Section 13A — Postponement of decree of divorce where religious impediment to remarry exists

Family Law (Scotland) Bill: Stage 3 – in the Scottish Parliament at 10:50 am on 15th December 2005.

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Photo of Trish Godman Trish Godman Labour 10:50 am, 15th December 2005

Group 5 concerns the postponement of a decree of divorce where a religious impediment to remarry exists. Amendment 36, in the name of Stewart Stevenson, is grouped with amendments 37, 38 and 10.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I hope that the minister will address the substance of amendment 36, which is a relatively technical, probing amendment. It seeks to remove the need to introduce additional secondary legislation describing the religions that might be affected by these provisions by using the list that has already been produced in secondary legislation made under the Marriage (Scotland) Act 1977. I understand that there may be some difficulties with my amendment on ECHR grounds, but it would be useful to confirm why it is necessary to have additional secondary legislation to cover the provisions of section 13A. That is what amendment 36 and consequential amendments 37 and 38 are about.

I will refer briefly to Mike Rumbles's proposal to delete section 13A entirely, but I will retain my main remarks for my closing comments at the end of the debate on this group, because I know that other members will develop lines of argument as to why section 13A is important. It is a matter that considerably taxed the committee. It is difficult and sensitive, and I hope that in our discussion now we will treat the matter with the appropriate care and attention.

I think that the argument against section 13A is misplaced and stems from a misunderstanding based on a secularist view that we are somehow interfering in religious matters. On the contrary, we are supporting people who are in religious marriages, and that is the important thing to bear in mind. Section 13A is in the bill to address inequality issues that exist in some circumstances and to protect the rights of women in some circumstances where the existence of a religious marriage can give the man some power to frustrate the decisions of the civil court in relation to a divorce. Other members will develop the point and I will return to the issue when I sum up on the group.

I move amendment 36.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

Section 13A was inserted into the bill at stage 2. It is there at the specific request of the Jewish community. It allows the court to postpone the grant of a divorce until it is satisfied that the religious divorce has been sorted out.

The committee took evidence on the matter for the stage 1 report, which was debated and approved earlier this year. The committee's conclusion, highlighted in bold in paragraph 70 of its report, was:

"The Committee also wishes to state that there are strong arguments that, as a matter of principle, the law should not conflate civil and religious divorces."

Hang on a minute. What happened in committee at stage 2? Suddenly there is a whole new section—section 13A—which does just that. The bill that the Executive introduced now includes section 13A, which gives the court the power, if it thinks it reasonable and just to do so, to block a civil divorce by postponement, with no time limit, until the religious divorce is sorted.

In my view, that is wrong. For all the best reasons, the advocates of section 13A have introduced it to tackle injustices within the Jewish community. I do not criticise Stewart Stevenson or Ken Macintosh, or anyone else who supports section 13A. Their motives, I believe, are absolutely honourable. What is not recognised, however, is the danger inherent in section 13A of conflating church and state in divorce proceedings. It is a danger that the committee warned us about in its stage 1 report. What is that danger? It is simple enough. Once we start legislating in civil law to accommodate the religious beliefs or practices of one faith community, how long will it be before other faith groups ask us to legislate for them? If we do not restore the Executive's original position, I believe that we run the real danger of opening up a Pandora's box.

Photo of Pauline McNeill Pauline McNeill Labour

I should say a word about why the committee changed its view. I am sure that Ken Macintosh will speak at length on the matter, but the Jewish community apologised to the committee because it did not make it clear in its evidence for our stage 1 report what the specific problem was and how it could be fixed. What Mike Rumbles is saying is absolutely right and he should not think for a minute that members who voted for section 13A took that decision lightly. I voted for it because I believed—

Photo of Trish Godman Trish Godman Labour

Ms McNeill, is this an intervention or a speech?

Photo of Pauline McNeill Pauline McNeill Labour

I believed that there was no other way to resolve the problem, and we did not feel that section 13A was as dangerous as Mike Rumbles suggests. I just thought that I should clear that up.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat 11:00 am, 15th December 2005

In fact, the Jewish community suggested other ways of resolving the problem, but we can perhaps talk about that another time. There are good reasons why we should always separate church and state in our laws.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I have just given way. I want to make progress.

To argue that that separation does not matter in this case, or indeed to argue that we already conflate civil and religious marriage, is to miss the point entirely. In marriage, the law allows recognised ministers of religion to act for the state. That is entirely different from allowing an individual in the civil court to ask for a postponement of their divorce on religious grounds. The issue is clear-cut. Heaven knows why, without taking further evidence—

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

Mr Stevenson has already had two bites at the cherry.

The majority of Justice 1 Committee members changed their minds about what they said in the stage 1 report and agreed the amendment at stage 2. As Marlyn Glen, a member of the committee, said at the stage 2 meeting:

"At the time, the committee decided that it was a mistake to conflate the two laws and that it would be much better to leave them apart. ... The committee talks about evidence a lot and about why we should not move forward without it. However, we do not have the evidence from the English changes to consider properly before making what will be a fundamental change to our laws."—[Official Report, Justice 1 Committee, 2 November 2005; c 2227.]

