#14814 - Family Law Systems - Children, Families & the State

Introduction:

• Comparative perspective: debates about the use of sharia norms in relation to family law has sparked debate in various jurisdictions (see Canada for example and the debate surrounding the attempt to conduct arbitrations according to sharia norms; Australia; Europe; USA)

• Debate about religious norms and family law in UK and Wales: resurfaced following Archbishop of Canterbury’s 2008 speech proposing greater recognition of religious tribunals within the English legal system and Lord Phillips holding similar views

  • One of the main issues arising from these speeches the extent to which religious tribunals ought to be permitted to operate free from state regulation, particularly where their activity affects the rights of women/concerns of the family (ie. the underpinning assumption being that the operation of the tribunals is generally bad for vulnerable family members and infringe upon their ordinary rights/protections under English law)

• The debate about the role of religious tribunals is very much alive in England (see for example the proposed Arbitration and Mediation Services (Equality) Bill 2011)

• This article seeks to evaluate religious tribunals against the key values in operation: religious freedom and concern for vulnerable women (ie. the most prominent values at play in such debates)

  • 1. Religious freedom: has been put forward to justify accommodating religious norms in family law (by commentators, judges, politicians, other officials, journalists) and the operation of religious tribunals could be justified on the basis that they constitute an important aspect of religious freedom

    • Whilst this is a familiar justification, it is not always carefully examined/explained and the article seeks to contribute to the literature by explaining exactly why religious tribunals are important to religious freedom

  • 2. Concern for vulnerable women: this forms the central objection to religious tribunals and the concern is that religious tribunals harm the interests of women and other vulnerable persons

    • This objection is often invoked but the implications of the concern need clarification

  • Whilst these two values are often set up as in direct opposition, the authors argue this is overly simplistic and argue that contrary to what is commonly assumed, in certain cases the operation of religious tribunals actually harms religious freedom and in other cases they can actually enhance the welfare of vulnerable persons

What are religious tribunals?

• Dispute resolution systems and bodies that operate in accordance with religious law (see Douglas for a consideration of how three particular religious tribunals operate in relation to family matters)

• They are organised bodies that consider matters brought to them by people subscribing to the religious norms of the tribunal

• Can have a tripartite function:

  • 1. Adjudicatory

  • 2. Mediatory

  • 3. Advisory

• Tribunals are unofficial/informal because they are not part of the state legal system but the parties see them as authoritative

The legal position of religious tribunals in England: to what extent are they permitted to operate and to what extent are their decisions recognized/enforced by the state?

• The legal status and scope of religious tribunals:

  • No religious tribunals are statutory tribunals or possess status as part of the English justice system (except those of the Church of England)

  • BUT religious tribunals can sit as arbitral tribunals in respect of civil disputes, in which case the Arbitration Act will apply and any decision will be considered an arbitration award and will be legally enforceable in civil court, provided the award complied with the requirements of the Act

    • For the Arbitration Act to apply, parties must enter an arbitration agreement setting out all the terms governing the adjudication of the dispute including who sits as adjudicator and which law should govern

    • Parties can agree to be bound by religious norms, cf. English law

    • Arbitration agreements will be unenforceable when considered unreasonable by courts or contrary to public policy and there is also a general duty on arbitrators to comply with principles of natural justice (ie. acting fairly, impartially, avoiding delay or expense)

  • However, not all religious tribunals will be state-recognised arbitrators:

    • The Jewish batei din (eg. London Beth Din) operate under the Act but only one sharia council is currently operative under the Act (the Muslim Arbitration Tribunal) and therefore the decisions of other religious tribunals (not recognized under the Arbitration Act) will not be legally binding but instead will depend on the parties to implement them

  • The Act does not extend to all areas of law:

    • It is confined to civil disputes (ie. it can’t replace criminal prosecutions and it appears that most family law matters cannot be resolved through arbitration)

    • The Act preserves certain matters to be grounded by the CL and the jurisdiction of civil family law courts also cannot be ousted by contractual agreement

      • Certain statutes do the same (eg. s 34 of the Matrimonial Causes Act 1973 prevents any party from using a maintenance agreement to restrict the right to apply to a court for an order containing financial arrangements and it is arguably that s 10 of the Children Act preserves the jurisdiction of the court to make orders with respect to the welfare of children in family proceedings implicitly)

      • What does this mean operating under the Act or otherwise arriving at a contractual agreement within the jurisdiction of the family court would still not enable civil divorces to be granted, residence and contact orders to be made or financial arrangements to be set up in a manner that would be enforced by the state

  • Despite these limitations, arbitrations by religious tribunals in family law matters is not irrelevant in evaluating these tribunals and recent commentary has questioned the extent to which the Act may apply to family matters

    • Parliamentarians are arguing the Act doesn’t apply – but this is mostly on the basis of it not having been applied in the past cf. bc it cannot apply

    • Some commentators are suggesting theoretically some arbitral agreements concerning family matters beyond inheritance disputes may be enforceable due to a lack of clarity in the law

    • The Bill also supports the view that arbitration in family law is possible as it proposes to amend the Act to clarify that any matter within the family court jurisdiction cannot be subject to arbitration proceedings

    • BUT whilst there is some theoretical disagreement about arbitral agreements concerning family matters and their enforceability, it is clear that the court’s jurisdiction cannot be ousted and where there is a dispute concerning a family matter (cf. enforcement), this would be within the jurisdiction of the family court

  • Also, although the jurisdiction of the family court cannot be ousted, an inheritance dispute could still be the subject of a binding arbitral award (not under court jurisdiction) – but the decision would have to be compatible with English law/public policy

  • In any event, the evidence suggests that parties rarely if ever seek to have the decisions of religious tribunals on family matters enforced in civil courts under the Act

• Regardless of doubt about whether or not tribunals can conduct binding family law arbitration, it’s clear tribunals can assist parties in negotiating agreements outside of the Act on ancillary matters such as child contact/financial agreements

  • These agreements won’t be legally binding until a draft consent order is approved by the courts

  • The courts will question any agreement that appears unfair but courts are likely to rubber stamp the consent order as long as it is not patently unreasonable given the emphasis being placed on parties settling disputes

Legal recognition of decisions of religious tribunals:

• English law tends to recognise religious norms cf. religious tribunals

• English law doesn’t recognise religious tribunal decisions on the status and validity of marries, even religious marriages

• There is legislation which can limit the granting of a civil divorce (ie. need a religious divorce first) but this has no effect where the husband doesn’t want/need a civil divorce – and currently only applies to Jewish communities

Responding to objections raised – specifically refers to the problem that recognising supplementary jurisdiction, esp in family law, could have the effect of reinforcing in minority communities some of the most repressive/retrograde elements in them with consequences for the role and liberties of women

• EG. It is often argued that the provision for the inheritance of...