Redefining marriage: Can I marry myself?

"Do you take yourself to be your lawful wedded...er self?"

Word count: 981

Time to read: 3 minutes

Er…no.

As a family solicitor you do, on occasion, get asked some pretty strange questions.  This one came from a friend on a night out after she had recounted, with some frustration, details of a recent date which had not gone as well as she had hoped. From that lighthearted outburst followed a semi-serious debate about the definition of marriage, which has been given some very serious attention in recent months due to the Marriage (Same-Sex Couples) Bill which is currently being considered by parliament.  The topic has also been given some serious consideration in other jurisdictions around the world with both New Zealand and now France voting to legalise same-sex marriage within the last week.

The current position in England and Wales is that only a man and a woman can enter into a marriage and only same-sex couples can enter into civil partnerships.  The current government is looking to change this and allow same-sex couples to marry. This involves significant amendments to no less than nine different pieces of primary legislation including the:

Marriage Act 1949;

Matrimonial Causes Act 1973
Domicile and Matrimonial Proceedings Act 1973;
Civil Partnership Act 2004; and
Gender Recognition Act 2004.

Some of the amendments which might come to the attention of practitioners are:

• The creation of a ‘jurisdiction of last resort’ (DMPA 1973) for those same-sex couples who marry in England & Wales but who remain habitually resident overseas where their marriage is not recognised and therefore divorce is not available to them.
•  A provision which allows individuals already in a marriage to change their gender without the need to formally end the marriage first (GRA 2004).  The same applies for civil partnerships where both parties wish to change their gender simultaneously (it is not possible to have a civil partnership between a man and a woman).
•  When considering the facts to support the irretrievable breakdown of the marriage, adultery can only be used if the respondent had sexual relations with someone of the opposite sex (MCA 1973). This would effectively preclude married gay couples from being able to rely on this fact when seeking a divorce.

One of the points raised by those who oppose the amendments is that same-sex marriage violates one of the fundamental purposes of marriage, that of procreation. Whilst there is no legal requirement for a couple to have either the desire or ability to have children in order to marry, the concept of a husband and wife creating a stable and balanced environment through marriage to raise their children has long been established in both religion and society and the traditional legal definition of marriage has to be viewed in that context.  But let’s take children out of the equation. If procreation is truly no longer a tenet of marriage then how important is it that the couple wishing to marry have the biological potential to create new life without the need to resort to science or surrogates?  If the answer to that is ‘not much’ then arguably the primary reason for marriage becomes the commitment to each other and all that entails. 

So what if you did want to make that commitment to yourself? Why not? There are some obvious perks.  You would not have to share the wedding gifts with anyone, although writing all the thank you cards on your own could be rather tedious.  And if you decided to go your separate way then any arguments over the division of matrimonial assets are unlikely to be acrimonious.  Then again, would you be committing adultery if you slept with someone else?  A potentially significant question if you were looking to justify divorcing yourself.  Although, you might also have trouble convincing a judge that you have not cohabited with yourself for a period of six months leading up to the petition, depending of course on when you discovered your adultery.  As you can see the idea quickly lends itself to absurdity.

Returning to the proposed Bill, if the purpose of the amendments is to grant people the freedom to marry whomever they choose then why not take that concept further and allow marriage between more than two people (another objection raised by opponents to same-sex marriage)?  Last year, a court in Brazil controversially approved a marriage between three people. This was not a traditional polygamous marriage where a husband had more than one wife but an equal union between three people equally committed to building a life with one another.  Were we ever to go down that route then the necessary amendments to primary legislation are likely to be much more extensive than the current ones and the family law profession would need to adapt significantly, particularly for when such relationships break down.  After all, it is difficult enough to resolve matters of matrimonial assets, contributions, pension entitlements and spousal maintenance etc. when there are only two people involved let alone three or more!

Joking aside, the debate surrounding the redefinition of marriage is a serious one and is unlikely to go away no matter what trajectory the Marriage (Same-Sex Couples) Bill takes and is one practitioners should be aware of. In recent decades the changes in society, science and the law have been profound. Consider the staggering developments in IVF treatment over the last 50 years (and the consequent rise in alternative families), not to mention the establishment of civil partnerships in 2004 and the more recent rise in popularity of pre-nuptial agreements since the Supreme Court’s decision in Radmacher in 2010.  It would be foolish not to expect family law to continue to evolve as society progresses and we cannot ignore potential amendments to legislation or the impact that such changes will have.

Who knows what we will be debating in 2023! That said, I don’t think I will be advising my friend to give up on the dating scene just yet.

Thanks for reading.

Religion and Divorce: Who should have the final say?

 Is Re AI and MT really a significant decision?

Words: 1,238
Time to read: <5min

The case involved a Jewish couple in their twenties who were separating and who asked the Court to allow them to refer their dispute to the New York Beth Din, or Jewish religious court, to resolve the issues. The family was international and so the issues included access to the two children of the family, the father having issued Hague Convention (Child Abduction) proceedings in this country for the summary return of the children to Canada, as well as financial provision and distribution of assets and the provision of a Get, or Jewish religious divorce.  A more detailed summary together with the judgement can be found here.

The judgment of Mr Justice Baker in this case was not a traditional one setting out a decisive ruling on financial distribution of assets or other issues arising out of the end of a marriage, but rather provided an explanation for the highly unusual development of the case and the way in which the parties eventually reached a settlement.

There has been some speculation in the media that this will pave the way for the more active involvement of other religious authorities in the settlement divorces and, in particular, might allow for Sharia Courts to play a more active role in civil divorces. But how significant is this case in shaping the relationship between civil and religious courts when it comes to divorce?

