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Re Morris and Morris: A Case Comment
Religious considerations frequently arise in the divorce process.
Catholics, for example, do not recognize the concept of divorce in
their ecclesiastical law, and this sometimes inhibits their resort to
civil divorce. Parties of other persuasions, such as Jews, may regard
a civil divorce as inadequate to break the ties of marriage, unless
also accompanied by a religious divorce.’ Although the civil law of
the parties’ domicile may recognize and give full civil effect to a
religious divorce (as is the case under the law of Pakistan2 or
IsraelP), in much of the rest of the world a religious divorce itself
does not sever the legal ties of marriage: only a civil divorce will suf-
fice. Nevertheless, the mere obtaining of a civil divorce, while neces-
sary, may not be regarded by one of the parties (particularly a devout
adherent to the faith) as sufficient to permit remarriage: only a
religious divorce will suffice. This problem may be compounded if
the religious divorce, such as the Jewish Get or the Moslem talak,
is essentially a unilateral act of repudiation of the wife by the
husband. For example, if an orthodox Jewess after a civil divorce re-
quests that her former husband give her a rabbinical divorce (or
Get), he may refuse, thus preventing her from remarrying in good
conscience. Can a woman in this position resort to the civil courts
to compel her former husband to grant the religious divorce? This
was the issue in Re Morris and Morris.4
Mr and Mrs Morris had been married in Winnipeg in 1955 by a
rabbi in an orthodox Jewish wedding ceremony incorporating the
orthodox Jewish marriage contract of Kethubah. This ceremony
complied with the requirements of the Manitoba Marriage Act.’ In
‘ See generally Maidment, The Legal Effect of Religious Divorces (1974) 37
M.L.R. 611; for the position in the United States, see Enforceability of Religious
Law in Secular Courts –
It’s Kosher But Is It Constitutional? (1973) 71
Mich.L.R. 1641-53.
2 Whereby Moslem husbands are entitled to divorce their wives by talak –
a three-fold act of renunciation.
3Whereby Jewish husbands are entitled to institute a rabbinical divorce or
Get.
4 (1973) 36 D.L.R. (3d) 447 (Man.Q.B.), (1974) 42 D.L.R. (3d) 550 (Man.C.A.);
(1975) 51 D.L.R. (3d) 77 (Man.C.A.; leave to appeal to S.C.C. granted, on terms).
5 The Marriage Act, R.S.M. 1970, c.M50. Under ss.91 and 92 of the British North
America Act, 1867, 30-31 Vict., c.3 (U.K.) divorce is a matter within the legis-
lative competence of Parliament, while the solemnization of marriage falls
under the comptetence of provincial legislatures.
1977]
COMMENTS – COMMENTAIRES
1972 the marriage was ended by a civil divorce from the Manitoba
Courts.6 The wife, as an orthodox Jewess, did not regard her marriage
as ended until the husband had instituted proceedings for a Get,
which he, for unexplained reasons, declined to do. In the meantime,
as the wife wished to remarry, she instituted civil proceedings to
compel her husband to grant her the religious divorce. The petitioner
based her claim on the marriage contract, which professed to be
governed by Jewish law and the fact that Jewish law requires a
woman to obtain a Get before remarrying. If she did not obtain the
Get and nevertheless remarried, any subsequent children would be
mamzerim (illegitimate) in the eyes of orthodox Jewish law. Wil-
son J., at first instance, granted an order declaring Mrs Morris’ right
to a Get, as well as a further order of mandamus8 compelling Mr
Morris to institute proceedings for the Get.
Four of the extraordinary five-man Court of Appeal9 reversed
Wilson J.’s decision and refused to grant either a declaratory order
or mandamus. The majority declined to extend the process of the
civil court to interfere with proceedings of a religious tribunal. Nor
did the majority regard the matter simply as turning on a question
of contract. They noted that the religious marriage contract lacked
the precision of a normal civil contract and might have been regarded
as part of the marriage ceremony, the vows being similar to those
of a number of different denominations.’ Furthermore, as two
6 In fact, a number of other proceedings were instituted both in Manitoba
and in Quebec, the location of the former matrimonial home.
Before the case was heard, she in fact remarried in a civil ceremony.
