‘Religion is something we pick and choose the things we're comfortable with. […] If I like this about conservative and this… It's like, you know, picking from a Chinese menu, you know? Right, I'm making a combo; I want A from this column and C from that column!’ (Religious participant)
In Canada, the use of religious arbitration recently sparked public outcries and gave rise to an ongoing discussion on the limits of multiculturalism. Proposed solutions to this phenomenon have varied from a complete banFootnote 1 to a form of state-supervised legal pluralism.Footnote 2 Despite the varied political positions presented along the spectrum, both supporters and critics of the use of religious law in family law matters tend to adopt a dichotomous view of the relationship between religious law and secular law. Those who perceive religious law as a form of oppression towards women envision the secular law as capable of ensuring gender equality and propose to emphasise a more meaningful accessibility to civil courts for minority women.Footnote 3 On the other hand, those who advocate the legitimacy of religious law claim that men and women use the religious narrative as a form of identity and that this private and parallel sphere of normative expression should be respected as such in a multicultural state.Footnote 4 Unfortunately, these positions fail to consider how religious men and women in Canada actually put forth religious claims inside and outside the courtroom and participate or resist in subversive ways to conventional disciplinary mechanisms.
In this article, based on my socio-legal fieldwork in Toronto, Ottawa and Montreal, I argue that the religious and secular spheres are not experienced by Jewish/Muslim women as two mutually exclusive domains but rather as one highly complex battlefield which distributes differentiated costs and benefits. In fact, the family is often conceived and understood as a market in which shadow husbands and wives negotiate, in different aspects of their individual and collective life, their poverty or wealth, their national affiliations, their sexual freedom or submission, their marital conditions and their relation to God. Borrowing from the language of law and economics, this article attempts to shed light on the following questions: Are the interests of the different stakeholders in Canadian religious communities, such as rabbis/imams, Jewish/Muslim men, judges, family/community members and Jewish/Muslim women, overlapping, and if so, in what regulatory ways? How do differentially situated Jewish and Muslim women engage, within institutions and as individuals, in day-to-day bargains with their husbands to obtain a religious divorce which is at first refused to them? Are men and women strategically ‘flirting with God’Footnote 5 in such a way as to get the optimal economic outcome from both the secular and religious courts? How is this informal and fluid process operating?
I explore this intellectual endeavour in three main sections. Section I presents the methodology and theoretical framework employed in this article. Section II describes the concepts of marriage and divorce within the Jewish and Islamic traditions, portraying husbands and wives as agents whose relationship is shaped by contractual rights and duties. Section III paints a juxtaposition of the ‘law in books’ and the ‘law in action’ by offering a series of narrative descriptions based on interviews conducted with ten Jewish and Muslim women in Canada. It outlines the unexpected and complicated ways in which Jewish and Muslim women who live on the religious margins perform their agency, identity and gender according to distributive motives which are often ignored by institutional authorities. Finally, section III identifies the costs and benefits of both the religious and secular spheres as experienced by religious women and highlights the background legal rules and social norms that help produce, formally and informally, different bargaining endowments.
I. Methodology and theoretical background
This socio-legal study is based on my fieldwork within religious communities in Canada over the summer and fall of 2009. It included visits to mosques and synagogues, discussions with practising and non-practising men and women, rabbis, imams and other religious experts, as well as ten formal interviews with Jewish and Muslim women which were conducted in Toronto, Montreal and Ottawa.Footnote 6 The women were chosen from a variety of denominations (e.g. Traditionalist and Liberal Islam; Orthodox and Conservative Judaism) and socio-economic backgrounds. They had all been marriedFootnote 7 and were civilly divorced, religiously divorced, or both. The interviews lasted about two hours and incorporated demographic, religious, secular and community profiles.Footnote 8 They were held in women's homes, at their workplaces, in closed offices or at a café. Recruitment was done indirectly, as per the advice of the ethics committee, through community groups, women's organisations and religious leaders.Footnote 9
The article applies a ‘left law and economics’ methodologyFootnote 10 to approach religious subjects through a ‘story-telling’Footnote 11 narrative. Religious law has long remained the ultimate outsider of market considerations and, as a result, is rarely accounted for in economic analysis literature.Footnote 12 In neoclassical welfare economics, consumers are portrayed as rational actors whose aim is to maximise ‘utility’ when they make choices.Footnote 13 The law and economics methodology,Footnote 14 which has been applied mostly to public-related issues,Footnote 15 predicts individual behavioural responses to current or proposed legislation and policies based on the assumption that human beings are motivated by rational self-interest. Law and economics scholars have also included in their scientific gaze private-related domains such as contract lawFootnote 16 and tort law,Footnote 17 but less so family law,Footnote 18 which is perceived as emotional and situated outside the market. This sharp distinction between the family and the market has been challenged by several scholarsFootnote 19 for its refusal to see the first as a pivotal productive entity, one which is an ‘important economic actor in the national and global economy’ (Halley, Reference Halley2011, p. 83). Reconnecting the family within the market allows us not only to view its role as ‘a crucial site of social-welfare provision’ (p. 84), but also to perform a distributive analysis of how husbands and wives negotiate economic resources, desires and day-to-day decisions in all kinds of fair and unfair ways.
Despite its flaws,Footnote 20 the ‘left law and economics’ methodology remains a powerful tool to understand how family members behave upon the dissolution of marriage.Footnote 21 In the context of this article, it helps develop a useful framework to appreciate how religious women act in a self-interested manner upon divorce and to identify the kind of power they deploy in utility-maximising ways when navigating the religious/secular divide. Admittedly, my hope is to be attentive, through the stories of women, to the multiplicity of mechanisms through which religious divorce is filtered as a distributive practice. Reconstructing the field in this way makes it possible to conceive individuals – men and women, husbands and wives, fathers and mothers – as making choices based on preferences and the likelihood that benefits will be more profitable than the costs incurred at any given moment of their marital relationship. This is not to suggest, of course, that agency is ‘free’; it is always-already constrained by external and internal forces pulling in diverse directions. Rather, in an implicit and subversive way, my goal is to show that the family/market binary should be criticised and perhaps abandoned, especially in the religious context where other misleading binaries permeate the discourse (private/public; religious/secular; spiritual/civil).
