Religious Divorce Considerations in Alberta

Civil vs Religious Divorce

In Canada, divorce is a civil legal process governed by the federal Divorce Act. A civil divorce legally ends your marriage under Canadian law, allowing you to remarry civilly. However, for many people of faith, a civil divorce alone does not resolve their religious obligations or permit remarriage within their faith tradition.

Various religious traditions have their own requirements for ending a marriage religiously. These religious processes are separate from the civil divorce but can have significant implications for your life, particularly if you wish to remarry within your faith community, participate fully in religious life, or ensure your children's religious status.

Understanding the relationship between civil and religious divorce helps you navigate both systems effectively. In some cases, Canadian law provides mechanisms to address barriers to religious remarriage as part of the civil divorce process. Working with a lawyer who understands these intersections can help protect both your legal and religious interests.

Jewish Divorce (Get)

In Jewish religious law (Halacha), a civil divorce does not end a religious marriage. A separate document called a Get must be given by the husband to the wife to dissolve the marriage religiously. Without a Get, both parties remain married under Jewish law, with significant consequences.

Why a Get Matters

• Remarriage: Without a Get, neither party can remarry under Jewish law. A woman who remarries civilly without a Get is considered an adulteress, and children from such a union would have the status of mamzerim (illegitimate under Jewish law), affecting their religious rights.
• Community standing: Remaining married under Jewish law while civilly divorced can affect participation in religious life and community relationships.
• Future relationships: Even those who are not observant may want a Get to preserve options for themselves or their future children.

The Get Process

The Get process requires both parties to participate:

• The husband must authorize the Get (though a scribe writes it)
• The wife must accept the Get
• The process is conducted before a Beth Din (rabbinical court)
• A sofer (scribe) writes the Get according to precise requirements
• Witnesses must be present
• The Get document is then cut so it cannot be reused

Get Refusal (Agunah Problem)

A serious issue arises when one spouse (typically the husband) refuses to grant or accept a Get. A woman whose husband refuses to give her a Get is called an agunah (literally "chained"). She remains married under Jewish law and cannot remarry, regardless of any civil divorce.

This problem is taken seriously by both religious and civil authorities, and Canadian law provides tools to address it.

Canadian Law and the Get

Section 21.1 of the Divorce Act addresses barriers to religious remarriage. If one spouse requests the court's help, and the other spouse has the power to remove a barrier to religious remarriage but refuses, the court can:

• Dismiss or strike the non-complying party's pleadings
• Refuse to consider their evidence
• Award costs against them
• In extreme cases, refuse to grant the divorce until the barrier is removed

This provision gives courts meaningful leverage to encourage cooperation with religious divorce requirements.

Islamic Divorce

Islamic law (Sharia) recognizes several forms of divorce, and the religious status of a marriage may be important for Muslims even after civil divorce. Understanding Islamic divorce options helps Muslim couples navigate their obligations.

Types of Islamic Divorce

• Talaq: Divorce initiated by the husband. The husband pronounces divorce, and after a waiting period (iddah), the divorce becomes final. Different schools of Islamic law have varying requirements for valid talaq.
• Khula: Divorce initiated by the wife. The wife requests divorce, typically returning the mahr (dower) to the husband. This requires the husband's agreement.
• Faskh: Annulment granted by an Islamic authority for specific reasons (cruelty, failure to provide, etc.).
• Mubara'at: Mutual consent divorce where both parties agree to end the marriage.

The Mahr (Dower)

The mahr is a gift or payment from husband to wife, specified in the Islamic marriage contract. It can be paid at marriage (mahr mu'ajjal) or deferred until divorce or death (mahr mu'akhkhar). The unpaid mahr is an important consideration in both religious and civil divorce proceedings.

Canadian courts have generally enforced mahr obligations as contractual agreements, though outcomes vary. Factors considered include:

• Whether the mahr agreement meets requirements for a valid contract
• Whether both parties understood and freely agreed to the terms
• Whether the mahr is unconscionable in amount
• How the mahr interacts with other property division and support obligations

The Iddah Period

Islamic law requires a waiting period (iddah) after divorce before a woman can remarry. This period is typically three menstrual cycles (or three months if postmenopausal) or until delivery if pregnant. The iddah has religious significance and may be important for Muslim women planning remarriage.

