Certainly, if you believed the headlines of the on-line versions of The Times, (“High Court opens way to Sharia divorces”), The Daily Telegraph, (“Sharia divorces could be allowed after legal ruling”), the Daily Mail, (“Divorce cases could be settled by Sharia and religious courts after landmark High Court ruling over Jewish couple’s dispute”), or the Huffington Post, (“Beth Din And Sharia Courts Could Settle Divorce Cases In Britain After Landmark High Court Decision”), and others.
However, this seems less likely if you read Re AI and MT  EWHC 100 (Fam) in Family Law Week, and consider the reasoning behind Mr Justice Baker’s decision to involve the New York Beth Din Court. Furthermore, beneath the headlines the accounts do include some of the salient parts of this decision, despite the reader initially being given the impression that in future, religious courts such as the Beth Din and Sharia courts could be determinative in divorce settlements in England. There are a number of pointers to suggest that this is not the case, as the following extracts demonstrate:
- “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 in invoked: see Lord Hailsham in Hyman v Hyman  AC 601″, [at 27, emphasis added];
- “The rule in Hyman prevents the arbitration award being binding, although it has been suggested by its proponents that an award should amount to a “magnetic factor” in any subsequent analysis of the issue by a court. In the eloquent words of Sir Peter Singer (at  Fam Law 1503), “an arbitral award founded on the parties’ clear agreement … to be bound by the award should be treated as a lodestone (more than just a yardstick) pointing the path to court approval,”” [at 31];
- Mr Justice Baker agreed with the submission that “In the instant case the parties were entrenched in international litigation involving four sets of proceedings in two different countries. It was submitted and accepted … that a global approach to an alternate means of dispute resolution, with the proviso that it cannot be enforced without a court order which would have to be obtained from this court, sitting in a welfare-based jurisdiction, should be supported and encouraged by the (overburdened) court system”, [at 36, emphasis added];
- “resolution of the issues between the parties by this process was largely in accordance with the overriding objective of the Family Procedure Rules 2010”, [at 37 – the conditional “largely in accordance” was a reflection that the proceedings took a significant amount of time, rather than being dealt with “expeditiously”];
- “the outcome was in keeping with English law whilst achieved by a process rooted in the Jewish culture to which the families belong”, [at 37].
Mr Justice Baker made the final order in matrimonial proceedings by consent on 27 April 2012. He notes
“Ordinarily, such an order would not be accompanied by any judgment. In this case, however, the lawyers for the parties, hereafter referred to as the father and mother, have suggested that I depart from that course because of the very unusual circumstances by which the consent order was agreed, namely an arbitration carried out by rabbinical authorities. This is not, therefore, a judgment in the conventional sense of an exposition of the reasons for the court’s decision on the substantive issues, but rather an explanation of the court’s approach to the process of arbitration chosen by the parties as the means to resolve those issues,” [Emphasis added].
Indeed. Without such a “judgement” it would be tempting to draw conclusions such as those in the media headlines. It is clear that at all times, proceedings were subject to the authority of the English Court, and the Beth Din Court was involved as a means of resolving some of the more intractable issues between the parties, rather than to determine issues of law.
The case may be regarded as a “landmark” primarily since at the time of Mr Justice Barker’s Order in February 2010, although mediation was well-established, there was no precedent for referring a matrimonial case for arbitration. However, he notes [at 20 and 21]
“it is illuminating to note two developments in English matrimonial law and practice that have occurred during the currency of the arbitration process in this case. First, the Family Procedure Rules 2010 came into force, incorporating for the first time into family proceedings an “overriding objective” to deal with a case justly, meaning, inter alia, ensuring that it is dealt with expeditiously and fairly, in ways that are proportionate with the nature, importance and complexity of the issues, and saving expense.”
“Secondly, a scheme for arbitration in family financial proceedings was developed and finally launched in February 2012 by the Institute of Family Law Arbitrators, whose stakeholders include Resolution and the Family Law Bar Association. . . . . . . Suffice it to say that the scope for arbitration in matrimonial finance cases has expanded significantly during the currency of these proceedings. It should be noted, however, the scope of the IFLA scheme does not extend to questions concerning the status of individuals or of their relationship, or the care or parenting of children.”
At this point that it is pertinent to refer to the statement made by Archbishop Rowan Williams in his 2008 lecture “Civil and Religious Law in England: a Religious Perspective”, in the context of a comment on the situation rather than a justification for it,
“citizenship in a secular society should not necessitate the abandoning of religious discipline, any more than religious discipline should deprive one of access to liberties secured by the law of the land, to the common benefits of secular citizenship”.
Another assessment is made by James Wilson – Court opens way to divorces by Sharia? Hold on a minute… – on the UK Human Rights Blog, who likewise suggests the newspapers concerned are consigned to the legal naughty step, (or the stool of repentance in the case of this blog). Perhaps additional time should be added for those focussing on the more emotive “Sharia courts” in the headline?