Religious Tribunals, Religious Freedom, and Concern for Vulnerable Women

By | January 11, 2022
Religious Tribunals

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Religious tribunals are largely unaffected by current English law. However, the role of religious tribunals in English family law is hotly contested. Many factors are taken into account, but two are frequently pitted against one another.

As an argument for not interfering with religious tribunals, religious freedom is frequently used. Concern for the vulnerable, particularly women in religious groups, is seen to support increased interference. In this article, we will see how these religious tribunals impact vulnerable women in the UK.

Introduction

It has become increasingly common in recent years to hear about the importance of religious tribunals in family law cases being discussed in the media, in academic journals and in public speeches. These dispute resolution procedures and agencies work according to religious law in many cases. Religious tribunals are the proper title for these organisations. Religious tribunals, such as the Muslim sharia council, are established bodies tasked with hearing cases brought before them by members of the respective religions.

They are capable of handling a wide range of tasks, from resolving conflicts to offering non-binding advice. They can give both civil and religious arbitration, as we’ll see. Civil conflicts, such as those arising out of contracts or torts, are dealt with in the former, which is governed by state law but frequently infused with religious standards.[1]

In the end, religious judgements that aren’t directly related to a person’s legal standing aren’t legally enforceable. Instead, they deal with matters of religious law. They can also help with other issues related to religious law, such as advising and facilitating legal proceedings.

Also, they can give mediation services, which is an informal, non-binding technique of resolving disputes that might be influenced by religious values. Tripartite functions can be performed by these entities, which include adjudicatory, mediatory and advisory functions, in this way. As we will see, family issues can affect all three of these areas.

Religious Tribunals

The tribunals may have their own regular adjudicators, mediators, or scholars, as well as established procedures and substantive norms for adjudication and decision-making. This is a type of government; however, it is unofficial or informal in that it is not governed by a state court system. Despite this, the tribunals themselves and the persons who appear before them are viewed as authoritative by both sides.

Tribunals may assert their authority by asserting that they can impose duties on participants and may even demand to be obeyed.[2] The tribunals, on the other hand, see themselves as authoritative and their participants do, too. Only the Church of England’s religious tribunals are statutory tribunals or otherwise recognised by the UK legal system.

However, religious tribunals can serve as arbitral tribunals in civil disputes, and so the Arbitration Act 1996 will apply if the parties agree to submit a case to them for arbitration. Arbitration awards rendered by a religious or non-religious organisation are subject to enforcement in state courts only if they meet the conditions of the Arbitration Act.

It is necessary for the parties to sign an arbitration agreement that lays out the parameters of adjudication, including who should sit as an arbitrator and what law shall govern. English law and national legal systems are not the only options available to parties in a contract. The Arbitration Act, on the other hand, is limited to civil disputes and does not apply to other areas of law. Due to the Act’s preservation of certain subjects to be handled by the common law, it does not appear that most family law matters can be settled by contractually binding arbitration agreements.[3]

Religious Tribunal and Religious Freedom

There are two ways in which the right to religious freedom can justify avoiding intervening in religious tribunals. Having access to religious knowledge and competence is a crucial aspect of religious freedom, especially for traditions that contain scripture, authorities, rituals, and regulations over which one can have varying degrees of experience.

The practise of such religions is made easier and perhaps necessitated by the acquisition of religious knowledge. It is not uncommon for anyone desiring to follow their religious beliefs to seek the assistance of a professional advisor. Many people turn to religious tribunals in addition to obtaining informal religious guidance from religious leaders, instructors, or other professionals.[4]

These courts frequently render judgments and offer recommendations on various facets of religious life. Sharia tribunals, for example, produce expert reports on issues relating to Muslim religious doctrine and practise. Fatwa is another name for these. This fatwa appears to take up a large percentage of the time spent by these tribunals, according to the research. Religious tribunals can be seen as a supporter of religious liberty because they offer the public with easy access to religious knowledge.[5]

Even said, it is necessary to keep in mind that religious knowledge isn’t necessarily crucial to every type of religious practise. People who follow traditions with few or no laws, texts, or authority may believe that all followers are equally capable of recognising religious truth, as in the Buddhist tradition described above. These faiths may not place as much importance on having easy access to religious teachings. As a result, this crucial defence of religious tribunals has some limitations. Since there are fewer religious tribunals in these faiths, we can disregard them from our discussion.

With regard to those who are most vulnerable, religious tribunals have come under fire. Concerns about religious tribunals making decisions that conflict with British family law have been raised. Some sharia councils’ interpretations of sharia law are frequently cited as examples of this type of substantive dispute.

