Rabbis said to use torture to secure divorces for women

[Malthus]

Under the Ontario law, the court is complelely indifferent as to whether a religious obligation to provide a get exists or not. The legislation simply provides that, if a religious barrier to remarriage exists, and this barrier is under the control of a party (that is, the party can remove it or not at his or her discretion), the party must remove it in order to have a claim or defence heard by the court (in certain specified matters).

This is true whether there exists an obligation to remove it under that religion or not. The legislation - and the court - does not care. It is not telling the man (or anyone) what his or her religious obligations are. His or her civil obligations, in order to register a calim or defence on certain matters befor a divorce court, are to remove religious barriers to remarriage of the other party. 

[grumbler]

Under the Ontario law, the court is complelely indifferent as to whether a religious obligation to provide a get exists or not. The legislation simply provides that, if a religious barrier to remarriage exists, and this barrier is under the control of a party (that is, the party can remove it or not at his or her discretion), the party must remove it in order to have a claim or defence heard by the court (in certain specified matters).

This is true whether there exists an obligation to remove it under that religion or not. The legislation - and the court - does not care. It is not telling the man (or anyone) what his or her religious obligations are. His or her civil obligations, in order to register a calim or defence on certain matters befor a divorce court, are to remove religious barriers to remarriage of the other party.

All of this begs the question as to the husband's current beliefs in such things as a get, and his beliefs in his ability to issue one.  I don't see that it is any of the court's business.

If there exists a religious bar to remarriage, then the religion's authorities should resolve it, not the courts.

[frunk]

I think the religious form was created when the social norms were different.  Social and physical intimidation were acceptable methods of enforcing religious obligations.  Now intimidation of that sort could potentially be criminal, leaving the religion without the normal methods of enforcing its beliefs.  That means either the religion has to change itself (have a Rabbi wave his hands and create the get) or the society has to provide the intimidation (court of law threatens monetary punishment).  Orthodox Judaism really, really, really doesn't like to change, and so it would much prefer to have an external force do its intimidation.

[Sheilbh]

All of this begs the question as to the husband's current beliefs in such things as a get, and his beliefs in his ability to issue one.  I don't see that it is any of the court's business.

I don't think so. If he's in a position to grant one is fact. I can't see how his beliefs are relevant.

[grumbler]

All of this begs the question as to the husband's current beliefs in such things as a get, and his beliefs in his ability to issue one.  I don't see that it is any of the court's business.

I don't think so. If he's in a position to grant one is fact. I can't see how his beliefs are relevant.

I don't know that this is true, so it isn't a "fact,' it is an assertion.  I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one.  All of those are based on some religious assertions, not on any factual basis.

maybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had.  I don't know this, and neither do you.  And, even more pertinently, neither does the court.  It isn't within their jurisdiction.

[Malthus]

All of this begs the question as to the husband's current beliefs in such things as a get, and his beliefs in his ability to issue one.  I don't see that it is any of the court's business.

I don't think so. If he's in a position to grant one is fact. I can't see how his beliefs are relevant.

I don't know that this is true, so it isn't a "fact,' it is an assertion.  I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one.  All of those are based on some religious assertions, not on any factual basis.

maybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had.  I don't know this, and neither do you.  And, even more pertinently, neither does the court.  It isn't within their jurisdiction.

If he can't, in fact, grant the "get", then the Ontario legislation would not be triggered, and the Court process could not be invoked.

The trigger is:

(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;

[Emphasis added]

If, as a matter of fact (and not mere assertion) the religious barrier wasn't "within his or her control", the mechanism in the legislation could not be invoked.

[Malthus]

I think the religious form was created when the social norms were different.  Social and physical intimidation were acceptable methods of enforcing religious obligations.  Now intimidation of that sort could potentially be criminal, leaving the religion without the normal methods of enforcing its beliefs.  That means either the religion has to change itself (have a Rabbi wave his hands and create the get) or the society has to provide the intimidation (court of law threatens monetary punishment).  Orthodox Judaism really, really, really doesn't like to change, and so it would much prefer to have an external force do its intimidation.

That's my read of the situation as well.

