DIVORCE (RELIGIOUS MARRIAGES) BILL [HL]
Memorandum by the Lord Chancellor's Department
1. This memorandum identifies the provision in the
proposed Government amendment to the Divorce (Religious Marriages)
Bill which confers power to make delegated legislation. It explains
the purpose of the power, the reason why it is to be left to delegated
legislation, and the nature and justification for any parliamentary
procedures which apply.
Outline and scope of the Bill
2. This is a Private Peer's Bill, introduced into
the House of Lords by Lord Lester of Herne Hill, which received
First and Second Reading on 18 May and 30 June 2000 respectively.
3. The Bill seeks
to ensure that where those who married in accordance with usages
of a kind mentioned in section 26(1) of the Marriage Act 1949
(the Jews and the Quakers) and are required to co-operate to dissolve
the marriage in accordance with those usages, both parties must
make a declaration to the court that they have done so prior to
the decree absolute being granted by the civil court.
4. This Bill replicates
the provision contained in section 9(3) and (4) of the Family
Law Act 1996 which has not been implemented.
5. Subject to an amendment, The Government is supporting
this Bill, which will provide assistance, under the existing law
on divorce, to Jewish women denied a religious divorce.
The Power in the Government Amendment
6. The Government has been advised that the Bill,
as it stands, is not compatible with Article 14 of the European
Convention on Human Rights, in that it may discriminate on the
grounds that it will only apply to Jews and Quakers and not to
other religious groups. The amendment seeks to ensure such compatibility.
7. The Government
does not, however, believe that the Bill should be amended to
include all religious groups. Only the Jewish community have so
far presented a case to the Government to have this provision
extended to them. It is not considered appropriate to confer rights
upon other faith groups without evidence that this would be welcome
Power conferred on: The Lord Chancellor
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
8. This confers
power on the Lord Chancellor by statutory instrument to extend
these provisions to other religions where the parties have been
married according to religious usages of a prescribed kind. It
will only be in cases where a religion provides for a 'religious
divorce' that this order making power can be used.
9. The order would be made by statutory instrument
under the negative resolution procedure.
10. It is considered
that this level of Parliamentary control is appropriate to essentially
non-contentious issues as there may be other religious groups
in England and Wales, who may wish this provision to be extended
to them and it would seem inappropriate to require primary legislation
each time a group needed to be covered.
Lord Chancellor's Department.
6 July 2000