Asiya Khan Law Chamber – Official Blog
Removal of barriers to remarriage
Family Law Act section 2(4-7) & Divorce Act section 21.1 are the relevant provisions when it comes to removal of barriers to remarriage within that spouse’s faith. These two sections deal with the issue where one spouse refuses to remove a bar/s to religious marriage. In this situation a spouse can serve on the other spouse and file with the court, a statutory declaration or a statement verified by oath that other spouse has failed to remove the religious barrier while the person serving and filing the statement has removed all such barriers. If the other spouse fails to remove the bar/s within 10 days (under Family Law Act) or 15 days (under Divorce Act) and serve an affidavit stating the removal and filing the same in the court, that party’s proceedings may be dismissed (if applicant) or defence struck out (if respondent).The other party has to have a reason for the delay in removing the barriers within the specified time, for example, a genuine religious or conscientious basis for the refusal to remove the barrier.
The presence of these sections has been a huge source in reducing the matrimonial blackmail. It has been observed that once an application is served and filed in the court, the other spouse has inevitably come with an affidavit for the removal of barrier to remarriage. The courts are also not reluctant in applying these sections.
One needs to be aware, though, that a court cannot act in the given situation if the power to remove the barrier rests with a religious body or official.
Next, I shall update you on Family Law Act section 56 (5-7) which speaks on the power of a court to set aside a separation agreement or settlement if the court is satisfied that the agreement was entered into as a consideration for securing the removal of religious barriers to remarriage.
