A novel approach to Get refusal: the use of the offence of coercive control to obtain a religious divorce

by | Feb 4, 2020

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About Tristan Cummings

Tristan Cummings is a PhD Candidate and Stipendiary Lecturer at Merton College, Oxford. His research focuses on the intersection of family law, human rights law and religious freedom with a particular interest in the regulation of religious family law through a systems theoretical and reflexive law model. His research is funded by the AHRC.

Citations


Tristan Cummings, ‘A novel approach to Get refusal: the use of the offence of coercive control to obtain a religious divorce’ (OxHRH Blog, January 2020) <https://ohrh.law.ox.ac.uk/a-novel-approach-to-get-refusal-the-use-of-the-offence-of-coercive-control-to-obtain-a-religious-divorce>[date of access].

For Jewish women, obtaining a religious divorce (Get) can be life-changing. Women denied a Get are considered ‘chained’ to their husband, preventing them from re-marrying within the faith (whilst not affecting the husband’s ability to re-marry). The power to grant the Get is usually considered the unilateral right of the husband. Because a purely religious marriage is not recognised in England as a civil marriage, women have little recourse to the courts. So, what happens when a husband refuses to grant a religious divorce to his wife? For these women, their human rights to manifest their religion and to enter into marriages are denied, such that they cannot live fully as both religious individuals and bearers of human rights. However, a novel approach to this problem, a private prosecution for coercive control, could offer Jewish women an alternative avenue to protect their human rights.

Over the years, courts and legislators in England have relied on a number of mechanisms to help extract a Get from recalcitrant husbands. These usually focus on two things: first, courts have made financial awards conditional upon receipt of a Get. In simple terms, the amount the husband might expect to pay his wife could be increased if he refuses to grant the religious divorce. Second, under the Divorce (Religious Marriages) Act 2002, judges may make granting a civil divorce conditional on the husband consenting to the Get.

However, sometimes these options are not open to the women concerned or their husbands still remain unwilling to grant the religious divorce. In January 2020, a Jewish woman refused a Get by her husband took a new approach. She decided to bring a private prosecution against her husband under s76 of the Serious Crime Act 2015, which makes ‘controlling or coercive behaviour’ in family relationships a criminal offence. The crime of coercive control was developed in response to a range of behaviours that had hitherto not been taken seriously as domestic abuse. Yet, refusal to grant a Get was unlikely to have been in mind when Parliament passed this law.

Is Get refusal an instance of coercive control? In this case, the husband engaged in a range of other abusive behaviours and was subject to a non-molestation order. Despite repeated involvement of the London Beth Din, he continued to refuse to grant a Get. The UK Government defines domestic abuse as ‘any incident or pattern of incidents of controlling [or] coercive … behaviour … between those aged 16 or over who are or have been intimate partners …’ The Crown Prosecution Service make clear that ‘forced marriage’ is an example of coercive or controlling behaviour. Further, the offence is marked by ‘a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour’.

For the offence under s76 to be made out, it must be part of a continuous pattern of behaviour between two individuals who are ‘personally connected’ which has a ‘serious effect’ on the individual, of which the defendant (at least) ought to know about. A serious effect includes under s76(4)(b) ‘serious alarm or distress which has a substantial adverse effect on their day-to-day activities’ which, covers the wide-ranging and pervasive effects that Get refusal might cause. Her rights to exercise her faith and to enter into marriage are severely curtailed, implicating her Articles 8, 9 and 12 rights under the ECHR. And there is no possibility of the husband raising a defence, as his behaviour cannot plausibly be in his wife’s interests nor is it ‘reasonable’.

In the end, faced with the possibility of a sentence of up to 5 years, he granted the divorce. Get refusal is a serious interference with a religious woman’s rights. It keeps her in an intimate relationship against her will and defeats her ability as a Jewish woman to enter into future marriages. However, whilst this case provides cause for hope, it must be noted that the Get must nonetheless be granted voluntarily by the husband. It may be that, within some communities, a Get extracted under threat of prosecution will not be considered voluntary. And moreover, whilst private prosecution provides an additional avenue to resolve these issues, they may not be accessible for all women due to the costs involved and the fact that legal aid is not granted in such cases.

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