II. Jewish and Muslim marriage/divorce in contractual terms
When Jews and Muslims marry in Canada, their ceremony often includes both a religious and civil element. Under both traditions, husbands and wives have distinct rights and responsibilities within the marriage and access to religious divorce is drawn sharply along gender lines.Footnote 22 This section presents the institutions of Jewish/Muslim marriage and divorce as articulated in contractual terms, emphasising the elements of agency, bindingness and legitimacy of the adjudicator. By employing terms traditionally reserved for a contractual framework to illustrate the convergences and divergences between Jewish and Muslim traditions, I envision and present the religious family as a distributive legal space.
A. Marriage in Judaism and Islam: a set of contractual rights
Under Islamic family law, marriage establishes a reciprocity system in which each party is assigned a set of contractual rights and duties towards the other party.Footnote 23 An Islamic marriage contract can only be concluded through the principles of offer (ijab) and acceptance (qabul) by the two principals or their proxies (Nasir, Reference Nasir2002, p. 45). Upon marriage, the husband acquires the right to his wife's obedience (Wani, Reference Wani1995, p. 49; Maghniyyah, Reference Maghniyyah1995, p. 359) and the right to restrict her movements outside the matrimonial home (Nasir, Reference Nasir2002, p. 80). The wife acquires the right to her Mahr Footnote 24 and the right to maintenance (Esposito and DeLong-Bas, Reference Esposito and Delong-Bas2001, p. 25; Wani, Reference Wani1995, p. 195).
Like Muslim marriage, Jewish marriage is finalised according to contractual principles. The parties execute a marriage contract (a ketubah, pl: ketubot), often written in Aramaic,Footnote 25 which lists the duties of each spouse. Unlike the Muslim marriage contract, which is negotiated between the parties and is therefore unique to them and their relationship, the ketubah is fairly standard.Footnote 26 Based on the Torah's articulation of a husband's duties towards his wife, this contract includes requirements for adequate food, clothing, shelter and regular intercourse, as well as the sum of a payment for the wife in the event of death or divorce (traditionally, the sum necessary for the woman to support herself for one year) (Epstein, Reference Epstein2005, p. 163).
B. Divorce in Judaism and Islam: agency, bindingness and legitimacy of the adjudicator
Observations about the vulnerability of women within traditional family law systems are not new. Scholars have noted that women ‘face greater restrictions on their rights to marry, their rights to pass on their nationality or membership to their children, their options and access to divorce, their financial circumstances and their opportunities to be awarded custody’ (Estin, Reference Estin2004, p. 600). In this section, I articulate divorce claims in terms of agency, bindingness and legitimacy of the adjudicator, so as to conceive later the interaction between religious and secular law in an overlapping and intersectional space. I borrow a contractual language to grasp women's agency and give centrality to the consent they give and the bindingness of the agreements they conclude when they are ‘bargaining with patriarchy’.Footnote 27 In so doing, my aim is to move away from religious ‘gendered images’ or ‘symbolic roles’ (Shachar, Reference Shachar2008, p. 591) and closer to an image of women entering conflicting and multiple worlds of negotiation.
1. Agency
Agency, as determined by the governing legal structure at the time of divorce, points to which party can initiate the divorce proceeding under what circumstances. In a way, divorce becomes an instrumentalisation of agency: it determines the roles and (im)balances of each party while admitting the co-existence of each actor's moral agency. Parties' strategic behaviour can also be understood within the context of agency, insofar as such framework demonstrates the immediate relationship between the spouses, but also the latter's extended relationship with the religious community at large.
a. Agency in Muslim divorce
Islamic legal institutions such as Talaq divorce, Khul divorce and Faskh divorce determine the degree to which each party may or may not initiate divorce and the different costs associated with such transaction. According to classical Islamic family law, women have the agency to use the Khul or Faskh divorce, but may not use the Talaq divorce. The Khul divorce is introduced judicially by the woman, however with the understanding that such route will dissolve the husband's duty to pay the deferred Mahr (El Alami and Hinchcliffe, Reference El Alami and Hinchcliffe1996, pp. 27–28; Abdal-Rahim, Reference Abdal-Rahim and Sonbol1996, p. 105). The Faskh divorce is a fault-based divorce initiated by the wife before the Islamic tribunal, and it is by nature limited to specific grounds.Footnote 28 In the case of termination of marriage by Faskh divorce, unlike in the case of Khul divorce, the wife is entitled to Mahr (El Alami and Hinchcliffe, Reference El Alami and Hinchcliffe1996, p. 29). Finally, the Talaq divorce (repudiation) is a unilateral act which dissolves the marriage contract through the declaration of the husband only. The law recognises the power of the husband to divorce his wife by saying ‘Talaq’ three times without any need for him to ask for the enforcement of his declaration by the court (p. 22). However, what comes with this unlimited ‘freedom’ of the husband to divorce at will in the private sphere is the (costly) obligation to pay Mahr in full as soon as the third Talaq has been pronounced (Fyzee, Reference Fyzee1974, p. 133).
