High Court endorses rabbinical arbitration in divorce case
In a ruling published today, Mr Justice Baker said: “This is not… a judgment in the conventional sense of an exposition of the reasons for the court’s decision on the…issues, but rather an explanation of the court’s approach to the process of arbitration chosen by the parties as the means to resolve those issues.”
The process in question was the New York Beth Din, a traditional Jewish court. The case concerned a couple in their 20s, both observant orthodox Jews. The father was Canadian and the mother British. They married in 2006 in a traditional Jewish ceremony and initially lived in Israel, returning to London for the birth of their first child.
Later they planned to move to Toronto so that the father could work in his own father’s business there. However the marriage began to encounter difficulties and the couple separated in 2009 shortly after the birth of their second child.
After various disputes regarding access to the children, the father, who was by then living in Canada, began proceedings under the Hague Convention on the Civil Aspects of International Child Abduction
Before this application could reach the courts, however, the couple agreed to refer their marriage for arbitration by a senior rabbi in the New York Beth Din. The parties then made an application to Mr Justice Baker forthe Hague Convention application to be dismissed in favour of an agreement to undergo binding arbitration by the Beth Din.
The judge, however, would only agree to non-binding arbitration. Binding arbitration, he believed, would be “unlawful”, because it “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.”
He agreed, however that “…having regard to the parties’ devout religious beliefs and wish to resolve their dispute through the rabbinical court, and acknowledging 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 [financial settlement following divorce], I indicated that the court would in principle be willing to endorse a process of non-binding arbitration.”
The Beth Din eventually published its full ruling in September 2011, setting out details of the agreement, but further negotiations followed and a full settlement was not reached until spring last year.
The former now couple now sought legal approval of the arbitration agreement. The mother was keen to ensure that the father completed the divorce process by issuing a ‘get’ (traditional Jewish divorce document) and was unwilling to agree to the provisions unless he did so. But the father, in turn, was unwilling to issue a get unless he was confident that the terms of the arbitration would be legally approved and made a binding court order.
A solution was proposed, and Mr Justice Baker agreed to a special hearing in which he would consider the terms of the arbitration and indicate his willingness to make a court order. Once this had taken place, the couple then underwent the get ceremony and the judge made the legal order at the end of the same day.
Amongst the legal principles set out in Mr Justice Baker’s ruling, he includes the paramount importance of children’s welfare. Appropriate respect for religious belief and tradition cannot override the children’s welfare principle.
Photo by Jeff Belmonte via Wikipedia under a Creative Commons licence
Share this post
Get free family law updates
Marilyn Stowe’s new book: expert advice on all aspects of divorce, for just 99p!
Divorce & Splitting Up by Marilyn Stowe is the essential how-to book for anyone who is getting divorced or splitting up from a partner. Read more >>
"A must buy that really opens your eyes to what is involved if you are considering or going through a divorce." - Amanda Brown
"This will answer your questions in a way that non-lawyers can understand." - Miss P.
"This really has helped me to see that there is light at the end of the tunnel and I will come out of it a stronger person." - J
Marilyn Stowe on ITV Daybreak & ITV This Morning
Marilyn’s Thought For The Day
Sometimes I wonder if men and women really suit each other. Perhaps they should live next door and just visit now and then.
- Marilyn Stowe on Court of Appeal alters contact order
- jess on Court of Appeal alters contact order
- Marilyn Stowe on Adultery and Divorce: The Top Ten Myths
- John on Department for Work and Pensions ‘misleading’ on child support
- ann-marie goddard on Adultery and Divorce: The Top Ten Myths
Subscribe & Follow
Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
Contact Stowe Family Law
These downloads accompany Marilyn Stowe's latest book: Divorce & Splitting Up: Advice From a Top Divorce Lawyer. After opening, right click to save to your computer.
For more free downloads, visit the Downloads section.