8 Mandamus is generally thought to be a prerogative remedy which is used
to enforce a public duty owed to the applicant. The question of whether there
is a public duty on a divorced Jewish husband to grant his former wife a
Get was not canvassed by Wilson J. or by the Court of Appeal. This may be
because of the broad wording of s.58 of Manitoba’s The Queen’s Bench Act,
R.S.M. 1970, c.C280, s.58, which provides as follows:
“a mandamus to command the fulfilment of any duty in the fulfilment of
which the party claiming it is personally interested may be granted in
any action in which it is claimed by the statement of claim or by the
counter-claim; but, notwithstanding anything herein, the court may upon
motion, not in an action, in all cases where the prerogative writ of
mandamus might at any time formerly have been granted, grant an order
of mandamus which shall have the same effect as the writ of mandamus
formerly had.”
Note that the proceedings in Morris were brought by way of a notice of
motion, not by action. Quaere: does s.58 broaden the availability of mandamus
beyond the former writ, so that a public duty is not required in an action?
9 (1974) 42 D.L.R. (3d) 550, Guy, Hall, Monnin and Matas JJ.A.; Freedman
CJ.M. (dissenting).
10 Ibid., 550, 565.
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members of the Court pointed out,” “one who comes to a Court of
equity must come with clean hands”. In this case, Mrs Morris
herself had launched the divorce proceedings and had remarried
under civil law. Although she realized that her conduct was contrary
to Jewish law, she proceeded while this very action was before the
Court.12 All of the judgments in the Court of Appeal noted that in
earlier Canadian cases civil process issued to protect the property
of religious societies and associations. Nevertheless, the majority in
Morris held that the civil courts will only intervene in the affairs of
such an institution in order to protect civil rights.Y3 The Courts will
not allow the use of their process to enforce a purely ecclesiastical
order. The majority of the Court of Appeal was not prepared to
categorize either the opportunity of marrying in a state of grace
within the Jewish community, or the prevention of illegitimate
children under Jewish law, as pertaining to Mrs Morris’ civil rights.
For all civil law purposes, the applicant’s second marriage was valid,
and any children thereof would be legitimate.
Did the Court of Appeal hold (i) that it had no jurisdiction to
issue the orders sought, or (ii) that, having jurisdiction, it would
exercise its discretion not to issue the orders? Both Guy and
Matas JJ.A., 14 in their separate majority opinions, referred to the
difficulties which would arise if Mr Morris refused to comply with
Wilson J.’s mandatory second order. What could the court do in
such a situation? The contempt powers are hardly appropriate as a
way of ensuring that the husband grant his wife a Get; the Court is
always reluctant to make an order which is an idle threat or brutum
fulmen which would not itself secure the Get. Matas J.A. went further
and referred to the possible invalidation for duress under Jewish
law of any rabbinical divorce for which the husband was compelled
to apply by a civil court.’ 5
Freedman C.J.M., strongly dissented. In his view, the present case
clearly involved a contract, and hence civil rights. To refuse to
acknowledge that the religious stigma was a matter of serious con-
cern to Mrs Morris was to ignore reality. Nor was there any reason
of public policy which might make the issuance of such orders
improper.
“Ibid., 568 per Guy J.A. (MonninJ.A. concurring).
12 Sed quaere whether the vagaries of the court calendar and the speed
with which a case is heard should be a determining factor.
‘3 Only Hall JA. deals with what constitutes a “civil right”, see supra,
note 9, 572.
‘ Ibid., 569 per Guy S.A. (Monnin S.A. concurring): ibid., 575 per Matas S.A.
15 Ibid., 574-75.
19773
COMMENTS – COMMENTAIRES
With respect, it is submitted that the weakness in Freedman
C.J.M.’s decision lies in his analysis of the previous cases involving
rabbinical divorce. He cited, among others, the decisions in Har-Shefi
v. Har-Shefi,16 Joseph v. Joseph17 and Brett v. Brett’8 to support his
argument that the courts had in the past decided upon cases in-
volving the effects of religious divorces. In these cases the facts
and issues were quite different. In Har-Shefi, the parties were dom-
iciled in Israel and had obtained a religious divorce from the London
Beth Din. The husband remarried in Germany and the wife then
petitioned the English court for divorce on the grounds of his
adultery. The question arose in these proceedings as to whether
the parties were still civilly married despite the Get. The question in
Har-Shefi, therefore, was whether the religious divorce had civil
effect because it was recognized by the law of the parties’ domicile,
i.e. Israel. 9- Since the parties in Har-Shefi had already received the
Get, that case is no authority where a civil court- is asked to force
a husband to institute proceedings for a rabbinical decree. More-
over, the question of the Get arose during the course of normal pro-
ceedings to test the .validity of a divorce decree granted by the
courts of the parties’ domicile.
