Separating spouses who are religious may also want to pursue a religious divorce, according to the tenets of their faith. Some religions do not permit divorce, while in others the power to grant the divorce rests with the parties themselves, and specifically with the husband.
Canadian courts will deal with your legal separation and all corollary issues regardless of what your faith dictates about your ability to separate, divorce, or remarry. Either spouse can apply for a divorce under Canadian law, or for property division, spousal support, or child custody. You are also free to remarry in a civil ceremony regardless of whether or not such remarriage is permitted in your religion.
Although Canadian law cannot interfere with religious customs or laws, and cannot grant a religious divorce, courts will prevent one spouse from using the religious divorce as a bargaining chip in the legal separation or divorce process. If you are trying to separate from your spouse and deal with corollary issues of support, property division, and child custody and access, but your spouse is withholding consent to religious divorce in order to influence the separation process, you can apply to the courts to intervene.
Federal & Provincial Law Regarding Religious Remarriage
Section 21.1 of the federal Divorce Act and section 2 of Ontario’s Family Law Act both stipulate that if one spouse is refusing to remove bars to religious remarriage, the other spouse can serve on the court and the offending spouse an affidavit stating what their spouse is doing. The other spouse then has either 10 or 15 days (depending on which Act the spouse relies on) to remove all bars within that person’s control, and to serve on the court an affidavit to that effect, or to file an affidavit outlining genuine religious or conscientious grounds for their refusal to remove religious barriers. If this is not done, the offending spouse can have their claims, or their defence, struck.
(Note: The court cannot enforce its authority in this manner if the power to remove the barrier resides in the hands of a religious body or official. This part of the Act is only applicable when the power to remove the barrier lies with the respondent.)
If religion is playing a role in your separation, divorce, or remarriage, Feldstein Family Law Group P.C. can provide experienced counsel. Our Ontario divorce lawyers can help you understand your legal rights and options and can work with you to achieve your goals.
To learn more, call (905) 581-7222. We serve Oakville, Markham, Vaughan, Mississauga, and the surrounding areas across Ontario.