b. Agency in Jewish divorce
Unlike Muslim women who may initiate divorce through Khul or Faskh, Jewish women are not in a position to divorce their husbands religiously. In order to be ‘halachically’Footnote 29 correct, a Jewish marriage may only end in the death of a spouse or the voluntary granting of a divorce (Get) by the husband (Haut, Reference Haut1983, p. 18) and its simultaneous acceptance by the wife (Blecher-Prigat and Shmueli, Reference Blecher-Prigat and Shmueli2009, p. 281; Carmit Yefet, Reference Carmit Yefet2009, pp. 443–44). The husband thus has the exclusive power to deliver the Get,Footnote 30 which comes in the form of a surprisingly brief written document written mostly in Aramaic.Footnote 31 The most important passage of this document essentially states that the woman is now free to marry any man and, in so doing, she will not be guilty of committing adultery. If a Jewish woman is entitled to a Get and has not received one due to her husband's refusal, she is referred to as an Agunah (pl. Agunot);Footnote 32 literally, a ‘chained’ or ‘anchored’ woman. Several limitations are placed on a divorced Jewish woman who wishes to re-marry religiously without a Get. First, if she marries a man civilly, the relationship is considered adulterous under Jewish law. Therefore, the woman is never permitted to marry that man religiously (Cohn, Reference Cohn2004, p. 66). Second, any children born to a woman who has not received a Get are labelled mamzer (pl. mamzerim). Such children are sometimes ‘effectively excluded from organized Judaism’ (Nichols, Reference Nichols2007, p. 155), as they are illegitimate and may never marry anyone but another mamzer. Although a wife can in theory refuse a Get issued by her husband, in practice the consequences for the man are neither as serious nor as far-reaching as they are for an Agunah. As put by Nichols, ‘A man who marries without a Jewish divorce has not committed adultery, but has only violated a rabbinic decree mandating monogamy; he is nonetheless considered married to his second wife, and his children are legitimate’ (p. 155).
2. Bindingness
Bindingness highlights the conditions under which a contractual agreement becomes compulsory. In the case of Muslim and Jewish divorce, bindingness depends on the unilateral will of the husband and thus highlights the potential for gendered power imbalances. Bindingness can therefore design an outcome that is not necessarily shared by but applicable to both concerned parties. Such bindingness brings about not only the legal dissolution of marriage but also, and often most importantly, a modified social status in the broader community. That being said, the bargaining parties complicate this narrative of unilateral bindingness in many ways, some of which this section outlines.
a. Bindingness in Muslim divorce
If a man repudiates his wife by issuing three ‘Talaq’, the divorce is binding despite lack of consent on the part of the wife. The apparent potential for extortion of the Talaq divorce has long been recognised in the literature on Islamic divorce.Footnote 33 However, the formally unequal rule of Talaq play out differently in practice depending on the amount attached to Mahr in the marriage contract. Mahr is conceived by Islamic jurists as a powerful limitation on the possibly capricious exercise of the Talaq as well as a form of compensation to the wife once the marriage has been dissolved (Schacht, Reference Schacht1982, p. 167; Coulson, Reference Coulson1964, pp. 207–208; Tucker, Reference Tucker1985, p. 54). Indeed, if Mahr is very high, chances are the husband will hesitate before repudiating his wife. Indeed, as put by Hoodfar, ‘the larger the sum of the mahr, the more effective the wife's leverage’ (Reference Hoodfar and Homa1996, p. 131). In most cases, this constitutes a source of security for wives who do not want to divorce. However, for those who do want a divorce,Footnote 34 high Mahr can be disconcerting: it may only be at the price of behaving in a disgraceful manner that the woman can obtain a Talaq from her husband.Footnote 35 In addition to Mahr, the Qur'anic innovation of the idda also modulate the bindingness of Talaq divorce. This three-month waiting period after the man's pronouncement of the first Talaq gives him time to reconsider his actions, withdraw the pronouncement of divorce and potentially reconcile (Wani, Reference Wani1995, p. 195). However, during this time, the husband is obliged to provide financially for the woman (Nasir, Reference Nasir2002, p. 142). If the woman does prove to be pregnant, the support obligation will be extended until the birth of the child (Schacht, Reference Schacht and Bearman2000, pp. 151–53). The husband could, even against his wife's will, take her back during the waiting period. It is also theoretically open to the husband to take his wife back at the end of the idda period only to divorce her again, leaving her in ‘divorce limbo’ (Schacht, Reference Schacht and Bearman2000, p. 151). The Qur'an (4:24) recognises this possibility and specifically prohibits it, supplying the wife with an offsetting religious claim. Indeed, to conform to Qur'anic requirements, reconciliation must be genuine and not entered into for the purpose of influencing the woman to give up Mahr (p. 152).
Thus, upon closer investigation, the bindingness of the Talaq divorce is revealed as highly contingent upon other religious institutions such as Mahr and idda, which interlock with the Talaq in complex, contradictory ways. These various religious doctrines can be manipulated by bargaining spouses to affect the bindingness of the Talaq and the outcome of the divorce proceedings in such a way as to maximise benefits and minimise costs.
b. Bindingness in Jewish divorce
If a Jewish man refuses to grant the Get, the wife is left with very little religious recourse.Footnote 36 Hence, the opportunity for ‘strategic behavior’ (Estin, Reference Estin2009, p. 464) in civil divorce proceedings is remarkable, making the Get an ideal tool for blackmail.Footnote 37 Lisa Fishbayn writes that ‘the power men enjoy under Jewish law to withhold a Get is of concern to civil law because this power becomes an effective bargaining endowment in the resolution of civil family law disputes’ (2008, p. 85). In its seminal Bruker v. Marcovitz decision,Footnote 38 the Supreme Court of Canada similarly suggested ‘For example, the spouse could say, “Give up your claim for support or custody of the children and I will offer the Get.”’Footnote 39 In 1987, Canadian Jewish family law attorney John Syrtash completed a study for B'nai Brith Canada and analysed 311 cases of conflict surrounding the Get: he found that ‘Of the 311 cases, 26 were delayed due to child custody and access disputes, 148 due to the Get being used for spite and vengeance, 86 due to maintenance and property disputes, and 51 due to a combination of all three elements’ (Reference Syrtash1992, p. 121). The Get thus appears as a formidable unilateral blackmailing tool.
