|Jewish Marriage and Ontario Law
Gene C. Colman, Rabbi Joseph M. Posen
Jewish Marriage and Ontario Law
by Gene C. Colman and Rabbi Joseph M. Posen
A shorter version of this article originally appeared in the December 1991 issue of Perspectives (the Toronto newspaper of the Agudath Israel organization).
Virtually all Jewish weddings in Canada are performed in compliance with the secular law. This means that prior to the ceremony the parties obtain a license to marry. The rabbi completes the requisite certificate and sends the appropriate form to the provincial government authorities. The couple are legally married in the eyes of the government and are likewise legally married according to the "law of Moses and Israel." No conflict arises between the two systems.
However, what does one make of the situation where no civil license is obtained or where the officiant is not formally licensed by the provincial authorities to perform marriages? Assuming compliance with the formal halakhic (i.e. Jewish legal) requirements for contracting a valid marriage, the couple are certainly legally married within Jewish law. But is the marriage valid under Ontario law?
Undoubtedly, virtually all rabbis will insist that the couple obtain a license prior to the chupah (literally - "canopy" referring to the wedding canopy under which the Jewish marriage ceremony takes place). Indeed, under the Marriage Act of Ontario (other provinces have similar laws), there are certain requirements binding upon anyone who solemnizes marriages in the province:
If the person solemnizing the marriage fails to comply with these requirements, the Marriage Act provides that (s)he is guilty of an offence and upon conviction is liable to a maximum fine of $500.00.
One of the authors was once called upon to prepare a marriage contract for a couple who were to be married according to halakhah, but no civil license was to be obtained. Furthermore, the officiating rabbi was not licensed by the province to perform marriages. The couple presumably viewed themselves as legally married. But were they?
In Jewish law, marriage consists of two stages - kiddushin and nissu'in. These two separate ceremonies were originally held as much as a year apart (see Babylonian Talmud, Tractate Ketubbot 57a). It was only as late as the 12th century (in both Ashkenazi and Sephardi communities) that the two were customarily combined.
Kiddushin or sanctification can theoretically be accomplished by one of three methods:
The latter two methods were never favoured (and in fact, sexual intercourse as a means of implementing kiddushin was severely frowned upon). In practice, kiddushin uses a ring, as a form of money, which must be owned by the chatan (groom).
As with Ontario law, the halakhah requires the presence of two witnesses during the kiddushin ceremony; otherwise, no valid marriage has been enacted.
The chatan must express his intent that the money (ring) he is giving to his kallah (bride) is to effect a valid marriage, and that she is "consecrated" to him. The words commonly used are:
The nissu'in ceremony requirements are met by performing the marriage beneath a chupah (canopy) as well as affording the couple privacy, yichud, after the completion of the public portion of the ceremony. (Sexual intercourse does not take place during yichud; rather, the possibility of intimacy serves to cement the relationship.)
A key part of the Jewish marriage ceremony is the implementation, in the presence of witnesses, of the unilateral marriage document known as the ketubbah. The ketubbah is a written record of the obligations, financial and conjugal, which the husband undertakes towards his wife as a result of their marriage. These responsibilities are mere restatements of pre-existing obligations which the Torah imposed upon all Jewish husbands. Since this document is essentially a wife's charter of rights within a marriage, the Talmud states that it is forbidden for a man to live with his wife without a legally effective ketubbah.[For more information regarding the exact content and nature of the ketubbah, see Rabbi Aryeh Kaplan, Made in Heaven, (New York: Moznaim Publishing Corporation), 1983, Chapter 16.]
Jewish law will recognize a marriage which took place without the supervision of an officiating rabbi. (Certainly, due to the intricacies, both legal and otherwise, which the performance of a marriage entails, no marriage should be contracted except in the presence of a knowledgeable, ordained rabbi.) In contrast to this, the presence of two competent witnesses, as defined by the halakhah, is mandatory at both the kiddushin and nissu'in stages of the marriage ceremony. Therefore, even in a situation where both parties concede to having enacted a valid matrimonial ceremony, if they admit that no witnesses were present, the halakhah will not grant them the status of a married couple (see BT Kiddushin 65a; Maimonides "Ishut," 4:6; Karo, SA EH, 42:2).
