The use of alternative dispute resolution (ADR), which includes consultation, mediation and arbitration in its arsenal, to help solve family disputes has been growing in popularity in recent years, not least to assuage the costs of litigation in these matters. Parties can agree to use religious organisations to aid resolution – and in the process allow the cultural sensitivities of both parties to be respected.
Now that is fine.
In fact, earlier this year, rabbinical arbitration received a major endorsement after a (family law) consent order was approved by the High Court following rabbinical involvement (AI v MT [EWHC 2013 100 (Fam]).
So the positive comments from Lord Philips, the Lord Chief Justice, (in a speech at the East London Muslim Centre on 03 July 2008) about the possibility of using Sharia law for alternative dispute resolution (ADR) in the UK, were a refreshing break from the usual Islamophobic hysteria we are used to seeing in the headlines. Great, right? Well, not quite.
The Arbitration and Mediation Services (Equality) Bill, currently in the House of Lords, whilst admirably, without a doubt, proposes to protect the human rights of all parties, especially women, involved in ADR, seems to be inadvertently immersed in anti-Sharia law sentiment.
Baroness Cox, who introduced the Parliamentary Bill, asserts that the purpose of the bill is NOT to interfere in theological affairs, but to ensure that quasi-legal systems aren’t allow to undermine our legal system. So far so good.
However, Lord Carlisle QC speaking at a presentation to peers about The Arbitration and Mediation Services (Equality) Bill shared his concerns about the potential encroachment ofSharia Law (i.e. not all religions) in the family law courts.
It seems that, in general, whenever Islam is mentioned today, it is immediately followed by the diatribe of the evils of the religion. Thus, naturally anything related to that particular religion is tarred with a simplistic, narrow-minded brush.
As a self-confessed atheist, I won’t say that I understand people of faith, and there are certainly parts of Sharia law that I do not support, such as the discrimination of (Muslim) women, but there are also parts of rabbinical law that are , in my opinion, equally unjust. For example, the plight of the agunah – Jewish women who are ‘chained’ to marriage as a result of her husband refusing to grant a religious divorce, is a clear and obnoxious example how other religions have their misogynistic ways enshrined in their Good Books.
The Muslim Arbitration Tribunal* established in 2007 aims to serve the Muslim community, but within the legal framework of the law of England and Wales, which they say, naturally includes safeguards for human rights.
The question is simply this, if rabbinical arbitration is to be welcomed subject to human rights safeguards is sharia arbitration equally welcome subject to the same safeguards? Or are we just going to continue to ostracise the Muslim community further?
The information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
Shak Inayat, Solicitor
Ayesha Lalloo, Research & Support Assistant
0207 183 2898
*This is not intended to be a personal endorsement of this or any other organisation that promotes arbitration or an endorsement of arbitration per se.