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Family Law Systems Notes

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7: FAMILY LAW SYSTEMS

1. RELIGIOUS TRIBUNALS AND LEGAL SYSTEM Ahmed and Norton: religious tribunals, religious freedom and concern for vulnerable women Summary: authors looking at the current legal response to religious tribunals; argument is that contrary to the way the debate is often presented, religious tribunals can actually harm religious freedom whilst enhancing the welfare of vulnerable persons (cf. the argument that we shouldn't interfere with religious tribunals because of religious freedom; the argument that we should interfere to protect vulnerable people, especially women); what role do concerns for religious freedoms/the protection of vulnerable people have in relation to the use of religious tribunals?
 Introduction: o 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) o 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) o 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) o 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?
o 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) o They are organised bodies that consider matters brought to them by people subscribing to the religious norms of the tribunal o Can have a tripartite function:
 1. Adjudicatory 1

 2. Mediatory
 3. Advisory o 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?
o 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 o 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) o 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 2

 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 o 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: o English law tends to recognise religious norms cf. religious tribunals o English law doesn't recognise religious tribunal decisions on the status and validity of marries, even religious marriages o 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 Archbishop of Canterbury: Civil and Religious Law in England: a Religious Perspective Summary: Proposal for supplementary jurisdiction
  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 o EG. It is often argued that the provision for the inheritance of widows under a strict application of sharia has the effect of disadvantaging them in what the majority community regards as unacceptable
 Under the Quran, a provision which at the time served clearly to secure the widow's position if taken literally now can generate insecurity for that widow in this new context o Problem here is that recognising the authority of the communal religious court to finally/authoritatively decide this question would in effect not just allow an additional legal route to resolving an conflict and for ordering behaviour - the argument is that in giving authority to religious tribunals, this would deprive members of that minority community of their rights and liberties which they would be entitled to enjoy as citizens (ie. under English law)
 The argument is that whilst a legal system might admit structures/protocols which embody a diversity of moral reasoning in a plural society by allowing scope for minority groups to administer their affairs, that same legal system cannot admit/license protocols which would take away the rights which the legal system acknowledges as generally valid o The answer to the issue doesn't necessarily resolve all potential conflicts in this area:
 To allow plurality, the supplementary jurisdiction would not be able to have the power to deny access to the rights granted to other citizens/to punish members for claiming those rights (ie. they would always have the choice?)
 This is in effect to mirror what a minority might be requesting  that the situation should not arise where membership of one group is restricting the freedom of that individual to live also as a member of an overlapping group  ie. that citizenship in secular society should not necessitate the abandoning of religious discipline any more than religious discipline should deprive one access to liberties secured by the law of the land, to the common benefits of secular citizenship or better to recognise that citizenship itself is a complex phenomenon not bound up with any one level of 3

communal belonging but involving them all
 This will not however guarantee an absence of conflict
 The argument is that we need to recognise that citizens have more than one set of defining relationships under the law of the state and once we do so, it becomes hard to justify enactments taking for granted that the only mode of contact between these sets of relationships is open hostilility (ie. we cannot assume another jurisdiction wants to destroy the other)
 There has to be a recognition that difference of conviction is not automatically a lethal threat o But clearly this is a 'delicate and complex matter' but the baseline argument is that membership in different but overlapping sets of social relationships (multiple affiliations) can provide a framework for thinking about difficult questions (eg. the status of women and of converts of religion)
 Recognising a supplementary jurisdiction cannot mean recognising a liberty to exert a sort of local monopoly in some areas o Shachar's proposal:
 'We must be alert… to the potentially injurious effects of well-meaning external protections upon different categories of group members here - effects which may unwittingly exacerbate preexisting internal power hierarchies'
 If we are serious about moving away from the model that treats one jurisdiction as having a monopoly of socially defining roles and relations, we don't solve any provlems by a purely uncritical endorsement of a communal legal structure which can only be avoided by deciding to leave the community altogether but instead we need to work to 'overcome the ultimatum of "either your culture or your righs"' o The argument is that this objection (forfeiting rights) can be overcome if we are prepared to think about the basic ground rules that might organise the relp between jurisdictions, making sure we do not collude with unexamined systems that have oppressive effect or allow shared public liberties to be decisively taken away by a supplementary jurisdiction
Identity: o Societies that are ethnically, culturally and religiously diverse are societies in which identity is formed and we have different modes/contexts of belonging =
multiple affiliation o If the reality of society is plural, we cannot see some affiliations as marginalized/privatized to the extent that what is produced is a ghettoized pattern of social life, in which particular sorts of interest and of reasoning are tolerated as private matters but never granted legitimacy in public as part of a continuing debate about shared goods and priorities o We need to think harder about the role and rule of law in a plural society of overlapping identities: we need to see it as a mechanism whereby any human participant in a society is protected against the loss of certain elementary liberties of self-determination and guaranteed the freedom to demand reasons for any actions on the part of others for actions/policies infringing self-determination o The role of secular law cannot be dissolution in the name of universalism but the monitoring of affiliations, to prevent the creation of mutually isolated communities in which human liberties are seen in incompatible ways and individual persons are subjected to restraints/injustices for which there is no public redress o The rule of law needs to be seen as establishing a space accessible to everyone in which it is possible to affirm and defend a commitment to human dignity as such, independent of membership in any specific human community or tradition
  The argument is that a defence of an 'unqualified secular legal monopoly' in terms of the need for a universalist doctrine of human right or dignity is to misunderstand the circ's in which that doctrine emerged and that the essential liberating vision is represents is not imperiled by a loosening of that monopolistic framework o The criterion for recognising/collaborating with communal religious discipline should be connected with whether that jurisdiction actively interferes with the liberties guaranteed by the wider society in such a way as definitively to block access to the 4

