The Phenomenon of Religious Arbitration in Family Law: Perceptions, Reality and Perspectives for the Future in England and Wales

Every day our increasingly multicultural societies experience new manifestations of cultural and religious diversity. This paper specifically considers the practice among members of closed religious communities – particularly Muslims – of recurring to religious courts to adjudicate family law disputes according to the principles and laws of their own faith. The decisions issued by religious courts, which can profoundly affect the life of an individual, may under certain circumstances become relevant to the legal system. After reviewing the recent public and scholarly debate about this phenomenon – referred to as religious or faith-based arbitration – in England and Wales, this paper outlines the many key questions that remain unanswered, including the definition of religious courts and their number on the British territory. By examining the main points of connection between English family law and religious law, the paper introduces the new trends for out-of-court dispute resolution, particularly IFLA arbitration, and shows the limits that the Arbitration Act 1996 imposes when parties agree on a religious law as the substantive law to be applied in their cases. It further considers two areas where the current framework of arbitration laws, conceived to function in commercial disputes, appears to be inadequate to ensure sufficient protection to the parties in religious arbitration concerning family law disputes. After offering some reflections on the divergent approaches taken by legal systems toward family arbitration, the paper concludes by arguing for the desirability of a model (the so-called weak legal pluralism) which, by accommodating different beliefs and principles within the boundaries of the "official" system, allows religious courts to operate as arbitral tribunal in family law dispute