Religious Marriages: Staying a decree absolute in order to increase the chances of obtaining a religious divorce
Charlotte Rachael Proudman, a barrister at 1 Mitre Court Buildings, provides legal guidance on the Matrimonial Causes Act 1973, Section 10A, used in religious marital cases to speed up the process of obtaining religious divorces.
Charlotte Rachael Proudman, barrister, 1 Mitre Court Buildings
Religious marriages and divorces
Under Jewish law a civil divorce will not bring the parties' religious marriage to an end. In order to accomplish that the husband must provide his wife with a Jewish divorce 'get'. If a husband refuses to give his wife a get, the wife may request a Jewish court, Beth Din, to grant a divorce. Only in rare circumstances will a Beth Din pronounce a divorce. Without a religious divorce a Jewish wife cannot remarry according to religious law – wives therefore become known as 'chained wives', agunot. To avoid such situations arising, women's rights groups in Israel, America and other parts of the globe are promoting a form of pre-marital agreement requiring that in the event of a civil divorce the husband will provide his wife a get, should she require one in the future.
Similarly under Sharia law, obtaining a civil divorce does not automatically mean spouses are divorced according to Sharia law. The husband must provide the wife with a Sharia divorce by pronouncing 'talaq' three times, either consecutively or on three different occasions (depending on the Islamic school of thought by which the spouses abide). If a husband refuses to pronounce talaq the wife may request a Sharia divorce from a Sharia law body. The process is costly and time consuming for wives. Without a religious divorce Muslim wives cannot remarry according to religious law. To make life simpler, Muslim scholars, Imams and women's rights groups including the British Muslims for Secular Democracy have introduced a Nikah, an Islamic marriage contract, which gives wives a number of rights including the right to unilaterally divorce their husbands.
Overview of the Matrimonial Causes Act 1973, section 10A
In order to provide Jewish wives with a degree of leverage s10A was inserted into the Matrimonial Causes Act 1973 by the Divorce (Religious Marriages) Act 2002. The section is used in cases involving marriages conducted according to Jewish usages. The court can order that a decree nisi should not be made absolute until the parties have made a declaration that they have taken such steps as are required to dissolve the marriage in accordance with those usages (s10A (2), (4) MCA 1973).
A declaration of religious divorce is provided by a 'relevant religious authority' (FPR 2010, r 7.30(1)(d)(i)). A religious authority is 'relevant' if the party who made the application for the s10A order considered the authority competent to make a declaration of religious divorce (FPR 2010, r 7.30(4)). Once a religious divorce is declared in specified form (s10A (4) MCA 1973) it is not uncommon for the other party to contest the validity of such a divorce. For instance, an Orthodox Jew may contest the validity of a religious divorce pronounced by a Beth Din, which does not conform to Orthodox Judasim. In such circumstances one or both parties might adduce expert evidence to determine whether the religious divorce is valid according to religious usages.
The stay of a decree absolute will continue until the court is satisfied by a declaration of both parties that the marriage is also dissolved in accordance with Jewish usages. Once a valid religious divorce has been granted an English court will pronounce a decree absolute and the parties will be divorced according to both religious law and English law.
The prospect of a pending s10A MCA 1973 application can have the desired effect in pressurising a husband to agree to give his wife a divorce, thus speeding up a contested religious divorce. The London Beth Din considers that the legislation has reduced the number of agunot (see Douglas et al (2011) Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts, Cardiff University). However the application is not effective where the husband is indifferent to a civil divorce or is not keen to remarry under civil law.
Prescribed religious usages and section 10A
At present only the Jewish religion is included within s10A but other religions can seek to be 'prescribed' within the legislation (s10A(1)(a)(ii) MCA 1973). In order to achieve this, the religion must be prescribed in an order by the Lord Chancellor after consulting the Lord Chief Justice and such an order must be made by a statutory instrument (s10A(6) MCA 1973).
It has become apparent that some legal representatives and members of the judiciary are under the misapprehension that s10A also applies to Muslims. The writer is aware of instances in which s10A has been applied in Islamic marital cases where legal representatives and members of the judiciary believed (incorrectly) that the provision applies to Muslims as well as Jews.
It is imperative that s10A applies to the Muslim community because women are left in a state of limbo, unable to move on with their lives, with no legal redress. In some cases husbands have used their power to resist an Islamic divorce as a bargaining tool to pressure their wives into agreeing less favourable terms for financial relief on divorce or child related matters.
A number of legal provisions are engaged in current circumstances where s10A does not extend to Muslims: wives are unable to exercise their right to family life under article 8 of the European Convention on Human Rights, right to freedom of conscience and religion under article 9, right to marry under article 12, right to equality between spouses under article 4 of the 7th Protocol to the Convention, right not to suffer discrimination in the exercise of her Convention rights under article 14, and right to an effective remedy to protect their rights under article 13. Similar provisions are to be found in the United Nations Universal Declaration of Human Rights, which the United Kingdom voted for in 1948, and in other more recent treaties to which we are a party.
In an attempt to resolve the situation there have been a number of parliamentary questions regarding whether s10A should apply to Muslims. Following a parliamentary question by Mr Edward Garnier MP on 10 June 2009 regarding expanding the ambit of s10A MCA 1973 to include Muslims, the Parliamentary Under-Secretary of State for Justice, Bridget Prentice, stated that the Government would bring the provision to the attention of the Muslim community to ascertain whether they want to be brought within its scope rather than wait for them to come forward (see Hansard: Commons Debates: 10 June 2009: Col 255WH). It is unknown what steps the Government took.
However it is evident that little progress has been made because Lord Lester of Herne Hill asked the Government on 27 February 2012 "whether they will consult representatives of the British Islamic religious communities about whether an order should be made by the Lord Chancellor under Section 1 of the Divorce (Religious Marriages) Act 2002". Contrary to the answer of the Parliamentary Under-Secretary of State for Justice on 10 June 2009, the Minister of State, Lord McNally stated "it is for the religious community itself to decide to make use of the provisions of the Act and then ask the Lord Chancellor to prescribe the religious group for that purpose" (see Hansard: Lords: 27 February 2012: Col WA230). It seems the onus is now on the Muslim community to unite and present its case to the Lord Chancellor.