In Joseph v. Joseph,20 a wife who was petitioning for divorce
alleged that her husband had deserted her for the period required by
statute. In fact, during that period the husband had acceded to the
wife’s request to grant her a Get. The court concluded that, as a
18 [1953] 2 All E.R. 373.
17 [1953] 2 All E.R. 710. See also the English case of Preger v. Preger (1926)
42 T.L.R. 281 which involved two Jews divorced in England. Though the
husband gave the wife a Get both parties realized this had no effect as a
divorce in England. The husband then remarried in Germany without taking
further divorce proceedings, whereupon his wife petitioned for divorce on
the grounds of his adultery. The court granted the wife a decree saying that
the parties realized that they were not free to remarry merely on the strength
of the Get. However, in dicta there is the suggestion, reiterated in Leeser v.
Leeser, (The Times, London, February 5, 1955) to the effect that if the wife
knew that the husband contemplated living with another woman this might
be evidence of the wife conniving at the adultery.
18 [1969] 1 All E.R. 1007 (C.A.).
49 The civil consequences of such a religious divorce are now governed by
the Recognition of Divorces and Legal Separations Act 1971, 1971, c.53 (U.K.)
which restricts the recognition of foreign divorces to those granted (a) within
the British Isles by a British Court or (b) outside of the British Isles. A decree
pronounced by the London Beth Din, therefore, would not come within this
statutory provision, and the point in Har-Shefi could not now arise before a
British court.
2 0 Supra, note 17.
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result of the Get, the wife and husband were thereafter living apart
by consent. Therefore the husband did not have the necessary
animus deserendi to be in desertion. It should be noted that the
factual existence of the Get was relevant in the civil divorce pro-
ceedings to determine whether a necessary element (the animus
deserendi of desertion) could be established in order to constitute
one of the then-existing grounds for civil divorce. There was no
question in Joseph v. Joseph of the Court’s recognizing the Get itself
as a valid civil divorce.
Brett v. Brett2 arose under the pre-1970 English divorce law.22
In previous proceedings the wife had obtained leave to petition for
divorce within the first three years23 of marriage on the grounds
of her husband’s revolting sexual demands 2 4 and had obtained both
a decree nisi and a decree absolute of divorce. She now sought an-
cillary relief, namely, financial provision.2 5 The wife, 23, had been
admitted as a solicitor just before the marriage. She could only
expect at that stage to earn approximately 1,250 per annum, and
she wished to purchase a flat in London costing between 7,500 and
10,000. A practising orthodox Jewess, she could not in conscience
remarry until her husband granted a rabbinical divorce. Her husband
possessed large capital assets, many of which had been transferred
outside the jurisdiction and from which only a small income was
generated. The English Court of Appeal ordered him to pay her
30,000 as a lump sum payment, payable in two instalments. The
21 Supra, note 18.
22Under previous English law, conduct was a relevant criterion in the
assessment of maintenance. Since 1970, however, conduct is only relevant
where the disparity between the spouses’ behaviour is “so obvious and gross”
that it would be “repugnant to anyone’s sense of justice to disregard it”. See
Wachtel v. Wachtel [1973] Fain. 72; and the cases listed in Seago and Bissett-
Johnson, Cases and Materials on Family Law (1976), 299 et seq.
23In fact, the marriage was only 5 / months old. Under English law if one
marries in haste one may repent at leisure. Under successive legislation, the
most recent being s.3(1) of the Matrimonial Causes Act 1973, 1973, c.18 (U.K.),
a petitioner seeking a divorce within the first 3 years of the marriage must
show that the case involves exceptional hardship to the petitioner or ex-
ceptional depravity on the part of the respondent and that the judge
must be of the opinion that there is no reasonable probability of a reconcilia-
tion between the parties. See further Seago and Bissett-Johnson, ibid., 116
et seq.
