HC Deb 13 June 1984 vol 61 cc926-31

'After section 9 of the Matrimonial Causes Act 1973 there shall be inserted the following section— 9A. — (1) Where a petition for divorce or nullity of marriage has been presented to the Court, either party to the marriage may apply to the Court at any time before decree absolute opposing the grant of the decree absolute on the ground that there exists a barrier to the religious remarriage of the applicant which is within the power of the other party to remove. (2) The Court shall not entertain an application under subsection (1) hereof unless the applicant satisfies the Court of the existence of such a barrier by means of a written declaration by the religious authority which authorised or sanctioned the marriage being dissolved by the Court, or which authorised or sanctioned a religious ceremony of marriage between the same parties or on proof that such authority no longer exists, by a religious authority recognised by both parties to be competent. (3) If the Court is satisfied as to the existence of such a barrier then subject to the provisions of subsection (4) hereof the Court shall refuse to permit the decree to be made absolute until it is satisfied by means of a written declaration by the authority referred to in subsection (2) hereof that the said barrier has been removed or that the parties have taken all such steps within their power to remove the said barrier or until the said application is withdrawn by the applicant. (4) Notwithstanding the provisions of subsection (3) hereof the Court may order that the decree may be made absolute if there are exceptional circumstances making it desirable for the decree to be made absolute without delay.".'.—[Mr. Abse.]

Brought up, and read the First time.

4 pm

Mr. Leo Abse (Torfaen)

I beg to move, That the clause be read a Second time.

I am grateful to you, Mr. Speaker, for having selected the new clause for debate. I am sure that that gratitude will be echoed by many within the Jewish and Moslem communities, as it enables to be canvassed within the House a matter which, although I believe it is a mischief, has not come before the House before.

The new clause is an attempt to deal with a mischief which, unhappily, arises too frequently when orthodox Jewish or Moslem couples seek to end their marriages. According to orthodox Jewish and Islamic law, in order to remarry, the divorced partners must be in possession of a religious divorce — a get as it is called within the orthodox Jewish religion, a talak for the committed Moslem. The obtaining of such religious decrees requires an initiative from the husband and some sign of at least procedural co-operation from a wife. At first sight, such matters are clearly beyond the province of our civil law.

Unfortunately, one partner—usually the husband—can brutally manipulate the passionate wish of the other party to be free after a civil divorce to remarry according to the religious law, without which religious remarriage the religious Jewess or Moslem may regard herself as an adulterer. Therefore the protection that our civil law provides for maintenance and the custody of children can be subverted by a ruthless partner.

The partner—usually the husband—blackmails the wife. The price for taking the necessary initiative is an agreed settlement or arrangement relating to children. It might be a settlement which, if the issues were adjudicated upon openly in court, would, according to the principles which the House has laid down in our civil law, be far different from that to which the hapless wife has been compelled to submit.

This sordid exploitation of another's religious commitment cannot commend itself to those of religious faiths other than the Jewish or Moslem, nor to those, like myself, whose intellectual convictions do not permit them to be so attached to ancient faiths as are these victimised partners.

It must be repugnant to us all that one spouse can use consent to a get as a bargaining card to obtain an unconscionable and inequitable financial settlement. In the Moslem communities considerable anxiety is felt about what are known as "limping" marriages—a marriage which is considered to be valid and subsisting by Islamic law, but dissolved and at an end by our law.

The failure of the husband to consent to a talak often leaves him at no personal disadvantage as, according to Islamic law, a man is allowed more than one wife. The man can remarry according to religious and civil law, but the wife cannot. Such circumstances have led inevitably to the creation of "limping" marriages, with all the attendant social and financial problems.

The aim of the new clause is to give the courts the power to withhold the decree absolute when they are satisfied that there is a barrier to religious remarriage which it is open to a partner to remove. Endowing the courts with such a power would, I have little doubt, have such a deterrent effect that the present miserable exploitation of another's commitment to religious rules would cease, because it would remove from any partner the coercive power which exists and is too often abused.

I am making this appeal within our plural society to ensure that our civil law is not circumvented. It would make nonsense of all our efforts during the proceedings on the Bill to obtain a just financial settlement for wives if we ignored the needs of those women who must be protected. The House alone can give the necessary protection, unless such people are to abandon completely their religious commitments.

