Law of the Land

Anyone glancing at the front page of The Times on February 1 could be forgiven for thinking that the courts had made an important ruling on the status of Islamic family law. “High Court opens the way to Sharia divorces” was the headline. The story — still available on the Times website — begins: “The prospect of divorce cases being settled by Sharia and religious courts has been opened up by a landmark legal decision.”

That assertion was based on a comment attributed by the newspaper to one of the lawyers involved in the case of AI v MT. Tellingly, the lawyer made no mention of Sharia in the press release that his firm sent out after the Times story had appeared.

No surprise there. As reporters rapidly spotted, Mr Justice Baker’s judgment was nothing to do with Sharia. It was not even a precedent as lawyers understand the term, being merely an explanation of the judge’s reasons for approving a consent order.

The case involved an orthodox Jewish couple who were married in 2006 and divorced in 2012. The former husband, from Toronto, was 29 when the ruling was made last year. The former wife, from London, was 26. Their first daughter was born just over a year into their marriage and their second daughter was born in 2009. That was the year the marriage broke down and legal proceedings were launched both in England and in Canada. It was in the following year, 2010, that the couple agreed that their differences should be arbitrated by a rabbi in New York.

That posed something of a dilemma for the English courts. On the one hand, divorcing couples are encouraged to settle disputes by consent if possible. On the other hand, the High Court’s jurisdiction to decide issues arising from the marriage, such as the financial settlement and the upbringing of the children, cannot be ousted by agreement. Sensibly, Mr Justice Baker said he would be prepared to endorse a process of non-binding arbitration so long as it focused on the best interests of the child, as the secular courts of both New York and England would also do. 

At that time, in February 2010, there was no precedent for referring a matrimonial case to arbitration. Mediation — the process of finding a compromise that both sides will accept — was well established. But arbitration — under which both sides agree to be bound by the ruling of a private “judge” — became widely available for family cases in England and Wales only a year ago; even now, it deals only with financial disputes.

The rabbinical arbitration award, dealing with financial and child-related disputes, took 18 months to produce and was followed by further negotiations. Eventually, a 17-page agreement was produced. Elaborate arrangements were made to ensure that the judge’s approval of this agreement was tied into the giving of a get, the Jewish divorce. 

Four days after its original report, The Times published a letter from the Muslim Council of Britain. While finding it “odd” that the newspaper’s coverage of a Jewish divorce settlement should be framed under the narrative of Sharia courts, the umbrella body welcomed “any move facilitating choices for those who wish, as Muslims, for their personal relationships to be governed by a Sharia civil code”. This would not “require a change in the law or a diminution in human rights”, the letter claimed.

According to the Muslim Council, The Times had cut a couple of sentences from its letter that criticised the newspaper for “raising uninformed hackles against our faith” and stressed the need to “report such matters fairly”.

The Muslim Council was right to complain. Mr Justice Baker did not mention the word “Sharia” in his judgment. But, in explaining why he had allowed the case before him to be referred to a beth din, he made it very clear that this would not open the door to family dispute resolution by other religious courts. The judge said he had been reassured that the New York rabbinical authorities would treat the children’s interests as paramount, as would the English courts. “It does not, however, 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,” the judge said. “Each case will turn on its own facts.”

What the Muslim Council seems to be suggesting is that it should be possible for Muslims to settle family disputes according to Islamic principles. That’s fine, but only if those principles are consistent with the law of the land. The clear message from this case is that religious law cannot be allowed to trump secular law. As Mr Justice Baker observed, he had respected the parties’ devout beliefs. But the outcome of the case, while rooted in the Jewish culture to which both families belonged, was firmly in keeping with English law.

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