24The essence of which is not disclosed in the law reports.
25 In England maintenance and transfer of property between the spouses are
both dealt with under the Matrimonial Cases Act 1973, 1973, c.18 (U.K.). In
Canada maintenance is a federal matter ancillary to divorce but the post-
divorce resolution of property disputes is governed by provincial law.
19771
COMMENTS – COMMENTAIRES
first instalment, payable immediately, was for 25,000. A further
instalment, for 5,000, was ordered to be paid three months later
if the husband did not grant the applicant a Get. It should be noted
that the wife did not apply to the Court for the sole purpose of
obtaining a Get. Rather, the matter came before the Court on a
specific statutory right to apply for maintenance. The relevance
of the ex-husband’s refusal to grant the Get arose because (i) the
Court perceived that the husband was using the Get as a bargaining
point to reduce the wife’s claims to maintenance; and (ii) the
absence of the Get meant that the wife could not in conscience
remarry and thus reduce her requirements for maintenance6 In
short, the question of the Get only arose in the quantification of
maintenance, a determination which was undoubtedly within the
competence of civil courts. It is true, of course, that the effect of
the judgment in Brett v. Brett would be to encourage the Get to be
granted. 7 But, unlike the Morris case, that was not the relief spe-
cifically sought.
A further difficulty with the reasoning of Freedman C.J.M. in
Morris lies in his analysis of the contract involved. Nothing in that
particular marriage contract specifically referred to the husband’s
duty to grant a Get. In Koeppel v. Koeppel28 (not referred to by the
Court of Appeal in Morris), the marriage contract expressly required
the husband to appear (whenever this might be necessary) before a
Rabbi and to execute any and all papers necessary for a divorce. Such
a covenant was clearly more specific than the clause in Price v.
Price 9 (also not cited in Morris), where the husband merely agreed
to submit all marital disputes to a rabbi and to recognize his power
26Until recently in England the possibility of a wife remarrying was a
relevant factor in the assessment of her post-divorce financial needs: (a) see
Snelling v. Snelling [1952] 2 All E.R. 196; Bromley, Family Law 3d ed. (1966),
25 and even in actions under the Fatal Accidents Act, 1959, 7-8 Eliz.II, c.65 (U.K.)
for loss of a breadwinner. However, in both torts: (b) see Law Reform
(Miscellaneous Provisions) Act 1971, 1971, c.43 (U.K.); and family law the
position has now changed. Since the Matrimonial Proceedings and Property
Act 1970, 1970, c.45 (U.K.), the courts have refused to consider the speculative
prospects of remarriage as a relevant factor: (c) see Wachtel v. Wachtel [1973]
Fain. 72; though where it has already taken place or is certain to take place
shortly, the courts have taken it into account: (d) see Smith v. Smith [1975]
2 All. E.R. 19. See further Seago and Bissett-Jotnson, supra, note 22, 299 et seq.
27Although, clearly, the husband in Brett could pay the second lump-sum
instalment and not grant the Get.
28138 N.Y.S. 2d 366 (1954). Discussed in Foote, Levy and Sander, Cases &
Materials on Family Law (1966), 809.
29 16 Pa.D. & C. 290 (1931) (C.P.).
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of “arbitrator and jurisdicter” (although the Court refused to order
the husband to grant the Get). But even in a case like Koeppel one
might question whether such a clause is enforceable in the civil
courts. Did the parties intend to create a binding civil obligation?
And if there is a valid civil contract, is such a contract to submit
marital disputes to bodies other than civil courts contrary to public
policy?
While the reader’s sympathies for Mrs Morris might incline him
to prefer the result of Wilson J.’s judgment at first instance and
Freedman C.J.M.’s dissent on appeal, the better legal View, it is sub-
mitted, is that civil courts should not compel attendance before
religious tribunals. It is one thing for the courts to enforce valid
civil obligations. To do so may frequently require consideration of
religious factors. For example the recognition by Canadian courts
of a foreign divorce may depend upon the effect given to a religious
divorce by the civil law of the parties’ domicile 30 Similarly, rights
affecting the property of a congregation or religious order may
depend upon the proper construction of the constitution of the body
involved31 Or, various forms of religious discrimination may3″ –
or may not3 –
be unlawful. All of these examples concern rights
30 See, e.g., Har-Shefi v. Har-Shefi, supra, note 16; or Joseph v. Joseph, supra,
31 See supra, note 13.
32 See, e.g., The Canadian Bill of Rights, S.C. 1960, c.44; R.S.C. 1970, Appendix
note 17.