I am keenly aware that there will inevitably be blemishes and defects in the drafting of such a clause. These are novel circumstances, which are becoming more acute within our plural society. It is open to the Solicitor-General to point out the defects and blemises which clearly exist in the new clause.

I hope that, with his forensic skills, the Solicitor-General will not merely sweep aside the new clause because of its technical defects, but will give a clear sign to those interested within the Jewish and Moslem communities that the Government have become aware of the problem and realise that it needs remedying, because it cannot be allowed to continue.

I ask the Solicitor-General to tell those communities that are watching the debate with interest that the Government are sensitive to the problem and that if, as I hope, Moslem and Jewish communities make representations to the Lord Chancellor, it will be possible for guidance and help to be given by having the matter reviewed by the Law Commission, and dealt with by a private Member's Bill or in another Bill. I hope that the communities can be made aware that the Government are not blind to the problems, nor are they unsympathetic towards any remedy which can properly resolve the difficulty. It is with that plea that I move the new clause and hope that the Solicitor-General will give it a warm response, which will be fully appreciated by the Jewish and Moslem communities.

Mr. Peter Thurnham (Bolton, North-East)

I thank you, Mr. Speaker, for calling me to speak on this new clause which stands in my name as well as that of the hon. Member for Torfaen (Mr. Abse).

I did not serve on the Committee and I am not a lawyer, so I hope that I can speak adequately for that substantial minority of people in my constituency and elsewhere who suffer under the law as it stands. Those constituents are Moslem wives. At present they suffer from two injustices. The first relates to those wives who have obtained a divorce abroad which, although satisfying their religious requirements, does not provide for a financial settlement.

I am pleased that my right hon. and noble Friend the Lord Chancellor has confirmed that part III of the Bill is designed to remedy such an injustice. By giving English courts powers to recognise a Moslem divorce, or talak, the Bill enables financial relief to be awarded to a former spouse who might otherwise be destitute. As my right hon. and noble Friend said in a letter to me, wives are unable to enforce any foreign financial order because no such order exists. Such a woman may thus face destitution, and her only source of support may be supplementary benefit. The fact that the former husband lives in this country, possibly in possession of substantial assets, makes no difference to the legal position. I welcome that. I welcome the fact that where funds are available in a family the burden on the welfare state should be lightened, and the wife freed of such a stigma under the provisions of part III.

However, owing to an anomaly in the law, there is a second injustice that is not remedied by the Bill, which is why we are introducing the new clause. Although English courts will be given powers in part III to recognise a religious divorce overseas, they have no power to recognise a religious divorce in this country. That creates a predicament for Moslem women seeking a civil divorce in Great Britain. Under Moslem law a man may have many wives, but a woman only one husband. Thus, religious divorce is essential for a Moslem woman who wishes to remarry according to her faith, but a Moslem man can be content with civil divorce alone, as he does not have: religious inhibitions about remarrying as often as he wishes.

Thousands of brides face that predicament. They are vulnerable to blackmail by their husbands, who will agree to a religious divorce only for a consideration. Such blackmail demands are scandalous and flout the intentions of the court when making provision for a wife. They should be prevented by passing the new clause, which demands the removal of religious barriers to remarriage as a condition of civil divorce.

Cases have been brought to my attention in Bolton, of which my constituency is a part. In one case, the parties had gained British nationality but had been separated for five years with a decree absolute. The ex-husband would not, however, grant a religious divorce. He demanded £5,000 and the return of the wedding jewellery as an inducement.

In the second case, the husband and wife were married in India. After an unhappy relationship in Great Britain the husband sent his wife's passport to the Home Office in an attempt to get her removed, as she did not have British nationality. He eventually agreed to a religious divorce, but only if he did not have to pay maintenance and if she returned the wedding jewellery to him.

In the third case, both sides had British nationality, and the matter was settled only after violent persuasion by the wife's family. Obviously, a solution that involves a breach of the peace is unsatisfactory and not conducive to good race relations.

In the case of Mrs. Patel, her relatives fulfilled the husband's demands by paying him £4,000 and returning the marriage jewellery to obtain a religious divorce. In the fifth case, the wife was not a British citizen and her relatives paid money to obtain a religious divorce after the husband threatened to arrange a deportation.

Therefore, there is considerable evidence to show that many women, some of whom are British citizens, suffer injustice under the present law through no fault of their own. What does Parliament intend to do to remedy that position? Surely the law should help to reinforce religious beliefs in the sanctity of marriage, whatever the religion, rather than ignore barriers to marriage, which are real and practical for this minority of Moslem women.

