WHEN RELIGION MEETS FAMILY LAW: ASPECTS OF THE ENGLISH EXPERIENCE FROM KING HENRY VIII ONWARDS Professor David Hodson OBE MICArb www.iflg.uk.com David Hodson “What a pity it is that we have no amusements in England but vice and religion” Sydney Smith (1771-1845) www.iflg.uk.com David Hodson Overview A brief history of divorce and religion A brief history of religion in the formation of family law Finding the guiding principles for family law in a secular, non-religious state The impact of a personal law on family law and religion Two examples of religion meeting family law Marriage and divorce in civil law The Islamic marriage conundrum in English family law Family law in community faith life www.iflg.uk.com David Hodson A brief history of divorce and religion Canon law & canon courts as the law; marriage as sacrament. No divorce Pope Gregory VII 1073-1084: Marriage undissolvable by man Catholic church and its law ruled the West incl marriage and divorce Martin Luther and doctrine of two kingdoms Henry VIII’s own divorce and break from Rome Reformation; emphasis on individual and individual’s marriages, not the state involvement Matrimonial Causes Act 1857 and civil divorces www.iflg.uk.com David Hodson A brief history of religion in formation of family law Enlightenment in C17 and C18; less tolerance of the church French Revolution C19 abandonment of ecclesiastical courts; civil laws & cts C20 reforms with Western ideas and viewpoints Resistance in some Catholic countries Russian orthodox church then Russian Revolution US First Amendment yet very religious country www.iflg.uk.com David Hodson A brief history of religion in formation of family law Widespread secularisation Christianity definitely not sole religion in West Influx of other religions, by numbers and influence Tolerance as part of plurality and as support for minorities Yet faith communities more/very committed to family life Dichotomy of undoubted secularisation, liberalisation and pluralism with growth in number of faith traditions and world religions demanding to be treated fairly and respectfully How involved in formation of family law? www.iflg.uk.com David Hodson Finding the guiding principles for family law in a secular, non-religious state If ecclesiastical law has gone, what guiding principles? Diversity and pluralism commendable but rarely common values and legal objectives So family law has multi influences but hard to find common treads, So reform is not easy, and often slow Influences can vary between countries and from year to year Problems highlighted e.g. on same sex marriages Are there Islamic influences also on pseudo-Christian laws, or are faith communities together fighting the grater threat of secularism? www.iflg.uk.com David Hodson Finding the guiding principles for family law in a secular, non-religious state EU common judicial system: family law is heavily influenced by culture and tradition and religious legal systems which, as a consequence create a number of difficulties (emphatically their words) in the context of harmonisation of family law across Europe Conflict seen in first to commence divorce proceedings (EU deals with divorce) which discourages saving marriages (EU does not deal with marriage) Worldwide differences on equality of contribution to marriage in outcomes on divorce www.iflg.uk.com David Hodson The impact of a personal law on family law and religion EU applicable law; national law applied across boundaries Islamic (and other religious) laws across boundaries Indigenous laws within national boundaries Parallel systems of law within national boundaries www.iflg.uk.com David Hodson Two examples of religion meeting family law Sir James Munby, England’s most senior family court judge Rowan Williams, former Archbishop of Canterbury and head of Anglican Church www.iflg.uk.com David Hodson Marriage and divorce Civil marriage; registered location and registered official Only COE, Jews and Quakers can have same time Civil weddings entirely non religious Civil partnership for heterosexuals as marriage too religious? Liberal policy in recognition of foreign religious marriages Divorce is only ever civil in UK; never religious with legal effect UK very liberal to recognise foreign religious divorces Calls for greater freedoms in wedding location and arrangements; the role of a celebrant. Law reform shelved Calls for no fault divorce; Christian community divided www.iflg.uk.com David Hodson The Islamic marriage conundrum in English family law The problem: many Islamic couples marrying by their faith and community but not by English civil law Why arising: English law requires registered location and officiating persons, notices and public Only Islamic issue: No other faiths How big a problem: poss 33-40% of all Muslim marriages Is it deliberate: often one (normally not the woman or immigrant) knows it is not valid www.iflg.uk.com David Hodson The Islamic marriage conundrum in English family law Individual reasons: several and mixed; take more wives and avoid bigamy, avoid divorces, avoid divorce financial payments, immigration, religious ceremony is all that matters, do it later, distrust, both ignorant of non-validity Institutional reasons: distrust of establishment so imams do not register and mosques do not become registered premises Logistic reasons: take place in homes (not registered) Society response reflects Western tolerance and “enlightenment”: support for weaker and vulnerable parties but faith communities to work out own resolutions www.iflg.uk.com David Hodson The Islamic marriage conundrum in English family law Resolution 1: information and education. Register Our Marriage (ROM), websites, campaigns but can go only so far esp. as some resistance Resolution 2: change the law to widen marriage law to cover marriages in homes, unregistered premises, absence of religious registered official, but is this right for all community? Resolution 3: good practice duties on imams, notice on nikar Resolution 4: bring Sharia Councils into mainstream law www.iflg.uk.com David Hodson The Islamic marriage conundrum in English family law: Other issues Sharia councils grant divorces but not in law; parallel marriages in law and faith. Bad for individuals and society Recognition of foreign Islamic divorces; dichotomy Marriage contract, mahr, not valid in civil law Mediations and arbitrations in faith communities should satisfy English law standards; mostly they don’t Most Islamic countries not in 1980 Hague Convention so international travel with a child restricted to fathers National contact then restricted as fear of abductions Frustrations by men that not have auto custody at age 8 www.iflg.uk.com David Hodson Family law in community faith life Family law is very close to the heart of community and personal life Some faith communities including within the Christian church have felt family law has been particularly secularised, and ignored distinctive faith traditions which are often supportive of marriage and family life Faith communities in westernised societies now accept the challenges and demands in living in a diverse, multicultural and pluralistic community and countries. Few expect rules and precepts of their faiths to hold sway over the remainder of the community, yet want opportunity to argue the benefits and attributes of their opinions and beliefs for the best of the community. www.iflg.uk.com David Hodson Family law in community faith life On a similar basis, pluralism and multiculturalism should acknowledge and accept what faith communities have to offer, both for members of those faith communities and the wider society. Many faith communities have strong pro marriage beliefs. Many faith communities have strong family life. Faith communities should be listened to for their distinctive calling and beliefs as shown to be beneficial for the whole of the community www.iflg.uk.com David Hodson Family law in community faith life Whatever differences faith communities may have in matters of personal salvation and beliefs in their individual deities, they invariably have very many common approaches and beliefs in the area of family life and therefore need to work together. These approaches are to be democratically argued by the faith communities and to influence and benefit the wider community www.iflg.uk.com David Hodson Prof David Hodson The International Family Law Group LLP Hudson House, 8 Tavistock Street, Covent Garden, London, WC2E 7PP, England Telephone: + 44 (0) 7973 890648 Email: [email protected] Twitter: @DMHodson Website: www.iflg.uk.com www.iflg.uk.com David Hodson.