. The Supreme Court of Canada said:
“The fact that a dispute has a religious aspect does not by itself make it non‑justiciable. Recognizing the enforceability by civil courts of agreements to discourage religious barriers to remarriage, addresses the gender discrimination those barriers may represent and alleviates the effects they may have on extracting unfair concessions in a civil divorce. This harmonizes with Canada’s approach to equality rights, to divorce and remarriage generally, to religious freedom, and is consistent with the approach taken by other democracies. [41] [63]
Clause 12 of the agreement satisfies all requirements under the Civil Code to make it valid and binding under Quebec law. The promise by the husband to provide a Get was part of a voluntary exchange of commitments intended to have legally enforceable consequences, negotiated between two consenting adults, each represented by counsel. The Court is not asked to determine doctrinal religious issues, and there is nothing in the Civil Code preventing someone from transforming his or her moral obligations into legally valid and binding ones.”
There have been many new developments in this area of family law and our office has been at the very heart of it.
The leading case in British Columbia on the issue of a religious divorce is Zargarian-Tala v. Bayat-Mokhtari, 2019 BCSC 448. Our firm was counsel for the wife. The parties had a civil divorce, but the husband refused to grant the wife a religious Islamic divorce. We asked the Supreme Court of British Columbia to compel the husband to provide all consents necessary so that the wife may obtain an Iranian divorce. What makes this case unique was that the husband was a nonresident of Canada but a Canadian citizen.
The Iranian divorce was important to the wife as without it, the wife was not able to remarry, and any subsequent relationship she entered would be considered adulterous. She also could not travel to Iran to visit her elderly parents because she remained married, and her husband could prevent her from returning to Canada.
The Court stated:
“[75] The benefits to the wife of the proposed order are manifest. She will be able to travel freely and visit her relatives in Iran. She will be able to remarry within her religion. These are not small matters.
[76] The husband will lose his leverage over the wife, but that is not a burden he can in law complain of.”
The Court carefully reviewed our submissions and the expert opinion we put forth. As a result, we successfully obtained orders against the husband.
There have been other developments in law with respect to religious divorce where a wife’s rights and freedom are being interfered with due to the husband’s refusal to grant a religious divorce.
In a recent case of the Superior Court of Quebec, Droit de la famille — 22187, 2022 QCCS 377, the respondent husband refused to do what is needed to grant a religious divorce in Iran. Interestingly, the Court condemned the husband to the payment of compensatory damages of $45,000 and punitive damages of $2,000. The Court also ordered additional payment of damages of $100 per day, from the date of the judgment until the religious divorce is granted in Iran.
If you are not married yet and plan to have a religious marriage, it is very important to get legal advice before you marry.
Contact our office to speak to one of our experienced lawyers at:
Email: info@snlaw.ca or Call us at: 604 568 5181
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