Under the Canadian Family Laws, the courts grant civil divorce pursuant to the Divorce Act. But some people need religious divorce under their faith. For example, a Muslim married spouse needs a religious divorce as per the injunctions of Islam. Similarly, a husband or spouse from the Jewish faith requires to grant his wife a “Get”. As per Jewish law, if the wife refuses to receive a “Get” or if the husband denies granting a “Get”, neither party can remarry.
Section 21.1(2) – 211.1(6) of the Divorce Act provides a mechanism where the courts have limited authority to remove the religious barrier. The court has the authority to dismiss the refusing spouse’s application and to strike out any other pleadings and affidavits filed by that spouse. In this way, such a spouse loses the right to seek judgments regarding his/her family law claims made in his/her pleadings.
However, the provisions of the Divorce Act do not apply where the power to remove the barrier to religious remarriage lies with a religious body or official.
Divorce Under Shariah Laws
I would discuss here the topic of divorce under Shariah laws in some detail. Many clients from the Muslim Community ask me this question, so I thought I should write something for general information.
Under Shariah Law, there are two types of religious divorce: divorce initiated by the husband is called Talaq, and divorce initiated by the wife is called Khula. Religious divorce, irrespective of its form, needs the recitation and consent of the husband.
The decision to initiate the divorce has some consequences for both husband and wife. For instance, the spouse who initiates the divorce will pay or lose “Mahr”. Since I have discussed Mahr in a separate article in detail, I will be precise here about the Mahr issue. It is evident from some family law proceedings in Canada that both spouses are reluctant to initiate a religious divorce. The main reason for such reluctance is that initiating the spouse’s right to Mahr may be prejudiced by such initiation. For instance, if the husband initiates Talaq, he needs to pay Mahr to his wife. If the wife initiates Khula, she loses the right to Mahr.
Validity of Religious Divorce
I have seen some clients come into my office with a religious divorce obtained from a religious authority or body. I always advise them that a religious divorce does not mean that you are divorced under the laws of Canada. Under the Divorce Act, you have to make an Application in the court to seek a divorce order.
Religious divorce becomes complicated when it intersects with civil divorce. Therefore, it is very important that you pursue your civil and religious divorce, in conformity with Canadian Laws. If you need help with your divorce matter, you may contact IQBAL LAW as we are well conversant with civil law divorce and religious divorce.