Court opens way to divorces by Sharia? Hold on a minute… – James Wilson

Sharia divorceAI v MT [2013] EWHC 100 (Fam) – Read judgment

The Times (amongst others) today deserves a spell on the legal naughty step. Its headline announces that a judge’s decision “opens way to divorces by Sharia“. One might expect therefore to find that the judgment giving rise to the headline – the decision of Baker J in the Family Court in AI v MT – was about Sharia law, or otherwise had something to do with it. In fact the judgment concerned a Jewish divorce under the auspices of the Beth Din, and had nothing to do with Sharia at all.

The judge approved a final order in matrimonial proceedings by consent. That consent order had arisen from the Beth Din. It did not elevate the Beth Din to the status of the High Court. To the contrary, the judge stated that the following legal principles applied (paras [27]-[30]):

[27] First, insofar as the court has jurisdiction to determine issues arising out of the marriage, or concerning the welfare and upbringing of the children, that jurisdiction cannot be ousted by agreement. The parties cannot lawfully make an agreement either not to invoke the jurisdiction or to control the powers of the court where jurisdiction is invoked: see Lord Hailsham in Hyman v Hyman [1929] AC 601.

[28] Secondly, save where statute provides otherwise, when considering issues concerning the upbringing of children, it is the child’s welfare that is the paramount consideration. Statute does otherwise provide in respect of applications for the summary return of children under the Hague Convention. Applications for summary return under the inherent jurisdiction, on the other hand, are to be determined by reference to the child’s welfare, for the reasons explained by Baroness Hale of Richmond in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80 at paragraph 25:

“In all non-Convention cases the courts have consistently held that they must act in accordance with the welfare of the individual child. If they did decide to return the child, that is because it is in the best interests to do so not because the welfare principle has been superseded by some other consideration.”

[29] Thirdly, this court gives appropriate respect to the cultural practice and religious beliefs of orthodox Jews as it does to the practices of all other cultures and faiths. But that respect does not oblige the court to depart from the welfare principle because, as explained by Baroness Hale in Re J at paragraphs 37 to 38, the welfare principle is sufficiently broad and flexible to accommodate many cultural and religious practices:

“It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed we do not have any fixed concept of what will be in the best interests of the individual child… We are not so arrogant as to think that we know best… Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well known checklist in section 1 (3) of the Children Act 1989: These include his own wishes and feelings, his physical and emotional and educational needs, and the relative capacities of the adults around him to meet those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one.”

[30] Fourthly, it is always in the interests of parties to try to resolve disputes by agreement wherever possible, including disputes concerning the future of children and ancillary relief of the breakdown of a marriage. As Thorpe LJ observed in Al Khatib v Masry [2004] EWCA Civ 1353 [2005] 1 FLR 381 at paragraph 17:

“there is no case, however conflicted, which is not potentially open to successful mediation, even if mediation has not been attempted or has failed during the trial process”

In international child abduction cases, the charity Reunite, has run a highly successful mediation scheme for a number of years. It is important to add, however, that, whilst the court will encourage parties to try to resolve disputes by agreement, and will permit parties fully to participate in any process designed to achieve an agreed settlement, including where appropriate a process established by the culture or faith to which they belong or adhere, it must be careful to avoid endorsing any process that has or might have the effect of ousting the jurisdiction of the court, particularly (but not exclusively) in respect of the welfare of children.

The effect

In other words, the parties chose to resolve their differences by means of the Beth Din, but they still required the court’s approval. The court happened to approve the Beth Din’s ruling as reflected in the consent order, but it is the court’s order, and not the Beth Din’s ruling, that has force in English law.

True, this might mean that other religious rulings might in future be recognised in the same fashion, but the court’s approval is not a rubber stamp. If for whatever reason (public policy, lack of valid consent by one or both of the parties, misrepresentation, whatever) that process offended English law then the religious tribunal’s decision would not be recognised and would not then attain any status in English law. Baker J stressed that the arbitration was non-binding, and it is clear (see eg para [37]) that he examined the outcome as closely as he would have a settlement reached by any other means.

Comment

Freedom of contract is a central concept under the common law. Arbitration – in commercial or family contexts – is but a subcategory of freedom of contract. Parties are free to agree on dispute resolution mechanisms just as they are free to agree on anything else – within the law. In the commercial world very sophisticated arbitration processes have developed over the years within different industries – shipping, commodity trading, whatever – and London is one of the great world centres for commercial arbitration.