[Malthus]

Under the Ontario law, the court is complelely indifferent as to whether a religious obligation to provide a get exists or not. The legislation simply provides that, if a religious barrier to remarriage exists, and this barrier is under the control of a party (that is, the party can remove it or not at his or her discretion), the party must remove it in order to have a claim or defence heard by the court (in certain specified matters).

This is true whether there exists an obligation to remove it under that religion or not. The legislation - and the court - does not care. It is not telling the man (or anyone) what his or her religious obligations are. His or her civil obligations, in order to register a calim or defence on certain matters befor a divorce court, are to remove religious barriers to remarriage of the other party.

All of this begs the question as to the husband's current beliefs in such things as a get, and his beliefs in his ability to issue one.  I don't see that it is any of the court's business.

If there exists a religious bar to remarriage, then the religion's authorities should resolve it, not the courts.

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.

[Sheilbh]

I don't know that this is true, so it isn't a "fact,' it is an assertion.  I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one.  All of those are based on some religious assertions, not on any factual basis.

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? 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.

So it would matter here but not, say, for a Catholic because that's a different issue.

maybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had.  I don't know this, and neither do you.  And, even more pertinently, neither does the court.  It isn't within their jurisdiction.

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.

[garbon]

I don't know that this is true, so it isn't a "fact,' it is an assertion.  I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one.  All of those are based on some religious assertions, not on any factual basis.

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? 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.

So it would matter here but not, say, for a Catholic because that's a different issue.

maybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had.  I don't know this, and neither do you.  And, even more pertinently, neither does the court.  It isn't within their jurisdiction.

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 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?

[Malthus]

I don't know that this is true, so it isn't a "fact,' it is an assertion.  I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one.  All of those are based on some religious assertions, not on any factual basis.

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? 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.

So it would matter here but not, say, for a Catholic because that's a different issue.

maybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had.  I don't know this, and neither do you.  And, even more pertinently, neither does the court.  It isn't within their jurisdiction.

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.

I agree with this as well.

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.

As it is, on the assumption that the actual religious obligation is in fact to give the "get", that argument loses force - you won't get many religious Jews protesting against the law as impairing their freedoms.

[grumbler]

If he can't, in fact, grant the "get", then the Ontario legislation would not be triggered, and the Court process could not be invoked.

And, since whether or not a get even exists is a religious question, only the man can say whether or not he can, in fact, grant one.

The trigger is:

(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;

[Emphasis added]

If, as a matter of fact (and not mere assertion) the religious barrier wasn't "within his or her control", the mechanism in the legislation could not be invoked.

If, as a matter of fact, the man states that it is his religious belief the it isn't in his control, then the legislation could not be invoked.  That's why it is bad legislation; it depends upon interpretation of religious belief.

[crazy canuck]

I don't know that this is true, so it isn't a "fact,' it is an assertion.  I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one.  All of those are based on some religious assertions, not on any factual basis.

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? 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.

So it would matter here but not, say, for a Catholic because that's a different issue.

maybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had.  I don't know this, and neither do you.  And, even more pertinently, neither does the court.  It isn't within their jurisdiction.

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 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?

Courts routinely decide matters that are not within the "working knowledge" of a judge based on the evidence put before them by the parties.  That is what evidence is for.  In fact the circumstances in which a judge is allowed to make a decision based on their "working knowledge" is exremely limited.  We call it taking Judicial Notice and the matter has to be notoriously obvious before a judge can do so.

[grumbler]

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! 

[garbon]

I don't know that this is true, so it isn't a "fact,' it is an assertion.  I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one.  All of those are based on some religious assertions, not on any factual basis.

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? 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.

So it would matter here but not, say, for a Catholic because that's a different issue.

maybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had.  I don't know this, and neither do you.  And, even more pertinently, neither does the court.  It isn't within their jurisdiction.

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 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?

Courts routinely decide matters that are not within the "working knowledge" of a judge based on the evidence put before them by the parties.  That is what evidence is for.  In fact the circumstances in which a judge is allowed to make a decision based on their "working knowledge" is exremely limited.  We call it taking Judicial Notice and the matter has to be notoriously obvious before a judge can do so.

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.