The Volokh Conspiracy

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Canadian court rejects term of religious marriage contract


An interesting opinion, from a judge of the British Columbia trial court in [Robert] Zalik v. [Marsha] Zalik (B.C. Dec. 31, 2014):

Mr. Zalik seeks damages for breach of a Jewish marriage contract, or Ketubah. The only breach alleged is [the wife's] failure to maintain a lifetime marriage.

I believe the law was correctly summarized by Smith, J. in Stav v. Stav, 2014 BCSC 188 where he said at para. 32:

It would, first, be contrary to the policy of the Divorce Act and the decided cases that the Court will not enforce religious obligations unless those obligations are shown to be consistent with and incorporated into the parties' legal rights and obligations.

If the Ketubah contains a religious obligation to maintain a lifetime marriage that is manifestly inconsistent with the parties' legal rights and obligations under the Divorce Act, R.S.C., 1985, c.3 and cases decided thereunder. I am obliged to dismiss this claim.

As I've noted before, this has long been a check on religious contracts, just as it is in secular contracts: When the legal system concludes some public policy is important enough to trump freedom of contract, it will disregard contrary contractual provisions. That's true in the U.S., and it's true in Canada, too. So if we're worried that some provisions in religiously motivated contracts may be unduly oppressive on one of the parties, or otherwise improper, the solution is to make sure that those provisions are seen as unenforceable—not to reject enforcement of religiously motivated contracts. (Likewise, generally applicable rules of contract law might conclude that certain promises aren't even binding contracts at all, for instance if the parties did not expect them to be enforced in the secular legal system; but that argument wasn't discussed here.)

Oh, and Mr. Zalik also doesn't get "custody of the dog, $120 per month support for the dog's care, and assessment by a qualified psychologist that Ms. Zalik is able to care for the dog (if she contests custody of the dog)," or damages for "alienation from … the dog." The dog, the court holds, was Ms. Zalik's property before marriage, and stays her property. And Mr. Zalik loses on his other claims, too, including the claim for damages from "Ms. Zalik throwing a slipper at him."

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

UPDATE: I realize the post was a bit misleading in one respect: The B.C. Supreme Court is what B.C. calls its trial court (just like in New York state), not its highest appellate court (as in most U.S. states). To avoid confusion, I've changed the "Supreme Court" references to instead say "trial court."