Anti-social Behaviour, Crime and Policing Bill

Baroness Cox Excerpts

Tuesday 12th November 2013 Lords Chamber

[Baroness Berridge (Con)]

My Lords, this amendment relates to Clause 108. For the purposes of the new criminal offence of forced marriage, the Bill has adopted the definition of marriage found in the Forced Marriage (Civil Protection) Act, which states that.

“‘marriage’” means any religious or civil ceremony of marriage (whether or not legally binding)”.

At first glance this seems to be a sensible definition as it is clear that some marriages, although not valid in our law, have such community, cultural or religious significance that the couple behave as if they are legally married. Forcing someone into such a de facto marriage should also be a criminal offence. Consenting to such a marriage is fine; forcing someone is not.

No one underestimates the variety and complexity of situations that lead people to find themselves in forced marriages. A cursory glance at the case law reveals that children are sometimes subjected to such marriages by their parents, and the law needs to be flexible in its remedies. Under Clause 108(3), let us imagine that a woman takes a brave step to come forward to complain about a forced marriage in a religious ceremony which is not, as the Bill envisages, valid in UK law. She may take that step after many years of marriage and it will take enormous courage. She will almost certainly have to testify in court against her so-called husband and perhaps other community or religious leaders. This may affect her acceptance within her community. Her husband and others may be convicted and sent to prison.

Of course, this woman may need supporting financially and there may be family assets such as a car, a pension, a business, inherited wealth and most probably a home. However, they could all be in the legal name of the husband, who is in prison. Ordinarily the woman seeks a divorce or an annulment, and in both types of proceedings the courts have wide-ranging powers to transfer or split the family assets—but herein lies the problem: this forced religious marriage cannot be annulled and cannot be the subject of divorce proceedings. It is not viewed in law by the family courts as a marriage; it has been inelegantly described as a “non-marriage”. Without the legal means to get an annulment or divorce, the woman cannot put in a proper claim for the family assets. In those circumstances she will most likely be making a claim for benefits, supported by the UK taxpayer instead of by any family assets. I also shudder to think of what she may feel like if after a few years in prison her so-called husband comes back to the community and waltzes back into the family home with all the assets. I very much doubt whether any other women will come forward and take such risks if, on top of everything else, by doing so they make themselves financially destitute, with recourse only to the benefits system. Without giving her the remedy of an annulment, which is what the amendment gives her, there may be a grave injustice.

Conversely, if a person is forced into a marriage that is valid under UK law the marriage is void and can be annulled, and the family assets divided up. The Bill therefore currently gives rise to the different treatment of women forced into a marriage that is not recognised in our law, as opposed to women forced into what would otherwise be a valid marriage. There is extensive human rights case law on such differential treatment. I should therefore be grateful if the Minister can outline, if he does not accept the amendment, what reasonable and objective justification the Government have for such differential treatment of women in analogous situations. In the absence of any such justification, the law should be amended to give women the option of petitioning for an annulment. A woman will not be required to do so, and there may be cases where it is not appropriate, but the law should give her the option. This legal definition of marriage has not previously been an issue under the civil protection order regime, as that was aimed at preventing such a marriage, as the name indicates. As the law is now dealing with criminalising a forced marriage that has occurred, obviously the remedies when that marriage ends—namely, divorce or annulment—have now become relevant. If religious marriage is recognised for the purpose of a civil protection order regime and now criminal law, should it not be recognised for the purpose of family law?

This amendment has been drafted narrowly, but we will need to ensure that it does not inadvertently give financial remedies to cohabitees. I was made aware of the general issue of religious marriages during the presentation of evidence from excellent women’s rights groups to the Joint Committee on Human Rights, which said that many women, even when they consent to the marriage, are not aware that the ceremony is not valid in UK law. In some cases they discover this only when, after many years of marriage, the husband says three times that he divorces them and walks out. Literally, the first person to explain the situation to her is a divorce solicitor, who says that he cannot help her as she is in a non-marriage. Coincidentally, I was visited this morning by Dr Siddiqui, from the British Muslims for Secular Democracy organisation, who said that the situation that there may be family assets after many years of marriage can, indeed, occur.

I would be grateful to know the Government’s view on this amendment, which I believe solves an obvious injustice, and whether the Government are going to grasp the issue of non-legally binding marriages, which is causing so much harm, and look at the matter comprehensively. The Government need to take a step back. Once a different definition of marriage has crept into our law, there can be many inadvertent consequences. They need to consider different solutions, such as making the provision of a civil marriage certificate a requirement before any person conducts a religious ceremony. Such an inquiry could also look at whether the basic legal requirements of how to be married under UK law need to be part of citizenship teaching, especially given the popular trend of travelling to sunnier climes for wedding ceremonies. I fear this is not common enough knowledge; your Lordships may remember that Mick Jagger and Jerry Hall had to get an annulment as they were not married under UK law. I beg to move.

[Baroness Cox (CB)]

My Lords, before I speak to Amendment 13, grouped with this amendment, I apologise for missing Second Reading as I was in South Sudan, where it was rather difficult to engage with parliamentary business here. I understand that a primary goal of the forced marriage provisions of the Bill is to increase the protection of victims of honour-based abuse while bringing perpetrators to justice. As noble Lords may be aware, this is also the primary concern of my Private Member’s Bill, the Arbitration and Mediation Services (Equality) Bill, which seeks to ensure that all citizens resident under the jurisdiction of England and Wales have equal access to the law, and to increase protection for those who suffer abuse and gender discrimination. One of the concerns underlying the reason for that Bill could be addressed by this amendment, which would make it an offence to solemnise a marriage in England and Wales according to the rites of any religion or belief in circumstances where the marriage is not also solemnised as a legal marriage under the terms of the Marriage Act 1949 if either or both parties to the marriage wrongly believe that they are married according to the law simply because they have been through a religious ceremony.

The amendment would tackle the problem that arises in some communities where those getting married, particularly women who are not familiar with English law or the customs of this country, undergo a religious marriage without understanding that they are not married according to English law. They are therefore unaware that they are without any legal protection. I think there are parallels here with the amendment just moved by the noble Baroness, Lady Berridge.

In most cases, religious celebrants would not need to be concerned about committing the offence created by the amendment. They would not need to act any differently. Most marriages solemnised by religious celebrants are in registered buildings under the terms of the Marriage Act 1949. They are legal marriages. Under the Marriage Act 1949, a couple who have already entered into a civil marriage may go through a religious marriage ceremony after giving notice to a minister of religion, and on the production of a certificate of their marriage before the superintendent registrar.

Therefore, in circumstances when no certificate is provided, ministers of religion should already be on notice that a couple may not be married legally. In those situations when they are not sure that the parties properly understand the status of a religious ceremony, they may choose to say something about this publicly during the religious ceremony to ensure that there is no doubt, or they could choose to obtain a written declaration of understanding from the couple before proceeding with a marriage service. How they go about that procedure is a matter for them and the amendment does not seek to prescribe any particular means. What matters is that when there is some doubt as to the understanding of the parties, my amendment would effectively require celebrants to ensure that the couple they are marrying only according to religious rites are fully aware of the status of the ceremony and its implications.