That being said, the Jewish Agunah has been provided with some countervailing bargaining instruments. If Jewish women cannot grant the Get of their own initiative,Footnote 40 they may refuse their husbands' Get, which will prevent rabbinical authorities from dissolving the marriage contract. Jewish women may refuse consent to the Get for reasons related to the best interests of their children, to extract further concessions from the husband or for pecuniary incentives.Footnote 41 In practice, however, this bargaining chip is severely limited by the fact that the Jewish husband can marry a second wife in the absence of a Get.Footnote 42 Much more potent is the bargaining power provided by s.21.1 of the Divorce Act. Footnote 43 With the introduction of Bill C-61 in 1990, the Divorce Act was specifically modified to address the problem of the Agunah and provide courts with a discretionary power to prevent a husband from obtaining civil relief under the Divorce Act if he refuses ‘to remove a barrier to religious remarriage’.Footnote 44 The Minister of Justice of the time, Doug Lewis, thus justified the amendments:
‘A spouse should not be able to refuse to participate in a Jewish religious divorce – called a get – in order to obtain concessions in a civil divorce. […] I am concerned about protecting the integrity of the Divorce Act and preventing persons from avoiding the application of the principles contained in the act. For example, a wife may feel compelled to agree to custody arrangements which are not truly in the best interests of a couple's child in order to obtain a get. […] The government is moving where it can and where it is brought to the government's attention to eliminate sexism and gender bias in the law.’Footnote 45
Thus, the law surrounding Jewish divorce is revealed as replete with strategic avenues for spouses to explore. Its bindingness, just like that of Islamic law, is permeated and conditioned by the plural bargaining options parties are differentially endowed with.
3. Legitimacy of the adjudicator: the Islamic Qadi and the Jewish Beth Din
In Jewish and Islamic law, both elements of agency and bindingness may be played out in the presence of an adjudicator. This section illustrates how the voluntary will of the parties and the backdrop for the negotiation of divorce proceedings are legitimised by the structural nature of religious law. It outlines the ways in which sites of adjudication fuel and complicate husbands' and wives' bargaining power.
a. The Islamic Qadi
Under classical Islamic law, the Islamic court (Qadi) usually does not arbitrate Talaq divorcesFootnote 46 but often adjudicates Khul divorcesFootnote 47 and Faskh divorces. In the latter instance, ‘a wife who is unhappy in her marriage and who wishes to obtain a dissolution must petition the court but only in so far as she can demonstrate to the court (qadi) that the limited grounds under which divorce can be granted have been met’ (El Alami and Hinchcliffe, Reference El Alami and Hinchcliffe1996, p. 29).Footnote 48 However, in the absence of Islamic courts in Canada, imams act as judicial authorities in religious family law matters (Boyd, Reference Boyd2004). Julie Macfarlane, one of the few scholars conducting actual empirical research on Muslim practices in North America, has found that imams often assume roles that go beyond those assigned by classical Islamic law to Qadis. Some act as informal mediators, while others align with the civil sphere and hold that an Islamic divorce is automatically granted upon civil divorce (Macfarlane, forthcoming Reference Macfarlane, Korteweg and Selby2012). Thus, the informal practices of Islamic adjudication in Canada produce myriad bargains and outcomes, shaping agency and bindingness in ways that require empirical assessment, diverging as they do from the classical Islamic law model.
b. The Jewish Beth Din
Unlike the heterogeneous venues and audiences of Islamic religious divorce, the act of Jewish religious divorce is systematically overseen by one party: a Beth Din (pl. Battei Din). This tribunal of three Jewish judges (Dayanim), who are usually male rabbis,Footnote 49 functions according to formalities born of centuries of religious tradition. Although the Beth Din oversees the process, it does not execute the divorce. This is undertaken by the parties themselves, and more specifically by the man: ‘[n]o one – not the government, not the courts, not even a rabbi – is authorized to divorce a couple except for the husband’ (Carmit Yefet, Reference Carmit Yefet2009, pp. 442–43). Therefore, the power of the Beth Din lies in its persuasive authority rather than its ability to mandate results, especially in Diaspora countries where an order of the Beth Din will not necessarily be respected or enforced.Footnote 50
That being said, some Battei Din do implement measures to pressure the husband into giving the Get. For instance, a Beth Din can decree a cherem, an order on the community to marginalise the recalcitrant husband (Fishbayn, Reference Fishbayn2008, p. 83). A wife can also apply for a siruv (sometimes spelled seruv), a contempt citation ordered against a person who refuses to appear before a Beth Din to which he or she is summoned (Wolf, Reference Wolf2009, p. 1191; Guthartz, Reference Guthartz2004, p. 48). The siruv is often accompanied by sanctions of public shaming and exclusion.Footnote 51 However, these bargaining chips are sometimes difficult to use because of the halachic rule according to which a Get must be freely given (Bitton, Reference Bitton, Dresdner and Peterson2009, pp. 117–18; Kaplan, Reference Kaplan2004, p. 61). This rule will sometimes result in rabbinical reluctance to implement disciplinary measures (Breitowitz, Reference Breitowitz1993, p. 15) out of fear that the latter will render the Get halachically invalid. What constitutes undue compelling or inversely, legitimate pressure, is a much contested line-drawing exercise which the warring spouses carry through in the shadow of the law.
III. A cost-benefit analysis of religious and civil divorce
This section describes the interaction between religion and economics, focusing on the distributive conflict between husbands and wives as they move back and forth between the religious and the secular realms upon divorce. For the female participants interviewed, the outcome of divorce is often perceived and played out as a conflict over economic distribution. In this process, the background rules act as forces that shape the individual's capacity to bargain and influence distributive outcomes. Sometimes the religious sphere distributes benefits to the man and corresponding costs to the woman; at other times, it creates costs to the man and benefits to the woman. The secular sphere similarly distributes uneven costs and benefits.Footnote 52 Drawing on the testimonies of ten religious women in Canada, I present in this section an economic analysis of religious identity and family law arrangements, inside and outside the courtroom.
A1. The religious sphere as a benefit to the man and a cost to the woman
This section presents the conflicts of interest between husband and wife as they penetrate the religious sphere upon divorce. Female participants have suggested to us that Jewish and Muslim husbands behave strategically before the religious authorities and use God to their own benefits. In each case illustrated here, the husband purposefully employed one narrow religious methodology in order to ensure that his priorities (monetary or not) prevailed.
Participant #5
‘He said “Talaq, Talaq, Talaq” three times and I said “What's that?” He said “Well, I divorce you; that's all it takes you know, I'm divorcing you”. I said “No it's not; you know in Islam there are conditions, there are reasons and there should be attempts of reconciliation.” I said “How can we be divorced?” you know, so he said “No, that's it, islamicly we're divorced.” Then we suddenly found ourselves, you know, um, having to sell the house and basically going to a separation. I found out two months later, in June, […] that he wanted me to be his second wife and I said “Well, forget it.” I just laughed out loud and said “You got to be joking; I cannot be a second wife, I'm still married to you, we're not legally divorced!” So anyway he did marry. He was married religiously to this second woman.’
