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Religion And Divorce In Canada

Religion And Divorce In Canada

Some religions have barriers that divorcing spouses must overcome before they are able to get remarried. The most common example is a “get” in the Jewish faith, which requires the parties to obtain a divorce granted by a rabbinical court before they can remarry.  The get releases them from the religious bonds of marriage.  In order to get remarried, a member of the Jewish faith would require both the legal divorce and a get. Have questions about religion and divorce in Canada? Read on…

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Religion and Divorce In Canada

In the case of a get, and other religious barriers, the spouses must both consent to obtain the get. So what happens if one party refuses to consent to the religious divorce, thereby preventing the other party from getting remarried?

Section 21.1 of the Divorce Act addresses this issue.  Section 21.1(2) and 21.1(3) state that in the event a spouse refuses (despite requests) to consent to the removal of a religious barrier the other spouse may bring a motion before the court requesting that the court dismiss the refusing spouse’s application or strike out any portion of a pleading or affidavit filed by a spouse.  If a spouse’s application is dismissed, they are open to bringing their claim before the court again, but only after they have done their part to remove the religious barrier.

religion and divorce in Canada
Religion and divorce in Canada

Barriers to religious marriage can also become an issue in relation to domestic contracts.  If spouses come to an agreement to settle their matter out of court, they will likely want to include as part of their separation agreement that both spouses will consent to the removal of religious barriers.  If this is part of the contract, the court can enforce the contract and also order damages against a spouse who refuses to abide by the contract and provide their consent to the removal of a religious barrier.

Marcovitz v. Bruker

In Marcovitz v. Bruker, 2007 SCC 54, the Supreme Court of Canada upheld the decision of a Quebec trial judge to award damages to a wife whose husband agreed in a domestic contract to give the get but then refused to follow through for 15 years.  In addition, if it is found that a spouse coerces another spouse to sign a domestic contract by refusing to consent to the removal of a barrier unless the spouse signed the contract, the contract can be set aside.

These legal options only apply if the barrier can be removed by the consent of the parties.  Is the religious figure is the only one with the power to remove the barrier? Then the procedure under the divorce act does not apply. Have questions about the removal of a religious barrier and how it plays into your divorce? Contact one of our family lawyers in the Toronto office of ClearWay Law. You can call toll free 844-466-6LAW (529)

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Changes in Divorce Court

41% of divorces in Canada are now ending in divorce. Regardless of which religion, it is becoming a socially acceptable norm. Some courts are starting to force couples into mediation. Mediation is often voluntary, which sometimes moves into the court system or arbitration.

The family court system is under pressure from media and activist groups. They are being asked to find a more fair system. People in Alberta have complained that delays are too long. They have to wait up to a year to get in front of a family law judge.

We suggest the largest change in the Canadian divorce courts will be alternative dispute resolution (ABR.) This is the best alternative to litigation. Further, ABR consists of mediation and arbitration.

In conclusion, the best family lawyers are pushing their clients to avoid two-day trials that cost on average around $40,000. Mediation and arbitration are much cheaper. Mediation also often revolves around five months faster than litigation.