A recent High Court decision has been described in the media as recognition of sharia law by the English legal system in divorces. However, that is an oversimplification.
The High Court case related to an orthodox Jewish couple who agreed to have their divorce resolved by a rabbinical court, the New York Beth Din. Its role was that of an arbitrator, an independent third party whom the husband and wife agree will decide the outcome. The headlines have made this appear as if the courts are abandoning their responsibility for deciding these issues and delegated it to a religious court, hence all the hysteria in some quarters about how this will lead to sharia law.
The reality is that the court has not stepped aside. It is still a fundamentally important part of the divorce process. The key factor is that both the the husband and the wife agreed to use the Beth Din. Neither of them was forced to use it against their wishes. They wished to use a religious court to resolve matters in such a way that its decision would be in line with their faith.
The English civil courts are not derogating their responsibility to administer justice here. The ultimate responsibility for deciding this issue remains with the court. Now that the Beth Din has made its award, the couples’ solicitors will draft a financial consent order reflecting the award and will then lodge it at court for the approval of the judge. The judge will only approve it if he or she believes that the award is appropriate. If the Beth Din, or for that matter, a sharia court made a decision that did not achieve a fair outcome that everyone’s needs, the English civil court would not approve it.
Alternative methods of dispute resolution in divorce cases are increasingly common. Mediation and the collaborative process have been available for many years and now arbitration is also available, albeit that it is usually only provided by specialist family arbitrators and not religious organisations. Specialist family arbitrators make awards that can be enforced through the court if one party fails to comply with it. It is not clear if awards made by a religious court would be so easily enforceable.
2 February 2013