Historically, issues of marriage and divorce were governed by religious institutions and doctrines. In many contemporary societies, the resolution of legal issues connected to matrimony and divorce is restricted to the application of secular laws.
As a result, religious values play no role in determining the rights and responsibilities of divorcing spouses, unless a secular law counterpart to such values would independently apply. However, religion remains a significant aspect of many people’s lives, even in societies governed strictly by secular legal principles.
So how does a married couple ensure that their divorce observes the tenets of their personal religion? One way involves the use of private contracts and arbitration proceedings.
What Is Arbitration?
Arbitration is a form of alternative dispute resolution (ADR), a procedure whereby the parties agree to utilize the serv ices of a third party to resolve their dispute and avoid litigation. Where other ADR methods—such as mediation—involve an informal process of privately resolving the legal conflict between parties, arbitration is a relatively more formal method that parallels the adversarial nature of conventional courtroom litigation.
While more informal ADR methods like mediation and collaborative divorce rely on the use of neutral third parties who guide negotiations without rendering a legally binding decision, the parties can agree to be legally bound to an arbitrator’s rulings in arbitration. The binding decision arising from an arbitration may differ greatly from that which would be reached in a court room as arbitrators are not required to apply legal rules of procedure and evidence the way public courts do.
The Use of Religious Arbitration in Divorce
The flexibility of arbitration easily lends the process to be used by organized religions such as Judaism, Christianity, and Islam.
For example, the Jewish Rabbinical Courts known as the Beth Din resolve disputes through arbitration under principles of Jewish law. Jewish couples can enter into a type of prenuptial agreement—called a ketubah—that governs their marital rights and responsibilities under the Halakha—a source of Jewish law.
The Beth Din is also responsible for divorce issues, such as the husband’s issuance of a get which releases his wife from marriage so that she can remarry.
Similarly, the Fiqh Council of North America can serve as arbitrators to make sure disputes between Muslim couples are resolved according to Sharia law under the Qur’an. For example, issues regarding the traditional payment a prospective husband gives his prospective wife—known as the mahr—may be subject to religious arbitration.
The Institute for Christian Conciliation is a nondenominational organization that governs religious arbitration of marital claims between Christian parties per the Rules for Christian Conciliation, which provide that Scripture should be the supreme authority for matters involving conciliation.
The Limits of Religious Arbitration
In general, arbitration agreements are legally enforceable by courts. However, if a party objects to religious arbitration absent an agreement to do so, a court’s ability to nevertheless compel arbitration may be restricted under the Free Exercise Clause of the First Amendment.
Furthermore, arbitration agreements and awards are unenforceable if they violate public policy. For example, an arbitration decision that provides for the corporal punishment of a spouse would not be enforceable by an American court.
However, the full extent to which public policy can limit religious arbitration remains to be seen. A state court may have limited authority to compel a religious couple to act in conformity with state marital laws.
For example, a New York court refused to compel a Jewish husband to issue a get to his wife, as that would violate his religious freedom. By virtue of voluntarily entering into a valid ketubah, the wife was precluded from seeking civil remedies in a New York court.
Contact Beaulieu-Fawcett | Newell Law Group, P.A. for Legal Advice
If you have questions or concerns about your legal rights and interests in religious arbitration proceedings, you should seek the professional legal counsel of a licensed attorney with experience in faith-based divorce. At Beaulieu-Fawcett | Newell Law Group, P.A., our legal team is familiar with a variety of family law matters, including religious divorce.