If you glanced at the front page of The Times for 1 February, with its headline “High Court opens way to Sharia divorces”, you could have been forgiven for thinking that the court had made some important pronouncement on the role of Sharia (Islamic law) in divorce proceedings. The story’s first paragraph would also have led you naturally to that conclusion. “The prospect of divorce cases being settled by Sharia and religious courts”, it says, “has been opened up by landmark legal decision.” So it would have come as a bit of a jolt to read the start of the next paragraph: “A Jewish couple have had their divorce settlement under Beth Din, rabbinical law, approved by the High Court.” As this indicates, the case (AI v MT  EWHC 100 (Fam)) says nothing whatsoever about Sharia.
This is not to downplay the significance of the case. As the second paragraph of the Times story goes on to note, this appears to be the first time that an English court has allowed divorce proceedings to be referred to arbitration by a religious court. But while the approach adopted by the court can, in principle, apply to other religions and their courts, whether it does in practice will depend on the facts of the specific case – in particular, on the principles to be applied by the arbitral body. And, as the judge, Mr Justice Baker, made clear, any decision reached by a religious court would still require the approval of the English court.
The case concerned an observant Orthodox Jewish couple. The husband was a Canadian citizen and the wife a British citizen. They married in a Jewish religious ceremony in London in August 2006 and a civil ceremony in Toronto two months later. When the marriage broke down in 2009, the husband was living in Canada, but the wife was in London with their two children. The husband subsequently brought an application under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
Before the application was heard, the parties agreed that they would refer all the disputes between them to arbitration by a Beth Din (rabbinical court) in New York. This was in accordance with their belief that a marriage that had been solemnised in accordance with the tenets of their faith should be dissolved within those tenets.
When the Hague Convention proceedings came up for hearing before Mr Justice Baker in February 2010, the parties asked for them to be dismissed because they had entered into an agreement for binding arbitration before the New York Beth Din.
Binding arbitrations by rabbinical courts in England under the Arbitration Acts have long been a feature of the English legal landscape. But it is a fundamental principle of our family law that the parties cannot, by agreement, oust the court’s jurisdiction to determine issues arising out of marriage or concerning the welfare and upbringing of children: Hyman v Hyman  AC 601. As the judge indicated at the start of the hearing, that principle was flouted by the agreement between the parties. Nevertheless, he further indicated that he would be willing, in principle, to endorse a process of non-binding arbitration. Before doing so, he requested further information concerning the principles and approach to be adopted by the New York Beth Din, particularly in relation to the care of the children. The Beth Din responded as follows:
“At our Beth Din the rabbis follow Halacha [Jewish law] in connection with resolving child custody disputes such as the one you describe. In conjunction with Halacha the best interests of the children are the primary consideration in resolving cases like this. Procedurally [the presiding rabbi] will hear the positions of both parties in person before any decision can be rendered…”
On the basis of that information, Mr Justice Baker endorsed the party’s proposal to refer their dispute to arbitration before the New York Beth Din, but made it clear that the outcome, although likely to carry considerable weight with him, would not be binding and would not preclude either party from pursuing applications to the court in respect of any of the matters at issue.
After somewhat protracted proceedings, the New York Beth Din handed down a ruling which was approved by Mr Justice Baker, in the form of a 17-page consent order, in April 2012. At the request of the parties, he took the unusual step of producing a judgment (released only last week) that explained his approach to the arbitration process.
As the judge noted, when the case first came before him in February 2010, there had been no precedent for referring a matrimonial case of any sort to arbitration. Since then, in February 2012, the Institute of Family Law Arbitrators had established a scheme for non-binding arbitration, but that was confined to matrimonial financial cases. The matters before the Beth Din included financial issues, but went well beyond them. That had been acceptable because the court had been assured that the rabbinical authorities would apply principles that were akin to the paramountcy principle on which English children’s law is based. Because of this, and subject to the proviso that the outcome would not be binding without its endorsement, the court had been content to accept and respect the parties’ deeply-held wishes to resolve their dispute by reference to their religious authorities. It did not necessarily follow 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. In that time-honoured judicial phrase, each case would turn on its own facts.
The judge’s approach was both sensible and sensitive. “So far as the children were concerned,” he concluded (at ), “the outcome achieved by the Beth Din award… was manifestly in the interests of their welfare… So far as the financial settlement was concerned, the terms of the agreement were unobjectionable. 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.” In short, this was an example of religion and the law working in harmony at a time when, in the judge’s words (at ), “there is much comment about the antagonism between the religious and secular elements of society”.
That, surely, is the real story of this case.