Use of Beth Din in Divorce Dispute Does Not Undermine the Primacy of Civil Law – Professor Gillian Douglas

AI v MT [2013] EWHC 100 (Fam), 30 January 2013, a case concerning a divorce dispute between an orthodox Jewish couple, has received extensive publicity. It is an important case, but it does not, as some press reports have claimed, ‘open the way to Sharia divorces’. In fact, it reaffirms that the civil courts always retain the ultimate power to determine what arrangements can be made when a marriage breaks down, regardless of what settlements the couple may reach privately, with or without the involvement of their religious community.

In AI v MT, the father was Canadian and the mother British. They had a religious marriage ceremony in London followed by a civil wedding in Toronto. Their marriage got into difficulties and the mother, who was by then pregnant with their second child, flew to London from Toronto to give birth here and then refused to go back to Canada with the two children. The father began proceedings in the High Court under the Hague Convention on International Child Abduction, which facilitates the speedy return of children to their home country if they are wrongfully removed or kept elsewhere by one parent. But the case was ultimately resolved through the arbitration of a religious tribunal – the New York Beth Din – whose decision was endorsed by Baker J in the High Court in London.

‘Alternative’ dispute resolution and the power of the courts

There is a very well-established principle in family law that it is far better for parents to settle their disputes themselves than engage in adversarial litigation and have the judge decide for them. The procedure rules governing family cases accordingly provide that courts are under an obligation to encourage the parties to use an alternative dispute resolution procedure such as mediation, if the court considers this appropriate. This is a process whereby the couple are helped by a neutral third party to discuss their differences and seek to reach a resolution. The government is also currently promoting such mechanisms rather than resort to court – so much so that most legal aid will be withdrawn as from this April for family court proceedings unless there is a risk to a party or child from violence or abuse, while it will remain available for the parties to take part in mediation.

Mediation services are now available throughout the country. There is also a new form of lawyer-assisted negotiations, known as ‘collaborative law’, where the parties may agree that if they enter into negotiations using particular lawyers they will have to instruct new representatives should they fail to reach an agreement and have to go to court. And most recently, a family arbitration scheme has been developed by leading practitioners in England and Wales, under the auspices of a new Institute of Family Law Arbitrators (IFLA), to enable couples to resolve financial and property disputes (but not those relating to children), with greater speed and confidentiality and less cost than may result from litigation. The difference between mediation and negotiation on the one hand, and arbitration on the other, is that in the former, the parties themselves reach an agreement (with the assistance of the mediator or their lawyers), while arbitration is a process whereby the parties agree to abide by the decision, whatever it may be, of an independent person.

Using mechanisms based outside the courts, including now a form of arbitration, is clearly regarded as a desirable way of settling after a couple separate or divorce. However, there is a fundamental principle dating back to a House of Lords decision in 1929, Hyman v Hyman [1929] AC 601 that the civil courts always retain their jurisdiction to determine issues arising out of a marriage, or concerning the welfare and upbringing of children, despite any agreement that the couple might themselves have reached. This means that ultimately, no agreement is legally binding until it receives the court’s approval in the form of an order, known as a ‘consent order’.

Moreover, as Baker J emphasised, in most matters concerning the upbringing of children, their welfare is the court’s paramount consideration unless legislation says otherwise. The courts will pay appropriate respect to cultural and religious beliefs and practices when deciding what is in a particular child’s best interests, but not to the extent of jeopardising the welfare of the child. Baker J made clear that he would not have approved the use of the Beth Din nor the terms of its award had he felt these would have been incompatible with English law. As he warned, it does not follow from his decision in this case ‘that a court would be content in other cases to endorse a proposal that a dispute concerning children should be referred for determination by another religious authority. Each case will turn on its own facts.’

Using religious arbitration

The couple told the High Court during the course of the proceedings that they would like, as observant Jews, to try to have their dispute settled by arbitration by a Beth Din (Jewish court) in New York. They asked the court to make an order dismissing the father’s application, and stating that they were agreeing ‘to enter into binding arbitration’ and undertaking to ‘seek and abide by any determination of the family issues through binding arbitration before the New York Beth Din’ and specifically that ‘both shall be bound by any award made in the New York Beth Din’.

Baker J, declined to make such an order, because it ‘flouted the principle that the court’s jurisdiction to determine issues arising out of the marriage, or concerning the welfare and upbringing of the child, cannot be ousted by agreement.’ He did, however, tell them that the court would be willing to endorse a process of ‘non-binding arbitration’, ‘on the basis that the outcome, although likely to carry considerable weight with the court, would not be binding and would not preclude either party from pursuing applications to this court in respect of any of the matters in issue.’

