08182017Headline:

Arbitration and Mediation Services (Equality Bill)

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The following is a guest family blawg post regarding the Arbitration and Mediation Services (Equality) Bill.

There is a common misconception amongst people, within the South Asian community, that Islamic marriages conducted in this country, are valid under English law. This is not correct. The marriage will only be valid if there is a person within the establishment where the Islamic ceremony takes place, who is authorised to conduct a civil ceremony at the same time and the establishment is registered with the local Registry Office as being an authorised body that can issue the recognised marriage certificate required under English law. A valid marriage certificate can be easily identified as it is in a prescribed format, on green coloured paper.

If the above requirements are not fulfilled, then unfortunately the Islamic ceremony will not be recognised as being a valid marriage under English law. In those circumstances, the parties to the “marriage” will not have the right to make a claim against the other under matrimonial law, and will have to rely on the limited and less generous provisions, afforded to cohabitees, based on principles of trusts, which generally require evidence of financial contributions to the assets that are being claimed, or provisions under Schedule 1 of the Children Act, if the claim concerns financial provision for children.

In many cases where there is only an Islamic ceremony, and no valid marriage under English law, the parties are often encouraged within their communities to mediate amongst their communities, through the use of community elders or members of their own family. They are in many instances encouraged to make use of Sharia law arbitration tribunals operating according to religious traditions. However, this may not be the best option for them as the rights afforded to women under Sharia Law may not be as generous as their rights under English law. There has been some concern that some arbitration tribunals, including those operating Sharia law principles are applying principles which go beyond their legal limit.

A bill has been proposed by Baroness Cox, the Arbitration and Mediation Services (Equality) Bill, which highlights the misuse of equality within the arbitration and mediation services. The main proposal of the bill is to highlight and address the current discrimination which is in force in relation to women who are using arbitration or mediation specifically those within the Asian community. The bill therefore has two main aims:

-          to prevent women from receiving unjust treatment;

-          to prevent any alternative system being established in England and Wales with a potential prison sentence for those claiming to do so.

The bill is not aimed at a specific religious group but at women in general. It is intended to protect women who are and can be discriminated within the legal system.

The main proposal of the bill is that arbitration through a tribunal system that is not recognised under English law, should not deal with family or criminal matters. A concern is that issues such as legally recognised divorce or custody of children are being discussed and often decided at tribunals rather than through the courts.

The bill also makes it clear that any discrimination specifically sex discrimination laws apply directly to arbitration tribunal procedures. The proposed bill is much narrower as it relates directly to three specific areas:

-          treating the testimony of a man as worth more than a woman;

-          preferring a male heir in inheritance rights ;

-          preferring a man over a woman in property rights.

This aspect is specifically designed to address the issue of Sharia law. Traditionally, within Sharia law, the property passes to the sons, not to the daughters, and the daughters’ inheritance is normally half of that of the sons.

Furthermore, the bill seeks to create a new criminal offence. The proposal is that an offence will occur where anyone “falsely purports to be exercising a judicial function or to be able to make legally binding rulings which ought to be decided by criminal or family courts”. The aim of this is to prevent religious or community bodies from operating in lieu of public authorities.

The bill also expands the public sector equality duty. Public bodies will therefore be required to inform women that they will as a result of the marriage not being recognised in English law have far fewer rights. As a result of the lack of legal recognition, there is a risk that it could lead to polygamous marriages being performed.

An amendment is proposed to the Family Law Act 1996, by inserting a clause that a negotiated agreement may be set aside if one of the parties to the agreement did not genuinely consent to it. A “negotiated agreement” means an agreement which has been reached as the result of any form of negotiation, other than mediation. The aim of this is to provide protection for vulnerable parties.

Another area which is addressed by the bill is domestic abuse, which occurs within society quite frequently and is a concern amongst all communities. In most cases, the person suffering from the abuse is very vulnerable and rarely has the courage to stand up the abuse being suffered. Often, it remains unreported and if it is reported to the police, there is pressure by family members to withdraw the allegations. One of the proposals of the bill is aimed at amending the Criminal Justice and Public Order Act 1994. The emphasis of the amendment is to prevent intimidation of those victims of domestic abuse who are assisting in the investigation of that offence or if they are a witness or potential witness in the proceedings for that offence.

The implementation of the bill will bring England in line with various other countries in the world such as Canada and Australia that have outlawed religious arbitration in the legal jurisdiction. Overall, it is aimed at promoting equality between men and women within the arbitration process but also to ensure that there is one legal system in place for issues regarding family and criminal matters.

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