Christian considerations

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Having looked in recent blogs at how English courts treat the religious practices of Jews and Muslims, we turn now to the third Abrahamic faith, Christianity, and consider its inter-relationship with the English Civil Courts.

To fully understand the position, we must indulge in a little history lesson. Are you sitting comfortably? Then we shall begin.

Those of you with a smattering of historical knowledge will no doubt recall that the Church of England came into being when Henry VIII broke with the Roman Catholic Church in order to set aside his marriage to Catherine of Aragon and take up instead with Anne Boleyn.

As an interesting aside, the old rhyme for remembering Henry’s wives: “divorced, beheaded, died, divorced, beheaded, survived” is not strictly accurate. He did not divorce any of them. Four had their marriages annulled (i.e. declared void); two of those before they were beheaded, two survived the annulments, and therefore he (legally speaking) had only two wives. Henry did not break with Rome in order to divorce Catherine of Aragon; both the Roman and English churches held that marriage was indissoluble; rather he wanted his marriage declared void, so that as an unmarried man he could marry Anne. But we are digressing.

Marriage and divorce remained an ecclesiastical matter (i.e. only the church could conduct weddings and permit annulments) until The Divorce and Matrimonial Causes Act 1857 secularised the English divorce law. The Act introduced civil divorce through the courts for the first time and created a new court for the purpose, with one (yes, one!) judge for all cases – the wonderfully names Sir Cresswell Cresswell. There were 300 divorce petitions in its first year – a scandal at the time! Since the 1857 Act came into force marriage and divorce have been secular matters, and the subject of various subsequent Acts of Parliament. These days the Church of England, the Catholic Church and other Christian denominations have authority under various statutes to conduct marriages on the State’s behalf alongside their own religious ceremony, but marriage remains a secular institution.

So what about the current legal situation?

As the Churches no longer have jurisdiction over family law the civil courts do not need to take a separate body of law into account when dealing with couples who have married in church, or who are practising Christians, although courts do consider the cultural and religious background of the family subject to the proceedings before them.

Religious upbringing for children can be a difficult issue for courts to resolve. We mentioned a case in our previous blog where two parents of the Chassidic Jewish community disputed which schools their children should attend – ultra-orthodox or more secular. Similar disputes arise amongst Christian parents and disputes over whether children should be sent to a Catholic, Church of England or secular school are not uncommon. In a more unusual case last year, a Jewish mother tried to prevent (by court order) her 10 year old daughter from converting to Christianity and being baptised. The court rejected the application and said the girl was old enough to decide for herself in which religion she wanted to be involved. You can read the report of the case from The Telegraph here.

When it comes to divorce, both the Church of England and the Catholic Church have restrictions on remarriage in church for divorced people, although other denominations do not. A Catholic is not permitted to receive the Eucharist if he or she remarries (unless the first marriage was annulled), which can be hard as receiving the Eucharist is central to the expression of faith.

For those for whom divorce is religiously problematic, the option of Judicial Separation can help. It is similar to divorce in many ways, in that a court can divide the matrimonial assets in the same way that it can in relation to divorce (although pensions cannot be shared), and the courts have the same powers to make orders in relation to children as they would in relation to divorce proceedings. However once a decree of Judicial Separation is granted the parties are no longer obliged to live together (a requirement of marriage) and they are considered legally separated, although they remain married.

A decree of judicial separation can be granted on the basis of the same five grounds used for divorce, namely: adultery; unreasonable behaviour; desertion for a continuous period of 2 years; separation with consent after 2 years; and separation without consent after 5 years. It is also possible to apply for a decree within the first year of marriage, unlike divorce. There are some procedural differences, but they are not very great, and importantly financial remedies (with the exception of pensions) and the powers of the court to order disclosure and enforce judgments are exactly the same.

If you would like to discuss judicial separation, or any aspects of the issues raised above, please give Adam, Gail, Simon or Sue a call on 01223 443333.