In this case, the husband not only completely ignored civil law norms but also twisted his understanding of Islamic law to yield the outcome he desired, that of marrying someone new. Paralleling this Muslim woman's experience, Jewish participants noted that their husbands purposefully ignored the fact that it is the man's religious duty to pay for the Get. The rabbis, complicit with the men, did not rectify the situation. Quite the contrary, the women had to financially assume the costs in order to obtain a religious divorce before the Beth Din.
Participant #3
‘Now remember, it's the man's duty to give the women the divorce, but the Vaad [council of rabbis] does not give a shit as to who pays! Excuse my language. So when I paid, when he's technically supposed to pay for it, they didn't even ask him “Why aren't you paying for it?” Nothing! They asked him for nothing! I had to run [get the money] the day before to bring them eight hundred dollars. Otherwise, I would never get a Get!’
Participant #4
‘At the end he agreed [to give the Get], but with the stipulation that he would not pay or share in the cost […] and if I wanted it, it would be up to me to come up with the money. It was not inexpensive, but it was important and my only chance at getting it done.’
Participant #8
‘I did not want to go there but I felt the husband should pay for some things. He should be obligated! But I did not push it because I did not want to risk not getting the Get. In a way, it is a type of black mail.’
When religious authorities fail to enforce religious rules existing in women's favour, a benefit in the religious sphere turns into a cost. These examples illustrate that religious divorce is far from being a static, unitary legal institution. Rather, it often functions as a disciplinary mechanism whereby husband and wife employ diverse strategies to lift some aspects of religion to the fore while downplaying other aspects when ‘performing’ agency. Furthermore, the gendered positioning of that religious adjudicative audience can tip the cost-benefit analysis of the religious sphere; the painful emotions that frequently accompany divorce can be replicated and exacerbated in religious contexts. The feelings of judgment, shame, powerlessness and alienation that several participants reported feeling during the religious divorce process worsen the emotional vulnerability that typically accompanies divorce. As these participants pointed out, religious authorities replicate and reify male privilege which leaves women marginalised.
Participant #6
‘I felt very much like this is a man's club and I'm not welcome. It really felt so anti-woman! Like where is my cheering team, you know, everybody here is supporting him. All men all together and here's me, the woman, who is allowed to come in for a little bit and then has to go out while they write the whole damn thing.’
Participant #2
‘I'm literally listening to all this [the adjudication of the divorce] and standing there, […] I mean, like, I'm sobbing! For the whole time! And nobody said to me “Do you need a tissue; are you okay?” They don't give a crap! They just keep going with their thing and it's so disgusting! You know if they would have said to me beforehand “maybe you want to bring somebody for moral support”, that would've been fine! They don't tell you anything, they just say “Come on!” […] It was probably one of the most devastating moments of my life.’
Participant #3
‘It's just the way they look, you get the sense that they're looking down at you, as a failure. It's funny because we were talking about it today at work, and most women feel like it. Because they make you feel like you're the failure, it's not the man. And, as a matter of fact my girlfriend did say to the rabbis “Why don't you ask him how abusive he was?!” But they don't, they can't comprehend things like that. Because it has to be the woman's fault! It's almost like a natural thing [to them].’
Acting alongside the negative aspects of the religious sphere described above is the transformative significance and direct benefits that religious divorce brings to the lives of observant religious women, which I now turn to.
A2. The religious sphere as a benefit to the woman and a cost to the man
In all of the scenarios presented in this section, women used the religious script because they claim it is in their interest to do so. This avenue either gave them emotional freedom, co-operative respect from well-known religious leaders and community members, or both. Distributive considerations play a central role in assessing what path women choose to adopt, often under considerable constraints: ‘To me, to finally take, to empower myself completely, that I've got no connection to him, whatsoever, and that's it!’ (Participant #3).
Several Jewish and Muslim participants explained to us how they seek identity benefits while avoiding identity costs. This bargaining strategy often involved reference to family and community members as a medium capable of using threats and other emotional penalties towards the husband during the divorce process. Power can thus be deployed in concrete ways to provoke shame and displeasure.
Participant #4
‘After thinking about how I could convince him [to give the Get], I came to the conclusion that it would be impossible to persuade him on my own and enlisted the help of those I thought would be most embarrassed by his behavior. I called an aunt of his with whom he was quite close and has a great deal of respect for. […] She was quite disappointed to hear this, as her daughter had had a similar experience. She is an observant Jew and understood the importance this held for me, and after having gone through the same thing she said she would absolutely speak to him and encourage him to do the right thing. […] To this day, I don't know for sure what led to his finally agreeing to a Get, but I think the pressure and embarrassment of my exposing his behaviour in front of others led to success. I think he simply didn't want to look bad to those he respected.’
In a sense, this participant used one aspect of her religious foundation (community assistance) against the negative influence of another aspect (the right of a husband to grant or refuse a Get). When negotiating within the process of religious divorce, this participant was able to mitigate a religious cost by drawing on a positive aspect of the same rubric. Many Jewish women whose husbands refused to give them a Get enlisted the help of rabbis, in the hope that they put pressure on the husbands through emails and phone calls, a strategy which often proved successful. Community members, including lawyers belonging to the same religious faith, can also play an influential role on the husband: ‘The attorney that he retained is also Jewish. From what I understand, but I am not a hundred percent sure, I think he was told that his attorney would not represent him, unless he promised to give me the Get’ (Participant #6). Here, the lawyer's actions (presumably motivated by his own religious ethics) yielded a direct benefit to the woman.
