High Court allows Jewish couple to divorce following arbitration in religious court
The High Court has approved a divorce settlement where the couple referred all their financial and parenting issues to a Jewish religious court for arbitration.
Mr Justice Baker agreed the couple, who are devout Orthodox Jews, could use the New York Beth Din to decide issues such as the financial settlement, the status of the marriage and the care of their two children, in AI v MT [2013] EWHC 100 (Fam).
The couple initially wanted to enter into binding arbitration at the Beth Din. Baker J declined this at a hearing in 2010. Instead, he said the court would in principle be willing to endorse a process of non-binding arbitration, although he needed more information on the Beth Din’s approach to children. Evidence was produced that Jewish law focuses on the best interests of the child.
Baker J was also concerned about the wife’s need for a “Get”, a religious divorce, without which she would be an “Agunah”, a Halachic term for a Jewish woman who is “chained” to her marriage. The mother gave evidence that this would make her children social pariahs within their religious community. Husbands sometimes withhold a Get to improve the terms of the divorce, or in order to take revenge on their ex.
Baker J therefore approved an order incorporating the terms of the arbitration award before the Get was granted, on the basis the order would not be finalised until after the Get was obtained.
James Stewart, a family partner at Manches, who represented the mother, said: “This decision is perhaps the first where the court considered its ability to refer all issues between parties who were embroiled in divorce, children, financial and child abduction proceedings to arbitration (in this case an arbitration scheme run by a Jewish religious court).
“The case will have very significant resonances within the Jewish community where the plight of the Agunah is a serious issue in England and indeed in many jurisdictions worldwide.”
Baker J said, in his judgment: “It was notable that the court was able not only to accommodate the parties’ wish to resolve their dispute by reference to their religious authorities, but also buttress that process at crucial stages.” However, he emphasised that each case would “turn on its own facts” and that judicial discretion would be preserved.