III, s.1.
33See, e.g., Re Tuck’s Settlement Trusts [1976] 1 All E.R. 545 (Ch.D.),
in
which it was intended that the entitlement to certain income should’ remain
with members of the Jewish faith. The first beneficiary (a baronet) had to
satisfy this criterion; and, in addition, his wife had to be of Jewish blood, to
have been brought up in and never departed from and continued to worship in
the Jewish faith. In case of doubt whether these religious qualifications were
fulfilled, a conclusive ruling could be obtained, in accordance with the terms
of the settlement, from the Chief Rabbi in London at the Portuguese or Anglo-
German Community. The trustees of the settlement took the matter beforo
the Court to determine, inter alia, whether the clauses in question were void
for uncertainty. The Court ultimately held that they were valid, since the
settlement and any reference thereunder to the Chief Rabbi provided a
precise method for determining whether the religious qualifications had been
met. This result seems consistent with freedom of testation and settlement of
property. Tuck’s case did not involve the use of a civil remedy to compel a
party (such as the husband in Morris) to do some act which he was not
otherwise compelled by the civil law -to do.
Where, however, the Courts have no scheme for, determining who qualifies
as a member of a religious faith in order to take advantage of certain pri-
vileges, problems may arise. For example, under s.26(1) of the Marriage Act,
1949, 12-13-14 II Geo.VI, c.76 in England, Jews are permitted to marry in
conformity with their own rites, provided both parties profess the Jewish
1977]
COMMENTS – COMMENTAIRES
and duties which exist in the civil law, and which are enforceable
in the civil courts. Exactly what constitutes a right or duty recognized
by the civil law may be an accident of history or of legislation. But it
is a matter for some reflection to suggest that the civil courts them-
selves are capable of extending the category of civil rights and
duties. It goes even further to suggest that the civil courts should
compel the performance of purely religious duties. Surely no one
would argue that the Church should be able to sue for tithes –
at
least not in the absence of a valid legal contract. Nor would many
people suggest that specific performance would be available to
compel recalcitrant parents to bring their children to be baptized,
although they may have a religious duty to do so. Although justice
may sometimes raise a strong claim to civil relief for a religious
wrong, as Mrs Morris’ predicament obviously did,, nevertheless, it is
submitted that religion must be a matter of persuasion, and not
enforceable in the civil courts. This conclusion is reinforced where
Parliament’ has already provided a comprehensive civil remedy
covering the same ground. Religious scruples which require more
may well exist, but are not properly the concern of the civil courts.
Unfortunately, the Supreme Court of Canada will not have the
occasion to deal with this problem in the present case. Although a
majority34 of the Court of Appeal granted 35 leave to appeal to the
Supreme Court, on terms, the writers understand that a settlement
has now been reached between the parties.
David Phillip Jones*
Alastair Bissett-Johnson**
religion. Yet this statutory provision does not indicate what is meant by
“professing the Jewish religion”. This (among other reasons) has led the
Law Commission to recommend the abolition of this provision (which also
applies to the marriage of Quakers), and to make such marriages conform
to the other provisions of English civil law (as, indeed, is the case in Manitoba,
as explained in the Morris case). See Law Commission Report 53, Solemnis-
ation of Marriage in England and Wales (1973), 46 et seq.
34 Freedman C.J.M., Hall and Matas JJ.A. (Guy and Monnin JJ.A. dissenting).
.R (1975) 51 D.L.R. (3d) 77.
* Of the Bars of Alberta and the Northwest Territories; and of the Faculty of
Law, McGill University, Montreal.
** Of the Inner Temple, Barrister-at-Law, and Barrister and Solicitor, Victoria,
Australia; and of the Faculty of Law, McGill University, Montreal.
