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Faith based arbitration and mediation in the UK
Faith based arbitration and mediation in the UK
1. There is a lot of mis-information in the press about the issue of Islamic courts in the UK. In the UK Muslim Arbitration Tribunals (MATs) have been established since 1997 and are holding themselves out as providing arbitration services in family law matters such as divorce and residence of children (www.matribunal.com). There is a popular misconception that the government has somehow sanctioned Sharia law courts and has given them legal standing. MATs are not statutory tribunals and have no legal status.
2. The MATs do not make clear on their website whether they are attempting to provide a binding arbitration service or a mediation service. Mediation is a separate procedure where parties attempt to negotiate a settlement of their dispute. Mediation is not binding and is not subject to legal principles whether of religious or secular law. Mediation must be freely entered into by both parties and consent to mediation must be freely given. There must be equality of bargaining power.
3. Whilst it is accepted that parties can agree to arbitrate civil disputes using religious principles under the Arbitration Act 1996, family law matters cannot be the subject of contractually binding arbitration agreements. The jurisdiction of the family courts cannot be ousted by contractual agreement (Edgar v Edgar (1980) 1 WLR 1410). This point was confirmed by the Minister of Justice Jack Straw speaking in Parliament on 24th November 2008 when he said in response to a question about Sharia law courts in the UK: "arbitration is not a system of dispute resolution that may be used in family cases. Therefore no draft consent orders embodying the terms of an agreement reached by the use of a Sharia council have been enforced within the meaning of the Arbitration Act 1996 in matrimonial proceedings". If a party to a family law dispute wishes to have a binding agreement they must issue proceedings in court. They may then agree to settle the case on terms but the court will only register such a settlement if it is in accordance with UK law and public policy and the court is satisfied that there was consent and equal bargaining power between the parties.
4. At present inheritance disputes could in principle be the subject of a binding arbitration decision because they do not come under the jurisdiction of the Family Courts. However such a decision would only be enforced if compatible with UK law and public policy (Section 81 of the Arbitration Act 1996). Therefore the unequal division of an estate between male and female children on intestacy would not be enforceable in the UK courts.
5. Evidence from women’s rights groups suggests that the existence of the MATs creates pressure on women from within their communities to submit to the MAT for determination of family or inheritance disputes rather than using UK courts. It is thought that many women would be reluctant to challenge the decision of a MAT in a UK court, therefore even though the decision of the MAT may be in fact unenforceable, women are still deprived of their right to equality at law.
6. It is thought that MATs are providing a wide range of Sharia law dispute resolution within the family law field. Sharia law is a personal law that regulates all aspects of an individual's life. Sharia law has been held to be “arbitrary and discriminatory” by the House of Lords in the case of M(Lebanon) v Home Secretary [2008] UKHL 64. It is based on pre-set rules and therefore does not take account of the individual circumstances in most cases. The ability of domestic courts to enforce agreements based on Sharia law was analysed in the case of Refah Partisi v Turkey [2003] ECHR 87.
7. An example of some of the areas where there is a conflict with UK law are:
a. Unequal division of estates between male and female children on intestacy. The argument made by supporters of Sharia is that the practice of awarding a larger share to the men is that the men have to share their portion with the family whereas the women get to keep theirs. This would be arguable if the requirement to share were written into the agreement however this is not the case.
b. Custody of children. There are different schools of Sharia on this point. They all use preset rules to determine the issue which is contrary to UK law which recognises individual circumstances. One of the commonly used doctrines removes boy children from their mother and gives them to their father at the age of 7 in the event of divorce. Girl children are removed at puberty. In some cases the mother loses residence in the event of remarriage.
c. Maintenance. The Nikah or marriage contract contains pre-set rules for the amount of payment on divorce. Again this does not reflect individual requirements or circumstances.
d. The evidence of women before the religious court is worth half that of a man.
e. Polygamy.
8. Sharia Councils exist and have done so for a long time in the UK. These councils give religious rulings (fatwas) on all aspects of Islamic law and also deal with religious divorces (www.islamic-sharia.org). These bodies are not public bodies and so are unlikely to be caught by the Human Rights Act 1998 in so far as they provide religious teaching. However they may be a public body if they are providing a public service such as an arbitration service. Sharia Councils decide on religious divorce. The problem in terms of protection of women's rights is that many women believe that they are divorced or not divorced according to the decisions of the councils and are unaware of their legal rights. There is evidence suggesting that women are being forced to ‘sign away’ their family law rights in the civil courts in order to obtain a religious divorce. Any such agreement would not be legally binding. However due to the fact that the women are unlikely to challenge the agreement in a court, steps need to be taken to prevent Sharia Councils from executing such agreements.
9. There is a separate issue which is that it is currently government policy to promote mediation in family law cases. At present organisations such as Sharia Councils are offering these mediations. The problem here is that the mediation is carried out on Sharia principles, which involves keeping the marriage together at all costs even where there are allegations of domestic violence. There are examples of cases where the woman has agreed to drop criminal charges and the man is sent on an anger management course.
10. There are other religious courts such as the Jewish Beth Din courts which provide ADR in family law proceedings and other civil disputes. The same principles apply to the arbitration as are set out above. The difference is that the Beth Din recognise UK law as supreme. The Beth Din accept that decisions will only be binding to the extent that they are compatible with UK law.
11. In Canada there was an arbitration law that permitted binding religious arbitration. It was used by Christian religious courts. In 2003 the Ontario Islamic Institute of Civil Justice announced its intention to establish a Sharia court that would offer binding family arbitration to Ontario Muslims. There was a government proposal to allow this. However after much campaigning by women's rights groups, in 2005 the government of Ontario decided to ban all religious courts/tribunals from deciding family and inheritance law matters on the basis that there was a serious risk to the rights of individuals within minority groups. As part of the process a public education programme was launched to make vulnerable women aware of their rights under Canadian family law.
Religious Marriages Act 2002
1. This Act was brought in in an attempt to help women whose husbands refused to give them a religious divorce Divorce (Religious Marriages) Act 2002 (c. 27). The Act allows a party to apply for their civil divorce proceedings until the husband grants the religious divorce. If the husband does not want or need a civil divorce this sanction is of no effect. If the husband does want a civil divorce the requirement may help to protect the wife’s financial position. The Act was brought in mainly to assist Jewish women whose husbands refused to grant them a Get or Jewish divorce.
2. In the case of Islamic divorce, if the husband refuses to grant the wife a divorce, she must apply to a Sharia Council to get a divorce. The Rules that apply mean that it can be very difficult for a woman to get a divorce without the husband’s consent. The Act means that the husband can be required to grant a religious divorce in order to get a final civil divorce. The Act does not prevent women from obtaining a civil divorce, because if the husband does not grant the religious divorce, the wife can apply to continue with the civil divorce proceedings and obtain a decree absolute.
3. In the case of Islamic divorce, the husband may marry again without obtaining a civil divorce, and so the Act is likely to have no impact in cases where the husband is happy to take another wife and does not need the marriage to be legally registered. Research by Women’s Rights Groups and the One Law for All Campaign has shown that in some cases women are being forced to give up their entitlement to financial support in their civil divorce proceedings in order to persuade their husband to grant them a religious divorce so that they are free to remarry (www.onelawforall.org.uk). It is thought that the Act will not resolve problems faced by women in obtaining an Islamic divorce.