Forskjellsbehandling og diskriminering

En dom med store konsekvenser?

En kjennelse i Høyesterett i Storbritannia åpner for at britisk domstol legaliserer sharia. Det handler om kvinner og skilsmisse.

Det hele startet med et ortodoks jødisk par, som hadde giftet seg i Israel etter religiøs jødisk lov, Beth Din, som styres av rabbiner.

Da ekteskapet skrantet, søkte de skilsmisse ved en jødisk domstol i New York. Som i islam (sharia), er kvinners rettigheter begrenset ved skilsmisse. En jødisk kvinne som ikke får såkalt ”Get” av mannen gjennom en Beth Din, blir hengende i ekteskapet: hun kan ikke gifte seg på nytt og blir en sosial paria, som muslimske kvinner i samme situasjon.

Overfor britisk domstol argumenterte det jødiske ekteparet for at domstolen skulle godkjenne skilsmissen fra den jødiske domstolen i New York ved å peke på religiøse følelser og overbevisning. Da dommeren ble forsikret om at skilsmissen vil akspeteres i alle jødiske domstoler verden over, ble den religiøse skilsmissen akspetert som juridisk bindende også i britisk rettsystem

At Islamsk Råd i Storbritannia (Muslim Council) gnir seg i hendene, var ikke oppsiktsvekkende.

Divorces settled by religious courts including Sharia are a step closer to being allowed under British law after a landmark legal decision.

The prospect came after a couple had their divorce settlement under Beth Din, or Jewish law, referred to by the High Court.

According to the Times, it is the first time in British legal history where an English family judge has agreed to refer a divorce dispute to a religious court.

Experts said that the judgment could have far-reaching consequences and clear the way for other couples to seek a divorce in a religious court, including Sharia.

The decision was welcomed by the Muslim Council of Britain.

A spokesman told the Times: «If it leads to the eventual acceptance of Sharia court divorces, then Muslims will be very encouraged.»

Lawyers said it was significant that Mr Justice Baker cited the former Archbishop of Canterbury, Rowan Williams, and his talk on Sharia in 2008 in his ruling.

During the lecture, Dr Williams said that «citizenship in a secular society should not necessitate the abandoning of religious discipline».

The latest case involved a couple of observant orthodox Jews in their 20s.

The court heard that they married in 2006 in a Jewish ceremony and initially lived in Israel, returning to London for the birth of their first child.

They had planned to move to Toronto but the marriage began to break down and they separated in 2009, shortly after the birth of their second child.

Disputes over access to the children followed and the father began proceedings under The Hague Convention on child abduction.

But before the case came to court in London, the couple decided to refer their disputes to a senior rabbi in the New York Beth Din and asked if the judge would agree.

Mr Justice Baker was persuaded by the couple’s arguments that arbitration in their own religious court would be better than litigation, and in line with their beliefs.

Mr Justice Baker said he examined the principles used by the Beth Din and ensured that they were in line with the laws in England and Wales.

«The parties’ devout beliefs had been respected,» he said.

«The outcome was in keeping with English law, whilst achieved by a process rooted in Jewish culture to which the families belong.»

The judge did make it clear that the arbitration or ruling by the Beth Din was not binding.

He said that would have made unlawful, because it would be ousting the jurisdiction of the courts.

The Beth Din published its full ruling on the couple’s case in 2011 but further negotiations meant that a final settlement was reached only last year, and the judgment released by the High Court this week.

James Stewart, a partner with the London law firm Manches LLP, who acted for the mother, said: «There’s no doubt that [the decision] is bound to open things up.

“This is the first occasion that a family court has effectively delegated some of its authority to a religious court for arbitration.» Mr Justice Baker also stipulated that the husband had to give his wife a «Get» — the Jewish divorce — or he would not approve the settlement the couple had agreed.

Mr Stewart said the ruling would also have «very significant resonances» in the Jewish community over the plight of women whose husbands held them to ransom over the Get to ensure a better settlement.

The judge approved the Get given by the New York Beth Din after establishing that it would be accepted by all rabbinical courts and orthodox synagogues around the world.

Without the Get, a Jewish woman is regarded as an «agunah», or chained woman, who cannot remarry and becomes a social pariah.

The Muslim laws governing divorce vary substantially between states and cultures. Men have the right of unilateral divorce under classical Sharia.

A marriage can be terminated by the husband in the talaq process, or by the wife seeking divorce through khul’.

A Sunni Muslim divorce is effective when the man tells his wife that he is divorcing her.