The participants indicated that not only do community resources have the potential to pressure and influence religious outcomes, but they also reach out into the civil sphere and compensate costs incurred before civil courts. For instance, a participant calculated that it was more advantageous to waive spousal support in order to gain the custody of her children, since the economic loss of renouncing support was compensated by community resources and networks:
Participant #6
‘He decided that he would take me to court and take the kids away from me and I won! […] But I don't get spousal support anymore since we signed this custody agreement a couple of months ago. The spousal support thing was all part of the negotiations [for custody]. So I was lucky that I was getting it up until the end of July. I mean now it's hard, but we'll manage, you know. In the beginning when he left, I didn't have money for two or three months. My community sent me food, they sent me money. I found envelopes of money on my doormat! People knew that I needed it and there's no, like, “please pay back”. The community organizations brought us milk and eggs and bread and cheese and all that kind of stuff. There are wonderful organizations there, and it is not [conditional on whether] you are religious or you are not religious. It is for the community, you know?’
Thus, the autonomy and ‘clean break’ that some participants needed was not attained solely through the equitable treatment promised under the civil law route.Footnote 53 Instead, many women used the religious/cultural resources available to them to yield the desired result.
In addition to the informal techniques of influence described above, one Jewish participant (who is still without a Get) reported another religious doctrine being used to counter her husband's refusal to give the Get. The woman had resorted to use a siruv, a disciplinary order issued by a Beth Din. In this particular case, the woman was requesting an order of siruv issued against her husband since he was summoned to the Beth Din three times and refused to appear before the Jewish court. This powerful bargaining tool illustrates how community religious mechanisms, networks and resources can be used as a benefit to the woman in the religious sphere, in conjunction or in parallel with the civil sphere.
B1. The civil sphere as a benefit to the man and a cost to the woman
Stories shared by participants in this project systematically suggest that, upon divorce, husbands adopt highly distributive strategies: they pursue the path leading to the maximisation of (often economic) outcomes. They manipulate the civil side of the law to their own advantage, in order to either pay less or get more assets out of the divorce, even if such strategies are in direct violation of the espoused beliefs of their religious communities. One might assume that parties who adhere more closely to religious marriage and divorce would adopt a pro forma approach to the civil law site. However, from my discussions with participants, this does not seem to be the case. Instead, the secular courts were used as an additional bargaining venue of a weighty strategic interaction. In fact, religious advantages were leveraged against civil disadvantages and vice versa.
Participant #5
‘The most ironic thing about this is that in Islam, you know, whatever the woman brings into the marriage, […] the woman keeps. Well here he used the civil side, provisions for a division of property, you know, fifty-fifty division of property, to take from the marriage furniture we acquired together, the proceeds from the sale of the house, the 50% in lieu of child support payments. So when it was convenient for him, he invoked the civil system, when it was convenient for him he invoked, you know, the religious system.’
Participant #7
‘It really bothered me when he tried to get my pension and I wrote a letter to him. I didn't talk to him but I wrote a letter to him. I said “You know this family patrimony became law because of the feminist movement, because then women did not have pension, women did not have a job. So when a marriage broke women were left with nothing. […] And you who is anti-feminism, against all this women's movement, now you are taking advantage of the law that was brought up by women.” So I said “you should be ashamed of yourself.”’
Many of the other participants similarly reported that their husbands consciously made a calculation of which venue, religious or civil law, would yield them the greatest benefits, and acted accordingly. This tactic is commonly referred to in economics literature as the ‘threat point’ (Pollak, Reference Pollak2003). This ‘point’ is the maximal level of utility attainable outside the marriage. Often, the civil sphere becomes a cost to the woman because of the civil court's failure to sufficiently verify reported assets. In fact, several Jewish and Muslim women mentioned to us that their husbands had been running a business and declared close to nothing on their income statements, despite the fact that they were financially comfortable. In their opinion, the secular system is complicit in such dishonest behaviour:
Participant #3
‘He gave me a lump sum of money, he kept the house and whatever. Today I kinda regret it because he's a multi-millionaire and I helped him start the business, but that goes way back when! The sad part is I find men know how to hide money. And the law allows them to hide things from their wives, they make it easy for them. So he gave them papers [stating that] he's making, I don't know, maybe thirty thousand a year. And I'm thinking “What kind of legal system do we have here?” Here is a man: two cars, a house, making thirty thousand dollars a year…whatever!’
Participant #4
‘That's what he wanted and he really wasn't interested in financial contributions. He felt that it was my idea and, he, you know, painted a picture of himself as being rather destitute, though we had lived a fairly comfortable life. So he got away with a lot of that!’
Participant #8
‘My husband had a judgment in 1996 for child support. I never sued for alimony. My lawyer told me to only go after child support. We went to court many times. He would claim poverty. “Severe poverty”?! He got himself into a government property with 2 vehicles!’
Participant #9
‘[He wasn't paying post-divorce maintenance] because of the dower and because he said that he couldn't. I let it slide because at the time my youngest son was very young and I was on welfare. […] He only paid $200 for the children. 200$ for an eighteen-month-old child that was still in a crib and the other child who was three years old! […] Every time I told him it wasn't enough, he said that's all he could afford to pay. I didn't believe him, because I knew his budget.’Footnote 54
Much like those who only go through a civil law divorce, spouses who go through both the religious and civil law divorce processes fail to disclose to the court information that puts them at a disadvantage. It is normally the responsibility of the civil court to verify that all assets have been reported. Is there a connection between courts' failure to verify adequately the husbands' assets and the religious context in which these divorce proceedings are occurring? There is irony in the fact that, precisely because religious authorities know their members well, they are more likely to notice when a husband attempts to lie about his income. Civil courts, by comparison, can be disempowering for women from whom assets are concealed.