The rights of Moslem women to remarry according to their religious faith should be facilitated by the courts. That is the purpose of the new clause. It does not introduce a new barrier to divorce, but seeks to remove an existing one. Besides, subsection (4) gives the court absolute discretion about the matter. Just as part III recognises the rights of Moslem women who have a religious divorce abroad, part I should recognise the need to remove religious barriers to a civil divorce in this country.

The Lord Chancellor said that the courts would take conduct into account regarding financial provision, where it would be inequitable to disregard it. Likewise, Sir Jocelyn Simon argued in Qureshi v Qureshi in 1971 that not to recognise a talak would put the wife in a financially disadvantageous position with no right to reclaim her dowry. In Brett v Brett in 1969 the judge ordered that a lump sum payable by the husband should be reduced if a religious divorce were granted. Judges should not be put in the position of having to use a back door when policy and equity dictate that this should be properly set out at the beginning of the Act.

I urge right hon. and hon. Members not to turn their backs on this unfortunate minority and to support the new clause in the interests of humanity. I ask the Government to give a commitment to act.

4.15 pm
The Solicitor-General (Sir Patrick Mayhew)

The new clause, to be inserted into the Matrimonial Causes Act 1973, seeks to enable a party to apply to the court, at any time before decree absolute on a petition for divorce or annulment, for the decree absolute to be delayed until the other party has removed any barrier to the religious remarriage of the applicant, which he has the power to remove, for example, by the pronouncement of a get.

I am grateful to the hon. Member for Torfaen (Mr. Abse) and to my hon. Friend the Member for Bolton, North-East (Mr. Thurnham) for giving me the opportunity to express the views of my right hon. and noble Friend the Lord Chancellor about the proposal, which was first raised at a late stage in Committee by the hon. Member for Torfaen.

The hon. Member for Torfaen hoped that I would not, with my usual forensic grace, sweep the new clause aside because it has drafting defects. It does not call for much forensic grace to do that. Moreover, I hope that I do not often do that to amendments tabled by hon. Members. The hon. Gentleman knows that there are fairly substantial difficulties in drafting the new clause, which make it impossible to insert it into the Bill. I do not propose to waste time going over those difficulties, and I hope that the House will accept that substantial difficulties exist. I know that the hon. Gentleman is aware of some of them.

I took special account of my hon. Friend's constituency cases. There is little better evidence of a problem than that which we accumulate in our constituency surgeries. I understand that a powerful case can be made for the intended change in the law. I see the force of the case that, if there is a bar to religious remarriage, which can be lifted only by the partner from whom one has been divorced, it provides, in unscrupulous hands, a powerful opportunity for blackmail. Both speeches made that point clear.

My hon. Friend the Member for Bury, South (Mr. Sumberg) also made that point clear to me. He passed on similar representations to me on behalf of the Jewish community. As my hon. Friend the Member for Bolton, North-East said, case law has developed which has permitted judges to express effectively their disapproval of blackmail. That has provided protection for a wife from such abuse. I note what was said about the need to change the statute law. On the merits of the proposal, I doubt whether it would be right to prevent a marriage from being dissolved by a bar that was based on one narrow aspect of conduct. That is not necessarily the only way in which the problem can be addressed.

The hon. Member for Torfaen knows that the Lord Chancellor discussed the proposal with the hon. and learned Member for Leicester, West (Mr. Janner) recently. The Lord Chancellor has authorised me to tell the House that although the Government firmly believe that the new clause is not suitable for insertion at this stage—for reasons which I outlined briefly — if at a later date representations were made to him so that he could hold proper consultations with representatives of religious bodies, which he has been unable to do, or if the new clause formed the subject of a private Member's Bill, he would not be unsympathetic to it. Although he could give no commitment, he would undertake to consult widely upon the matter and to give it the most thorough consideration.

In the circumstances, the House would not expect me to go further, and I am not authorised to go further. But I believe that my remarks give the hon. Member for Torfaen that for which he asked—a recognition by the Government of a problem that has arisen, and an undertaking to consider the matter seriously if it is raised at a later stage. However, reluctantly, I cannot accept the new clause.

Mr. Abse

In view of the helpful comments of the Solicitor-General, I beg to ask leave to withdraw the clause.

Motion and clause, by leave, withdrawn.

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