Divorce (Religious Marriages) (Hansard, 31 January 2001)

§ Mr. Andrew Dismore (Hendon)

I beg to move, That leave be given to bring in a Bill to make provision enabling a court to require the dissolution of a religious marriage before granting a civil divorce. The idea is not new. Indeed, Lord Lester introduced a similar Bill in the previous Session. It completed all its stages in another place, only to be blocked in the House. The essential provisions of the Bill were previously enacted in part II of the Family Law Act 1996. However, they have not been effected and are to be repealed for reasons that are wholly unconnected with the Bill, which the Government support.

The purpose of the Bill is to remedy a disadvantage suffered by Jewish men and women who are prevented from remarrying because of the refusal of their partner to grant or accept a religious divorce. The basic Jewish laws relating to marriage and divorce are biblical and, therefore, cannot be changed. In Jewish law, marriage and divorce are consensual processes: an individual cannot be married or divorced against his or her will. This creates a problem in cases in which one party seeks to end the marriage and the other refuses to grant or receive a divorce. Such a divorce is called a get in Hebrew.

For a civil divorce to be effective in Jewish law, a get must be obtained. This is a consensual divorce in which mutual co-operation between the parties is required. The husband has to go before a Beth Din Jewish court for a get and deliver it to his wife, and she is required to accept it. If he does not do so, the wife cannot re-marry in Jewish law, although he may be able to do so. Jewish authorities have long been sensitive to the problem, especially when it is the wife who is trapped in a marriage that she seeks to end. In Hebrew, she is called an agunah, meaning one who is chained to a spouse against her will.

In recent years, the Jewish community in Britain has done all that it can internally to alleviate the problem through its rabbinical courts. A pre-nuptial agreement has been instituted, and it is currently signed by the majority of couples, binding them, should their marriage fail, to attend a Jewish court to resolve outstanding differences.

Synagogue bodies have agreed to institute communal sanctions against recalcitrant spouses. However, the first is a voluntary undertaking, and the second may simply be ignored by a determined spouse, driven by the that often accompanies divorce. A well publicised example of that was a case at the end of last year in which a rabbi took an advertisement in the Jewish Chronicle to name and shame a recalcitrant husband, albeit to no avail.

Jewish women who wish to conduct their family relationships within the framework of their religious beliefs have virtually no power to compel a reluctant husband to grant them a get. Without a get, a divorcee who has a child by her subsequent partner is defined as an adulteress under Jewish law. Her child becomes a mamzer, an illegitimate outcast, which is a stigma that carries on into future generations. If a wife refuses to accept her husband's get, he is known as an agun. However, he does not suffer from those same disadvantages. As a result, a husband can effectively hold his wife to ransom, and can demand money, property, or other rights concerning custody or child maintenance in return for a get.

322 There are no reliable statistics of the total number of women affected, but seven cases in the Hendon area have been referred to me. No doubt there are many more in my own constituency of which I am unaware, and if they are multiplied throughout the Jewish community nationwide, the House can make its own assessment of the scale of the problem.

The cases of which I have heard reveal devastating personal tragedies. For example, there was a case in which a woman left an unhappy marriage. Her husband tried to get their child put into an orphanage. There have been long legal wranglings, and she still does not have her get. Another case involved a husband who left a 26-year marriage soon after the death of one of the children. He subsequently tried to blackmail the father of his wife for large sums of money.

A further case involved a woman who, at a young age, married a man who became aggressive. For example, he brought the garage door down on her head. He would not give her a get. His attitude was that if he could not have her, no one else could. There was also the case of a very young woman with young children who moved from Stamford Hill to Hendon to escape the violent husband who had abused her and the children. After six years of difficult and protracted negotiations, she succeeded in obtaining her get last year. Another case involved a woman whose husband deserted her when she was eight and a half months pregnant. She had to sell her flat and move, with the baby, into a rented room to pay him off in return for the get.

The Bill will provide a real remedy for real women such as these, because it will rectify the serious anomaly in English law that creates that extremely undesirable state of affairs. Under English law, a marriage between two persons professing the Jewish religion according to the usage of the Jews that has been solemnised on the authority of a superintendent registrar's certificate is recognised as a civil marriage, but a civil divorce may take place without a Jewish divorce having been given. That results in a so-called limping marriage, in which the parties are free to remarry under civil law, but not under religious law.

That is why the Jewish community has now sought the assistance of civil law, in the form of a provision that a judge should have the discretionary power to withhold the grant of a civil divorce until a Jewish divorce has been given.

The Bill would enable the court to require the dissolution of a religious marriage before granting a civil divorce. That would provide a lever with which pressure could be brought to bear on the husband to agree to a get. In cases in which it would be unjust for him not to do so, he would not be granted a civil divorce—which would normally be sufficient for his purposes—without agreeing to the religious divorce that his wife needed to avoid the stigma that I have described.

Such provisions have been enacted in our own law, although they have not been brought into force for the reasons to which I referred, and similar ones are already part of Canadian, South African and New York state law and are under consideration in Scotland. They would not 323 resolve all cases, but would resolve many—namely, those in which the husband wishes to remarry and thus needs a civil divorce.

It is important to understand that the Jewish community is seeking the assistance of civil law not to solve a religious problem, but, first, to end the anomaly whereby a Jewish marriage is also a civil marriage, although a civil divorce may be unaccompanied by a Jewish divorce; and, secondly, to seek the assistance of the civil courts to bring a couple to a Jewish court, which itself would undertake to resolve the dispute, allowing both parties to remarry according to their religious convictions. The Bill would also empower the Lord Chancellor to extend its provisions by order to other faiths, so it could also provide relief in similar cases within, for example, the Islamic community.

324 My Bill has the support of all synagogue bodies in Anglo-Jewry, orthodox and progressive, as well as the Chief Rabbi, the Board of Deputies and the agunot campaign. I hope that it also has the support of the House.