B2. The civil sphere as a benefit to the woman and a cost to the man
Religious women in this study reported making choices in a utility-maximising fashion, using the civil law either as a means to get an equitable outcome or as a way to punish and discipline, even if such strategies often meant bearing corresponding personal and social costs in the religious sphere. It was often the case that notwithstanding women's families actively promoting the husbands' interests, participants persisted in obtaining the equitable results they sought before the civil court. Some participants defied their husband's efforts by making a distinction between their loyalty to their family and their right to a fair settlement upon divorce:
Participant #9
‘The uncles came to see me and they tried to get me settle and to abandon the court, and I said “No, I made my deposit, I have my lawyer, and I will continue. I want my rights! I respect the family; I respect the elders; I respect the religion, but it doesn't work for me.” And that's what I explained to my uncles. Even if my father, the most important man in my life, rises from his tomb, I would refuse to proceed in this manner.’Footnote 55
Oftentimes, the most efficient way for a civil court to impose disciplinary measures on the husband is, paradoxically, to reach out into the religious sphere and to blur the boundaries between church and state. Section 21.1 of the Divorce Act does just that in allowing for sanctions to be imposed on the husband who does not ‘successfully remove barriers to religious remarriage’. The sanctions imposed upon the refusing spouse can be the refusal of the courts to look at any applications, pleadings or affidavits made by the refusing spouse.Footnote 56 One participant described the great efforts her lawyer made to try to yield this religious benefit:
Participant #8
‘So then I went to a new lawyer. He was a crazy guy. In the business, he is known as crazy. He is the one I went to work with to try and get the Get. He sent a lot of letters back and forth, [there was] a lot of legal interference and money. When we were going to court we used the clause in the law [whereby the husband is] not going to get anything unless he gave a Get. Once he was explained he could lose his claim to the house, he did [give the Get].’
The lawyers in these participants' cases were, consciously or not, part of a divorce process which stretched far beyond the secular context. In strategically employing the civil law against religious practices and norms concerning divorce, the courtroom became engaged in the religious as well as the secular divorce processes, whether the judge realised it or not. However, for women to be able to profit from these legal innovations, access to justice mechanisms must be implemented. ‘Civil’ family law attorneys, if they are to provide thorough counselling, must be familiar with the mechanisms that allow civil courts to discipline the religious husband.Footnote 57 If lawyers shun these unfamiliar recourses or fail to inform women adequately of their existence, civil law's ‘benefits’ can be circumvented.Footnote 58 For instance, a Jewish woman mentioned that while going through her civil divorce, the issue of the Get surprisingly was not brought up or considered by her lawyer. She believes lawyers should be trained to ask, as one of the preliminary questions, whether there are any religious issues related to the marriage:
Participant #4
‘One of the questions when you're first going through a consult should be, you know, “Are there any religious issues?” And that did not come up. […] I really do think that, you know, family law attorneys should be aware that sometimes there are really strange religious issues that come up in divorce and it should be addressed.’
Finally, Jewish and Muslim participants indicated to us that they were willing to lose economically if such strategies allowed them to gain something else of value in exchange, such as a religious divorce that would otherwise be refused to them or simply some peace of mind for themselves and their children. Though some Jewish and Muslim participants could be seen as having suffered economic losses, they described themselves as what we, in the economic lexicon, would call rational maximisers of their own self-interest. They discussed how husbands used the promise of financial security as a way to maintain control over their wives after separation. To undermine this strategy, some women affirmatively refused an obvious economic benefit in an active repudiation of this assertion of male power. For participants, this often translated in not wanting to obscure the religious process by involving alimony and other payments and leaving everything in the house for their husbands, as a way of showing their freedom and independence:
Participant #1
‘I didn't talk to him directly. It was my father and I asked him “Dad, please tell him that it is me who is asking for the divorce; I want to exempt my ex from all alimony, I want nothing to do with him. Even the alimony which I have a right to I don't want, and I want nothing to do with my dowry.”’Footnote 59
Participant #7
‘So I took the two kids, rented an apartment and left. I didn't even take furniture, nothing. I just packed, we just packed our clothes, left home and started buying our own furniture.’
The decision to walk away from a clear civil law monetary benefit is often perceived as worth the immediate freedom and ‘clean break’ it provides. Many women see this outcome as a benefit and act accordingly. For instance, a Muslim participant valued the wellbeing of her child more than the benefit of some additional dollars. Speaking in purely economic terms to her lawyer, she assessed the risks at stake and reasoned from this premise.
Participant #5
‘He [the lawyer] said “It's going to be costly if you do it [negotiate a civil settlement] because obviously you'll have to fight for it; he doesn't sound like he'll give it to you, you know.” So I said “You know what? I don't want to do all of these things. It will drag my child out. It will be tough on my child because he's probably going to keep on fighting. I don't have the time or the energy to fight him so let's just walk away from it”, and I did.’
Interestingly, this distribution scenario is far from peculiar to Muslim women's strategies. The comments of one Jewish woman reflect the pride involved in not begging for money. She explained how her ex-husband used money as a form of power over her. If she had to beg and plead for more financial assistance for her children, he perceived this as a form of control. Eventually, the woman felt that it was not worth fighting with him any more and settled for the minimal child support payments. Oftentimes, choosing to withdraw from the ‘battleground’ of divorce negotiation does not mean the caving in of a position but can rather constitute an active breaking of the grasp of male power.
Participant #3
‘To him, it was all about control. You see, to him money is control. And if I asked and begged and this and that, it gave him more power over me. And it came to a point where it wasn't even worth fighting with him over that. So we went a long time like that. […] With [him] there is nothing else to accept! [He] is not the kind of person you want to start with. I've had him arrested, I had a restraining order, I've done all of those things. To get to the point where I want to beg him for more money? Absolutely not! And the lawyer looked at me, like, “You're crazy!”‘
Some religious women valued and benefited from the equitable division of property granted in the civil sphere; others traded money for freedom or for their children's wellbeing, which were not perceived as antithetical to their own interests. In all instances where the religious participants mobilised civil resources to achieve their aims, the ‘civil sphere’ revealed itself as a plural, composite entity which, far from translating into systematic ‘gender equality’ or ‘clean break’, distributes highly differentiated endowments. The women I interviewed reached from one civil recourse to another and from the civil to the religious spheres, intertwining custody, property, spousal support, community standing, dispute settlement and tranquillity for their children in one multi-faceted, fascinatingly complex bargaining terrain.
