Divorce (Religious Marriages) (Hansard, 23 October 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. This Bill is not a new idea—Indeed, a very similar Bill was introduced in the previous Parliament by Lord Lester. It completed all its stages in another place, only to be blocked here in the end. I used the ten-minute procedure to bring in a Bill in the previous Session; it reached Second Reading but was talked out. This, therefore, is the third attempt in three years to introduce such a Bill. That shows how important the measure is, although it may also give the House a feeling of déjá vu.

The terms of the Bill were in essence previously enacted in the Family Law Act 1996, part II, but those provisions have not been brought into force and are to be repealed for reasons wholly unconnected with this Bill. I believe that the Government support the Bill.

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 partners to grant or accept a religious divorce, which is known as a get. The basic Jewish laws on marriage and divorce are biblical, and therefore not subject to change. In Jewish law, marriage and divorce are consensual processes and an individual cannot be married or divorced against his or her will. That creates a problem in cases where one party seeks to end a marriage and the other refuses to grant or receive a divorce.

For a civil divorce to be effective in Jewish law, a get must be obtained. A get is a consensual divorce in which mutual co-operation between the parties is required. The husband has to go before a Beth Din 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 remarry in Jewish law, although the husband may be able to do so. Jewish authorities have long been sensitive to the problem, especially where it is the wife who is trapped in a marriage that she seeks to end. She is called, in Hebrew, 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 situation through its rabbinical courts. It has instituted a pre-nuptial agreement, which 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 ill will 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, but to no avail. In another case, the agunot campaign organises a picket every Sunday morning outside the house of Mr. Israel Elias, who refuses to give his wife a get. One Sunday in the summer I joined the picket to show support and to talk to other women affected by the same problem. A civil divorce on the ground of cruelty was granted to Mrs. Elias in 1962. 147 There was a custody battle, and now, almost 40 years on, Mr. Elias still refuses to release his wife, despite the extensive publicity that the case receives.

Jewish women who want 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 the 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.

There are no reliable statistics on 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 constituency of which I am unaware. If that number is multiplied throughout the Jewish community nation-wide, the House can start to makes its own assessment of the scale of the problem.

The cases of which I have heard reveal devastating personal tragedies. For example, a woman left an unhappy marriage and her husband tried to get their child put into an orphanage. There have been long legal wranglings, but 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 subtly tried to blackmail the father of his wife, offering to grant a get in return 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 getߞhis attitude was that if he could not have her, no one else could.

A very young woman with young children moved from Stamford Hill to Hendon to escape her violent husband, who had abused both her and the children. After six years of difficult and protracted negotiations, she finally succeeded in obtaining her get last year. A woman whose husband deserted her when she was eight and a half months pregnant had to sell her flat and move with the baby into a rented room so that she could pay him off in return for a get.

The Bill will not help every woman in such tragic circumstances. If the husband does not want or need a civil divorce, or a civil divorce has already been granted, as in the Elias case, the problem will remain. However, the Bill will provide a real remedy for women such as those in the cases that I have described, as it will rectify a serious anomaly in English law which creates this extremely undesirable state of affairs.

Under section 26(1)(d) of the Marriage Act 1949, a marriage between two persons professing the Jewish religion according to the usage of the Jews which 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 148 a Jewish divorce having been given. This results in a so-called "limping marriage", where the parties are free to remarry civilly, but not religiously. That is why the Jewish community has now sought the assistance of civil law, in the form of the provisions in the Bill, whereby a judge would be given the discretionary power to withhold the grant of a civil divorce until a Jewish divorce has been granted, if it is just and reasonable to do so.

The Bill would thus enable the court to require the dissolution of a religious marriage before granting a civil divorce. That would provide a lever whereby pressure could be brought to bear on the husband to agree to a get. Where 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 first agreeing to a religious divorce, which his wife would need to avoid the stigma that I have described. The playing field for ancillary relief would be levelled, avoiding the blackmail over financial settlements, custody or access to children that I have already illustrated.

Not only has such provision been enacted—although not brought into force for unassociated reasons—in English law, but similar provision is already part of Canadian, South African and New York state law, and is currently under consideration in Scotland. It would not resolve all cases, but it would resolve many, namely where the husband wants to remarry and thus needs a civil divorce.

It is important to understand that the Jewish community is not seeking the assistance of the civil law to solve a religious problem. It wants first, to end the anomaly whereby a Jewish marriage is also a civil marriage, but a civil divorce may be unaccompanied by a Jewish divorce, and secondly, to seek the assistance of the civil courts in bringing a couple to a Jewish court, which itself undertakes to resolve the dispute, allowing both parties to remarry according to their religious convictions.

The Bill also empowers the Lord Chancellor to extend its provisions by order to other faiths, so it could provide relief in similar cases in the Islamic community.

My Bill has the support of all synagogue bodies in Anglo-Jewry, as well as the Chief Rabbi, the Board of Deputies of British Jews, and the Jewish Marriage Council. I hope that it also has the support of the House.