Thus every working day in the city tribunals constituted by grain boards or oil traders or shipowners or whatever sit, hear evidence and decide the fate of many millions of pounds. They will attempt to apply the law of the contract, which is often English law but by no means always – a Liberian shipowner might be involved in a dispute with a New York broker and a London insurer and the contract might state that New York law applies. The decision of the arbitrators will be enforceable in English law if the English courts approve, and it might be challenged in the English courts under various (fairly narrow in the commercial context) provisions in the Arbitration Act.

The key point

The key point is this: if the courts recognise and allow the enforcement of an arbitration conducted under (say) New York law, that involves no importation of New York law into English law. It is simply a manifestation of the common law doctrine of freedom of contract. The parties agreed they would resolve their dispute under X arbitration process pursuant to Y system of law, and unless there is a good reason (such as the examples given above regarding duress or other circumstances in which the parties cannot in fact be said to have “agreed” despite the face of a contractual document) there is no reason why English law would not recognise it.

Returning to the family context, the courts are more wary of straightforward enforcement of apparent agreements presented to them by consent orders, because it is rare for both parties to be sophisticated entities with independent advisers and a long history of similar transactions between them.

It will be even more cautious where the parties purport to resolve their differences according to a different religious or cultural tradition, because, contrary to the odd scaremongering headline, English law will not allow what it otherwise considers persecution to be explained away for cultural or religious reasons – despite the fact that it normally tries to respect cultural and religious differences, as per the quote from Lady Hale in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40 above (though I should note that I have some criticims of that judgment, which can wait for another day).

Thus, two parties could agree to a divorce under Lord of the Rings’ law and if there was no counterveiling reason, the courts might well agree to a consent order based on the outcome. But, for the reasons given above, that would not pave the way for fantasy books to become part of English law.

This post by James Wilson first appeared on the Times and Other Things Blog and is reproduced here with permission and thanks.

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13 thoughts on “Court opens way to divorces by Sharia? Hold on a minute… – James Wilson

  1. Above all, there still had to be a civil divorce. By section 44 FLA 1986 an extra-judicial divorce (talak or get or any other) granted in the UK is not recognised; and s. 46 of the same Act lays down which divorces are recognised. From what we are told if it was not in the UK it would have to be Canada (of which one party is a national).

    The real problem is not unjudicial divorce so much as unstatutory marriage. Over the last two or three years the FD has repeatedly held that if there is no compliance with the Marriage Act a ceremony in this country is not even a void marriage but a non-marriage from which no rights or duties flow – not just between the parties but against their relations when one of them dies.

    Which is as it should be. It is essential that every marriage in this country should lead to the issue of a certificate in the form familiar to most of us including the judiciary, the probate office, and those responsible for benefits.

    I have seen a document from MoJ -where they should know better – which refers to Muslims having a religious marriage but not registering it. That is wrong. Such a couple have not married at all.

  2. This is yet another example of how the Media, in this case The Times, demonstrates its latent brand of “Islamaphobia’…..isn’t such untruths and bias illegal?

  3. Andrew – thanks for an intelligent and helpful comment, if I may offer the compliment.

    Ybawlife – no, freedom of speech, one of the cornerstones of our legal system and indeed way of life (if always under attack from all quarters) means that papers can sensationalise and rant away as much as they please. It also means that blogs like this one can point out whenever they exaggerate or get it plain wrong. This is as it should be. As much as the UK press behaves irresponsibly, the alternatives (state control usually) are almost always worse.

  4. All our newspapers have a use – even the Sun and the Daily Hate Mail – but in the case of the latter Tesco do a better product on a cardboard roll in several pastel colours.

  5. This attitude is very unhelpful.. We should not be encouraging any of these religious organisations to interfere. Its all very well saying that If for whatever reason (public policy, lack of valid consent by one or both of the parties, misrepresentation, whatever) these agreements will not be validated……

    How is the British court going to pick up on these things?

    Someone lied to and bullied and/or coerced into going through the nonsense of out of court processes is not going to be in any position to bring their problems to the court’s attention and have their situation properly dealt with. If they were able to protect themselves, they would have gone straight to the court.

    Once you allow parallel activities to those of the courts, the weaker parties always lose out.

    This is the legal system washing their hands of these women’s problems.

