In praise of religious arbitration

As the case of AI v MT has illustrated, the relationship between civil and religious courts in England is a sensitive and sometimes controversial one, particularly in family matters. In this case Mr Justice Baker considered and agreed to a request by both parties to refer all issues to arbitration by a Jewish religious court, the New York Beth Din, at a time when there was no precedent for referring a family case to any form of arbitration.

Baker made clear that while the Beth Din’s decision would not fetter the jurisdiction of the court, an arbitration award would carry considerable weight in relation to the determination of all issues.

Any arbitrated decision in relation to children would be given particular weight if the court was satisfied that the religious tribunal had considered the best interests of the children, as Baker found the Beth Din to have done. Indeed, he went to some pains to consider the principles that would be applied by the rabbinical authorities and approved the decision, “having been reassured as to the principles which would be applied…which so far as the children were concerned were akin to the paramountcy principle on which English children’s law is based”.

While a similar arbitrated award made by a Sharia court would undoubtedly be afforded similar respect and courtesy, we do not believe that any decision made in respect of the children would be upheld in the absence of a judge being convinced that the principles underpinning that decision were akin to the paramountcy principle and that it was in the children’s best interests. Any award would, in our view, carry a similar amount of weight as that currently given to a post-nuptial agreement, particularly if the court was convinced that both parties had entered into the religious arbitration voluntarily.

The judge also dealt with the often thorny issue of the Jewish religious divorce, or ‘get’. Without a get, a woman is unable to remarry under Jewish law. Any child she might have with another man, even if she married in a civil ceremony, would be considered illegitimate under Jewish law. In many previous cases the husband withheld the get to extract a more favourable settlement.

In this case, the mother was unwilling to agree to the provisions of the award unless the get was given. Equally, the father was unwilling to agree until the court had approved the award and indicated it would agree to its terms being incorporated in a court order. Baker agreed to resolve this issue by approving a draft order based on the arbitration award, making it clear it would not be sealed until the get was given. Had the get not been granted, the mother would have had an opportunity to return the matter to court and seek alternative orders.

The way in which this issue was dealt with is indicative of the effective and culturally sensitive way the judge and both parents’ representatives chose to manage this case. The decision does not open the way for the introduction of Sharia or any other form of religious law through the ‘back door’ but it is indicative of the increasing need for interaction between civil and religious authorities at a time when litigants are anxious to take advantage of arbitration.