A majority of the Supreme Court of Canada, in a judgment written by Justice Abella, held that a promise by a husband to consent to a religious divorce (to provide a “get”) was legally enforceable under the Quebec Civil Code. According to Abella J., a contract dealing with a religious matter is enforceable, provided its object is not prohibited by law or contrary to public order. Justice Abella’s judgment, however, involved more (and perhaps less) than a determination that religious contracts are legally enforceable. She held that the husband’s promise to consent was enforceable not simply (and perhaps not significantly) because it was a voluntary obligation but because public policy supported the removal of barriers to religious divorce and remarriage. She was enforcing a voluntary obligation made by the husband, but she was also acting to mitigate the inequity of the divorce rules of Judaism. The question addressed only obliquely in this case is when, if ever, is the state justified in intervening to protect vulnerable group members from oppressive or unjust religious rules? a commitment to religious freedom involves respecting the individual’s spiritual choices and commitments. 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.
"Bruker v. Marcovitz: Divorce and the Marriage of Law and Religion."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.