Just as the halakhah requires two witnesses, so does the law of Ontario (and elsewhere in Canada) require two witnesses. The halakhah requires a formal ceremony; so does the Ontario law. The halakhah does not require a licensed individual to perform the ceremony; however, Ontario law does. The halakhah does not strictly require a license as such although the ketubbah, which is formalized just prior to the nissu'in, has become legal convention in Jewish law and tradition.
One can therefore appreciate that the formal requirements for solemnization of a Jewish marriage can be complied with in such a way that the strictures of the Ontario law (and indeed, the other provinces who have similar requirements) may not be met. Examples of this include situations where the parties do not obtain a license prior to the ceremony, the officiant is not licensed by the province or the marriage is not registered in the marriage register.
Despite the open challenge to the legality of marriages not solemnized in strict compliance with the formal requirements of statute, there is a strong current in Canadian law in favour of upholding the validity of such marriages. As early as 1845, the English common law stated, in one precedent [Catterall v. Sweetman, 1 Rob. Ecc. 304 at 320-321] still considered binding in Canada today:
The Canadian courts have considered the question of whether a marriage performed in violation of the statutory requirements is a valid and binding one. It seems that mere technical slips are often excused. The courts generally have looked at the intention of the parties. If they intended to comply with the secular law (but actually did not), the courts have generally found the marriage to be valid. Thus, in Alspector v. Alspector,  O.W.N. 390,  O.R. 454, 9 D.L.R. (2d) 679, the Ontario Court of Appeal found a valid marriage even though no license had been obtained and the chazan who had performed the ceremony was not authorized by the province of Ontario to perform marriages. The court concluded that the bride intended the marriage to be in compliance with Ontario law while the groom had been under the mistaken impression that a license was not required as his intention was to move to Israel shortly after the wedding.
A few years later, the Ontario Supreme Court reaffirmed that an attempt at marriage should be validated, notwithstanding non-compliance with the formal secular requirements, when both the bride and the groom had a good faith intention to comply with the marriage law of Ontario. In this case the groom had told his bride: "We are older people and local government recognizes a solely Jewish marriage." The bride relied on this innocent mistaken belief and the court was careful not to penalize her in these circumstances by declaring the marriage void.
The thornier question arises where both parties desire to express their personal commitment to each other and therefore go through a Jewish ceremony but intentionally refrain from obtaining a civil license. This situation actually arose in a 1983 Ontario Family Court case [Re Harris and Godkewitsch, 41 O.R. (2d) 779]. The bride, after separation, was claiming support as the "spouse" of the groom. The groom argued that they had never been married under Ontario law.
The judge noted in his published decision that here the bride consulted with a lawyer and two rabbis prior to going through the ceremony. She then chose to forego the formal Ontario requirements. Her counsel argued (unsuccessfully) that the details of the religious ceremony, Jewish law and tradition including the ketubbah, all constituted the necessary "good faith" required under the statute to validate an otherwise invalid marriage. The judge found that "good faith" within the meaning of the Ontario Marriage Act meant "good faith" in the sense of intention to comply with Ontario law.
Therefore, it is probably safe to conclude that where both parties intend to comply with Ontario law but actually do not, the marriage will still be valid (depending, of course, upon the exact nature of the defect). On the other hand, where one or both parties have no intention of complying with Ontario law, the similarities between the halakhah and Ontario law will not serve to validate the marriage. Naturally, the parties will still be married for purposes of Jewish law.
One should still be aware that even though a marriage may not be binding under Ontario law, there can still be legal ramifications arising from the relationship. Ontario's Family Law Act provides that where a man and a woman cohabit continuously for a period not less than three years, or alternatively cohabit in a relationship of some permanence (exact length not specified) if they are the natural or adoptive parents of a child, then they will be deemed to be spouses for the purpose of Part III of the Act. This part deals with support obligations between spouses upon marriage breakdown. The same extended definition for "spouse" is found in Ontario's Succession Law Reform Act - thus giving support rights against the estate of a deceased "spouse".
Ontario's Family Law Act governs the division of property and equalization of wealth upon marriage breakdown as well as certain special rights in regard to the matrimonial home. However, according to section 1 of the F.L.A., these parts of the Act only apply to those who are married to each other, or:
The Marriage Act also uses the words "in good faith" in the section that serves to validate otherwise "void" or "voidable" marriages. Under the Marriage Act, these words have been interpreted to imply the sense of intention to comply with Ontario law, and not, in the words of one judge, "in the non-legal sense of religious and moral commitments." It would be reasonable to assume that in the future, another court, where called upon to decide whether the parties were "spouses" for the purposes of the property and support provisions of the Family Law Act, might very well decide that the absence of an earlier intention by the claimant to comply with Ontario marriage law negated "good faith."
