Today I will be discussing the topic of barriers to religious remarriage and how these may be intertwined with aspects of civil divorce proceedings.
When a couple decides that they want to obtain a divorce, and begin Court proceedings for this, the divorce which is granted by the Court is a divorce of their civil union and does not necessarily mean that their religious institution will also recognize that they are divorced.
Some individuals may decide that obtaining a civil divorce is sufficient as they do not anticipate that they will want to re-marry within their faith in the future. Others, however, may want the opportunity to re-marry in their faith and because of this, they will also have to separately remove any barriers to a future religious remarriage.
While a couple’s civil divorce does not necessarily interfere with the removal any barriers to religious re-marriage, in some faiths, consent is required by one of the parties, usually the man, in order for the barrier to the religious re-marriage to be removed. This means that if the party doesn’t provide consent, the other person will not be able to re-marry within the faith.
In an attempt to level the playing field in situations where one party withholds their consent to remove the barrier to religious re-marriage, s. 21.1 of the Divorce Act was implemented. Section 21.1 states that should a spouse withhold consent to religious re-marriage, the other spouse may bring a Motion and provide the Court with Affidavit evidence regarding the fact that they have requested the removal of the barrier to re-marriage, but their spouse has refused to remove the barrier.
The Spouse who has been served with this Affidavit has fifteen (15) days to remove the barriers to re-marriage and they must satisfy the Court that this has been completed. Should this person not remove the barriers, the Court has the discretion to dismiss any Application that spouse has filed with the Court or to strike out any pleadings or Affidavits filed by that spouse in relation to their Court action.
The law is quite clear that Courts will take a Motion regarding this section quite seriously. Courts have held that a refusal to remove the religious barriers to re-marriage until after the civil divorce had been completed is “unjustified.” Furthermore, it has been held that section 21.1 clearly states that the barriers to religious re-marriage are to be removed prior to the completion of the civil divorce proceedings as there is no reason why civil divorce proceedings cannot continue in the same way even after consent to the removal of barriers to religious remarriage has been given.
Overall, the purpose of this section of the Divorce Act is meant to ensure that one party isn’t holding the religious divorce “hostage” or using it as leverage in the civil divorce proceeding in order to get what they want. It’s important to note then, that a refusal to provide consent to remove any barriers to religious remarriage can end up being very costly to the parties if a Motion is required. The Court’s position seems to be strict and as such, it would usually be best for both parties if neither decides to withhold any consent to religious remarriage.
For more information on civil divorces, please visit our website.