Mark Hill QC practices at the Bar in London and is an affiliated or visiting professor at the Centre for Law and Religion, Cardiff University; Pretoria University, South Africa; Notre University Law School, Sydney, Australia; and the Dickson Poon School of Law at King’s College, London.
In most countries of the world, the inter-relationship between the state law on marriage and that of differing religious groups is complex and contested. It is navigated in varying ways, both conceptually and as a matter of practice. Clarity as to the subsistence of a marriage is essential where issues of succession and inheritance are concerned, and – as a minimum – the state has a continuing duty to ensure the well-being of children in the event that a marriage breaks down.
The state may see marriage differently from faith communities. For the latter, especially within the Judaeo-Christian tradition, marriage has a sacramental quality signifying, to borrow from the archaic language of the Church of England’s Book of Common Prayer (1662), “the mystical union that is between Christ and his Church.” The position today is that parochial clergy of the Church of England are under a legal duty to solemnize the marriage of parishioners in accordance with an Anglican liturgical rite irrespective of their religious affiliation. This church ceremony has direct effect as a matter of civil law and the marriage may – and often sadly is – terminated by civil divorce.
In recent years much debate has attached to same-sex marriage and the extent to which faith groups should be obliged to recognise, or indeed to solemnise, the marriage of homosexuals, a matter which some regard as being contrary to religious doctrine. Accordingly, little attention was paid to recent proceedings in an English criminal court concerning the refusal of a Jewish husband to grant his wife religious divorce or get, the absence of which prevented her from re-marrying, and condemned her to the status of “chained wife” or agunot, ostracised from orthodox Jewish society.
English law recognised this predicament some while ago. A new section 10A was inserted into the Matrimonial Causes Act 1973 by the Divorce (Religious Marriages) Act 2002. It provides, in summary, for a civil court to decline to make a final decree of divorce until both parties have made a declaration that they had taken the steps necessary to dissolve the marriage in accordance with “the usages of the Jews.” In consequence, the English family courts obtained a quasi-coercive jurisdiction in that a civil divorce may be refused unless and until the husband grants a get, notwithstanding that under Jewish law and practice, a get must be “freely given.”
Superficially this provision may appear objectionable – an over-mighty state impinging upon the autonomy of a faith group and violating the long-standing principle of the non-justiciability of religious doctrine (see Shergill v. Khaira). But vocal support for the provision comes from within the Jewish community itself. In 2015, for example, the London Beth Din named and shamed a man by taking out an advertisement in the Jewish Chronicle telling the world at large that he had refused to grant his wife a get. He was barred from entering synagogues until he did so. The Chief Rabbi’s language at the time was uncompromising:
The Beth Din and I would like to send the strongest possible message that when individuals abuse the halachic process in a way which causes deep emotional and personal pain and suffering, we will do everything in our power to try to stop that abuse and support those affected.
The recent case, however, is of particular interest to scholars of law and religion because, unusually, it invoked the jurisdiction of the criminal law and the criminal courts. A Jewish woman, in what was widely reported as a landmark case, launched a private prosecution against her (ex-) husband. He was due to face trial at the Crown Court in Harrow, north London, and if convicted could have been sentenced to up to five years in jail. However, the prosecution was discontinued in January when he finally relented and gave the get.
Section 76 of the Serious Crime Act 2015 created a new criminal offence of “Controlling or coercive behaviour in an intimate or family relationship.” It came into force on 29 December 2015. In this case, it was alleged that the husband had demanded that the granting of the get be conditional on the wife withdrawing a protective non-molestation injunction and leaving the country. Her solicitor said that the refusal of the get
involved a serious restriction on the liberty of the victim and was clearly behaviour designed to control and undermine her, keeping her in an intimate relationship against her will and preventing her from remarrying.
Ordinarily, a discontinued criminal prosecution would be of little or no jurisprudential significance. But this one, and the publicity attendant upon it, is likely to have a lasting effect in relation to the on-going problem of the chained wife. Harsh words from the Chief Rabbi and exclusion from synagogues may not matter much to a person who has become indifferent to Jewish faith and practice. And the withholding of a civil divorce has coercive power only if the husband intends re-marrying. But the prospect of a criminal conviction and a period of imprisonment is a threat which has real teeth capable of biting a recalcitrant husband. The prosecution, even though it never got to trial, serves to raise the stakes considerably and constitutes a new and effective weapon in the hands of the chained wife in search of a get.
Is there any prospect of this decision being deployed to assist Muslim women, many of whom enter Islamic marriages (nikah) which have no status in English civil law? Only last week, the UK Court of Appeal in Attorney-General v. Akhtar re-affirmed that a “non-qualifying ceremony” (such as an Islamic marriage) is outside the scope of both the Marriage Act 1949 and the Matrimonial Causes Act 1973. The ceremony does not even create a void marriage. Accordingly, an English court has no jurisdiction to grant a decree of divorce; and therefore the parties to such a “non-marriage” are precluded from invoking the Court’s jurisdiction over matrimonial assets. Whilst there may perhaps be circumstances where the coercive threat of talaq (repudiation of Islamic marriage), could come within definition of controlling or coercive behaviour for the purposes of the 2015 Act, this does not address the lack of legal protection for unregistered religious marriages. Fortunately, organisations such as the Register Our Marriage Campaign are committed to raising awareness of this problem, and the media attention given to the Court of Appeal’s judgment should also help. As the Court of Appeal reminds is, it has always been open to Muslim couples to adopt one of the “routes to marriage” prescribed in the Marriage Act 1949 by going through such form and ceremony as the parties wish, in a place of religious worship (such as a Mosque) registered for the solemnization of marriage. However, not all Mosques are so registered and many couples ignore this, apparently oblivious to the fact that their religious ceremony will have absolutely no civil effect.
The criminal law is not a panacea for every shortcoming in religious marriage law. A Private Members Bill recently introduced in the UK Parliament by Baroness Cox proposed amending the Marriage Act 1949 to provide that any person who solemnized a marriage which may not be lawfully registered in civil law “shall be guilty of felony and liable to imprisonment for a term not exceeding five years.” Criminalizing the celebrant will do nothing to address the actual problem which is the absence of legally enforceable matrimonial rights arising from an unregistered Islamic marriage. It is unlikely that this ill-thought provision will become law. The remedy instead is to educate the Muslim community into the benefits of avoiding a non-marriage.
 See the comparative research study: Gillian Douglas et al, Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts (Cardiff University, 2011). According to Jewish law, if a divorcee without a get goes on to have a child with another man, the child is a mamzer, illegitimate.
 See Michael Freeman, ‘Is the Jewish get any business of the State?’ In Ronald O’Dair and Andrew Lewis, Law and Religion: Current Legal Issues (Oxford University Press, 2001), 365-383.
 It is noteworthy that the legislation is widely drafted and has the capacity for its ambit to be extended to include those married in accordance with other prescribed religious usages. To date, however, no other faith group has requested that the government invoke this provision in relation to other forms of religious marriage.
 The civil divorce had been granted in 2002, pre-dating the statutory innovation described above.
 See Frank Cranmer, ‘Beth Din “names and shames” man who refuses his wife a get‘, Law & Religion UK, 7 November 2015.