In a guest post, Fouzia Azzouz, of Bristol University’s School of Sociology, Politics, and International Studies, looks at the law around a husband’s refusal to grant his wife a religious divorce.
In 2021, the UK Parliament passed amendments to the Domestic Abuse Bill and the Serious Crime Act which stipulated that withholding a Get can constitute a violation of those laws. The draft statutory guidance under the Domestic Abuse Act 2021 recognised that withholding a religious divorce both by Muslim and Jewish husbands may constitute controlling or coercive behaviour and a form of spiritual abuse which could lead the husband to be imprisoned. This development was in reaction to various calls for action to tackle the issue of ‘chained wives’ in religious communities.
In Muslim and Orthodox Jewish communities in Britain, we often speak of ‘chained wives’ who are trapped in religious marriages because their husbands refuse to divorce them. This is because the family laws of these religious communities do not have the same right to divorce for men and women. In Islam, a husband can unilaterally divorce his wife with the simple utterance of ‘I divorce you’ (or other derivatives). The wife does not have this right but has access to two other types of divorce which are contingent on the husband’s approval or the intervention of an Islamic scholar (known as Khula and Faskh respectively). An Islamic scholar(s) is able to terminate a Nikah under certain grounds.
Similarly for Reform Jews, a religious court can compel the husband to pronounce the Get under some circumstances that are not too different from those considered by Muslims (eg, when the husband is abusive, unfaithful, unable to support his wife and so on). In Orthodox Jewish law, however, granting a religious divorce or Get is the sole responsibility of the husband. The wife can request a Get but the husband has to freely grant the Get for the couple to be divorced: otherwise, a Jewish court may rule the divorce to be invalid due to pressure.
The problem of chained wives typically happens because husbands attempt to weaponise religious divorce to trap their wives and hold them back from remarrying or stop them from getting a fair settlement in civil divorce cases. This problem has been a serious one, particularly in Orthodox Jewish communities in Britain, which has, in turn, led to calls for courts to introduce sanctions on uncooperating husbands to bring justice to their chained wives.
Not too long after Parliament passed these amendments, and for the first time in legal history, refusal to grant a religious divorce has led to a sentence against a husband in a prosecution case brought by his wife. The man in question, Alan Moher, has received an 18-month jail sentence for engaging in coercive and controlling behaviour including refusing to grant his wife a religious divorce, a Get, despite being civilly divorced since 2016. This has been described as a landmark case and a breakthrough for the use of the offence of criminal and coercive behaviour in a case involving the refusal by husbands to grant a religious divorce.
The ruling in this case has raised two important questions. The first is about the implication of further convictions in cases of chained women in Jewish communities and the second relates to the possibility of applying the same rationale in cases where Muslim husbands refuse to grant Islamic divorce to their wives. It is hard to make speculations about the outcome of a single case and whether it would set a precedent in cases involving Jewish and Muslim divorces. A few things we have to keep in mind are the specific details of this individual case and the differences regarding the authority to initiate divorce between Jewish and Islamic family laws.
Considering the specific details of the case, it becomes clear that the sentence was not completely owed to the issue of Get refusal. As the wife’s counsel explained to the judge, the husband had used “multiple methods of controlling or coercive behaviour, including financial, physical, emotional and psychological abuse to torment his wife over a period of over five years.” According to media sources, Mr Moher had a previous public order conviction after threatening his wife following a family court hearing in Manchester. Mr Moher was also found to have stalked his wife and physically threatened her with his car on one occasion. The courts were made aware that Ms Moher was “so worn down” by “psychological and emotional abuse” that she attempted suicide: (The Guardian, 1 April 2022).
In terms of setting a precedent, it is not clear whether Get refusal would be recognised as coercive and controlling behaviour on its own in potential future cases as it is more likely that evidence of further coercive behaviour and abuse would be required to lead to a conviction.
Whether this could be applicable to other religious communities such as Muslims is also uncertain. While Muslim women in a similar situation to Ms Moher may choose to press charges because of their husbands’ coercive behaviour, including refusal to grant them a religious divorce, for other women whose only objective is to obtain a religious divorce, it is questionable whether this route would provide the best outcome for them. Where there is no experience of previous coercive and controlling behaviour apart from the husband refusing to grant a religious divorce, women might not have a strong enough case to present in court. Further, since Muslim women can seek the help of an Islamic scholar (eg at a mosque or Sharia council) when their objective is simply to terminate their religious marriages (without the husband’s consent), they may prefer to go down this path instead of going through a criminal trial to reach a conviction based on coercive behaviour charges and secure a religious divorce that may be seen as pronounced under coercion.
Whether the remedy to the problem of chained wives lies within secular law is open to debate and while the implications of the Moher case remain uncertain, the inclusion of the failure to provide a religious divorce under the terms of the Domestic Abuse Act 2021 is certainly an important step towards better protection for minority religious women for whom religious family laws remain ever relevant.
Cite this article as: Fouzia Azzouz, “Withholding religious divorce controlling and coercive behaviour: Moher” in Law & Religion UK, 17 May 2022, https://lawandreligionuk.com/2022/05/17/withholding-religious-divorce-controlling-and-coercive-behaviour-moher/.