The key point to grasp here is that the performance of a Jewish marriage ceremony alone, without the benefit of a civil license and/or a properly authorized officiant, may result in denial of Family Law Act relief later (should the need unfortunately arise to rely on that statute). It may also have repercussions in the case of death of one or both parties, triggering disputes amongst competing heirs. This can be so as there are different rules that apply depending on whether the parties were "spouses" within Ontario law. A last will and testament cannot always solve all possible problems.
There are two very simple solutions available to the problems above described. All persons marrying should obtain a license prior to the chupah and they should make certain that the officiant is licensed by the province (although the performance of the ceremony by an inadvertently unlicensed individual where a valid license had been obtained would probably still be a valid marriage). Secondly (and this applies particularly in regard to second marriages where pre-existing legal and moral commitments are extant to other family members), the couple should enter into a marriage contract.
A marriage contract is recognized in Ontario law. Most (although not all) of the rights and obligations imposed by law can be varied by the parties to the contract. Spousal support and division of property can be freely addressed. In short, the parties can create their own regime to govern their obligations during cohabitation, upon separation and at death. The contract would still be equally binding as a Cohabitation Agreement even if the marriage were found to be void.
It would be ill advised not to comply with Ontario law to avoid coming within the Family Law Act or the Succession Law Reform Act as "spouses" when the same result can be achieved with much greater certainty by use of a marriage contract. Likewise, one should not avoid the civil law formal requirements upon the assumption that if the relationship does not work out, then only a "get" (Jewish bill of divorce) will be required and not the expense and time of a civil divorce. A civil divorce across Canada is now easy to obtain. It can be applied for on the day following separation; there is a short one year waiting period from the date of separation until the date upon which the court may grant the divorce, irrespective of who is 'at fault' for the separation. A personal court appearance is generally not required.
In conclusion, predictability, certainty, as well as delineation of rights and responsibilities during one's lifetime and afterwards can be achieved provided the bride and groom comply with the formal requirements of the secular law and sign a marriage contract.
Addendum by Gene C. Colman, 11 July 1999: The above article was written in 1991. Rabbi Posen and I wrote as follows:
Indeed, that "future" has now arrived and "another court" has decided the issue just as we predicted it would. The Ontario Court of Appeal has addressed the question of whether the start date under Ontarios Family Law Act was the date of the religious marriage ceremony (1987) or the date of the civil marriage ceremony (1994). See Debora v. Debora (1999), 43 R.F.L. (4th) 179 (Ont. C.A.). The defendant-husband acquired substantial assets between 1987 and 1994. He moved for summary judgment to dismiss the wifes claim for a declaration that the definition of a spouse within the meaning of Ontarios Family Law Act gave her the status to claim as such from and after the date of the religious marriage, April 3, 1987. If the start date of the marriage pursuant to the Family Law Act were 1994, then it would appear that on the facts of this case, the wife would receive either no equalization of net family property or a greatly reduced sum of money under the law of Ontario.
As noted in the above paper, mere technical slips in compliance with the Marriage Act will not serve to invalidate the marriage under Ontario law. The "good faith" required under Ontarios law, is the intention to marry within Ontario law. Where the couple actually know that they are not being married under Ontario law, then it cannot be said that the marriage is recognized for purposes of Ontario law. This was the case in Re Harris and Godkewitsch (1983), 41 O.R. (2d) 779 (Ont. Prov. Div.). We noted in the 1991 article as follows:
This is exactly what happened in Debora v. Debora (1999), 43 R.F.L. (4th) 179 (Ont. C.A.). The court adopted the reasoning in Re Harris and Godkewitsch. The court found that "marriage" within the Family Law Act means "marriage under the Marriage Act ". This, the court noted, "gives purpose to the definition of spouse consistent with the Family Law Act and does not introduce the myriad of uncertainties that would flow from a broader interpretation."
