In AI v MT [2013] EWHC 100 (Fam), an English court, for the first time, referred a divorce/welfare of children matter to the Beth Din (the Jewish religious court of arbitration). It supported the choice and autonomy of the parties and ultimately endorsed the Beth Din's decision in a consent order, thereby making it legally binding.
Facts
In this case, the Canadian husband and British wife were both observant Jews. Following difficulties in their marriage while living in Canada, the wife went to England taking the couple's children with her and failing to return with them, against the husband's wishes. Before the final hearing was due to be held in England, the parties agreed to refer the matter to arbitration by the Beth Din in New York. The issues between the parties included the children's welfare, financial matters, and the obtaining of a get (religious divorce).
Although parties may not oust the jurisdiction of the court over certain family law issues, Baker J was satisfied in this case that the principles applied by the Beth Din in resolving child custody matters were consistent with English law, and was therefore happy to endorse the arbitral process. The court ultimately made an order incorporating the terms of the award. In doing so, Baker J endorsed the view that, although the court would not be bound by it, the award should be given considerable weight and should be treated as a "lodestone ... pointing the path to court approval".
Comment
This is, in many ways, a ground-breaking and unprecedented decision. Baker J demonstrates a strong respect for the parties' decision to resolve their dispute through Beth Din arbitration, a decision that was in keeping with their cultural practice and religious beliefs. He was able to do so in this case, as he considered that Jewish law (halacha) was supportive of the welfare of the children and that the outcome was generally in keeping with English law. He was pleased that it was also rooted in the couple's religious beliefs and culture.
The case is an example of how the Beth Din arbitral body and the courts can work well in tandem in such situations. It was undoubtedly appropriate in this case for the parties to select arbitration under the auspices of the Beth Din. Aside from their religious convictions that a marriage made within the tenets of their faith should also be dissolved within those tenets, this also enabled the parties to select their arbitrator, to resolve the dispute by agreement and to keep the dispute, to some extent, confidential.
Nonetheless, the English court played a crucial supervisory role (albeit in respect of a New York arbitration). The court was able to make certain orders along the way, for example, by adjourning the case for arbitration and giving the woman "safe harbour" orders to travel to New York and back without interference. It also stayed its proceedings to allow the arbitration to take place. Most importantly, the court ultimately made a consent order in the terms of the Beth Din award. This was timed to be conditional upon the parties religious divorce (or get) being granted. Finally, Baker J then issued his judgment to explain his approach in making the consent order.
This approach demonstrates a welcome sensitivity towards the arbitral process and a willingness to support it throughout. It is an approach that would no doubt be welcomed in future cases, although the court was keen to stress that each case would turn on its own facts, so not all divorce cases would automatically be referred to arbitration by any means.
As regards arbitrability, this case comes at an interesting time. Historically, certain family matters, such as the legal status of relationships or the care of children, have been reserved to the exclusive jurisdiction of the English family courts and have not been capable of being resolved by arbitration, even where the parties agreed to it (see Hyman v Hyman [1929] AC 601). However, there are some areas of family law which could well be resolved by arbitration with no public policy reason for involvement of the courts, for example, matters which do not involve children or third parties, such as purely financial or property related disputes. To address this issue, the Institute of Family Law Arbitrators (IFLA) established an Arbitration Scheme in 2012. Awards under the scheme are agreed to be binding on the parties, although they contemplate a court order in the same or similar terms as the award, where the subject matter requires it (see Practice note, Family law arbitration). As such, Baker J's decision seems to adopt the approach taken by the IFLA's scheme, by making his consent award approving the decision reached in the arbitration.