Legal responses to agunah

Legal responses to agunah are civil legal remedies against a spouse who refuses to cooperate in the process of granting or receiving a Jewish legal divorce or "get".

For a divorce to be effective under Jewish law, a man must grant his wife a Jewish divorce—a get—of his own free will. Sometimes a Jewish woman can be held in a so-called "limping marriage" when her husband refuses co-operation in the religious form of divorce. She may have received a civil divorce but cannot remarry within her religion, meaning that for all intents and purposes, she may not be able to remarry at all—a phenomenon known as agunah. Where one party has the power to grant or withhold a religious divorce, that power can be used as a bargaining tool to pressure the other party to agree more favourable divorce terms. A parallel problem—sometimes called "male agunah"—can arise when the wife refuses to respond to the husband's attempts to initiate the get process, such as refusing to appear before a rabbinical tribunal for the proceeding. Although the consequences are not as serious for the man, the result can still be a form of extortion to agree to agree to the other party's demands.

Since 1990 Canada's Divorce Act permits the Court hearing the divorce to strike out the application, pleadings and/or affidavit evidence of a party creating a barrier to the religious remarriage of their spouse.

In Bruker v. Marcovitz, the Supreme Court of Canada ruled that, in the Province of Quebec, a condition of a contract between two spouses that required the husband to give his wife a get was enforceable. The court overturned a decision from the Court of Appeal of Quebec which held that as the substance of the obligation was religious in nature, the obligation was a moral one and was therefore unenforceable by the courts. The Supreme Court's decision, written by Justice Rosalie Abella, restored the trial decision of Mass J., who had ordered a total of $47,500 in damages: $2,500 for each of the 15 years that the husband had refused to grant the get, and $10,000 for Ms. Bruker’s inability to have children considered “legitimate” under Jewish law.

In New York, a court cannot enter a judgment of annulment or divorce unless any barriers to religious remarriage by a spouse, the removal of which are within the control of the other spouse, have been removed. Section 253 of the Domestic Relations Law (the so-called "First New York Get Law") provides that, in a contested divorce, any applicant whose marriage was solemnised by a religious celebrant must file a statement that:

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