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Religion, marriage, and cultural cross-overs in family law

Religion and law

A modern, tolerant society is something to celebrate.

Members of my own Jewish community, for example, have their rituals protected by secular law. For example, circumcision for baby boys and specific laws for ‘Kosher’ animal slaughter are frequently challenged by secular, ethical arguments. However, they are protected largely on the basis of religious freedom.

The right to freedom of religion is one of the most universally recognised human rights and a key feature of a liberal and democratic society.

Religion, matrimonial law and ‘Register our Marriage’

Sticking with the example of Judaism, an extension of the legal support and protection for religion can also be seen in matrimonial law. Jewish religious marriages (along with Anglican and Quakers) must be civilly registered. Jewish couples therefore automatically receive the protection of their legal status: i.e. financial obligations between them.

However, this law – ratified in the Marriage Act 1949 – only relates to the three religions stated above. That is obviously outdated. The campaign group, ‘Register our Marriage’, has recently petitioned Parliament to extend this to all religious marriages in order to better apply to our more diverse modern society. This is because ‘Register our Marriage’ are concerned for individuals ‘trapped’ in traditional cultural marriages, but without the secular protection of their financial rights (and rights to a divorce).

Conflicting views

However, the religious marriages ‘Register our Marriage’ seek to protect were not necessarily created within the vacuum of Western, liberal culture. There are some cross-overs that could sit awkwardly.                                                                                                          

A recent blog in The Economist (https://www.economist.com/blogs/erasmus/2017/12/islam-marriage-and-law) quoted an alternative point of view. For Muslims, for example, civil registration for all religious marriages could be problematic. It is argued there that there are certain marriages permissible within Islam that would not be so in civil law, for example polygamous marriages.

This is not clear-cut. The blog recognises that there is a debate within Islam as to what constitutes a Muslim marriage. The problem is that the state attempting to automatically recognise ‘Muslim marriages’ would be wading in, out of turn, on that internal theological debate.

The preferable approach, it is suggested, is for automatic legal status and protection to be afforded only to civil marriages. Religious couples would need to register their marriage separately if they want this.

The problem with that, though, is that it does not address the fundamental concern which ‘Register our Marriage’ raise. Without legal status, the protection afforded to religious spouses would essentially be that of a cohabiting couple (which is very limited). This would need the couple to actively seek out registration themselves. Whether they would do so (or even be aware of the need to do so) would be a significant question mark.

It is worth mentioning that the Economist blog also gives another alternative – currently operated in Holland – in which religious marriages cannot happen unless there is a civil marriage first.

Conclusion

For family lawyers, the value of the protection of a legally recognised marriage cannot be overstated. A spouse (particularly the financially weaker spouse) would be in a much stronger position with that status, whether this is achieved automatically or by separate registration. In the latter case, raising awareness of the legal position is essential. 

Also, this debate clearly emphasises the nuances of how families operate within different cultures. At JMW, we understand that when dealing with family law issues for religious people, it can often require careful cultural navigation.

Therefore, if you have any related family law queries, please do not hesitate to contact us on 0345 872 6666 or me personally.