"A Delicate Necessity": 'Bruker v. Marcovitz' and the Problem of Jewish Divorce

Abstract

Even hard cases can make good law — when courts ask themselves the right questions. Stephanie Bruker's case against ex-husband Jason Marcovitz was hard on two counts. Hard because, at its loftiest, one might say that it pits two religious freedoms against each other: a man's freedom not to grant a 'get' or Jewish divorce to his wife, and his wife's freedom to remarry according to the tenets of Judaism. Hard, too, because the wife's moral conduct was at odds with her stated beliefs - a not-infrequent fact of life, but one inconvenient for litigation. Overcoming the inconvenience and applying both domestic-law and comparative-law approaches, a 7:2 majority of the Supreme Court of Canada found for Bruker. In so doing, the Court reversed the Quebec Court of Appeal and upheld the trial judge's damages award against Marcovitz for not honouring an undertaking to appear before a rabbinical tribunal for the purpose of granting a 'get'.