Religion and Divorce: Who should have the final say?

 Is Re AI and MT really a significant decision?

Words: 1,238
Time to read: <5min

The case involved a Jewish couple in their twenties who were separating and who asked the Court to allow them to refer their dispute to the New York Beth Din, or Jewish religious court, to resolve the issues. The family was international and so the issues included access to the two children of the family, the father having issued Hague Convention (Child Abduction) proceedings in this country for the summary return of the children to Canada, as well as financial provision and distribution of assets and the provision of a Get, or Jewish religious divorce.  A more detailed summary together with the judgement can be found here.

The judgment of Mr Justice Baker in this case was not a traditional one setting out a decisive ruling on financial distribution of assets or other issues arising out of the end of a marriage, but rather provided an explanation for the highly unusual development of the case and the way in which the parties eventually reached a settlement.

There has been some speculation in the media that this will pave the way for the more active involvement of other religious authorities in the settlement divorces and, in particular, might allow for Sharia Courts to play a more active role in civil divorces. But how significant is this case in shaping the relationship between civil and religious courts when it comes to divorce?

Divorcing couples are being encouraged to use alternatives to litigation to resolve their differences and the Judge recognised this in this case.  However, he could not agree to the parties request that they allow all this issues to be resolved by the Beth Din because the nature of that arbitration is binding and it would have ousted the jurisdiction of the English Court.  However, the Judge found a way to allow the couple to resolve their differences within the framework of the English Court system whilst also respecting their orthodox religious culture and devout wishes .  His solution was this:

• To allow the parties to travel to New York for non-binding arbitration before the Beth Din (the mother’s passport was being held by virtue of the Hague Convention proceedings and so she needed permission to leave the country). Any agreement reached would be referred back to the English Court for final approval.

• To satisfy himself that the principles which the Beth Din would use to determine the issues relating to the children would be in line with English law and specifically the paramountcy principal which puts the welfare of the child above all else.  Furthermore, the Judge made it clear, at an interim hearing in relation to contact, that, if he considered a decision of the Beth Din was not in the best interests of the children then he would not approve it (para 18 of the judgement).  The judgement does not look at any other type of religious law or court, just that of the Beth Din and specifically the Beth Din in New York, which makes the media’s connections to Sharia law somewhat tenuous.

In September 2011, the Beth Din issued its ruling and the case returned to the English Courts for consideration and approval (and, as it turned out, some final negotiations).  The Order was finally approved in April 2012.

Would the Judge make the same decision again?

Of significance to the Judge was the “profound belief” from both the husband and the wife that the Beth Din was the appropriate forum for their issues to be resolved.  In this context the Judge highlighted that, just because the circumstances of this case allowed for the couple’s religious beliefs to be respected within the framework of the English justice system, it did not mean that the Court would necessarily endorse similar proposals referring disputes to other religious authorities.  He said “Every case will turn on its own facts.”

Furthermore, the case took a long time to arbitrate, much longer than the Judge had anticipated.  It was initially thought the process could be concluded in a matter of weeks but it in fact took 18 months for the Beth Din to release its ruling.  In that time two significant wider developments had taken place in English family law.

• An ‘overriding objective’ had been introduced through the Family Procedure Rules 2010 which allowed the Court to use their case management powers to promote the use of alternative forms of dispute resolution.  Whilst this would appear to support the Judge’s case management decisions, the overriding object also emphasises that cases were dealt with ‘expeditiously’ and the Judge expressed concerns over the delays in reaching a final solution.  

• A family arbitration scheme was launched by the Institute of Family Law Arbitrators. This provides couples in this jurisdiction with a method of alternative dispute resolution which was not available to the couple in the case in question when they made their request.  Part of the parties’ initial case was that the arbitration method, whereby a ruling is given by a third party selected by the parties themselves, was important to them and this could not be achieved in this country at that time.

It is therefore debatable whether the Judge, faced with a similar set of circumstances now, would make the same decision again.

Does this pave the way for other cases to be deferred to religious authorities?

If both sides could show that they were equally committed to submitting their case to their chosen religious authority, on a non-binding basis, and, provided that the Court was satisfied that the methods of that authority were not contrary to English law, particularly if children were involved, then this case does suggest that there is scope for other cases to be deferred to other religious authorities such as a Sharia Court. It would also be reasonable to expect any judge faced with a similar request to look at the practicalities and time estimates for deferring to the religious authority as well as the methodology so as to ensure the overriding object was being met.  How likely it is for such requests to meet with the Courts satisfaction is another question and one which would require a detailed analysis of both the facts of each case and the proposed religious authority.

It is also important to note that any decisions reached through another religious authority, with the permission of the Court, would not be automatically legally binding (as has been suggested) but would still be subject to the scrutiny and approval of the civil Courts. One party could not show up to civil divorce proceedings with a Beth Din or Sharia Court ruling and expect it to be upheld, particularly if there are objections from the other side.  In the final paragraph of his judgement Mr Justice Baker noted that he found the decision of the New York Beth Din to be in the interests of the children’s welfare and the financial terms were "unobjectionable". Were that not the case then he would have undoubtedly refused to make an order on those terms.

Furthermore, religious marriages, such as the Islamic nikah, are not always recognised by the state in this country, leaving many couples discovering, when they do want a divorce, that the law treats them as cohabitees.  If the marriage has been recognised by the state, i.e. it was conducted and registered in accordance with English Law, then only the state has the authority to dissolve that marriage.  This case does not change that.

 

Should religious courts play a greater part in civil divorce proceedings?

Write a comment and get involved...