The Legal Effect Of Religious Divorces
| DOI | http://doi.org/10.1111/j.1468-2230.1974.tb02407.x |
| Author | Susan Maidment |
| Date | 01 November 1974 |
| Published date | 01 November 1974 |
THE LEGAL EFFECT
OF
RELIGIOUS
DIVORCES
ENGLISH
family law is today essentially secular.
It
allows no system
of personal law,
so
that for all persons who wish to marry and
divorce in this country,
it
is English law which governs the matter.'
English law might of course allow religious customs to have the
effect of law,
as
for example in allowing the religious celebration
of
a
marriage
as
a legally binding act,= but the legal effect derives
not from the religious law, but from the fact that it has been
incorporated into English law. The problem which this paper will
investigate is,
in
face of the non-existence of personal law, the ways
in which the English courts have given
or
could give judicial
notice to the effect of
a
religious divorce.
A
Jewish divorce is effected by the husband delivering
a
Get
(bill of divorcement),
i.e.
a written document, to his wife.s The
wife must consent to the divorce. The ceremony takes place
before a rabbi and two witnesses. The divorce however takes effect
by the act of the husband; the requirement of the rabbi and wit-
nesses is more to authenticate the delivery and to ensure that
moral grounds exist
for
the divorce and that the parties both
consent and understand the nature
of
the act. Nowadays the
religious authorities
(for
orthodox Jews who constitute the great
1
That this may,pot always have been
so
in the case of Jewish law, see
G.
W.
Bartholomew,
(1961)
3
Univ. Malaya
L.Rev.
83..
2
Marriage Act
1949,
Part
III.
And see Law Commission proposals for civil
ceremonies alone having legal effect
:
Law Commission Working Paper
No.
35,
1971.
As
to the effect
of
non-compliance with such religious celebrations under
the
1949
Act, see Bartholomew,
op.
cit.
p.
93
et seq.
3
It
is an absolute requirement
that
the
Get
be
a
written dooument.
A
wife may
in fact compel her husband to grant her
a
Get,
since at her request the religious
authorities will order the husband to deliver
a
Get
to his wife. The text
of
an
En$ish orthodox
Get
reads as follows:
Application of Jewish Law in England
On
the
...
day of the week, the
...
day of (the month),
in
the year
...
of
the creation of the world, according to the number we reckon here;.
..
the
city
which
i~
&u&ed
on
bhe river
....
I,
....
son
of
....
who
dbnd
tMls
dey
In
...
the city situated
on
the river
....
do hereby consent with my own free
will, without force, free and unrestrained, to grant a Bill of Divorce to thee,
my wife
....
dwghhr of
....
who
hms
been my
We
frtm
$ime
pdt, and
with this
I
free, release and divorce thee, that thou mayest have control and
power over thyself from now and hereafter, to be married to any man whom
thou
mayest choose, and
no
man shall hinder thee from this day for ever more,
and thus thou art tree for any man. And this shall be unto thee from me
a
Bill
of Divorce, a letter of freedom, and
a
deed of release ticcording to the Law of
Moses
and
of
Ilsrael
...................
'on
of
...................
witnese
...................
'won
of
...................
wiitnms
.
Taken
from
P.
Elman (ed.)
Jewish
Marriage
(1967),
p.
124.
4
Forihe grou"('B fdivorce
in
Jewish law, see
P.
Elman (ed.),
Jewish
Marriage
[lYtj'l),
pp.
1Zl-lW.
611
612
THE
MODEnN
LAW
REVIEW
Vot
37
majority of Jews in Great Britain, the
Beth
Din,
i.e.
the Court
of
the Chief Rabbi, in London) enter the divorce in the records of the
Beth
Din.
The parties are then free to remarry after ninety days
from the delivery
of
the
Get.
It
is quite clear that in theory this
procedure involves no real judicial inquiry
or
de~laration.~
A Moslem divorce is traditionally performed by the husband
pronouncing three times the word
“
Talak
”
(I divorce you). The
wife need not be present, nor be given notice of the intention to
divorce her.6
It
is
the practice to arrange a dower,?
or
security
money
(“
sadaqa
”),
on marriage, whereby the husband pledges
to pay the wife
a
sum
of money either by demand (by agreement)
or
on dissolution
of
the marriage by death
or
divorce. Apparently,
if
the wife asks for the divorce, and the husband is not at fault,
then the wife loses the security m0ney.O According
’
to ancient
Islamic law these procedures can be performed without any refer-
ence to any court
or
other authority. In modern times however
the civil authorities in many Moslem countries have required
further formalities which make the act of divorce more p~blic,~
or
as in Pakistan and Egypt give greater protection
to
the wife. In
Pakistan, a husband must notify the chairman of an arbitration
council (made up of representatives of the parties) of his having
pronounced the
Talak.
The council then attempts a reconciliation
between the parties.
If
that fails, the council then orders that the
divorce be made absolute ninety days after the original pronounce-
ment of the
Talak.
Thfe council can at the same time grant the
wife maintenance.
For
Pakistanis living in England the High
Commissioner for Pakistan in London has been appointed the
chairman of the arbitration council. The
Talak
itself seems
to
5
For furthe,S information about Jewish divorce, see
A.
Owen,
”
Legal Aspects of
Pge
in
P.
Elman
(ed.),
JeEish Marriage
(1967),
Chap.
8;
I.
5.
Shiloh,
(1970)
5
Israel LRev.
479;
Encyclopaedia
Judaioa
(197Cl)
Vwl.
6,
p.
122
et seq.;
Royal
Cammimion
on
Divorce an! Mdtri-
monk1
Causes
(1912)
Cd.
64m,
Val.
111,
p.
407
et seq.;
J.
Lew, Jewish
IXvmes
”
(11973) 123
New Law Journal,
829,
6
According to Cheshire
(Private International Law,
8th ed., quoting Farran,
Matrimonial Laws of the Sudan,
p.
53)
a
husband can by Mohammedan law
divorce his wife at will without
any
grounds. However, according to
F.
Hashmi,
The Pakistani Family in Britain
(Community Relations Commission,
1969).
Islam allows divorce
on
the grounds of adultery, incompatibility, impotence and
Marriage and Divorce in Israel
wilful neglect
to
maintain.
7
In
Qureshi
v.
Qureshi
619711
1
All E.R.
325,
Sir Jocelyn Simon
P.
(as‘he the:
was)
e&i
alt
p.
333:
.
although
it
does not correspond
to
the concept of dower in former English
lay.”
This Moslem dower must therefore not be confused with the early
Sahqa
tias
been donvenierdtly &erred
ta
ws
dmer
common law right
of
a
surviving wife
to
a
life estate in one-third of he-r
husband’s property held in fee simple or estate tail. The common law dower
was abolished
in
1925.
For further details, see
E. H.
Burn (ed.),
Cheshire’s
Modern Law of Real Property,
11th ed.
(1971),
p.
858.
8
See
F.
Hashmi,
The Pakistani Family in Britain
(Community Relations Com-
mission,
1969).
9
e.g.
Tunisia,
where since
1857
every dtvoroe must b: judiicially decreed, otherwiee
it has
no
legal validity, See
J.
N.
D. Anderson, The Eclipse of the Patriar-
chal Family in Contemporary Islamic Law,” in
J.
N.
D. Anderson (ed.),
Family Law in Asia
and
Africa
(1968),
p.
227.
To continue reading
Request your trial