Canada: Ex-Husband Appeals Jewish-Divorce Landmark Ruling

But in a last-ditch effort, Bruker's ex-husband is asking the Supreme Court to rehear the case, according to press reports Wednesday.

"This is a dilatory attempt on the part of my ex-husband to avoid paying a Supreme Court of Canada judgment," says Bruker, in an interview with Women's eNews. "Motions for rehearing are rarely granted."

The money awarded Bruker in December is only a fraction of the $500,000 in damages she initially sought in 1989, and the more than $1 million she subsequently asked for at the Supreme Court.

Bruker says she pressed for damages because she wanted the courts to establish jurisprudence on the matter and to protect other women from reliving her experience.

"I hope it will teach men that they can be sued, at least in Canada," says Bruker, who expresses confidence that the Supreme Court will not agree to rehear the case.

Bruker says she has no immediate intentions of getting remarried. "I missed my time then, but who knows?" she says. "We don't know what's around the corner."

Religious Divorces Upheld

Advocates say the December ruling shows the national courts' willingness to enforce a contractual obligation to give a religious divorce, whether outlined in a prenuptial agreement or in a civil divorce settlement.

Some women are troubled and upset that the decision is now being challenged, says Evelyn Brook, president of the Canadian Coalition of Jewish Women for the Get in Montreal.

"The incredulity is not limited to women; men question this new action as well. Many are watching to see if the Supreme Court gives leave to appeal," she says.

Brook says she hasn't seen an immediate rush of Jewish women seeking compensation at the courts since December, but she believes countless Canadian women could benefit. "I think in the near future, women who feel they can emotionally go through what Ms. Bruker went through, they will be suing their husbands," she says.

Since she co-founded the coalition more than a decade ago, Brook says activist groups for agunah rights have emerged in the United States, United Kingdom, Australia and Israel. In addition to offering education and advice to women about Jewish divorce laws, the groups work with rabbinical leaders to deter husbands from abusing those laws.

The religious law itself--that only a husband can give a get--cannot be changed, since it is written in the Bible, Brook says. "Because it is in the Bible, then it is considered to be divine."

At a local level, rabbis and Jewish communities have also become more sympathetic to women in agunah, exerting pressure on husbands to provide gets and sometimes even shunning those who refuse, Brook says.

Prenuptial Argument

Alan Stein, Bruker's attorney, says the ruling gives brides even more reason to negotiate prenuptial civil agreements to safeguard themselves from becoming agunah and unable to remarry after seeking a divorce. "That's why it is a very important case," he says.

Since the Supreme Court decision, Michael Whitman, president of the Montreal Board of Rabbis, and a few other rabbis have called upon counterparts across the country to require a prenuptial agreement before they will officiate at any wedding ceremony.

"This strengthens the force of such a document," Whitman says.

Estimates of the number of women in agunah around the globe vary wildly, as the vast majority of cases are resolved within a matter of months, says Whitman. He says there could be hundreds of women internationally whose recalcitrant husbands refuse to grant them gets long after their marriages have become unsalvageable. He says he is aware of a handful of such cases in Montreal.

In other parts of the world, civil courts have also taken measures to deter husbands from abusing Jewish divorce laws.

In Israel, judges have awarded financial compensation to wives whose husbands fail to consent to a get. In the United States, some courts have ordered husbands to appear before a rabbinical court to obtain a get. In Australia, judges have increased the amount a husband must give his wife in spousal maintenance to encourage him to give her a religious divorce.

Civil Divorce in 1981

Bruker, who characterizes herself as a Conservative Jew, obtained a civil divorce in 1981 from her husband, Jessel Marcovitz, when she was 31. As part of that proceeding Marcovitz promised to grant her a get but then refused to do so for 15 years, which Bruker says prevented her from remarrying for two decades.

"Judaism is a family religion, and I wanted to have more children," she says, adding that observant men would not date her as she was still considered unavailable. "It's like taking a married woman out."

Although no civil laws prevented her from remarrying when the civil divorce became final in 1981, Bruker says she never once thought of disregarding her religion throughout her lengthy battle to break free.

"I'm a Jew, and I'm very proud to be Jewish," she says.

Although it is frowned upon in Judaism for a husband to withhold a get, Bruker argued that Marcovitz did so anyway to punish her for wanting to leave him. She decided to seek damages in 1989. At that point, the two were still considered married under Jewish law.

Marcovitz finally granted her a get in 1995, but that didn't end the matter for Bruker, who considered the time she spent struggling for the get a period of prolonged abuse that also put her past child-bearing age.

In 2003, the Quebec Superior Court found that Marcovitz had breached his contractual obligations and ordered him to pay Bruker financial damages. When the Quebec Court of Appeal overturned the lower court's decision in 2005, Bruker appealed to the Supreme Court, where judges focused on the legality of the settlement agreement, signed by both Marcovitz and Bruker at the time of their civil divorce, that stipulated he would grant her a get.

Marcovitz argued he was protected under his right to freedom of religion.

Justice Rosalie Abella disagreed. "Any infringement on 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," Abella wrote in the judgment.

In addition to being barred from remarriage, women in agunah can be spurned by members of their community who sympathize with their husbands, says Brook, the activist, while the social consequences for their husbands are often much less severe. "In fact, men have been known to date and to go with other women," she says.

By: Wency Leung

15 February 2008