 

Jewish divorce and the English courts

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Last week we looked at how the English courts treat Islamic marriages and divorces, and how they try to incorporate the religious sensibilities of people appearing before them. This week we take a brief look at Jewish matrimonial custom and the approach of the English courts to it.

Jewish law is governed by the Beth Din, whose function is to arbitrate in civil disputes and administer Jewish family law. For a Jewish marriage to be recognised under English law, the couple will need a civil marriage certificate as well as their Jewish marriage contract.

As well as a civil divorce in the courts, a Jewish couple need a Get (a Jewish divorce) which enables them to remarry in an Orthodox synagogue and remain fully integrated in the Jewish community. A Get is granted by the husband to the wife and she must formally agree to accept it. For the Get to be universally recognised within the Jewish world, the procedures should be affected under the auspices of an Orthodox Beth Din.

Without a Get, the wife has the status of “Agunah”, effectively a “chained woman”. She will be unable to remarry in a synagogue, and in the absence of the Get a wife who enters a new relationship will be considered to be committing adultery even if she has a civil divorce. Furthermore without a Get, any children of a new relationship have a much lower status than legitimate children under Jewish law. A Jewish child who is religiously illegitimate is known as a “mamzer” and is under a severe social handicap in that they cannot marry a fellow Jew, the status permanent and the label passes down the line in perpetuity. This does not necessarily apply in all branches of Judaism but is the case for Orthodox Jews. It serves to underline the importance of obtaining Gets for Jewish clients.

Such is the importance of obtaining a Get that the Divorce (Religious Marriages) Act 2002 provides that a civil decree absolute can be withheld until a Get is obtained.

The English civil courts try their best to acknowledge the religious and cultural background of the parties in disputes. It was therefore interesting to see that a recent case in the High Court acknowledged the importance of the role played by the Beth Din within Jewish family law. In this case the couple were both devout Orthodox Jews who wanted their dispute dealt with by arbitration in the New York Beth Din. The English court stayed proceedings here to allow a couple to go through arbitration in the religious courts, and once agreement had been reached through the Beth Din arbitration, the High Court approved the agreement reached. The judge in this case steered a careful path by acknowledging that for this couple, arbitration in the religious courts was preferable to litigation. It approved the agreement reached, but stressed that the jurisdiction of the English courts cannot be ousted by religious courts, although religious beliefs will be respected.

Naturally the press had a field day with this decision, saying it opens up the way for sharia and other religious divorces to be recognised by the English courts. That is a long way off! There are no plans for this, but it is interesting that, where appropriate, the services offered by religious courts will be acknowledged by the civil courts.

Another recent case looked at the divergent views of the mother and father of five Jewish children as to the appropriate upbringing for them. The family were all members of the Chareidi or Hassidic Jewish community in North London. The father wanted the children educated in a single-sex ultra-Orthodox school, whereas the mother preferred a more secular co-educational upbringing, albeit still within a Jewish school.

The court looked carefully at the balance between the children’s educational needs and the parents’ way of life. It emphasised the importance of equality of opportunity as a fundamental value of society, and that society (and therefore the court) must aim to bring a child to adulthood in such a way that the child is best equipped to decide what kind of life they want to lead and to give effect to their aspirations. Having explained the role of the court as “judicial parent” the judge decided that the mother’s chosen school would provide superior educational opportunities and would best enable them to make religious choices. (You may recall we looked at this case before when considering the concept of welfare in the family courts.)

The approach which the courts seem to be adopting is recognising the importance of religion and culture to litigants, and accepting that in some cases dispute resolution in religious courts may be best for the family concerned, but stressing that religious courts will in no way replace the jurisdiction of the civil courts. This is combined with downplaying the importance of religious upbringing for children, favouring educational opportunities and choice instead when determining what is in their best interests.

If you would like to discuss any of the above, or have a query about how your religious convictions might be taken into account by the family courts in England and Wales, do give Gail, Adam, Sue or Simon a call on 01223 443333.