exercise of those liberties: 'clearly the refusal of a religious believer to act upon the legal recognition of a right is not given the plural character of society a denial to anyone inside or outside the community of access to that right'
  Shachar and transformative accommodation: o A scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve matters, so that power-holders are forced to compete for the loyalty of their shared constituents o In such schemes, both jurisdictional stakeholders may need to examine the way they operate: the religious side will have to think through the risks of alienating people through inflexible/over-restrictive applications of traditional law and the universalist, enlightenment system has to weigh the consequences of ghettoising and effectively disenfranchising a minority, at real cost to overall social cohesion/creativity =
transformative accommodation bc both jurisdictional parties may be changed by their encounter over time and we avoid the sterility of mutually exclusive monopolies o Whilst this does introduce a market element (ie. competition for loyalty), this is the better alternative that setting up an opposing system of state or cultural loyalty and is therefore unavoidable Douglas et al: The Role of Religious Tribunals in Regulating Marriage and Divorce Summary: The question of whether religious norms/laws need to be accommodated by the state has become an important issue, particularly with respect to the workings of religious courts/tribunals. But the debate has taken place without reference to empirical evidence of their organisation/operation This article seeks to provide a case study of 3 different religious tribunals: muslim, catholic and jewish and how they deal with annulments/divorces in order to shed light on how religious tribunals may be run and how they view their purpose and their relp with the state The main focus in these tribunals was on determining the status of the parties for the purposes of remarriage within the faith, rather than on handling the consequences of the termination and they operated in full awareness of and were influenced by the wider social context in which parties live their lives and recognized clearly the limits of their jurisdiction and the importance of complying with civil law
Introduction: o Particular concern about the possibility of religious courts/shariah councils/making what purport to be legally binding rulings on family matters which run counter to the ethos/values of wider society o Baronness Cox's Bill - aims to reassert the pre-eminent authority of civil law:
 to forestall such a development - preventing a religious arbitrator from applying gender discriminatory rules; would criminalise any person falsely purporting to be ex. a judicial function or being bale to make legally binding rulings or falsely purporting to adjudicate on any matter the person knows to be within the purview of the criminal or family courts and making it clear that matters within family or criminal court jurisdiction cannot be subject to arb proceedings o The aim of the study is to look at what religious tribunals actually do - important to distinguish between 2 keys functions of a divorce jurisdiction - the grant of status (ie. termination of the marriage) and DR (settlement of arrangements) and that the former function is the more sign. activity presently engaged in by tribunals o Evidence also shows these tribunals can operate within the wider social context and how they rule/view their role is influenced by this wider social context and they do not claim to assert jurisdiction but they are aware of the primacy of state law and did not seek legal recognition from the state but want to continue to provide a service for those of their faith which met a religious need and validated their users sense of religious and communal identity
 Religious tribunals in action: o Note: the study does not claim that the three tribunals examined are 5

