Divorce, law, religion and the Archbishop of Canterbury

Divorce | 15 Feb 2008 3

Perhaps I have been fortunate; in my experience, arguments over religious divorce between parties are swiftly resolved.

The row over the Archbishop of Canterbury and his comments about the “unavoidable” introduction of parts of Sharia law has gone global. I have some sympathy for the beleaguered Archbishop, because he is a deeply sincere man and wholly committed to the Church of England. He appreciates that we live in a multicultural society and wishes to embrace and welcome those not of his Church. In general, I believe he has been misinterpreted and misunderstood. However, I can also understand how his comments have caused great offence to all faiths and have been viewed by many as inflammatory. He hoped to do some good, but seems to have achieved the opposite.

As the debate has gathered in intensity, the apparent “exclusivity” of the interplay between the Jewish faith and English family law has also emerged as a subject for discussion. Being Jewish and a divorce lawyer I may be able to offer a little clarity. In my experience, the two work quietly and successfully together. I also believe it is important to note that the relevant part of English civil law is not exclusive – but is equally available to all faiths.

The English civil divorce process takes place in two stages. One half of a couple (the Petitioner) applies for a divorce, after which the court will grant a ‘decree nisi’. In most cases, six weeks later the petitioner can apply to the court for the divorce to be made absolute. It is at this stage that the parties become fully divorced from one another.

However, the court will delay the granting of a Decree Absolute when there is good reason, the most obvious being the lack of financial settlement.

Another reason to delay the Decree Absolute is when one of the parties is also obtaining a religious divorce, and that religious divorce has not yet occurred.

Not every faith group sanctions divorce. Neither the Church of England nor Roman Catholicism recognise it. As a result, these faiths have not established a process for divorce. However, it is formally recognised by other faiths, including Judaism.

In a case in which a religious divorce is also being obtained, it is clearly important to ensure that the marriage is ended under both regimes. Otherwise there would be what English lawyers describe as a “limping” marriage”, whereby parties are still married according to one civil system, but not another. This means that there is an ability to remarry under one regime, but not under the other. Although this may suit one of the spouses, it hampers a party who wishes to remarry under both regimes and ensure that any children subsequently born are deemed legitimate in both civil and religious law.

Section 10A of the Matrimonial Causes Act (MCA) 1973 gives the court power to postpone the grant of a Decree Absolute of divorce until the religious divorce has been obtained. Section10A applies equally to “any other prescribed religious usages” as well as the Jewish faith, and is not tailored exclusively to Jewish divorces. It is aimed at all religions with a divorce process.

Practitioners are rarely experts in the religious laws of their clients. I certainly am not. However, as a divorce lawyer, I do my best to accommodate the needs of all my clients. In the case of a divorcing couple who are Jewish, this can lead to my discussing the case with the local “Beth Din”. This is the Jewish court, which routinely deals with lawyers on this subject.  In practice, the Beth Din will not normally permit a religious divorce between the parties until a Decree Nisi is in place, thus ensuring that there is no “limping” marriage. So it is important for a divorce lawyer to make sure that a Jewish divorce takes place following the Decree Nisi – and only then obtaining the Decree Absolute.

I find that Section 10A works well in practice when required. At the same time, I recognise that perhaps I have been fortunate; in my experience, arguments over religious divorce between parties are swiftly resolved. I appreciate that this may not always be the case. A divorce solicitor may be ignorant of the requirements of the religious law, but he or she must be alive to the possibility of postponing the Decree Absolute until any issues are resolved.  If Section 10A is ignored by a divorce lawyer who is unaware of the possibility of a delayed Decree Absolute, it could lead to a negligence claim from a client who is left unable to remarry within their religion. It is vitally important to ensure that in such cases, both religious and civil divorces occur simultaneously.

At Stowe Family Law, the requirement of any religious divorce is one of the first matters on which we will obtain instructions from our clients. We will also confirm with our opposite numbers that agreement has been reached about this. It matters profoundly to some clients, but to others not at all. Following a Decree Nisi, if there is no religious divorce and one is needed, we will make a Section 10A application.

On a wider stage, I believe that this interplay between the civil law and religious divorce requirements is a great example of the multicultural accomplishments of British society and its lawmakers. It is an example of understanding and attempting to meet the needs of others, without compromising established laws and systems. In my view, this is one of the reasons why our legal system in England and Wales is the envy of the world.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comments(3)

  1. Debs Smithies says:

    Thank you for this post – it’s really helpful.
    As I understand it, a key source of tension between civil and Sharia divorce law is that, under Sharia law, a divorce can be effected in ways which would not be recognised by civil law (such as divorce by text message – http://www.timesonline.co.uk/tol/news/world/middle_east/article3129013.ece – although this may have been sensationalised!).
    Presumably this would result in what you describe as a ‘limping’ marriage, dissolved under religious law but intact under civil law – the inverse of the most likely situation in relation to Jewish law. Does that qualitative distinction have any importance, or are the two scenarios are essentially the same?

  2. Marilyn Stowe says:

    Thanks for this. It’s a good question.

    No religious divorce is recognised as valid in English civil law. A religious divorce that occurs before or after the grant of Decree Nisi will have no effect on the couple’s marital status under English law. There is only one law: the law of the land.

    Divorce in Jewish law, as I understand it, is not a judicial procedure. Instead it is a voluntary, consensual process between a husband and wife. It takes only a few minutes: the husband hands the wife a “get” (a divorce) and she accepts it. Their marriage is immediately ended. There is no judicial finding and no court order, as in civil proceedings. However, the divorce then permits a couple to remarry within the Jewish Orthodox religion. Any children subsequently born to the wife will be legitimate in Jewish law – which would not be the case if there had only been a civil divorce. For this reason, a religious divorce can have significant implications for future generations.

    Given the swiftness of the Jewish divorce process, it is sensible for a couple to first obtain a Decree Nisi in English law. This is why, in practice, the “Beth Din” will not arrange for the divorce to take place until there is a Decree Nisi. However, if the Jewish divorce does not take place thereafter, one of the parties may apply under Section10A of the Matrimonial Causes Act 1973 for the Decree Absolute to be delayed..

    I must stress that as lawyers, we cannot be expected to become particularly involved in the religious process. Even so, I think we need to consider its potential existence.

    Also, a word of warning: I have had Jewish clients who have stated that they are not bothered about obtaining a religious divorce. Given the above, I do think it is wise to check again at Decree Nisi stage and record the instructions in writing. This is because some time later, after the file is closed, circumstances may change and the client could come to regret not having obtained both forms of divorce..

    Best wishes,

    Marilyn Stowe

  3. The “Agunah”, Jewish Divorce and the Right to Choose | Marilyn Stowe Family Law and Divorce Blog says:

    […] by a husband to a wife to effect the couple’s divorce in Jewish law. In a previous post I described the Jewish get in detail, emphasising how important it is for a divorce lawyer to ensure that any religious divorce takes […]

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