Not just Muslim women are exploited by 'religious' law

By SUSAN DRUMMOND
Friday, September 9, 2005 Page A17


A front-page story in yesterday's Globe and Mail drew attention to the case of "Shinaz," a Muslim woman who was coerced by religious law and her imam into forfeiting support and property rights in order to get a religious divorce.

The full facts are a little bit buried in the latter part of the story, so let me bring them to the fore again: Before going to the imam, Shinaz went to a Canadian lawyer, worked out a separation agreement and got a settlement on child support, property and child custody. She then also got a divorce in a Canadian court. Following this, she wanted a religious divorce, though absolutely nothing in Canadian law compels, or indeed urges or even suggests, that she do so. What followed in the religious arena illustrates a long-standing tension between religious law and state law -- a tension that is in no way exclusive to Islam.

In the religious forum to which Shinaz voluntarily submitted, she found herself up against a potentially very exploitative wall. Orthodox Jewish women have found themselves in that position for decades. The Canadian state allows for civil divorce with all of its corollary relief (support, custody etc.). Orthodox Jewish law (the form of religious law that governs family law matters in Israel) demands that, if an Orthodox woman also wants to be released to remarry or to bear future children that would not be bastards (mamzarim) in Jewish law, she must go through a religious procedure to do so. Until she gets a Jewish bill of divorce -- known as a gett -- she is a bound woman, an agunah -- with potentially dire consequences associated with both Jewish law and Israel. The odd Jewish husband has long been exploiting this vulnerability by threatening to withhold the gett unless the wife, who is civilly divorced, agrees to forgo a long list of civil rights that she has already acquired (custody of the children, child support etc.) or is in the clear position to acquire according to Canadian law. I should state that this exploitation by a small number of Jewish men is also a thorn in the side of both Orthodox Judaism and the state of Israel.

Recognizing the extraordinary vulnerability that these Jewish women (analogous to Shinaz) find themselves in, the Canadian state and the provinces have long intervened to circumvent this kind of "religious" exploitation of state law -- or rather the exploitation of the intersection between the two. And, as multicultural as Canada is, we have done so in a way that is both creative and religion-neutral. Federal legislation allows for judges to stay civil divorces (e.g., of the Jewish man who wants to remarry but who wants to bind his wife for eternity in a religious marriage) if all barriers to religious marriage have not been removed. Under provincial and federal legislation, the civil courts will, if asked by one spouse, prevent the other from litigating on any issue pertaining to the divorce or separation (even, for example, preventing him from entering a defence to an astronomically high child- support claim) unless the latter has done all that is within his power to remove all religious barriers to remarriage.

In my opinion, Shinaz would have done well to do what countless Jewish agunot have done: Sue her husband for, say, a gargantuan increase in child support against which her ex-husband cannot raise a defence until all religious barriers to remarriage are removed. If it's important to Shinaz to remain devout to her religion and its institutions, she could have followed the letter of the latter's law while invoking the letter of Canada's parallel secular law -- all the while showing herself to be a devoutly law-abiding citizen.

With Canada's long and creative history of accommodating cultural and religious differences within the bosom of a secular state, Canadians have generated an ever-evolving model of the modern multicultural state that should be an inspiration to the world. The laws to which I allude have been around for a while to deal with the interaction between state law and Jewish religious law. If they need some tinkering to deal with other religions (again in language that does not single out a particular religion), then let's do that rather than single out the Muslim religion for a singular form of paranoia.

Susan Drummond, professor of family and comparative law at Osgoode Hall Law School at York University, holds a federal research grant to look into marriages within Israel's mixed legal jurisdiction.