Christian considerations

By 22 May 2013divorce

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.