Obtaining an Islamic Divorce in Edmonton

Islamic divorce can be conducted through:

• Local imams or Islamic scholars who can facilitate the process
• Islamic community organizations with family services
• Islamic arbitration services (for mubara'at or khula)

The Islamic divorce process is separate from civil divorce, and both may be necessary to address all religious and legal obligations.

Catholic Annulment

The Catholic Church does not recognize divorce. In Catholic teaching, a valid marriage is permanent and indissoluble. However, the Church may grant an annulment, which is a declaration that a valid marriage never existed in the first place due to some defect at the time of the wedding.

Grounds for Catholic Annulment

Annulment is not a Catholic divorce; it is a finding that the marriage was never valid. Grounds include:

• Lack of capacity: One party was unable to consent due to mental incapacity, immaturity, or serious psychological disorder
• Lack of proper consent: Consent was given under duress, fraud, or serious error about the nature of marriage
• Exclusion of essential elements: One party excluded permanence (intended divorce from the start), fidelity, or children from their understanding of the marriage
• Defect of form: The marriage was not celebrated according to Catholic requirements
• Impediments: An existing valid marriage, close blood relationship, sacred orders, or other canonical impediments existed

The Annulment Process

Catholic annulment is a formal tribunal process:

1. Petition is filed with the diocesan tribunal
2. Initial interview and evidence gathering
3. The other spouse is notified and may respond
4. Witnesses may be interviewed
5. The tribunal reviews evidence and makes a decision
6. The decision may be appealed

The process typically takes 12-18 months and involves fees (though these may be waived or reduced for financial hardship).

Civil Divorce and Catholic Annulment

A civil divorce is typically required before seeking a Catholic annulment. The annulment does not undo the civil effects of the marriage (property division, support obligations, children's legitimacy). It only affects religious status, allowing the annulled Catholic to marry in the Church.

Other Religious Traditions

Hindu Divorce

Traditional Hindu marriages are considered sacraments, and divorce was historically not recognized. Modern Hindu law in India allows divorce, and many Hindu communities in Canada accept civil divorce as sufficient. However, some families may still prefer religious ceremonies to mark the end of a marriage or before remarriage.

Sikh Divorce

Sikh religious law does not provide a formal religious divorce procedure. The Anand Karaj (Sikh marriage ceremony) creates a spiritual bond, but civil divorce is generally accepted by the Sikh community. The Akal Takht (highest Sikh temporal authority) has issued guidance accepting civil divorce as valid.

Buddhist Divorce

Buddhism generally does not have formal marriage or divorce rituals, viewing marriage as a secular matter. Civil divorce is typically sufficient for Buddhist communities.

Eastern Orthodox Churches

Eastern Orthodox Churches permit divorce under certain circumstances, recognizing that marriages can die. Divorce and permission to remarry in the church require approval from the bishop. Unlike Catholic annulment, Orthodox divorce acknowledges that a valid marriage existed but has ended.

Practical Considerations

Timing Civil and Religious Divorce

Consider when to pursue religious divorce relative to civil proceedings:

• Some religious processes (like Jewish Get) can be completed before civil divorce
• Catholic annulment typically requires civil divorce first
• Address religious divorce requirements in separation agreements when possible
• Consider religious timeline requirements (like Islamic iddah) in planning

Including Religious Provisions in Agreements

Your separation agreement or divorce order can include provisions about religious divorce:

• Agreement to cooperate in obtaining religious divorce
• Timeline for completing religious divorce procedures
• Allocation of costs (Beth Din fees, tribunal fees, etc.)
• Consequences for failure to cooperate

Children and Religious Divorce

Religious divorce status can affect children:

• Children's religious status may depend on parents' marital status under religious law
• Ability to participate in religious rituals may be affected
• Future religious marriage options may be impacted
• Parenting plans should consider religious observance and education

Frequently Asked Questions

Related Resources

• Alberta Divorce Guide
• Family Law for Newcomers
• Separation Agreement Guide
• Filing for Divorce in Alberta
• Cross-Border Custody Issues