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Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts G Douglas, N Doe, S Gilliat-Ray, R Sandberg and A Khan, Cardiff University New Forms.

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Presentation on theme: "Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts G Douglas, N Doe, S Gilliat-Ray, R Sandberg and A Khan, Cardiff University New Forms."— Presentation transcript:

1 Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts G Douglas, N Doe, S Gilliat-Ray, R Sandberg and A Khan, Cardiff University New Forms of Public Religion Conference 5 September 2012 University of Cambridge

2 Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts Study of three religious tribunals, funded by the AHRC in the ESRC/AHRC Religion and Society Programme, report at http://www.law.cf.ac.uk/clr/research/cohesion http://www.law.cf.ac.uk/clr/research/cohesion This presentation focuses on – their determination of religious marital status – the degree of their interaction with wider social norms and values – their understanding of their relationship to the state and to civil law.

3 The context: fear of religious and cultural diversity ‘Under the doctrine of state multiculturalism, we have encouraged different cultures to live separate lives, apart from each other and apart from the mainstream. We’ve failed to provide a vision of society to which they feel they want to belong. We’ve even tolerated these segregated communities behaving in ways that run completely counter to our values.’ Rt Hon D Cameron, Speech to the Munich Security Conference, 5 February 2011 Arbitration and Mediation Services (Equality) Bill (HL Bill 72) 2011 would – prevent any religious arbitrator from applying gender discriminatory rules – criminalise any person who ‘falsely purports to be exercising a judicial function or to be able to make legally binding rulings, or... otherwise falsely purports to adjudicate on any matter which that person knows or ought to know is within the jurisdiction of the criminal or family courts’ – Clarify that ‘any matter which is within the jurisdiction of the criminal or family courts cannot be the subject of arbitration proceedings.’

4 Methods Case-study of the Shariah Council of the Birmingham Central Mosque, the London Beth Din of the United Synagogue and the National Tribunal for Wales of the Catholic Church. In-depth interviews with three informants from each tribunal All–day workshop with representatives from all three tribunals to discuss their work with us and each other Observation of 27 hearings in the Shariah Council Analysis of two years’ worth of statistical data from the National Tribunal

5 Structure and organisation Shariah CouncilBeth DinNational Tribunal JurisdictionUK (and abroad) Three dioceses in Wales Workload of divorce/annulment cases p.a. 15011040 BenchPanel of 4Panel of 3 (or 1) StructureIndependent – linked to Birmingham Central Mosque Independent – linked to the United Synagogue Lowest court in hierarchy with Rota at top

6 ‘Forum shopping’ ‘Quran and Sunna are where Muslims look for guidance in developing their social and political relations, legal and ethical norms; but these sources are not legal codes as such.... The religious nature of Islamic Law means that there is no person or institution authorised to decide for all believers the Islamic Law rule on any subject; each believer is responsible for his or her own belief in the matter.’ (Abdullahi An-Na’im) ‘Well if they’re not happy with the decision that the panel members have made because they don’t have to accept it, they can always go to the Salafi mosque. So of the ones who are that strongly - they would go there, they wouldn’t come here. So if they’ve come here of their own accord there’s a reason why they’ve come here.’ (Interviewee at the Shariah Council) ‘We often find that the non-Orthodox communities will refer to us even though, say, for example, the Reform won’t necessarily say that they believe it is necessary for a get to be given, they do recognise and they will often tell their members that if you were married in an Orthodox way you must realise that if you want your marriage to be ended from an Orthodox point of view this is what you need to do....’ (Interviewee at the Beth Din)

7 Determination of marital status in the eyes of the religion Religious tribunals should not be regarded simply as functional analogues of the civil courts, or forms of ‘alternative dispute resolution’ - their central function is to provide a licence to remarry within the faith The authority of religious tribunals to rule on the validity/termination of a marriage does not derive from the parties’ agreement to submit their ‘dispute’ to them in the same way as an arbitration clause in a contract or an agreement to try mediation. Indeed, for many couples, there may be no dispute

8 Applying religious laws within the social context: the Shariah Council A case which reaches the Council takes ‘five, six minutes, depending upon the case - because most of the cases, all the preliminary work has been done... If at any point in time we come to the conclusion that the parties are not going to budge from their position then it is not our attitude to delay the matter any further...’

9 Applying religious laws within the social context: the National Tribunal Canon 1096.1: ‘For matrimonial consent to exist, it is necessary that the contracting parties be at least not ignorant of the fact that marriage is a permanent partnership between a man and a woman, ordered to the procreation of children through some form of sexual cooperation.’ ‘Coming up on the inside rails, as it were, is what we technically call “simulation” which is in the area of people’s intention - they could have an intention against their marriage being permanent... It’s a growing area because of the divorce mentality in our culture. So you’ve got people entering marriage: “Well, we’ll try this for a few years”... I think it was presumed that a Catholic knew what a Catholic concept of marriage was in terms of permanence and faithfulness and openness to children.... Now of course with varying influences on people, especially young people nowadays can we still presume that?... It’s just they are surrounded with a culture, especially on the permanence one, where divorce is so common that it’s [permanence] not part of their world view and so they are not including it.’

10 Applying religious laws within the social context: the Beth Din ‘When there is a divorce the Beth Din doesn’t actually divorce people. Formally, we ensure that they divorce each other correctly and so we ensure that all the documentation is drawn up in the right sort of way and the bill of divorce, the get, is drawn up and written correctly.’ ‘It’s a no-fault system so we don’t ask the couples “why are you getting divorced?” I mean, we’re not into wanting to know what went wrong with the marriage unless there’s a possibility of saving the marriage.... by very definition the fact that one person has written to us wanting a get means that at least one of the two want the divorce; usually both want the divorce.’

11 Relationship with civil law: (1) Avoidance of ‘limping marriages’ – Insistence on civil divorce being obtained first and presentation of divorce decree – In the Beth Din - problem of the ‘agunah’ in Jewish law - s 10A Matrimonial Causes Act 1973 (inserted by Divorce (Religious Marriages) Act 2002) – In the Shariah Council - reliance on civil divorce as itself equivalent to religious divorce – In the National Tribunal – marriage may be upheld despite civil divorce

12 Relationship with civil law: (2) The ‘ancillaries’ Under civil law, divorcing couples do not have to use a court to sort our post-separation finances or arrangements for their children and ‘private ordering’ is strongly encouraged But the jurisdiction of the family courts over such matters cannot be ‘ousted’ by agreement or by ruling of another body All three tribunals advised litigants that they could not give binding rulings on such matters which must be dealt with by the courts

13 Conclusions – Main function the determination of religious marital status, not the resolution of ancillary disputes – Interpretation and application of religious laws in awareness of the broader social context in which litigants live their lives – Clear recognition of the primacy of the state and of its laws and a desire to interact with, not override, such laws


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