Court opens way to divorces by Sharia? Hold on a minute… – James Wilson
1 February 2013
AI v MT  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 -):
 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  AC 601.
 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)  UKHL 40,  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to return the child, that is because it is in the best interests to do so not because the welfare principle has been superseded by some other consideration.”
 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.”
 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  EWCA Civ 1353  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.
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 ) that he examined the outcome as closely as he would have a settlement reached by any other means.
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)  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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