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Legal aid and divorce: Theresa May’s cackhanded crusade against Sharia courts

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The British Home Secretary Theresa May seems to want some sort of crackdown on the role of Sharia Councils – complaining in particular that their decisions in divorce matters are unfair to women. Yet her Government has virtually cut off all legal aid for divorce proceedings – with the result that many Muslim women will have little choice but to have their cases heard by Sharia Councils.

Sharia Councils (sometimes known as Sharia courts) are exactly the sort of bodies that the Government might think should be involved in divorce work. The Jewish Beth Din also arbitrates divorce cases, guided by halach, Jewish rabbinical law, and a recent legal case has affirmed that such arbitration will receive a measure of deference in the English and Welsh courts.

In abolishing legal aid for divorce and custody cases except in narrow circumstances, the Ministry of Justice said: “In cases like divorce, courts should more often be a last resort, not the first. Evidence shows that mediation is often more successful, cheaper and less acrimonious for all involved.” Yet, only now does the Government seem to have realised that family law cases come before Sharia Councils – for advice, mediation or something closer to binding arbitration – and the values of Sharia Councils aren’t necessarily those espoused by Tory ministers and do not meet modern standards regarding female equality. Yet women who might be dissatisfied with the results of of Sharia Council mediation or arbitration have been cut off from recourse to the courts by the new legal aid rules. May said in her speech against extremism announcing a review of Sharia Councils:

“There is evidence of women being ‘divorced’ under Shari’a law and left in penury, wives who are forced to return to abusive relationships because Shari’a councils say a husband has a right to “chastise”, and Shari’a councils giving the testimony of a woman only half the weight of the testimony of a man.”      

The law and the effect of LASPO
Since April 2013, under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) legal aid for family cases, including divorce, has been severely curtailed. According to figures from Citizens Advice, the changes mean only 40,000 cases a year will be eligible in divorce and family breakdown cases compared with 250,000 a year previously. Cases attracting legal aid are now under very limited circumstances, for example where the claimant is both poor and violence is alleged or child abduction has occurred or in cases of forced marriage. Instead couples are encouraged to use agencies such as Relate or the Family Mediation Council to resolve their issues. But religious bodies are also relevant here. As a result of the new importance given to informal resolution rather than court hearings in divorce, the quasi-legal religious bodies such as Beth Din and indeed Sharia Councils have a new authority – in effect, even if not according to government intention. 

The Parliamentary Under-Secretary of State for Justice, Helen Grant, has said that “Sharia law has no jurisdiction under the law of England and Wales and the courts do not recognise it.” She said Sharia councils did not have any legal means of enforcing their decisions through the civil courts. Yet, since such voluntary agreements are given some measure of legal protection in family cases (albeit they are not legally binding), Sharia law, in effect, has been given a powerful position within the British family law system – not least because the Government through LASPO has put the official family law courts beyond most people’s reach.

Judicial ruling
It is a strange anomalous position: any specific law within the Sharia system is not law within the British system; but any family law agreement between parties voluntarily arrived at will be given a high level of support by a judge. To illustrate the position it is worth looking at the case of Re AI and MT (2013). Here an English judge, Mr Justice Baker, considered a divorce case arbitrated by the New York Beth Din after the parties had agreed “to enter into binding arbitration before Rabbi Geldzehler” and agreed “both shall be bound by any award made in the New York Beth Din”. Baker noted that initially he had told the parties:

“I did not consider the terms of the draft order [explaining the couple’s terms for resorting to the Beth Din] to be lawful. In particular, they flouted the principle that the court’s jurisdiction to determine issues arising out of the marriage, or concerning the welfare and upbringing of the children, cannot be ousted by agreement.”

However, given their religious views and the fact “that it always in the interests of parties to try to resolve disputes by agreement wherever possible, including disputes concerning the future of children and ancillary relief of the breakdown of a marriage, I indicated that the court would in principle be willing to endorse a process of non-binding arbitration”.  

He noted that in the US “essentially the courts will show some deference to the original arbitration award, but use their independent judgment to determine whether to uphold the award”. Baker set out his own approach thus:

“I indicated that I would endorse the parties’ proposal to refer their disputes to a process of arbitration before the New York Beth Din on the basis that the outcome, although likely to carry considerable weight with the court, would not be binding and would not preclude either party from pursuing applications to this court in respect of any of the matters in issue.”

In other words deference is offered to the religious “court” but it can be overruled by the legally constituted English courts. The implication is that, in the case of a Sharia Council, there would be a bias in favour of its ruling – since why should the approach be different for the Muslim legal body than for a Jewish one?

Well, the difference is that Theresa May does not like the conclusions that the Sharia Councils have come to, particularly regarding women. Yet, given that legal aid has been largely removed from family law cases, power has shifted towards Sharia Council mediation or arbitration – since one of the exceptions to the ban on legal aid is not “cases where a woman is unhappy with a ruling by a religious court that does not conform to British values regarding female equality”. A Sharia Council ruling, if the parties voluntarily agreed to accept it beforehand, is perfectly valid in law – as is one arrived at through the good offices of the Family Mediation Council, which makes no claim to religious-legal authority. 