I could not agree more. This is not a good way to make law. Earlier in the debate, on the issue of separation periods, Hugh Henry said on behalf of the Executive that there had been no consultation and no careful consideration of the committee's move to periods of 18 months and 3 years respectively. We have the same situation here. Hugh Henry should be using the arguments that he used previously, in the Executive response today. The proposal represents a fundamental change to our law. The committee reversed its view between stage 1 and stage 2. Why, when no new evidence was taken, did it do that? This is not the right way to legislate. There has been little, if any, scrutiny of the proposal. I urge members to reflect on the bigger picture, to restore the bill to its original position and to remove section 13A.

Photo of Kenneth Macintosh Kenneth Macintosh Labour

I refer Mr Rumbles to comments that I made in the Justice 1 Committee at stage 2 about the fact that much of the discussion on this matter has gone on outwith the bounds of the committee. That is unfortunate, but that is what happened. There was a great deal of discussion on that point. I recognise that some members still have anxieties about section 13A, but I believe that those anxieties are misplaced. I hope that I can offer some reassurance. The concerns, as I understand them and as Mike Rumbles has just outlined them, centre on three points: first, the principle that we should not confuse or conflate religious and civil law; secondly, that we should not introduce an unlimited delay to divorce because of religious beliefs; and thirdly, that we should not give one group—religious or not—special treatment. The bill does none of those things.

We are not amending, interfering, confusing, conflating or muddling civil and religious law; we are simply recognising religious divorce in exactly the way that we already recognise religious marriage. In fact, the wording used in section 13A is an exact copy of that used in the Marriage (Scotland) Act 1977. Section 13A does not prevent one partner from granting the other a divorce; quite the reverse. It merely builds in to the formal civil process the ability for the sheriff to grant a delay, not an indefinite postponement. It treats the existence of a religious impediment to remarriage in exactly the same way as property or custody of children: as an issue that can create acrimony and upset and that needs to be resolved.

Although section 13A would in practice be used by divorcing Jewish couples who find themselves in the difficult position of not being able to remarry, the bill applies equally to any religious body as prescribed in the 1977 marriage regulations. Although Pauline McNeill said that I would speak at length on this issue, I will not repeat the many arguments in favour of section 13A that were discussed in some detail at stage 2, other than to highlight that section 13A was overwhelmingly agreed to by Justice 1 Committee members; it has the support of all the main party leaders, if not officially of the parties themselves; and it is a proposal that has been actively pursued by the Jewish community, with my support, since at least 1999.

Members should not think that section 13A is unimportant just because few people will be affected by it. Surely no one here believes that a man should be able to exercise control over his former partner after the two have separated. That is what happens in a few cases at the moment, and it will continue to happen if we do not retain the section.

This is about allowing Scottish families going through a divorce to reach a fair and just settlement just like any other Scottish families. I urge members to reject Mike Rumbles's amendment 10.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I will not support Stewart Stevenson's amendment 36, which I do not think is necessary; nor will I support Mike Rumbles's amendment 10. Mike asks why the Justice 1 Committee changed its view after stage 1. There was not enough time to discuss the issue at stage 1, but various meetings were held after that and, as a result, the issue was properly considered at stage 2. I am content that section 13A will not open a Pandora's box and will not lead to unnecessary delays, because of religious considerations, in the granting of divorce. Section 13A will allow us to flush out a situation in which one party can deliberately use the terms and conditions necessary for the recognition of a religious divorce to delay the granting of a civil divorce.

Mike Rumbles mentioned conflation. It seems only common sense to me that, if both religious and civil aspects are considered when people marry, the same aspects should be considered when they divorce.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I wish to make three points, mostly to endorse what Ken Macintosh said. First, the fact that extensive evidence was not taken should not blind us to the fact that this issue has been widely aired. When, as Minister for Justice, I introduced one of the white papers on family law, I remember Ken Macintosh raising this issue in the chamber. It has been widely debated, and a very good debate took place in the Justice 1 Committee.

Secondly, on conflation, Mike Rumbles cannot really get away with the idea that when the Marriage (Scotland) Act 2002 allows a pastor, a rabbi or another religious person to act on behalf of the state, that is not conflation. I cannot think of any example that represents conflation more than having a religious person acting on behalf of the state. If Mike Rumbles were consistent, he would have lodged amendments to this bill in order to remove the religious parts of the Marriage (Scotland) Act 2002.

Thirdly, if we are talking about principles—and Mike Rumbles is always keen to do so—I would say that in a liberal democracy a fundamental principle is that the Parliament should take measures to safeguard the vulnerable and the weak. We have heard that there are situations—albeit very few—in which Jewish law can be used to overturn a decision of the civil courts on access or financial arrangements. I believe that that is an abuse of power and it is proper for this Parliament to tackle such abuse when it has the means to do so.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

Jim Wallace has just made some of the points that I wanted to. Section 13A, introduced by Ken Macintosh, does not confuse church and state; we are keeping them apart.