Islamic marriage and divorce

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At CFLP we deal with English civil law, a combination of statute and case law (judicial decisions) which informs the advice we give clients and the way we approach cases. For many people the English legal system is only one aspect of the laws governing their family life; the other being the laws prescribed by their own religious beliefs and cultural practices.

We thought it would be interesting to have a brief look at how the court treats religious laws and organisations. For this blog we will take a look at Islamic family law. Next week we will take a look at the position for those of the Jewish faith. We must caveat this blog by explaining that we are experts in English law, not the sharia law we discuss below, so please excuse any inadvertent errors.

A recent Panorama programme examined the operation of sharia courts in the United Kingdom from the perspective of women trying to obtain Islamic divorces. These organisations have been set up to dispense advice and judgments according to sharia principles, and claim the power to issue divorce to couples married according to Islamic law. There are around 85 Sharia councils operating in the UK, but there are different schools of Islamic thought so the principles applied in the councils vary widely.

The first thing to point out is that an Islamic marriage celebrated in this country is not generally recognised under English law. Only civil marriages are recognised. To this end some mosques hold licenses to conduct civil weddings. Likewise an Islamic divorce (Talaq if pronounced by the husband, Khul if sought by the wife and granted by an Islamic judge) pronounced in this country is not recognised by English courts. The effect of non-recognition is that a couple married only under Islamic law only will be treated as cohabitants under English law with the resulting limited financial remedies.

In certain very limited circumstances Islamic marriages may be recognised, and two recent cases have looked at exactly that point.

In the case of MA v JA and the Attorney General (2012) the couple made a successful application to have their Islamic ceremony declared valid under English law. Although it did not comply with the requirements of the Marriage Act 1949 (the law setting out what constitutes marriage), the ceremony was held to be “of the kind” contemplated by the legislation, so the judge allowed the Islamic only ceremony to be declared a valid marriage under English law.

The opposite result was decided in the case of El Gamal v Al Maktoum (2011) which featured a member of the ruling family of Dubai. Here an Islamic ceremony was found to have taken place, but at it was done secretly, with no written evidence, and would be unlikely to be recognised as valid in some Muslim countries, the court decided it did not amount to a marriage capable of recognition as such under English law.

Each case will turn on its own facts and a specific application must be made in each case for a declaration.

The position changes for couples married under Islamic law overseas. If an Islamic ceremony is valid in the country in which it took place and in which the couple were domiciled when it was celebrated, an English court will consider it valid. That means a couple with a valid overseas Islamic marriage can apply for divorce in the English court. The court also recognises Islamic divorces which have been validly pronounced overseas. In the case of K v K (2007) the High Court upheld the validity of a Talaq divorce pronounced by the husband in Pakistan even though the wife was not made aware of it. Under Pakistani law the Talaq divorce was valid as it complied with procedural requirements, and it was irrelevant that notice was not given to the wife.

This situation is a strange one because overseas Islamic marriages and divorces are generally recognised by the English courts, but domestic ones are not unless they also fulfil the criteria for a valid marriage imposed under English law. Clearly there is a policy reason for this, in that we cannot have parallel legal systems in this country. The only valid system in respect of marriage and divorce in England is the English civil one, but it can leave people who consider themselves validly married under Islamic law in this country without the financial remedies they would expect from the English legal system.

English law and Sharia law differ markedly on the approach to financial claims following divorce, both capital and income aspects. English courts will give consideration to the cultural background of the couple but will not apply sharia principles to the financial arrangements for a divorcing Muslim couple.

Sharia law also makes provision for children’s arrangements which often conflict with the approach of the English courts. For example, some Islamic schools of thought say all children over the age of seven should be brought up by their father; while other schools say girls should remain with their mothers. Nevertheless, in the English courts a child’s welfare is the paramount consideration when children’s arrangements are being decided, and although cultural factors are important, an English court’s view of the best interests of the children may not necessarily correspond with Islamic principles.