The Ontario Court of Appeal has ruled correctly. This case highlights the cautionary notes that Rabbi Posen and I issued in 1991. It is essential that people comply not only with their own religious laws but also with the laws of the land. If they find in the future that they desire the protection of the secular law, then no matter how similar the religious law may be to the secular law, key differences between the two systems may preclude some forms of legal remedy.
NOTE: For those interested in the interplay between Jewish Law and secular law, I would suggest having a look at a very interesting article found at the Touro College, Faculty of Law web site. The article is written by Chaim Povarsky and entitled "Intervention by Non-Jewish Courts in Jewish Divorces".
The following questions were submitted to Mr. Colman in connection with his article:
Q: 1. What happens in a "get" proceeding with respect to property disputes, that is, is the Beis Din obligated to follow the Family Law Act's provisions re division of property and equalization of wealth (based on dina d'malchusa dina, and/or minhag), or can it make its own independent decisions in those areas?
2. Is it true, depending upon the answer to that question, that "No conflict arises between the two systems" as you write in the first paragraph? [I recognize that you write that "Most (although not all) of the rights and obligations imposed by law can be varied by the parties to the contract." What happens if there is no such independent agreement between the couple - what does halacha say about the division of assets, and how would Canadian law deal with a psak of Beis Din in that regard?]
Mr. Colman replies:
A "get" proceeding is not a proceeding with respect to property issues. At least in our Beis Din in Toronto, the "get" proceeding is presided over by Rav Ochs and his panel. Special appointments are made to process these divorces, rachmana d'tzlan, and the "get" ceremony is completed in a dignified fashion. Matters of property and support are not adjudicated at this ceremony. If a couple chooses to have the Beis Din adjudicate on the issues arising from the breakdown of their marriage, then this is arranged through the registrar of our Beis Din. A different panel of rabbonim hears this case.
The Beis Din is not obligated to follow our Family Law Act, Divorce Act, or other legislation (with one exception as described in my Enforceability paper [to be published]). The law to be applied on the adjudication of the couple's case depends on how the shtar briurin (Arbitration Agreement) is drafted. The issue of the applicability of dina d'mulchusa dina and minhag hamakom is an issue that is not free from dispute amongst the rabbonim. Different rabbonim take different views as to the extent of these halachic doctrines. It is essential for the parties to the dispute to put their minds to this issue and to set out in the Arbitration Agreement the extent to which the civil law will apply. It is prudent, to say the least, to have the dayanim approve this Arbitration Agreement in advance. The substantive system of law must be chosen clearly so that everyone - litigants and dayanim alike - know what the ground rules will be. Of course, the main system will be Jewish law. The question is - to what extent will minhag hamakom apply.
When I wrote in my Perspectives paper that, "No conflict arises between the two systems", I was referring only to the issue of validity of the marriage itself. I was not addressing issues of property, support, custody of children, etc. Yes, there are repercussions when one believes he/she is married under Canadian law but it turns out that a valid marriage under halacha does not always translate into a recognized marriage under Canadian law. This was the case in the recent Ontario Court of Appeal case of Debora v. Debora (1999), 43 R.F.L. (4th) 179 (Ont. C.A.). Similarly, see the case of Re Harris and Godkewitsch (1983), 41 O.R. (2d) 779 (Ont. Prov. Div.), referred to in my Perspectives article.
You ask me what the halacha says when there is no Arbitration Agreement (or perhaps the couple sign a standard 'one-pager' that does not address the issues) and the couple come before Beis Din for their issues to be judged. I cannot advise what the halacha says about division of assets as I am not a rav and I am certainly not qualified to paskan with respect to halachic issues. However, you ask me how Canadian law views a p'sak of Beis Din. That question is at the core of my paper on Enforceability of Beis Din's judgment. There is one Canadian precedent only on this very point. I was counsel for the husband who sought to summarily enforce the p'sak of Beis Din. (Interestingly, the psak was from a New York Beis Din although the couple themselves were Canadian.) On a motion for summary judgment, the Canadian court upheld the psak of Beis Din. The court noted that there was an arbitration agreement and there was due process. Absent solid due process before the Rabbinical Court, the result would likely have been different. The case is W. v. W. (1991), 32 R.F.L. (3d) 110 (Ont. Gen. Div.).
Mr. Colman practices law in Toronto, Canada and may be reached via e-mail at email@example.com.
Rabbi Posen is Dean of Yeshivas Limudei Hashem, located in Toronto.
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