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Religious Courts Report Released

12 July 11

A report on religious courts and tribunals in the UK has just been published by researchers at Cardiff Law School and the Centre for the Study of Islam in the UK at Cardiff University. The year-long project, funded by the AHRC/ESRC Religion and Society Programme, explored how religious law already functions alongside civil law in the area of marriage and divorce.

The research project addressed concerns which were raised in the aftermath of the Archbishop of Canterbury’s lecture on Religious and Civil Law in 2008, which provoked an animated debate concerning the extent to which English law should accommodate religious legal systems, such as Sharia law. These concerns have also come to the fore more recently as a result of the Arbitration and Mediation Services (Equality) Bill (HL Bill 72) introduced into the House of Lords by Baroness Cox which seeks to regulate the operation of religious courts.

The project, ‘Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts’ examined the workings of three religious courts in detail: a Jewish Beth Din; a matrimonial tribunal of the Roman Catholic Church; and a Muslim Shariah Council). The project asked ‘What is the legal status of these courts?’ and ‘How do they operate in relation to marriage, divorce and remarriage?’

The project is ground-breaking in that although there had been some empirical investigations into the courts or tribunals used by particular religious traditions, no previous work had sought to compare the work of courts or tribunals of different religions and how they relate to the law of the State.

The published report brings together documents which have previously been published on our website together with the key findings of the research, which are summarised below.

The research team was led by Professor Gillian Douglas, an expert on family law and former Head of School at Cardiff Law School. She was joined by Dr Sophie Gilliat-Ray (the Director of the Centre for the Study of Islam in the UK), Professor Norman Doe (the Director of the Centre for Law and Religion), Dr Russell Sandberg (a lecturer in law at Cardiff) and Asma Khan (a Research Associate at Cardiff Law School).

The project team are now working on a number of articles which will discuss the detailed research findings and its possible impact. Further details on these outputs will be added to the website in due course.

The full report can be found at: http://www.law.cf.ac.uk/clr/research/cohesion.html

Key Findings

In carrying out our study, we adopted a case-study approach which focused on three particular religious courts from each of the three main faiths under which such tribunals operate – the Catholic National Tribunal for Wales, the London Beth Din and the Shariah Council of the Birmingham Central Mosque. (We make no claim that these are ‘typical’ or ‘representative’ of Christian, Jewish or Islamic tribunals in general.)

- Each of the institutions firmly recognises and supports the ultimate authority of civil law processes when it comes to marriage and divorce and none seeks greater ‘recognition’ by the state.

- Tribunals derive their authority from their religious affiliation, not from the state, and this authority extends only to those who choose to submit to them. As far as marriage/divorce is concerned, they are not ‘arbitrators’. Their authority to rule on the validity/termination of a marriage does not derive from the parties’ agreement to submit their ‘dispute’ to them (indeed, there may be no dispute) in the same way as an arbitration clause in a contract (for which the Beth Din and some Shariah Councils would also qualify to rule on civil disputes). Rather, adherents to the particular faith make use of the religious court in order to obtain sanction to remarry within their faith. The Shariah Council deals with a significant number (over half in our study) of litigants who do not have a marriage recognised under English law.

- A multiplicity of religious tribunals operates within different faith communities in terms of the basis of their authority and adherence by those using them.

-‘Forum shopping’ exists to some extent within the Jewish and Muslim communities, as there is no ‘hierarchy’ or system of appeal for Shariah Councils or the Beth Din. Litigants can choose which tribunal they go to according to the way in which (they think) the law will be applied to them or by what they perceive will be the extent of recognition of the tribunal’s decision across their community.

- All three religions see marriage as based fundamentally on the will of the parties. For Muslims and Jews, marriage is therefore a contract, to be ended at the parties’ will. For Catholics, marriage is a sacrament as well as a contract, but the focus on a true consent as the basis for annulment reflects the same understanding of the essence of marriage as the other faiths.

- Procedures varied between the three tribunals depending upon how these viewed their function. The Beth Din regards its approach as being supervisory. It does not itself determine ‘grounds’ for divorce but seeks to witness that the parties divorce each other correctly and to ensure that the get document (bill of divorce) itself is properly drawn up. The Shariah Council applies an adversarial approach in seeking to determine that there are valid grounds for declaring the marriage over, to be tested first by whether the parties might achieve a reconciliation and, if not, based on evidence submitted by the applicant and in light of any conflicting evidence from the other spouse. The Catholic Tribunal’s approach is pro-active and inquisitorial: it must be satisfied there are grounds to annul the marriage, based on whether there was a true consent between the parties at the time of the marriage.

- The fundamental rationale for the grant of the religious annulment/divorce is to enable the parties to remarry within the faith. For adherents, being able to remarry within the faith serves both to enable them to remain within their faith community and to regularise their position with the religious authorities. This is particularly crucial in the Jewish religion, because the failure to obtain a get will jeopardise the legitimate status of the parties’ future children and descendants.

- All three institutions encourage the parties to obtain a civil divorce, if applicable, before seeking a religious termination. Indeed, the Catholic Tribunal does not deal with an application for annulment until this has been done, and the Beth Din will not provide the certificate that a get has been given until it has proof of the civil divorce. Both the Beth Din and the Shariah Council regard the obtaining of a civil divorce as clear evidence of the parties’ view that the marriage is over, and for the Shariah Council, this is conclusive, such that it does not deem it necessary to grant a religious divorce to enable the parties to remarry under Islamic law.

- All three institutions are clearly aware of the emotional dimension to the process of ending a marriage and seek to recognise this by their procedures. They all also recognise an important pastoral role in the process, either through informal advice and counselling or by encouraging parties to consult outside bodies or their own priest/rabbi/imam. They play a limited role, confined to advice or mediation/non-binding arbitration in the case of the Shariah Council and Beth Din, in relation to the consequences of the divorce and all advise the parties that only the civil courts may give binding rulings on these.

- All of the institutions see their work as a religious duty. They regard themselves as providing important mechanisms for the organisation of community affairs and the fulfilment of community need.

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