If you have any questions about how the English courts will deal with any religious aspect of your case, please give Adam, Gail, Sue or Simon a call on 01223 443333.

 

All change please: the new family court

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The organisation of the family courts in England and Wales is in the process of going through one of the biggest shake-ups in a generation. We have already seen drastic cuts to legal aid (all but removed for family court cases unless there is evidence of domestic violence or child abuse, although still available for family mediation), and the effect of this is having on people’s ability to obtain legal advice and representation. Linked to this is a predicted increase in the number of litigants in person, which we have already started to see. On top of this, next April, if everything goes to timetable, the three levels of family courts will be amalgamated into one big super court, to be called the Family Court.

The radical changes are being brought about as a result of the Family Justice Review Report chaired by David Norgrove which was published in November 2011. It recommended the introduction of a “single family court” to deal with a number of the current problems in the administration family justice. Those recommendations are now included in the Crime and Courts Bill, which is presently making its way through Parliament, and looks likely to be on the statute books next year.

Although the changes on the ground will not hit us all for a year, the President of the Family Division, Sir James Munby has issued some more details about how they will work in practice, so we thought it worth having a look at what will happen.

At the moment there are three levels of court which deal with family cases, which are the High Court, the county court and the family proceedings court (also known as the magistrates’ court). The appellate courts are also part of the system where necessary (Court of Appeal and Supreme Court), but they are not affected by the proposed changes.

As from April 2014, there will be one single family court dealing with all first hearings in family law matters. There will be one point of entry to the family justice system, rather than the three currently in operation for the different levels of court. At the moment, most cases are issued in the local county court, from which some cases are then “transferred down” to the Family Proceedings Court, and other cases may be “transferred up” to the High Court on the grounds of complexity. (Occasionally it happens the other way round too.) Some cases are issued directly into the family proceedings court, and a few are issued in the High Court. When the new Family Court is set up, all cases will be started in and heard by the Family Court, but will be allocated to an appropriate level of judge by the court staff. All levels of judges and magistrates will work alongside each other as “Judges of the Family Court”, each hearing cases of an appropriate level of complexity.

The new system will also iron out the strange anomaly that at present only certain nominated courts can deal with civil partnership dissolutions and care cases. All courts of the new Family Court will be able to deal with dissolutions as well as deal with child care proceedings.

Two types of cases will remain the preserve of the High Court, and will not be dealt with in the new unified Family Court. These are cases dealing with protection of children and incapacitated or vulnerable adults by wardship, and certain international cases dealing with children.

Although the idea is to have a unified Family Court, like the national Crown Court model in criminal matters, in reality there will be a separate Family Court for each given geographical area, operating out of the same court buildings as they do at present. However the structure will be formalised with a Designated Family Centre (“DFC”) under the control of the “Designated Family Judge” for each geographical area. This will provide the single point of entry for the issue of proceedings and management of the litigation process. There will be a centralised gate-keeping and allocation team who will send every new case to the appropriate level of judge and hearing centre.

This should be a vast improvement on the present system of parallel administrative systems for the three tiers of court, which can be hard to negotiate even for the seasoned professional. It makes excellent sense to try to streamline and unify the family court system which has been creaking under the strain of ever increasing numbers of cases and insufficient financial investment. It is not uncommon for cases to be heard in the wrong court, and transfers between courts are farily common, adding to delay and confusion.

The overarching principle will be that all locations where hearings take place will be managed and operated as a single family court. It would be nice if this restructuring and intelligent streamlining were to be matched with investment in the courts from the Government, but this unrealistic in the current economic climate. We are all for improvements to the system which will benefit families, and we hope that these reforms will address some of the delays and points of obscurity in the system. We expect more information to be released over the next 12 months and will of course keep this blog updated with the changes.

If you would like to discuss how the new system will affect you, do give Adam, Sue, Gail or Simon a call on 01223 443333.