Civil and Religious Divorce - Part 1
To View Part 2 of this Letter: Part 2
FAMILY LAW COUNCIL
ROBERT GARRAN OFFICES
NATIONAL CIRCUIT
BARTON ACT 2600
TELEPHONE: 02-62506375
FAX: 02-62505917
DX: CANBERRA 5678
3 August 1998
Chairperson: Mrs Jennifer Boland
Members: Ms Elaine Atkinson, Ms Dale Bagshaw, Ms Susan Blashki, Associate Professor Eleanor Bourke,
Mr Stephen Bourke, The Hon Justice Rod Burr, Professor John Dewar, The Hon Justice Michael Hannon,
Ms Annemaree Lanteri, Mr Richard Morgan, Mr Des Semple
The Hon Daryl Williams AM QC MP
Attorney-General
Parliament House
CANBERRA A.C.T. 2600
Dear Attorney-General
Following your discussion on 28 April 1997 with the then Chairperson concerning some of the problems which have arisen with regard to civil and religious divorce, Council discussed these issues at its meetings on 8 - 9 May and 17 - 18 July 1997 and 19-20 February and 21-22 May 1998.
The background to the problems is set out at Attachment A, which also includes an overview of relevant Australian law, as well as developments in other jurisdictions. Briefly, a problem has been identified where a Muslim or Jewish woman may obtain a civil divorce, but her husband refuses to agree to or grant a religious divorce. This has obvious implications for the woman's ability to remarry in her religious faith. It also has immigration and social security implications in some cases, and these are set out briefly in Attachment A. However, Council is not in a position to advise you on these issues.
An opinion was obtained from the Acting Solicitor-General on the constitutional validity of possible amendments to the Family Law Act -
to amend the Act to insert in Part VI a "no impediment" clause which would defer the hearing of the civil dissolution application pending the granting by the relevant parties of a religious divorce; or
- to amend the Act so that, after a decree nisi for civil dissolution has been made, there be a deferment of the decree becoming absolute under section 55 of the Act until the Court is satisfied that the grant of the religious divorce has occurred.
A copy of that opinion is at Attachment B.
Summary of opinion
The Acting Solicitor-General advised that the proposed amendments would be within the scope of section 51(xxi) -(xxii) of the Constitution but they would most probably contravene section 116 of the Constitution.
The Acting Solicitor-General's opinion and interpretation of section 116 is based on the following matters:
- If a Commonwealth Act confers powers on a body (including a court) to make orders contrary to section 116 that will normally mean that the empowering Act contravenes the express prohibition in section 116 and is invalid to that extent.
- The relevant clause in section 116 for the purposes of this exercise relates to 'religious observance'. There is no direct authority on this clause but the Acting Solicitor-General believes it would be interpreted as extending to any requirement that a person participate in activities with a religious content.
- A law which required a person to take steps to dissolve a marriage according to the doctrines of a particular religion would arguably breach the observance clause of section 116 by requiring the person to take part in religious rites.
- Such a law would also arguably breach the 'free exercise' clause of section 116 by requiring the person to take steps which were in some way offensive to his or her faith.
- These arguments for invalidity would not be overcome by the counter argument that the proposed amendments would require religious processes to be undergone only as a condition of invoking the jurisdiction of the Family Court.
- Recent developments in the High Court suggest that the Court would be protective of individual religious freedom.
- The recent High Court decision in Kruger v Commonwealth held that a law which restricts political communication will nevertheless be valid if the restriction is an incidental effect of the law's pursuit of some non-infringing purpose. It would be difficult to argue that the proposed amendments to the Family Law Act, which manifestly impose a requirement of religious observance and possibly a prohibition on the free exercise of religion, would bring about this result as a side effect of the pursuit of some non-infringing purpose.
- There would be better prospects of success for a provision which did not focus on religious processes. A general discretionary power conferred on the Court to make orders for dissolution conditional on each party taking the necessary steps to free the other party from the marriage relationship would probably be valid. While it is arguable that the Court already has such an inherent power, sections 48(2) and 55-55A make this doubtful.
- There may be considerable challenge in drafting a general provision which avoided contravening section 116 while still making it clear that an order requiring religious divorce proceedings to be undertaken was intended to be allowed.
Advice
In considering the effects of denial of a religious divorce on a party who has been divorced in the civil courts, Council is aware of the anomalous situation arising when a person enjoys the Constitutional protection of the freedom of religious expression but seeks the assistance of Government to circumvent certain undesirable consequences of the observance of their religion. The problem we considered affects those who wish to uphold their religious beliefs and obtain a religious divorce before remarrying according to their religion. A person who obtains a civil divorce in Australia has no impediment, arising from the divorce, to civil remarriage in Australia. Furthermore, section 116 of the Constitution provides a guarantee of freedom from, as well as freedom of, religion. Hence it protects the right not to hold religious views or take part in religious rites.
In light of the Acting Solicitor-General's opinion, Council believes that any amendments to the Family Law Act along the lines of the ALRC recommendations in its 1992 report on Multiculturalism and the Law would be invalid (see Attachment A at page 6).
A more general provision which does not focus on religious processes, but extends the Court's discretion, may be constitutionally valid, but there is some uncertainty on this issue. However a broad discretionary power could leave it open to the Court to impose a range of conditions not sought to be covered by any amendments arising out of this issue, thereby introducing certain consequences which may be undesirable from a policy perspective.
Given the constitutional uncertainty of the proposed amendment, the possible undesirable consequences from a policy perspective, and the Acting Solicitor-General's view that there would be considerable difficulty in drafting the amendment, it is Council's view that the Family Law Act should not be amended to deal with this particular problem. In light of this view, the current judicial approach taken by the Family Court, as outlined on page 6 of Attachment A, would continue to be available on a case by case basis.
Whether other legislation should be amended to deal with the immigration and social security issues raised in the background paper is a matter for the responsible Ministers.
RECOMMENDATION
Council takes the view that the problems outlined above arise from the observance of religious practices and not from any shortcomings in the Family Law Act. It therefore recommends that the Family Law Act should not be amended in these circumstances.
At its meeting in Alice Springs on 21-22 May 1998 the Council agreed that the matters raised in this letter should be conveyed to you. I have signed this letter on behalf of the Council and by agreement with the immediate past Chairperson whose term of office expired on 30 June 1998.
Yours sincerely,
(R W Hughes)
Director of Research
on behalf of the Chairperson
To View Part 2 of this Letter: Part 2