Among these are the unequal distribution of estates in the event of incapacity between male and female children, child custody (in contrast to UK law, where individual circumstances determine child custody), child support (which is also based on predetermined rules), and the recognition of polygamous marriages, among other things A power imbalance can lead to a situation where one side is more exposed to injury or injustice than the other in a family dispute, such as divorce, child custody, or maintenance.[6]

Private family life can increase individual vulnerability, which can be exacerbated when the state cedes control of family regulation to an organised religious group. Women may be particularly affected if religious tribunals regulate family life. The processes of religious tribunals, in addition to the potential inequalities in the substantive standards imposed, might contribute to injustice.

Sharia councils in the UK recently conducted a study on the operation of mediation in a divorce context and found that it can leave some women vulnerable to physical and emotional abuse. However, procedurally, they can provide Muslim women the opportunity to obtain a Muslim divorce without the express consent of their husband.

According to one research, women who were reluctant to participate in reconciliation meetings with their spouses were “coaxed” into doing so. The injunctions issued against husbands based on violence were included in this group. Even when there are claims of spousal abuse, mediation in family law disputes can be challenging because it may be performed in line with religious values that prioritise the preservation of a marriage.[7]

Concern for Vulnerable Women

Concerns about religious tribunals for vulnerable people, particularly women, can be clearly seen. The state court system can be supplemented and enhanced by religious tribunals. Religious tribunals are sometimes in a better position than secular courts to assess the welfare of vulnerable religious women because of the functions they undertake. As previously said, because state law does not recognise certain components of religious family law or ritual, it may not be able to resolve family disputes or assist those who are most in need. There can be no civil divorce granted in cases where the state family court does not recognise the religious marriage.[8]

Both Islamic and English laws apply to Muslim divorces and marriages in the Muslim faith are subject to both religious and civil registration requirements. It is possible to use Angrezi law to overcome challenges Muslims have when English law is implemented. So-called “limping marriages,” in which the husband refuses to grant his wife a religious divorce even if she has already been granted one in civil court, fall into this category.

Refusals by women to remarry can cause tremendous financial difficulty and leave them unable to do so without violating their religious convictions, while their husbands are free to pursue polygamous relationships.[9] When civil authorities are unable or unwilling to handle situations like these, Muslim leaders began participating in informal dispute settlement forums to settle conflicts in accordance with Islamic family law while also not infringing English law.

Sharia councils arose out of these informal gatherings and became increasingly formalised over time. The use of these tribunals can liberate a person from an oppressive or violent relationship where they are at risk of being exploited or coerced. If a woman is able to get a religious divorce, she may be able to receive financial compensation from religious tribunals, which may have been precluded from pursuing her husband in the family court because their marriage was not recognised by civil law.[10]

Conclusion

In the UK, religious freedom and the safety of women in abusive relationships have often been brought up as competing issues when it comes to the involvement of religious tribunals in family matters. While religious tribunals raise worries about the vulnerability of women, they also have some positive consequences for their well-being in general.

Therefore, the overall legal response of the UK of non-interference in religious tribunals should be maintained, but existing protections should be more strictly enforced and more safeguards should be added. should be. Many religious tribunal decisions are not subject to state inspection because they involve issues that are not legally cognisable (such as religious divorces) or because neither party wants to take the case to a state court (such as spousal support or custody disputes).

Outside of state legal control, one important safeguard for decisions made by individuals is their freedom to withdraw their consent. In order for a right of escape to serve as a safety net, a formal exit is not enough. As a matter of fact, a person must be equipped with the means to depart. For this precise reason, the law mandates that religious organisations educate their members with a minimum level of secular education.

In order for people to be able to explore possibilities and function outside of their community and greater society, they need to be given a minimal education, they must be made aware of an adequate range of options, and they must not be pressured to remain within their community.


[1] Farah Ahmed and J.C. Norton, Religious Tribunals, Religious Freedom and Concern for Vulnerable Women, Melbourne Legal Studies Research Paper No. 642, Melbourne Law School.

[2] Joseph Raz, 1988, The Morality of Freedom, Clarendon.

[3] Halpern v Halpern (2008) QB 195.

[4] International Standard on freedom of religion and belief, United Nations Human Rights.

[5] Samia Bano, 2007, Islamic Family Arbitration, Justice, and Human Rights in Britain, Law, Social

Justice & Global Development Journal.

[6] Ayelet Shachar, „Entangled: State, Religion, and the Family‟ in Rex Ahdar.

[7] Samia Bano, 2008, In Pursuit of Religious and Legal Diversity: A Response to the Archbishop of Canterbury.

[8] Brian Barry, 2002, Culture and Equality: An Egalitarian Critique of Multiculturalism, HUP.

[9] Douglas et al, 2007, The role of religious tribunals in regulating marriage and divorce.

[10] Ibid.


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Author: Simran Kang

Symbiosis Law School, Pune

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