The arbitration process proved to be protracted and difficult, but after some 18 months, an extremely detailed award as to the future arrangements for the children was made by the New York Beth Din. However, a problem then arose concerning the couple’s Jewish divorce. Under Jewish law, divorce is by mutual consent, and it is necessary for the husband to give his wife her divorce (known as the get). Without this, she may not remarry within the orthodox Jewish community. The couple reached a stalemate when the mother would not agree to the terms of the arbitration award unless the father agreed to give her the get, and he would not agree to do so until the terms of the award were approved by the High Court in a consent order. They ultimately agreed that they would ask the court to consider the terms of the arbitration award and indicate if it would be prepared to embody them in a consent order in the best interests of the children. If it did, the father would then give his wife the get. All of this was done and the case was successfully resolved.

Religious arbitration and the principles of English law

What was noteworthy in this case, of course, was that the method of dispute resolution used by the couple was a religious rather than a secular one. Concern has been expressed, most notably by Baroness Cox, a member of the House of Lords, that religious tribunals may determine disputes by reference to religious rules that are not in keeping with the principles of English law. She has a particular concern that this may be the case in Sharia councils applying Islamic law. To that end, she has introduced a Bill into the House of Lords, the Arbitration and Mediation Services (Equality) Bill, which would, among other things, criminalise any person who ‘falsely purports to exercise any of the powers or duties of a court to make legally binding rulings’. As originally introduced, it also provided that ‘[A]ny matter which is within the jurisdiction of the criminal or family courts cannot be the subject of arbitration proceedings.’ During the second reading debate on the Bill, held on October 19, 2012, Baroness Cox indicated that she would remove the reference to family courts so as not to interfere with the new IFLA family arbitration scheme. As this case makes clear, it is crucial that, should her Bill make progress, such an amendment is made and that protection is extended to religious as well as secular dispute resolution mechanisms.

Religious divorce and the civil courts

The case has been reported as ‘opening the way’ to Sharia divorce in the Daily Telegraph and The Times, but AI v MT was not about the couple’s marital status, either in civil or religious law. The grant of a ‘religious divorce’ can only ever be accomplished by a religious tribunal, since a civil court can only terminate a civil marriage. An English court can pronounce a civil divorce for a Catholic, a Jew or a Muslim, but only their religious communities can determine whether they are married in the eyes of their religion. That is why Catholics may wish to seek an annulment from the Church, Jews may ask the Beth Din to witness their get and Muslims may go to a Sharia council for a termination of their marriage. Research conducted at Cardiff University into religious tribunals in each of these religions, (see Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts, funded by the Arts and Humanities Research Council) found that the reason people of faith go to such bodies is to receive confirmation of their marital status, and, most crucially, the licence to remarry within their religion, without which many would refuse to contemplate another marriage. The religious tribunals in the Cardiff Study very clearly recognised and advised those using them that they could not give binding rulings on matters within the jurisdiction of the civil courts, and thus while they might respond to the parties’ requests to engage in mediation or arbitration on finances or arrangements for their children, these would have to be endorsed by the family courts through a consent order if they were to be legally enforceable.

AI v MT has affirmed this position. Baker J’s ruling means that, far from fearing what a religious tribunal might decide is an appropriate settlement of a family dispute, the English court can ensure that any ruling it gives is only enforced – via a court order made by the judge after careful consideration of its terms – when it is in line with what the English court would itself have decided. Thus, if a Beth Din, or a Sharia council, were to suggest an outcome so much at odds with English law as to cast doubt on its fairness or to raise concerns about the welfare of any children involved, no English court would give it effect. Insofar as such a body makes a determination that is in accordance with English law, there is no reason not to give it effect and indeed, every reason to do so, since it would also be squarely in line with current policy and practice to encourage the parties to find a resolution without taking up the time and resources of the civil courts.

Rather than calling for the prohibition of the work of religious tribunals, Baker J encapsulated the value of the process that was followed in this case:

‘The parties’ devout beliefs had been respected. The outcome was in keeping with English law whilst achieved by a process rooted in the Jewish culture to which the families belong.’

So AI v MT neither ‘allows’ nor restricts a couple seeking a religious divorce to do so. But it is indeed a landmark case, for its successful accommodation of religious belief within the norms of secular society and in accordance with the demands of the family justice system.