Divorcing couples are being encouraged to use alternatives to litigation to resolve their differences and the Judge recognised this in this case.  However, he could not agree to the parties request that they allow all this issues to be resolved by the Beth Din because the nature of that arbitration is binding and it would have ousted the jurisdiction of the English Court.  However, the Judge found a way to allow the couple to resolve their differences within the framework of the English Court system whilst also respecting their orthodox religious culture and devout wishes .  His solution was this:

• To allow the parties to travel to New York for non-binding arbitration before the Beth Din (the mother’s passport was being held by virtue of the Hague Convention proceedings and so she needed permission to leave the country). Any agreement reached would be referred back to the English Court for final approval.

• To satisfy himself that the principles which the Beth Din would use to determine the issues relating to the children would be in line with English law and specifically the paramountcy principal which puts the welfare of the child above all else.  Furthermore, the Judge made it clear, at an interim hearing in relation to contact, that, if he considered a decision of the Beth Din was not in the best interests of the children then he would not approve it (para 18 of the judgement).  The judgement does not look at any other type of religious law or court, just that of the Beth Din and specifically the Beth Din in New York, which makes the media’s connections to Sharia law somewhat tenuous.

In September 2011, the Beth Din issued its ruling and the case returned to the English Courts for consideration and approval (and, as it turned out, some final negotiations).  The Order was finally approved in April 2012.

Would the Judge make the same decision again?

Of significance to the Judge was the “profound belief” from both the husband and the wife that the Beth Din was the appropriate forum for their issues to be resolved.  In this context the Judge highlighted that, just because the circumstances of this case allowed for the couple’s religious beliefs to be respected within the framework of the English justice system, it did not mean that the Court would necessarily endorse similar proposals referring disputes to other religious authorities.  He said “Every case will turn on its own facts.”

Furthermore, the case took a long time to arbitrate, much longer than the Judge had anticipated.  It was initially thought the process could be concluded in a matter of weeks but it in fact took 18 months for the Beth Din to release its ruling.  In that time two significant wider developments had taken place in English family law.

• An ‘overriding objective’ had been introduced through the Family Procedure Rules 2010 which allowed the Court to use their case management powers to promote the use of alternative forms of dispute resolution.  Whilst this would appear to support the Judge’s case management decisions, the overriding object also emphasises that cases were dealt with ‘expeditiously’ and the Judge expressed concerns over the delays in reaching a final solution.  

• A family arbitration scheme was launched by the Institute of Family Law Arbitrators. This provides couples in this jurisdiction with a method of alternative dispute resolution which was not available to the couple in the case in question when they made their request.  Part of the parties’ initial case was that the arbitration method, whereby a ruling is given by a third party selected by the parties themselves, was important to them and this could not be achieved in this country at that time.

It is therefore debatable whether the Judge, faced with a similar set of circumstances now, would make the same decision again.

Does this pave the way for other cases to be deferred to religious authorities?

If both sides could show that they were equally committed to submitting their case to their chosen religious authority, on a non-binding basis, and, provided that the Court was satisfied that the methods of that authority were not contrary to English law, particularly if children were involved, then this case does suggest that there is scope for other cases to be deferred to other religious authorities such as a Sharia Court. It would also be reasonable to expect any judge faced with a similar request to look at the practicalities and time estimates for deferring to the religious authority as well as the methodology so as to ensure the overriding object was being met.  How likely it is for such requests to meet with the Courts satisfaction is another question and one which would require a detailed analysis of both the facts of each case and the proposed religious authority.

It is also important to note that any decisions reached through another religious authority, with the permission of the Court, would not be automatically legally binding (as has been suggested) but would still be subject to the scrutiny and approval of the civil Courts. One party could not show up to civil divorce proceedings with a Beth Din or Sharia Court ruling and expect it to be upheld, particularly if there are objections from the other side.  In the final paragraph of his judgement Mr Justice Baker noted that he found the decision of the New York Beth Din to be in the interests of the children’s welfare and the financial terms were "unobjectionable". Were that not the case then he would have undoubtedly refused to make an order on those terms.

Furthermore, religious marriages, such as the Islamic nikah, are not always recognised by the state in this country, leaving many couples discovering, when they do want a divorce, that the law treats them as cohabitees.  If the marriage has been recognised by the state, i.e. it was conducted and registered in accordance with English Law, then only the state has the authority to dissolve that marriage.  This case does not change that.

 

Should religious courts play a greater part in civil divorce proceedings?

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UPDATE: Non-disclosure in financial remedy proceedings. The Family Court uses its teeth!

In November 2012, I looked at what the Family Courts can do if someone fails to comply with their obligations in relation to financial disclosure.  One of the powers the court has is to commit someone to prison and whilst this really is a last resort, the Family Court this week did just that when Mr Justice Moor sent Scot Young, a former fixer and millionaire property developer, to jail for 6 months.  The sentence had been issued back in 2009 as a suspended sentence and Mr Young had been given several opportunities since then to comply with his obligations.  This week the Court had had enough of his “absurd” and “next to useless” excuses. This is definitely something to keep in mind when advising clients about the consequences of providing full and frank disclosure in financial remedy proceedings.

Mr Young, is no stranger to the far reaching powers of the family courts with his passport being withheld in 2012 when he claimed he wanted to leave the country to undertake charity work.  Michelle Young, who is seeking the financial remedy against her estranged husband, hasbeen trying to get to the bottom of her husband’s money for years and a full hearing on her application is due later this year.