Sunday, February 03, 2013

British Court For First Time Refers Marital Dispute For Arbitration By Jewish Religious Court

As reported by the Hodge Jones & Allen law firm, the English and Wales High Court (Family Division) last week handed down a judgment that for the first time in Britain endorsed the determination of a matrimonial dispute through reference to a Jewish religious court (Bet Din).  In AI v. MT, (EWCH, Jan. 30, 2013), after the parties instituted custody proceedings in British courts, they agreed to refer their disputes to arbitration by a senior rabbi, Rabbi Geldzehler of the New York Bet Din.  They then asked to court to enter an order referring the case to the Bet Din. The court then recounted:
At the outset ... I indicated to the parties that I did not consider the terms of the draft order to be lawful. In particular, they flouted the principle that the court's jurisdiction to determine issues arising out of the marriage... cannot be ousted by agreement. On the other hand, 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... I indicated that the court would in principle be willing to endorse a process of non-binding arbitration....
I indicated that I would endorse the parties' proposal to refer their disputes to a process of arbitration before the New York Beth Din on the basis that the outcome, although likely to carry considerable weight with the court, would not be binding and would not preclude either party from pursuing applications to this court in respect of any of the matters in issue....
It was not until September 2011 ... that the New York Beth Din eventually handed down its ruling on the arbitration. The award covered all issues between the parties.... Even then, there were further negotiations between the parties....
There was, furthermore, one remaining impediment. Under Jewish law, it was necessary for the father to give the Get. Within orthodox Jewish culture, great social stigma attaches to a woman who is separated from her husband but has not been granted a Get.... For this reason, the mother was unwilling to agree to the complex provisions of the arbitration award unless the Get was given. Equally, the father was unwilling to agree to give the Get until the court had approved the award and indicated that it would agree to its terms being incorporated in a court order. The solution arrived at by the parties was for the court to convene a hearing, consider the terms of a draft order based on the arbitration award and, if so minded, indicate that it would be prepared to make the order in the best interests of the children, whereupon the father would forthwith attend at the London Beth Din with the mother and go through the lengthy ceremony for the giving of the Get....

No comments: