HL Deb 07 July 2000 vol 614 cc1722-8

11.54 a.m.

Lord Lester of Herne Hill

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Lester of Herne Hill.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE DEPUTY CHAIRMAN OF COMMITTEES (Lord Brougham and Vaux) in the Chair.]

Clause 1 [Refusal of decree absolute on grounds of non-dissolution of religious marriage]:

Baroness Miller of Hendon moved Amendment No. 1: Page 1, leave out lines 14 to 18 and insert— ("(2) On the application of the party to the marriage described in subsection (2A) or (2B), the court may order that a decree of divorce is not to be made absolute until a declaration has been made by the other spouse that such steps as are required to dissolve the marriage in accordance with those usages have been taken by that other spouse.").

The noble Baroness said: In moving Amendment No. 1, I wish to speak also to Amendment No. 2, both standing in my name. Indeed, one follows on from the other, the first being largely a paving amendment to make way for the second.

Despite my misgivings, which I expressed at Second Reading, about the general principles of the Bill, I urged noble Lords then to give it a passage. That was despite my belief that subsection (2) is morally flawed. A religious divorce is in addition to, not in place of, a civil one granted by the ordinary domestic family courts. However, without it neither party is free to enter into another orthodox Jewish marriage, irrespective of the grant of a civil decree absolute.

As Members of the Committee are aware, only the husband can initiate the proceedings before the ecclesiastical courts to obtain a religious dissolution of a Jewish marriage. It is then generally up to the wife to accept or to refuse it. In other words, a religious divorce, which is in addition to a civil one, requires the mutual consent of both parties. Either party can, in effect, veto it, thus preventing his or her former spouse from remarrying in an orthodox synagogue.

The Bill is well intentioned in its attempt to provide some relief to the spouse who is chained by the refusal of the other to co-operate in the religious formalities. I say "some" relief because the situation where a spouse wants a civil divorce but declines to enter into a religious one is rare indeed. However, as I believe all Members of the Committee agree, even if it helps one distressed woman or man every now and again, it is better than the minimal assistance that they can receive at present from the Jewish ecclesiastical authorities.

Subsection (2) is defective because it begins with the phrase: On the application of either party".

That means that even the defaulting party—the one causing the problem—can, under the terms of the subsection, apply to the court to decline to grant a decree absolute because of his or her own failure to co-operate in the religious procedures. That is manifestly absurd. Whatever happened to the principle of "he who seeks equity must do equity"? This subsection suggests that a litigant is no longer required to come to court with clean hands.

Without detracting at all from the intention of the Bill as originally drafted, my amendment simply makes it clear that the only party who can apply for the decree absolute to be deferred is the innocent party. Even then, he or she must first have taken all the appropriate steps required of him or her. That, I submit, is common sense and common probity.

In a conversation which I had with the noble Lord, Lord Lester of Herne Hill, he suggested to me that it would be impossible for a defaulting spouse to persuade a judge to refuse the decree absolute because of his own misconduct. He told me that no judge would ever countenance such a misconceived application and would dismiss it out of hand. I am perfectly prepared to believe that there is not a single judge in the entire country who would be gullible enough to fall, even momentarily, for some plausible yarn spun to him by the defaulting spouse.

Far be it from me to attempt to offer a legal opinion to the noble Lord, Lord Lester, but I remind him that litigation is not about winning in court; it is about getting a result. If the defaulting spouse made an application to delay the decree absolute on day 40—two days before it would normally be made absolute—there would have to be a hearing of the application before the judge when the applicant would make his or her case orally or on affidavit. Given the congested state of the court calendar, there could be a delay of weeks or months, during which time the offending spouse could continue to attempt to extort a greater share of the family assets or different arrangements for maintenance or access to the children, or simply maliciously try to frustrate the other party's proper rights. That cannot be right.

I cannot believe that the Jewish ecclesiastical authorities could have any reservations about preventing a wrongdoer benefiting from his sins. The amendment would simply ensure that only the wronged party could seek the assistance of the court to grant the remedy that the Bill proposes. I urge the noble Lord, Lord Lester, to accept it. I beg to move.


Lord Lester of Herne Hill

I welcome the constructive spirit in which the noble Baroness, Lady Miller, has spoken and her acceptance of the aims of the Bill, despite her strong reservations about the means employed.

The aim of the amendments is to ensure that the procedure prescribed by the Bill cannot be abused by one party to a Jewish marriage to prevent the other party obtaining a civil divorce, while that party is unwilling to grant a religious divorce. The amendments would require the party applying to the courts seeking the refusal of a decree absolute on the ground of non-dissolution of the religious marriage to have taken irrevocable steps to obtain a religious divorce.

I agree with that aim, but the amendments are not necessary and would create difficulties. The Bill is not defective. It empowers the court to order that a decree of divorce is not to be made absolute until a declaration has been made by both parties that they have taken such steps as are required to dissolve the marriage in accordance with the relevant religious usages. The court may make such an order only if it is satisfied that in all the circumstances of the case it is just and reasonable to do so. That was the approach adopted by Parliament in Section 9(3) of the Family Law Act 1996, which has not been brought into force for other reasons.

If either party to the marriage were to attempt to use that procedure without being willing to grant or receive a religious divorce, the application would inevitably be refused. It would be dismissed, because the applicant had shown an intention not to take the necessary steps to dissolve the religious marriage and because it would not be "just and reasonable", in the words of the Bill, to refuse to grant the other party a civil divorce. In the noble Baroness's words, it would be absurd and an abuse of judicial process.

It is not a question of whether judges are gullible, because everything is dealt with on evidence. The innocent party would be able to explain in evidence to the judge that the other party was seeking to abuse the procedure with no intention of enabling a religious divorce to take place. Judges are well able to stop people abusing rights by exercising their judicial discretion and penalising anyone who abuses the processes of the court in costs.

There may be difficulties with the noble Baroness's definition of "appropriate ecclesiastical authorities". Rather than attempting to define in legislation which of the many religious authorities exercise jurisdiction in any given case, it is better for us to leave that task to the discretion of the courts.

The noble Lord, Lord McIntosh of Haringey, said at Second Reading last week that the Government proposed to introduce an amendment to give the Lord Chancellor the power to add other religious groups as appropriate, to comply with our obligations under the European Convention on Human Rights. That would be much simpler to accomplish without the amendment.

For those reasons, I hope that the noble Baroness will withdraw her amendment. As I have made clear to her outside the Chamber, if her anxiety about abuse is shown in practice to be well founded, I shall support her strongly in any future effort to build into the legislation further safeguards against possible abuse. However, the other supporters of the Bill and I are satisfied that the safeguards in the Bill are strong and effective and that the courts will interpret and apply the powers conferred on them wisely in the interests of justice.

Lord Mishcon

In the language of an appellate court, I agree with the noble Lord. Lord Lester, and have nothing to add.

Lord Winston

Nobody could question the good intentions of the noble Baroness, Lady Miller, or the great distress that she expressed last week. The whole House will have great sympathy with her on that. However, the amendments raise some difficulties, which have been clearly identified by the noble Lord, Lord Lester. It would be wrong not to look at them carefully. We do not want to delay a Bill that will go a long way to right a wrong.

I should like to amplify one point that the noble Lord, Lord Lester, made. There is a serious problem with the notion of appropriate ecclesiastical authorities. One of the great strengths of Judaism, which is also in a way a weakness, is that it has no single authority. That is a great strength, because individual rabbis have considerable power, but they cannot alter the law, as many Zionist people would like. The noble Baroness referred last week to the halacha. People could arrive in this country requiring a religious divorce, but could then have great difficulty in obtaining it from the appropriate ecclesiastical authority, because that authority was in a different branch of the Church outside this country. That would create a difficult judicial mess and the provisions would be almost impossible to enforce. For that reason alone, we need to be very careful about the amendments.

There may well be other, non-Jewish religious disciplines that might greatly benefit from a similar law. We have to listen to those issues carefully before changing this worthy Bill.

Lord Bach

Before I say a brief word about the amendments, I take this opportunity to comment on something that the noble Lord, Lord Lester, said. The Committee will recall that my noble friend Lord McIntosh of Haringey, who spoke on behalf of' the Government at Second Reading, expressed our support for the Bill in principle. He added that the Government intended to bring forward an amendment to ensure that the Bill was compatible with the European Convention on Human Rights.

It was the Government's intention to move the amendment at this stage and I must apologise to the Committee that that has not been possible in the week since Second Reading. The noble Lord, Lord Lester, has very generously indicated that he is content for such an amendment to be tabled for Third Reading and I shall, of course, send him a copy for his consideration as soon as it is ready. Indeed, perhaps even more that, it is hoped to arrange a meeting with him as soon as it is ready.

I will briefly reiterate here the reasons why the Government consider it appropriate to amend the Bill and the nature of the amendment. Counsel's opinion indicates that the Bill is not compatible with Article 14 of the ECHR in that it may be discriminatory on religious grounds. The Government, therefore, believe that an amendment is required to ensure that it is compliant. In effect, the amendment will alter the Bill to apply only to the Jewish faith but will give the Lord Chancellor the power to add other groups as and when appropriate.

At the present time, it is only the Jewish community that has approached the Government for this remedy. It would not be appropriate to confer rights upon other faith groups without any evidence that this would be welcome to them. Other faith groups may, if they so wish, make a case to the Government for this provision to be extended to them.

I apologise to the noble Baroness for not turning to her amendment sooner but I do so now. As the Government are seeking to amend the Bill to widen its scope, it would be inappropriate for the Government to support the noble Baroness's amendments, which appear to be focused towards the needs of just one faith. If the purpose behind the amendments is to deal with a party who makes an application with the motive of delaying matters unreasonably, the Government believe that a judge will deal with that appropriately.

Baroness Miller of Hendon

I have listened carefully to what the noble Lord, Lord Lester, said and I listened too to the brief words from the noble Lord, Lord Mishcon. I should not dream of attempting to argue with two such learned lawyers.

Of course I am extremely disappointed. When this process started, I did not realise that this provision would be widened to include other religions. There is no way that I should wish to table any amendment which would affect another religion. That would certainly not be my intention. My understanding was that the Bill was drafted by the Board of Deputies and that the noble Lord, Lord Lester, was bringing it forward in order to help people. On that basis, I was concerned that we should get it right.

The noble Lord, Lord Lester, said that he does not believe that the amendment is necessary. In the narrow terms of Jewish divorce, I do not believe that it is unnecessary either. It merely makes the matter safer. But clearly, in view of what the Minister said, the amendment would interfere with the wider aspirations of what the Government wish to do with this Bill; namely, that the Lord Chancellor should later have the power to include other religions.

The noble Lord, Lord Lester, has given me an assurance that if my fears prove to be true, he would be happy to work with me later to improve the Bill in the way that I wish we could improve it now. I understand why that cannot be done. In the light of the noble Lord's assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 1 agreed to.

Remaining clause agreed to.

House resumed: Bill reported without amendment; Report received.