Law and religion round-up – 19th January

“I don’t comment on stuff to do with the Royal Family”…

On this at least, we can agree with Boris Johnson. Nor do we write stuff on parish disputes on the basis of leaked documents, infra, or on the BBC2 documentary Exposed: The Church’s Dark Secret on the Peter Ball case, which provided an opportunity for some to pursue their own agendas: our post, Peter Ball – the on-going legacy, was restricted to a time-line with links to reports &c. However, for the religion and law stories on which we do publish, read on … 

Religious divorce and controlling or coercive behaviour

The Jewish Chronicle reports that a woman in London, unable to remarry according to Jewish law because her ex-husband had refused to grant her a get, has achieved her object after launching a private prosecution against him, alleging controlling or coercive behaviour in an intimate or familial relationship contrary to s.76 Serious Crime Act 2015.

The ex-husband was due to face a Crown Court trial in July and, if convicted, could have been jailed for up to five years; however, the woman has discontinued the case after he finally gave her the get last month. Her counsel, Antony Metzer QC, told the court that the ex-husband had previously tried to press the woman into revoking a molestation order and leaving the country in return for a get and that he “was well aware that by refusing to provide a get, the victim would be isolated, prevented from forming a future relationship or having children, and unable to lead an Orthodox Jewish life in the community of her choice.” In a short hearing, the judge accepted an application for the state to fund the prosecution costs. [With thanks to Joshua Rozenberg.]

Equal civil partnerships and “common law marriage”

The latest ICLR Weekly notes include a reminder that the first opposite-sex civil partnerships in England and Wales were registered on New Year’s Eve, while in the Stowe Family Law blog, John Bolch analyses the Government’s estimate that “up to 84,000 mixed-sex couples could form civil partnerships this year in England and Wales”.

The ICLR also provides a link to the Transparency Project’s very helpful guidance note of March 2019 on Common Law Marriage – The rights of unmarried couples & the myth of common law marriage, which states flatly that

“In England & Wales (the countries covered by this guide) there is no such thing as ‘common law marriage’ or a ‘common law’ husband or wife. No matter how long you live with your partner, you will never get the same legal rights as a couple who are married or in a civil partnership. The law about couples who are not married nor in civil partnerships will not be affected if and when civil partnership is extended from being just available to same-sex couples to include opposite sex couples.”

Northern Ireland: same sex marriage and opposite sex civil partnership

On 13 January,  civil marriage between same-sex couples and civil partnerships for opposite-sex couples became lawful in Northern Ireland. From that date, couples were able to give notice to the General Register Office for Northern Ireland of their intent to form a civil same-sex marriage or an opposite-sex civil partnership. The minimum period of notice is usually 28 days.

The background policy paper published on 22 October said that

‘The UK Government plans to publish a consultation on religious same-sex marriage with the intention of making regulations to enable religious same sex marriage in Northern Ireland in 2020. We think it is right that religious organisations, faith groups and individuals are able to give their views on same sex couples marrying in religious ceremonies, just as they did in England, Wales and Scotland. This means that there will be a short delay before we introduce religious same-sex marriage in Northern Ireland for those religious organisations that choose to do do so.

We also intend to consult on the right to convert a civil partnership to marriage (and vice versa).’

But that was before the re-establishment of the Northern Ireland Executive, and marriage law is a devolved matter. Presumably, the Executive will now publish a consultation on religious same-sex marriage – but we’ll see.

Marriage registration

The House of Commons Library has published a research briefing on Mothers’ details on marriage certificates. Critically, it concludes with the reminder that:

“The detail of the new marriage registration scheme will be set out in regulations which have not yet been published. The timing of the regulations is not yet known.

The regulations will be subject to the affirmative resolution procedure, meaning that they require the approval of both Houses of Parliament to become law,”

which is essentially what we reported in our post Civil partnerships legislation – unfinished business on 18 November 2019. The official position still appears to be “nobody knows”, but perhaps this information should be disseminated more widely to clergy and others who have been expressing concern since the issue was first raised June 2019.

Same-sex marriage in Bermuda: update

Readers may recall that in June 2018 in Ferguson et al v Attorney General [2018] SC (Bda) 45 Civ, the then Chief Justice of Bermuda, Kawaley CJ, upheld a constitutional challenge to the areas of the Domestic Partnership Act revoking same-sex marriage. The substantive part of that judgment was upheld by the Court of Appeal for Bermuda in The Attorney General v Roderick Ferguson et al [2018] CA (Bda) 32 Civ. Same-sex marriages became legal on the island again after the Court of Appeal ruling and have continued to be so.

The Bermuda Government then decided that it would appeal to the Judicial Committee of the Privy Council – and Elijah J Granet noted it the history of the appeal for the blog, here – but it now appears that there might be a glitch in the appeal process. The Royal Gazette reports that in order to comply with the rules of the JCPC, a statement of agreed facts and issues, with the agreement of the opposing side should have been filed by 13 December or an application should have been filed for an extension; however, when the Gazette asked the Government whether the document had, in fact, been filed, there was no response. [With thanks to Elijah Z Granet.]

The bells, the bells

A first-rate row has broken out over a request from Leave.EU that church bells should be rung to celebrate the departure of the UK from the EU. Leave.EU founder Arron Banks claimed that his organisation had been “overwhelmed by bellringers” who wanted the occasion to be marked “with or without permission”, while the Central Council of Church Bell Ringers said that it did not support the idea since, as a principle, it does not endorse bellringing for political reasons. However, the ringing of church bells is not within the gift of Leave.EU nor (as its note acknowledges) of the CCCBR. For the Church of England – which has the overwhelming majority of ringable bells – under Canon F8 it is the incumbent (“the minister”) who may direct whether or not bells are rung, and it could be argued that it would be pastorally insensitive for them to be rung on this occasion.

Kaya Burgess tweeted that he was “quite pleased to have got the phrase ‘with scant regard for canon F8 of church law’ onto the front page of The Times“. The story was also covered in The Guardian with the story, Will parishes let the bells ring for Brexit?but there was an unfortunate choice in the accompanying close-up photograph of the Sanctus bell in St Oswald’s, Widford, in the deserted medieval village on the River Windrush.

‘Disgrace to the Christian community’

Readers may be aware of reports, on the BBC and elsewhere, concerning the complaints of “warring factions” in a Norfolk church which had been referred to Sir Mark Hedley, Deputy President of Tribunals for the Clergy Discipline Commission. His report dated 7 November, which had been leaked to the Press, concluded that both sides should reconcile their differences. As such, further comment is unnecessary.

Church of England February General Synod

The first batch of papers for the February General Synod are now available here and the remaining papers will be issued on 24 January.  As ever, Synod will be covered by Thinking Anglicans and future posts on L&RUK will focus on the Draft Channel Islands Measure, which – unusually – is expected to complete all its stages at this Synod, and the Covenant for Clergy Care and Wellbeing, which Synod is invited formally to affirm and proclaim as an Act of Synod.

At the Wednesday sitting there will be a debate on the response to the recommendations in IICSA May 2019 Investigation Report; the paper on this, GS 2158, is to be circulated later.

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