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High Court Opens Way to Religious Divorces

Thursday, 7 February 2013

A recent High Court ruling has opened the way for religious courts to become a popular means for settling divorces. The landmark legal ruling may lead to devout couples of any religious persuasion being able to have their divorce referred to a religious court of their choosing.

Marking a first for English legal history, Mr Justice Baker referred an orthodox Jewish couple’s divorce hearing to a Jewish Beth Din, a rabbinical court of Judaism.

Divorce Referred to a Beth Din

An orthodox Jewish couple married in 2006 and initially moved to Israel. Following the birth of their first child, they moved to London. Their intention was to then move to Toronto but they separated in 2009, shortly after having a second child. The husband then brought proceedings against the wife under the Hague Convention for child abduction.

The Hague Convention hearing was scheduled to be heard in London but, prior to its initiation, the couple decided to refer their dispute to the senior rabbi of the New York Beth Din. Mr Justice Baker considered the principles of the Beth Din and concluded that they were in line with those of English law. He then allowed the referral but stated that the ruling of the Beth Din could not be binding because that would override the jurisdiction of the courts.

Implications of the Ruling

The decision of Mr Justice Baker has potentially paved the way for religious divorces of any persuasion to be referred to religious courts; Islamic divorces may be referred to Sharia courts for example. This is something which has been advocated in the past by the former Archbishop of Canterbury, Rowan Williams who stated in a talk on Sharia law in 2008 that, “citizenship in a secular society should not necessitate the abandoning of religious discipline”.

It is important to note the inherent proviso in Mr Justice Baker’s statement however: “the outcome was in keeping with English law, whilst achieved by a process rooted in Jewish culture to which the families belong”. The statement makes it clear that the delegation of some of the court’s authority relied on the principles of the religious court being in keeping with those of English law. It is worth noting that this may not always be the case; Muslim divorce laws can vary considerably between different cultures and in different states, for example. Mr Justice Baker’s statement makes clear that a decision obtained in a religious divorce can not oust the jurisdiction of the English court.

Conclusion

The implications of this ruling are far-reaching for religious divorcing couples. However, the principles of English law and the jurisdiction of the courts still remain paramount.

If you would like to discuss the implications of this case or you need advice in relation to other family law issues, Rollingsons has experienced solicitors who can advise you. Please contact the Family Law Department by telephone on 0207 611 4848 and ask to speak to an experienced solicitor.

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