It is our duty to legislate for the real world—a phrase that occurs in lots of cliché-ridden speeches, no doubt including mine. In the real world, some Jews are able to misuse Jewish religious law to ignore the will of this Parliament during a couple's divorce. As Ken has said, we are talking about power being exerted by a man over a woman for what I believe are base motives. In the real world, we have to legislate for such situations, and Ken Macintosh's section 13A is a reasonable way of doing so. The sheriff will take account of the section and, in the end, the divorce will go through as intended. If we remove section 13A, as Mike Rumbles's amendment 10 seeks to do, we might prevent a woman from ever remarrying. It is a civil matter and section 13A is sensible. I strongly support Ken Macintosh's ideas on this, as I have done in the past.

Photo of Cathy Jamieson Cathy Jamieson Labour

Many of the arguments have been eloquently made so I will try to keep my speech brief. As Hugh Henry outlined clearly earlier this morning, an overarching aim of the bill is to ensure that, when marriages break down, acrimony can be reduced for all concerned, especially the children. We are obviously concerned about situations in which marriages have broken down completely, but the parties remain unable to make new lives for themselves. That is far from ideal and we have heard about the distressing consequences that can arise.

Section 13A was introduced at stage 2 as a result of an amendment that Ken Macintosh lodged in direct response to concerns that the Jewish community had raised. Jim Wallace has told us the history of the situation and how far back it stretches. We are well aware of those concerns and we believe that section 13A will provide a useful and practical solution. I put on record my thanks to the Justice 1 Committee for its deliberations on the matter.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

As the bill stands, it will not make it an offence for a Jewish man to deny his wife the get, but if a Jewish man denied his wife the get for financial purposes, for example, would that not be an offence of extortion?

Photo of Cathy Jamieson Cathy Jamieson Labour

I am sure that we could have an extensive debate about what that set of circumstances would constitute, but we must take a decision on the amendments that are in front of us. Amendment 10 seeks to remove section 13A from the bill, but I do not believe that, as an Executive, we should support an amendment that would deny members of the Jewish community recourse to a useful and valuable remedy that is designed to combat the inequalities that can arise in such cases. As a result of what the committee agreed at stage 2, we have an opportunity to deal with the issue here and now.

I understand what Stewart Stevenson is trying to do with his amendments—they are designed to remove from section 13A the power to prescribe to which religious bodies the section applies; instead, the existing provisions in the Marriage (Scotland) Act 1977 would be relied on to define which religions were relevant for the purposes of the section. Although that approach may at first glance seem appealing, it would have further, more wide-reaching ramifications—Stewart Stevenson is nodding his head, so he has probably realised that. Amendments 36 to 38 would turn a provision that was designed to address the specific and discrete concerns of the Jewish community into one that would apply to the vast majority of religious bodies that have an authorised celebrant. I am sure that that was not Stewart Stevenson's initial intention.

I hope that we are able to find a resolution that deals with the specific issues that face the Jewish community, but does not have wider ramifications than were originally intended. In those circumstances, I invite Stewart Stevenson to consider withdrawing amendment 36 and not moving amendments 37 and 38.

Photo of Trish Godman Trish Godman Labour

I give Mr Stevenson half a minute to indicate whether he intends to press or to withdraw amendment 36.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I say to Jeremy Purvis that the situation is complicated. In Jewish law, if coercion is involved in the provision of a get, it is invalid. That is why we cannot do what the member suggests.

I have three points to make. We as parliamentarians should not interfere in the profession and practice of faith, but we should work with all people of all faiths in Scotland and the wider world and we should support people of faith when they require it. This is precisely such an occasion.

I have listened to what the minister has said about my amendments and I seek the Parliament's consent to withdraw amendment 36.

Amendment 36, by agreement, withdrawn.

Amendments 37 and 38 not moved.

Amendment 10 moved—[Mike Rumbles].

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 10 be agreed to. Are we agreed?



Division number 4

For: Brownlee, Derek, Davidson, Mr David, Fergusson, Alex, MacDonald, Margo, Martin, Campbell, Purvis, Jeremy, Rumbles, Mike
Against: Adam, Brian, Aitken, Bill, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brocklebank, Mr Ted, Brown, Robert, Butler, Bill, Byrne, Ms Rosemary, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Frances, Curran, Ms Margaret, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ewing, Fergus, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fox, Colin, Fraser, Murdo, Gallie, Phil, Gibson, Rob, Gillon, Karen, Gordon, Mr Charlie, Gorrie, Donald, Grahame, Christine, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Leckie, Carolyn, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McFee, Mr Bruce, McLetchie, David, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Mitchell, Margaret, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Radcliffe, Nora, Robison, Shona, Robson, Euan, Ruskell, Mr Mark, Scanlon, Mary, Scott, Eleanor, Scott, John, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Swinburne, John, Swinney, Mr John, Tosh, Murray, Turner, Dr Jean, Wallace, Mr Jim, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Abstentions: Glen, Marlyn

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 7, Against 108, Abstentions 1.

Amendment 10 disagreed to.