AI v. MT [2013] EWHC 100 (Fam)

Abstract

In AI v. MT, the High Court gave effect to an agreement on both financial and children issues reached following non-binding arbitration by rabbinical authorities in New York. This case note considers religious marriages and divorces in English law, and the role of religious arbitration as a form of alternative dispute resolution in family court cases. It raises questions about the protections currently available to those of some faiths, and about the appropriateness of religious arbitration in cases concerning children.

Keywords:

• religious arbitration
• alternative dispute resolution
• religious marriage

Notes

1. In Al-Saeedy v Musawi (Presumption of Marriage) [2010] EWHC 3293 (Fam), [2011] 2 FLR 87, the family gathering in a flat in London had failed to satisfy the formalities of a marriage in accordance with English law (nor had it purported to do so) although the parties may have been considered as husband and wife under Islamic law. Similarly, in Dukali v Lamrani [2012] EWHC 1748 (Fam), [2012] 2 FLR 1099, a Moroccan couple had married at the Moroccan Consulate in London. After they had lived together for 7½ years, the husband divorced the wife in Morocco. The wife applied to the English courts for leave to apply for financial remedy under the Matrimonial and Family Proceedings Act 1984, s 13.The husband claimed that neither the marriage nor the divorce were capable of recognition in England. This proposition was supported by the Attorney General. The Moroccan Consulate argued that a valid Moroccan marriage had taken place and that under the Vienna Convention such a marriage was valid under English law. Holman J held that the marriage was neither valid nor void but non-existent. For other recent examples, see Sharbatly v Shagroon [2012] EWCA Civ 1507 and AAA v Ash (Registrar General for England and Wales and Secretary of State for Justice Intervening)[2009] EWHC 636 (Fam) [2009] 3 FCR 95), but cf. MA v. JA and Attorney General [2011] EWHC 2132 (Fam) where, on particular facts, although the marriage had been celebrated in a mosque it was held to be a valid marriage.

2. Article 11(2) of Brussels IIR provides that, when applying Arts 12 and 13 of the Hague Convention 1980, the court should ensure that the child is given an opportunity to be heard during the proceedings unless this appears to be inappropriate given the age and maturity of the child. The House of Lords has held that this principle is ‘of universal application’ in child abduction cases under the Hague Convention 1980: see Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961, para. 58.