Conclusion
The Government’s intention when removing legal aid was to give greater authority to informal resolution. That must include Sharia Councils as it does the Beth Din. If a couple agree to the latter and take their case to a religious “court”, they are in effect agreeing to a quasi-legal ruling under a system that makes little distinction between civil and religious law. Informal resolution is intended to be by far the dominant means of resolving such family issues – not least because the civil courts were to be put out of reach of most people.

It beggars belief that Mrs May has now turned round to tell us that she is wholly untrusting of one of those key non-judicial bodies, one dealing with highly sensitive issues and people she acknowledges now to be vulnerable – Muslim women (not to mention their children, whom May did not mention except in terms of protecting them from extremists). The Government cannot blacklist Sharia Councils and their judgments (unless they do the same for Beth Din and any other religious “court”) if it is to avoid accusations of a racist “crusade” against British Islam. The only answer is to reinstate legal aid for family law cases. 

Twitter: alrich0660

An interesting and complicated Sharia divorce case is here: Ismail v Choudhry, in which an Indian Nikah marriage was later coupled with a UK civil marriage; the latter was dissolved in Britain but, the wife argued, the Muslim marriage stayed in place. The High Court accepted the marriage “was dissolved under domestic law in 1989 but only as to Sharia Law in 2015” by the Birmingham Sharia Council.

See also: This Cardiff Lawschool blogpost looks at the issues in light of AI v MT [2013] EWHC 100 (Fam). Prof Gillian Douglas notes: “Thus, if a Beth Din, or a Sharia council, were to suggest an outcome so much at odds with English law as to cast doubt on its fairness or to raise concerns about the welfare of any children involved, no English court would give it effect.”

Note: This is of interest from the Australian on how Muslims in Australia have been using Sharia Councils for divorce settlements and getting the national courts to confirm them: Sharia law used to settle divorces

Materials
Baker J had this to say about mediation in Re AI and MT: “At the date of my order in February 2010, there was no precedent for referring a matrimonial case for arbitration. Mediation was well established but, as Mr Setright QC and Mr Devereux submitted on behalf of the father, ‘mediation is, of course, a very different animal to arbitration and although it has been widely called for no family law arbitration scheme currently exists in England and Wales.’ In their attempts to persuade the court to permit the parties to resort to arbitration in this case, Mr. Setright and Mr. Devereux drew my attention to an article by Thorpe LJ, ‘Statutory Arbitration and Ancillary Relief’ in [2008] Family Law, in which he said inter alia (at page 28) ‘to extend the Arbitration Acts to reach all financial issues created by the breakdown on relationships is surely safe territory’. Since then, as set out above, the Rubicon has been crossed and an arbitration scheme in matrimonial finance cases is now established.

The rule in Hyman [Hyman v Hyman [1929] AC 601] prevents the arbitration award being binding, although it has been suggested by its proponents that an award should amount to a ‘magnetic factor’ in any subsequent analysis of the issue by a court. In the eloquent words of Sir Peter Singer (at [2012] Fam Law 1503), ‘an arbitral award founded on the parties’ clear agreement … to be bound by the award should be treated as a lodestone (more than just a yardstick) pointing the path to court approval.’ It is said that arbitration has many attractions for divorcing couples, including speed, confidentiality and cost.

In addition, the parties are able to select the arbitrator as opposed to litigation where the parties are obliged to accept the judge allocated to hear the case. In this respect, it can be argued that arbitration is in line with the principle underpinning the Children Act 1989 that primary responsibility for children rests with their parents who should be entitled to raise their children without the intrusion of the state save where the children are suffering, or likely to suffer, significant harm.

That principle in turn is in line with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the right to respect for private and family life, and the concept of personal autonomy which underpins that right. In short, it is up to parents to agree how their children should be brought up and, if they cannot agree, they should be entitled to choose how their disagreement should be resolved without state intervention, unless either (a) one or both parents invoke the help of the court or (b) the children are suffering or likely to suffer significant harm as a result of their parents’ actions.”

Arbitration
The decisions of a Sharia Council in civil arbitration may be binding (though not in divorce) as might those of any arbitration panel that two sides agree should decide their case. This is as a result of the the 1996 Arbitration Act. For a practical example see Kohn v Wagschal (2007) in which London Beth Din had arbitrated on whether a father had left shares to his son and four daughters or only to his son. The Beth Din ruled “as a matter of Jewish law, the sisters had failed to establish that their father had any intention to make a gift of the shares”. An order for the enforcement of the arbitration award was upheld by the Court of Appeal (though it also sent documents to the Inland Revenue to consider the inheritance tax implications).

Research
Here is a Civitas paper: Sharia Law or ‘One Law for all’?    

 

 

 

 

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About alrich

Journalist and blogger on legal and financial/economics issues

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