Legal responses to agunah

Since 1990 Canada's Divorce Act permits the Court hearing the divorce to strike out the application, pleadings and/or affidavit evidence of a party creating a barrier to the religious remarriage of their spouse.[4]

In Bruker v. Marcovitz, the Supreme Court of Canada ruled that, in the Province of Quebec, a condition of a contract between two spouses that required the husband to give his wife a get was enforceable. The court overturned a decision from the Court of Appeal of Quebec which held that as the substance of the obligation was religious in nature, the obligation was a moral one and was therefore unenforceable by the courts.[5] The Supreme Court's decision, written by Justice Rosalie Abella, restored the trial decision of Mass J., who had ordered a total of $47,500 in damages: $2,500 for each of the 15 years that the husband had refused to grant the get, and $10,000 for Ms. Bruker’s inability to have children considered “legitimate” under Jewish law.

In New York, a court cannot enter a judgment of annulment or divorce unless any barriers to religious remarriage by a spouse, the removal of which are within the control of the other spouse, have been removed. Section 253 of the Domestic Relations Law (the so-called "First New York Get Law") provides that, in a contested divorce, any applicant whose marriage was solemnised by a religious celebrant must file a statement that:

he or she has taken, or will take, all steps within his or her power to remove all barriers to the other spouse’s remarriage; or

the other spouse has waived in writing the applicant’s obligation to file the statement.

In an uncontested divorce both parties must file such a statement or waive the obligation of the other party to do so. The court cannot enter a final judgment of divorce or annulment unless it receives the statements and, even then, final judgment cannot be entered if the person who solemnised the marriage swears that, to his or her knowledge, the applicant has failed to take all steps within his or her power to remove all barriers to the other party’s religious remarriage.[6]

In Australia, the Family Court in Gwiazda v Gwiazda[7] ordered a reluctant wife to appear before the Beth Din in Melbourne. Emery J. observed that:

If I correctly understand the intention of the Act, then it is the clear duty of a judge of this court to ensure that appropriate orders are made fully effective, not only in theory but in fact. In this case the husband as a matter of law can marry any woman who is free to marry, subject only to the prohibitions in the Marriage Act, but as a matter of fact and practicability he cannot do so."

So-called "Gwiazda Orders" are now occasionally used when necessary to produce a fair result by requiring the parties to refer their problems to the local Beth Din. The Australian Law Commission has proposed that the decree nisi should not become absolute and, in any other proceedings except those relating to a child, the court should have the power to adjourn the proceedings.

Within the United Kingdom, in England and Wales, the Divorce (Religious Marriages) Act 2002, relates to Jewish divorce. The Act allows a Court discretionary right to award any damages under Tort remedies, impose any civil or criminal fines or other penalties, or to grant any further relief, and withhold the final legal civil dissolution of a marriage of Jews or of other person by means of granting the decree absolute until a declaration made by both parties that they have taken such steps as are required to dissolve the marriage in accordance with rabbinical law.

In case law, there have been a number of cases regarding the provision of a get: in the case of O v O,[8] the wife petitioned for a civil divorce and was granted a decree nisi. As she had not been granted a get, she did not apply for a decree absolute. The husband attempted to apply for it under s9(2) of the Matrimonial Causes Act 1973, but was denied until the get had been granted.

Section 5A of the Divorce Act, 1979 provides that the court may refuse a divorce decree if one spouse does not take steps necessary to dissolve the marriage (or to allow the other spouse to remarry) in accordance with religious custom. The court may also make any other order which it finds to be just. This provision was added in 1996 as a result of the South African Law Reform Commission's report on Jewish divorce.[9]