Conclusion
Upon divorce, a Canadian Jewish or Muslim woman is faced with a puzzling dilemma which only highlights the complex relationship between the civil and religious spheres: under the civil family law regime, she may divorce her husband without his consent, whereas under Jewish or Islamic law, she may involuntarily remain married to him. A Muslim woman cannot repudiate her husband (Talaq). She can use either the Faskh or Khul divorce, but these forms of divorce are either difficult to obtain or financially costly. A Jewish wife can never religiously divorce her husband. Moreover, her husband's decision to give her the Get must be ‘freely’ made, which means that rabbinical courts will not intervene easily to force a man to grant such a divorce. Thus, some religious women, though divorced by civil courts, might remain religiously married to a husband who refuses to religiously divorce them. Through a series of interviews, I explored the distributive consequences of the secular/religious divide on differentially situated religious women in Canada. By understanding their agency, i.e. how different women use the law as ‘it lives’ out in the real world, I attempted to examine the ways in which Jewish and Muslim women navigate the interplay of legal systems and religious norms in various multidimensional contexts.
The insights of the ‘left law and economics’ approach I proposed were used to identify the background formal and informal legal rules, social norms and distributional practices that help produce asymmetric bargaining locations for Jewish and Muslim women, both between and among themselves. In this article, I employed the economic language of cost/benefits to argue that religious parties bargain strategically upon divorce. The interviews I have conducted with religious women strongly refute the market/family distinction by bringing these underrecognised market claims to the fore. As women, wives and mothers, participants have described their bargaining strategies in the religious and the secular domains as sometimes beneficial and sometimes detrimental to them, depending on various factors. In approaching the relational dynamics of religious subjects moving inside and outside the secular realm, I noticed that the participants' invocation of religious law was often strategic, serving distributional purposes. For instance, if the woman could get benefits from the religious sphere that she would not be able to secure under the secular legal system, she would follow this advantageous path. Such empirical knowledge helps disenchant the idea that religious law is systematically used as a punishing force that makes women worse off economically or morally inferior. Indeed, in today's globalising world, religious families are walking inside the courtroom and across the gender line in unanticipated and contradictory ways. Is there anything left once we dismantle law's secular impulse and religion's sacred aspiration? Is the family just another market consideration? Are religious claims really about God, ever?
Appendix A: Questionnaire used for the interviews
Dimension 1 – Religious normative framework
1. What are your religious practices?
2. At the time of your wedding, what was your understanding of religious marriage and divorce?
3. (For a Jewish person: did you sign a ketubah at the time of your wedding, and if so, what was its content?)
4. (For a Jewish person: before or during your marriage, have you discussed the Get and its unilateral nature with your husband?)
5. (For a Muslim person: did you sign a nikah (Islamic marriage contract) at the time of your wedding, and if so, what was its content?)
6. (For a Muslim person: before or during your marriage, have you discussed the Talaq and its unilateral nature with your husband?)
Dimension 2 – Secular normative framework
7. How was your married life, and for what reasons did you opt for a civil divorce?
8. How were the divorce procedures in the civil court?
9. What were the key elements discussed before the court and the arguments of both parties?
10. Who were the persons involved in the process and how would you describe their role?
11. Is your civil divorce recognized by the religious authorities of your community?
Dimension 3 – Personal, family and community normative framework
12. How would you describe your present situation?
13. During the divorce procedure, did you benefit from the approval of your family and your community?
14. Which events left you with the strongest impression?
15. What were your expectations and to what extent have they been satisfied?
16. Are there any aspects of the divorce process that you would like to see changed, on the secular level as well as on the religious level?
17. Would you like to add anything to what was previously discussed? Would you like to clarify anything that was said earlier?
Appendix B: Requirements relating to the Get
Several technical requirements have developed in order to make a Get effective:
1. Date. The Get must be dated and, according to the usually prevailing custom, it is dated from the year of the creation of the world (i.e., 1983 C.E.=5,743). If the date was erroneous or omitted, the Get is not valid.
2. Names of the Parties. If it well established that a Get must be written for particularly specified individuals. Thus, the husband must specifically request that the Get be written for his wife, and the exact names of the parties must be included therein by the scribe preparing the Get. In addition, any nicknames by which the parties are known must also be inserted in the Get.
3. Residence of the Parties. The place of residence of the parties must be set forth.
4. Words of Separation. Since the Get certifies divorce, and establishes the termination of the marital relationship, it is necessary to have words of complete separation set forth in it. It must therefore be explicitly stated that the wife is henceforth permitted to remarry at her will.
5. Attestation. A Get, having been written at the specific request of the husband, must be signed by two competent witnesses.
6. Delivery. It is fundamental to Jewish law that a Get be physically delivered by the husband, or by his agent, to his wife or her agent, or that it be delivered to a place that is under her actual and physical control. This rule was established to ensure that the wife has actual or presumptive notice of its contents. Hence, at the time of delivery, the husband or his agent is obligated to inform the wife that a Get is being delivered.
7. Agency. Under Jewish law, either a husband or a wife may appoint an agent to ‘give’ or ‘accept’ a Get. This agency can be revoked (Haut, Reference Haut1983, pp. 27–30).
Appendix C: English Translation of a Get Footnote 60
On the _ day of the week, the _ day of the month of _, in the year _ from the creation of the world according to the calendar of reckoning we are accustomed to count here, in the city _ (which is also known as _ ), which is located on the river _ (and on the river _ ), and situated near wells of water, I, _ (also known as _ ), the son of _ (also known as _ ), who today am present in the city _ (which is also known as _ ), which is located on the river _ (and on the river _ ), and situated near wells of water, do willingly consent, being under no restraint, to release, to set free, and put aside thee, my wife, _ (also known as _ ), daughter of _ (also known as _ ), who are today in the city of _ (which is also known as _), which is located on the river _ (and on the river _ ), and situated near wells of water, who has been wife from before. Thus do I set free, release thee, and put thee aside, in order that thou may have permission and the authority over thyself to go and marry any man thou may desire. No person may hinder thee from this day onward, and thou art permitted to every man. This shall be for thee from me a bill of dismissal, a letter of release, and a document of freedom, in accordance with the laws of Moses and Israel.
_, the son of _, witness.
_, the son of _, witness.
Appendix D: Women and the Civil Sphere
Women
Appendix E: Women and the Religious Sphere
Women
