Rabbis said to use torture to secure divorces for women

[crazy canuck]

The legislation requires the individual to swear under oath that they have removed all religious barriers to remarriage under their control. I don't see how that "begs the question". If in fact no such barriers exist, the individual can easily make the required declaration.

Unless there is a religious bar to taking oaths! 

In that case they can affirm.

[Malthus]

But it does require the courts to have a working knowledge of the various faiths - as how else would they determine whether or not it was truly stopping something? Even if they are deciding via testimony, aren't they then deciding what is and isn't an obligation in a faith?

Not really. The mechanism only gets invoked where someone complains that the other party hasn't removed a barrier to remarriage. Then, the party that is subject to the complaint must swear that they have.

The Court only gets inolved if the parties disagree on these basic facts - in which case they decide the matter just as they would any other matter of disputed evidence before them: on the civil standard of preponderance of evidence.

The Court doesn't need any knowledge of religion, just as it doesn't need any knowledge of medicine to determine a medical malpractice case. Evidence is up to the parties to produce.

[Malthus]

The legislation requires the individual to swear under oath that they have removed all religious barriers to remarriage under their control. I don't see how that "begs the question". If in fact no such barriers exist, the individual can easily make the required declaration.

Unless there is a religious bar to taking oaths! 

In that case they can affirm.

Ya beat me to it! 

[crazy canuck]

That makes sense. I guess it just seems odd to me in the context of religion as it seems like the court is then helping codify what is a requirement in that religion.

It is not common but Courts do make judgments regarding religious beliefs in a number of contexts.  For example in the recent cases regarding the ability of a witness to wear a veil while giving testimony.

[Malthus]

That makes sense. I guess it just seems odd to me in the context of religion as it seems like the court is then helping codify what is a requirement in that religion.

It is not common but Courts do make judgments regarding religious beliefs in a number of contexts.  For example in the recent cases regarding the ability of a witness to wear a veil while giving testimony.

Yup. Or any number of other issues involving "reasonable accomodation" of religious beliefs.

[crazy canuck]

That makes sense. I guess it just seems odd to me in the context of religion as it seems like the court is then helping codify what is a requirement in that religion.

It is not common but Courts do make judgments regarding religious beliefs in a number of contexts.  For example in the recent cases regarding the ability of a witness to wear a veil while giving testimony.

Yup. Or any number of other issues involving "reasonable accomodation" of religious beliefs.

Agreed.

[Sheilbh]

But it does require the courts to have a working knowledge of the various faiths - as how else would they determine whether or not it was truly stopping something? Even if they are deciding via testimony, aren't they then deciding what is and isn't an obligation in a faith?

The same way courts decide in medical negligence cases or shipping insurance. Evidence will be presented and the court will make a judgement. The areas that even all the lawyers and judges in the world have a working knowledge of are far smaller than the areas they don't.

I guess the way I see it is that the religious obligation bit only matters in determining whether the legislation is offensive the the guy's freedom of religion. If not giving the "get" was a religious obligation (or even, to an extent, if giving the "get" wasn't a religious obligation), the guy could have a potential argument that the legislation, as a whole, impairs his freedom of religion.

Yeah I agree. In that case I'd agree with the guy.

If necessary courts will look at religious obligation and balance it against other interests - all of the Jehovah's Witnesses cases for example.

[grumbler]

But your knowledge doesn't matter. It can be judged on evidence. Is there something stopping a spouse from remarrying within their faith that is within the power of the other spouse to remove?

What is the "evidence" for the ability of a man to remove an obstacle he doesn't think he can remove on religious grounds?

If there is then it should be removed so you have a sort of unfettered divorce, or the court should be able to adjust any settlement to reflect it.

It makes more sense for the court to say that the get is simply not required on those grounds.  Otherwise, the court is punishing the man for his religious beliefs.

The religious obligation bit doesn't matter either - that's an interesting sidenote on Orthodox Jewish practice. What matters is that his wife can't remarry within her faith because of something he won't do.

But that's a religious problem.  It shouldn't be the subject of the law and the courts, no matter how interesting it is.

[grumbler]

In that case they can affirm.

Then the problem is solved, though the woman still can't remarry in her religion.  The court didn't need to be involved at all.

[crazy canuck]

In that case they can affirm.

Then the problem is solved, though the woman still can't remarry in her religion.  The court didn't need to be involved at all.

I dont know the legislation in question.  I just jumped in on the question of taking an oath and the suggestion that courts need specialized knowledge of factual issues before they can hear a case.

[Sheilbh]

What is the "evidence" for the ability of a man to remove an obstacle he doesn't think he can remove on religious grounds?

Research and statements. Same as the evidence on any other subject. If he can or can't give a get is an issue of fact. His opinion or belief doesn't matter.

Here he can. In a Catholic divorce neither party can do anything to annul their marriage because only the Church has that power. Whether the power to give a get is with the man or the Beth Din makes a difference, but it's also something you can discover.

It makes more sense for the court to say that the get is simply not required on those grounds.  Otherwise, the court is punishing the man for his religious beliefs.

What? I'm afraid I don't get this.

But that's a religious problem.  It shouldn't be the subject of the law and the courts, no matter how interesting it is.

How is it a religious problem?

[Iormlund]

I can't see how his beliefs are relevant.

What? How can you claim that his beliefs are not relevant while at the same time empowering hers?

[Malthus]

Here, for the sake of the debate, is the legislation in question in full (from the Family Law Act):

Statement re removal of barriers to remarriage

(4)  A party to an application under section 7 (net family property), 10 (questions of title between spouses), 33 (support), 34 (powers of court) or 37 (variation) may serve on the other party and file with the court a statement, verified by oath or statutory declaration, indicating that,

(a) the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse's remarriage within that spouse's faith; and

(b) the other party has not done so, despite a request. R.S.O. 1990, c. F.3, s. 2 (4).

Idem

(5)  Within ten days after service of the statement, or within such longer period as the court allows, the party served with a statement under subsection (4) shall serve on the other party and file with the court a statement, verified by oath or statutory declaration, indicating that the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse's remarriage within that spouse's faith. R.S.O. 1990, c. F.3, s. 2 (5).

Dismissal, etc.

(6)  When a party fails to comply with subsection (5),

(a) if the party is an applicant, the proceeding may be dismissed;

(b) if the party is a respondent, the defence may be struck out.

[Malthus]

In that case they can affirm.

Then the problem is solved, though the woman still can't remarry in her religion.  The court didn't need to be involved at all.

I think you misunderstand. "Affirm" is what people who have religious objections to swearing do, in place of giving an "oath". It has the same effect but does not invoke religion.

[crazy canuck]

Re: the legislation.

Ah, well that is straight forward.  Its just a question of evidence.