  6. This is very interesting indeed. I would assume that the same reasoning, that one cannot oust the court’s welfare jurisdiction, would carry over to disputes in the Court of Protection about mental capacity, best interests and deprivation of liberty. I’ve written previously about my concerns that the Centre for Justice are promoting arbitration for the resolution of disputes about capacity, best interests and deprivation of liberty:

    http://thesmallplaces.blogspot.co.uk/2012/02/could-arbitration-be-used-for-dispute.html

    The C4J appear to continue to do so:
    http://thesmallplaces.blogspot.co.uk/2012/02/could-arbitration-be-used-for-dispute.html

    This case would appear to confirm my concerns that arbitration agreements cannot be binding for disputes about such matters. Furthermore, I fear that use of arbitration to resolve disputes under the Mental Capacity Act and the DOLS would lead to a breach of the person’s Article 6, and possibly also 8 and 5 rights. How could it not – the person whom the entire dispute is about cannot consent to the arbitration, cannot be represented in it (as a litigation friend can only be appointed by the court) and the arbitrator is not bound by the ‘overriding objective’ of the Court of Protection to consider his rights and interests. It would be unthinkable if P could not challenge an agreement made on such terms, since his interests have not been represented except through other disputants. But if P could still challenge it – then what’s the point of arbitration if one has no legally certain outcome?!

  7. Thanks Lucy. I must admit I don’t like the use of the word “arbitration” in this context; “non-binding arbitration” is somewhat contradictory, at least to someone used to hearing “arbitration” in the commercial context where decisions are very difficult to challenge under modern English law. The process in the AI v MT case was more akin to a more formal mediation, in that the court’s jurisidiction was not (and could not be) ousted and the court could have shredded the Beth Din’s decision in toto if it chose to do so. The blunt reality is that the parties in this case were educated and well-resourced, and there was no evidence that there was any form of coercion in a legal sense. If for example one of the parties had been from another country and was living in a minority community here, speaking little or no English and with no financial means of her own, and underwent a religious hearing which openly discriminated against her, then it would be most unlikely that the court would readily approve the outcome, to say the least.

  8. My own view is that where both parties are legally represented they should have the same right to settle the financial side of a divorce without the intervention or approval of the court as do adult litigants in any other sort of litigation – the presumption that the little woman needs protection is patronising. Of course the jurisdiction of the court in respect of the children cannot be ousted; that is another matter.

    Before 1969 if a widow recovered damages for the death of her husband (but not vice versa) they were looked after for her by the court as if she was what was then called an “infant” – it sounds extraordinary now, doesn’t it? The present law in divorce is based on the same attitudes and should go the same way. It will be noticed that when widows were given the right to do with the damages as they saw fit the sky did not fall in.

    As a start, a clean-break settlement in which represented parties both say that they wish the order to remain in force regardless of any future change in circumstance should oust the Barder jurisdiction – Barder is a classic case of a hard case making bad law!

    • The difficulty with the argument you make Andrew, is that one has to accept the realities of the social situation at the time that the law is operating. Calling widows ‘infants’ in 1969, sounds very strange to us now, 40 years on, but at the time was a very good protection for many women who were brought up to be infants in their marriages.

      I still have middle class, non- religious female relations in their 70’s and 80’s who live in houses, which were put in their husband’s sole name 30 or 40 years ago, and now their husbands are dying/becoming incapable, for the first time in their lives have to manage their own bank accounts and will own the house they live in. It did not occur to them in 1969 or so to suggest the house did not have to belong to ‘the man’.

      Women in many cultures present in our country today are brought up to feel second class citizens and taught that they should defer to men around them. They are also not given the training to look after themselves in a financial sense and to stand up for themselves in public or in official circumstances.

      We need to protect them. It’s all very well saying lots of women can protect themselves, yes, increasingly they can, but it’s the people who can’t we need to build the system for. If a woman is capable without assistance of dealing with these things herself she will do so, she will get good and timely advice, make up her mind what she wants and present it to the court with the minimum of legal assistance and costs. Leaving other women in the lurch does damage her position.

  9. Andrew, your experience is clearly much broader than mine, and in principle I agree about legally represented parties being able to choose their own method of arbitration/ADR. I guess the independent legal advice is the key point, it isn’t hard to imagine someone being in quite vulnerable circumstances which don’t apply in the commercial sphere and thus not able to resist the pressure exerted on her by a tight knit community to accept some form of religious arbitration which would not approximate English law in the way the Beth Din did in this case.

    • My position is that if both parties are represented they should be able to settle by consent order as they could any sort of litigation, with or without mediation or arbitration – just by negotiation.

  10. The change I am proposing would, no doubt, cause transitional problems for some people – so did the change made in 1969 which led to some women having substantial sums released to them and being fleeced by con-artists (not necessarily men, confidence fraud is an equal opps offence).

    But you have to start sometime. There is no principled reason why parties to a divorce should be less free to settle their claims without going cap-in-hand to the court than parties to a p.i. claim.

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