representative (the shariah council appears liberal in its approach and includes a woman member) and the study is small scale; also the interviews are with officials working within the tribunals not from litigants themselves and therefore likely to present a more positive picture without the consumer perspective o Obtaining a religious divorce is not an alternative - it is an additional hurdle - for those who are religiously and civilly married (ie. the religious tribunal cannot rule on their civil marital status) o Religious tribunals are being used primarily bc for them obtaining the sanction of a religious body for a change in marital status provides an important, essential, judgment on their marital position within their faith and is a key aspect of their identity as members of the religious community rhey are in and also gives them a licence to remarry within the faith
 EG. Crucial in the jewish religion where the failure to obtain a get will jeopardise the legitimate status of the wife's future children and descendants
 For some jewish couples, particularly the more strictly orthodox for whom avoidance of the civil courts is religiously mandated, guidance from the Beth Din as to the appropriate financial settlements or arrangements for children will be seen as preferable to bringing the matter in a civil court
 EG. The case is even more complicated in the case of muslim women who do not have a civil marriage but only have a religious marriage - this creates a sign. problem for women who when the marriage breaks down find themselves treated as cohabitants under civil law and without a solid claim for the division of property or support under the matrimonial jurisdiction of the english law courts
 For these women, the shariah council may perform a DR role since in addition to pronouncing a religious divorce, it can advise or mediate (but not a binding ruling) on questions relating to mahr or other assets, not easily dealt with in civil courts o The authority of a tribunal does not derive from parties agreements to submit a dispute to them (cf. an arbitration clause in a contract or an agreement to engage in mediation) as in many cases, there wont even be a dispute - they may agree on the termination of the marriage but instead the focus is on the status of the
 Applying religious laws within social context: o Substantive: all of the tribunals exhibited a sensitivity to the broader social context in which they operated which was reflected in determining whether the grounds for annulment/divorce were satisfied o Procedure: the same could be said with respect to the procedures followed:
 National tribunal: inquisitorial procedure reflective of roman law origins and the need to determine the validity of the marriage
 shariah council: procedure somewhat closer to civil family law in deciding if case for the irretirievable breakdown of marriage is proved
 note: shariah councils seek to determine whether the spouses can be reconciled - family support service and then the matter gets put to the council
 beth din: supervisory and ritualistic approach o POINT: Although they are all different, all three of them operate against the backdrop of the lives the litigants live in the wider society and this context did have an effect on shaping their approach in applying religious law (substantively and procedurally)
 Relp with civil law: o Important to investigate what religious tribunals position is regarding the manifestation of that society through the rules and processes of civil law  this relp is particularly sensitive and it is necessary to clearly understand how tribunals see themselves as relating to and operating alongside civil courts o Limping marriages/divorces:
 It is important to note that the granting of a religious divorce has no effect in civil law - all three tribunals advised those approaching them of the importance of resolving their civil marital status, as well as their religious status
 However, the problem of a limping marriage (ie. married religiously but in the view of the state they are free to enter into a new union or vice versa) appears to be an 'inevitable concomitant of having parallel jurisdictions' 6

 EG. Beth Din
 The get process may be conducted prior to or alongside civil divorce proceedings, but the certificate that the get has been granted is not issued until parties obtain a civil divorce
 The need to carry out the process without necessarily waiting for a civil divorce is to avoid one of the consequences of the agunah problem  a wide whose husband refuses to agree to a get
 The Beth Din regards itself as unable to coerce the husband into agreement or to override his refusal and if parties were to divorce under civil law before going through the get process, which the husband then refused to give, the wife would still be prevented from remarrying according to orthodox jewish rites and her children/descendants by a new partner would face stigmatization as being illegitimate under jewish law
 s 10A of the matrimonial causes act 1973 was then enacted at the request of the orthodox jewish community to enable the wife to ask the civil court to delay the grant of the divorce until the husband agreed to the get and should he refuse, they would remain married under civil law - he then wouldn't be free to remarry either
 The civil court obviously isn't recognising the religious divorce - it's just delaying the grant of the civil divorce until the wife's position under jewish law is protected
 However, whilst it is open to other religions to seek inclusion within the terms of this provision, none has sought to do so
 Shariah councils have the power under Islamic law to terminate marriages notwithstanding the husband's refusal to pronounce a talaq or to agree to a khul so this problem of a chained wife doesn't arise
 In this particular shariah council, they view a civil divorce as the equivalent of a religious divorce so that the parties would be entitled to remarry according to Islamic rites without getting a religious divorce o Ancillary matters:
 Marital status of parties in the eyes of their religion will not have any bearing on their civil law status but the position is different in relation to ancillary aspects of marriage termination = financial consequences and the arrangements for children
 The thrust of current legal policy in the family justice system is to encourage private ordering and discourage resort to the courts - eg. legal aid withdrawn unless a party requires protection (child abuse/domestic violence) and a person may not even commence family proceedings at all until their circ's have been assessed to determine if their dispute could be resolved through mediation/ADR
 It is also not mandatory under english law to obtain an order dealing with financial consequences of a divorce and it is estimated that only 10% of litigating parents resort to courts to resolve disputes about their children's upbringing
 In reln to fin consequences, this proportion will be higher (bc of the need to ensure enforceability of arrangements made by having courts embody the terms of the agreement in a consent order) but there is no requirement to involve the court
 We have no way of knowing what fin. settlements are reached between couples who choose not to involve the court and in the case of consent orders, the extent to which the court actively scrutinises terms of an agreement to ensure that they are fair and appropriate varies  it is unlikely that a court would refuse to uphold a consent order, unless it was blatantly unfair
 It's clear that the focus is on encouraging parties to make their own agreements and it's hard to see why religious tribunals should not be as suitable as any other mediator or arbitrator in assisting parties to reach a settlement that suits them, even if that agreement is one that reflects cultural/religious norms at odds with the secular society
 Author argues that the jurisdiction of the court cannot be ousted with respect to matters concerning children/finances and property and therefore all a religious tribunal can do is provide a non-binding opinion which parties choose to accept/reject
 Whilst vulnerable parties might feel constrained to abide by a less 7

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