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Ashworth, Laura --- "Should Faith-Based Arbitration Play a Legitimate Role in Resolving Family Law Disputes?" [2010] NZLawStuJl 3; (2010) 2 New Zealand Law Students’ Journal 295

Last Updated: 24 October 2012

SHOULD FAITH-BASED ARBITRATION PLAY A ROLE IN RESOLVING FAMILY LAW DISPUTES?

LAURA ASHWORTH^*

There remains a great deal of uncertainty about what degree of accommodation the law of the land can and should give to minorities with their own strongly entrenched legal and moral codes. ¹

Introduction

The role that faith-based arbitration should play in the resolution of family law disputes is a controversial issue; one that has been confronting many multicultural, secular states in recent years. This controversy has stemmed predominantly from the operation of Muslim (or ‘Sharia’) arbitral tribunals, and as such these will be the focus of this paper.² The existence of Sharia tribunals has incited a ‘moral panic’ amongst many in the West,³ with ordinary citizens and academics alike, equating their existence with the legitimisation of primitive laws that condone violence and the subordination of women.⁴ Unfortunately, few have stopped to recognise the crucial role the tribunals play in

^* BA/LLB(Hons) student at the University of Otago. This article was undertaken as a research paper in completion of LAWS469 (Law and Religion) in 2009. I wish to thank Mr. Aarif Rasheed for generously sharing with me his expertise on the New Zealand Muslim community, and Professor Rex Ahdar for stimulating my interest in the study of law and religion.

¹ Archbishop of Canterbury, Dr. Rowan Williams “Civil and Religious Law in England: a

^{Religious Perspective” (Foundation Lecture 2008, Royal Courts of Justice, London, 07}

February 2008).

^{2 Much of my discussion regarding Muslim tribunals will be applicable to other religious}

tribunals that operate on the basis of largely patriarchal religious laws (such as Judaism and fundamentalist Christianity).

³ Sherene H. Razack “The ‘Sharia Law Debate’ in Ontario: The Modernity/Premodernity Distinction in Legal Efforts to Protect Women from Culture” (2007) 15 Feminist Legal Studies 3 at 7; Natasha Bakht “Were Muslim Barbarians Really Knocking On the Gates

^{of Ontario?: The Religious Arbitration Controversy – Another Perspective” (2006) 82}

40^th Anniv Ed Ottawa L Rev 67 at 67, 69 and 70; Samia Bano “In Pursuit of Religious and Legal Diversity: A Response to the Archbishop of Canterbury and the ‘Sharia Debate’ in Britain” (2008) 10 Ecc LJ 283 at 284.

^{4 Razack, above n 3 at 3; Williams, above n 1.}

fulfilling the religious freedom of one of the fastest growing ethnic minorities in many western states.⁵ Notwithstanding the sensationalised media reportage that has framed the debate,⁶ it is important to recognise and respond to the pertinent issues that have been raised. In particular, we need to address the extent to which an increasingly multicultural and secular state should accommodate religious diversity.⁷

This is of particular importance in the context of family law disputes, as the family is not only the sphere in which one’s religious and cultural identity is nurtured and developed;⁸ it is also where the religious and cultural values of ethnic minorities are most likely to clash with those of the majority.⁹ Furthermore, family law disputes frequently involve vulnerable members of society, such as women and children. Thus, when religious laws are used to resolve disputes via arbitration, there is a concern that human rights abuses will occur ‘behind closed doors’.¹⁰

I will begin by providing a brief explanation of arbitration as a form of alternative dispute resolution (ADR), and the extent to which faith- based arbitration is currently accommodated in New Zealand. I will then examine and critique the three main objections raised by opponents to faith-based arbitration of family law disputes. These objections are: that it is discriminatory against women; that there should be ‘one law for all’; and that multiculturalism should not be encouraged. Finally, I will examine what the future may hold for faith- based arbitration of family law disputes in New Zealand.

A. Faith-based Arbitration as a form of ADR

1. Arbitration

⁵ Erich Kolig and William Shepard “Introduction: Muslims in New Zealand” (2006) 8

^{New Zealand Journal of Asian Studies 1 at 1; Williams, above n 1.}

⁶ Bakht, above n 3 at 69 and 70; Razack, above n 3, at 7 and 8; The debate is frequently referred to in the media as the ‘sharia debate’.

⁷ Williams, above n 1.

^{8 Australian Law Reform Commission, Multiculturalism: Family Law (ALRC DP 46, 1991)}

at 8; Patrick Parkinson “Taking Multiculturalism Seriously: Marriage Law and the Rights of Minorities” [1994] SydLawRw 36; (1994) 16 Sydney L Rev 473 at 478.

⁹ Parkinson, above n 8, at 478.

^{10 Caryn Litt Wolfe “Faith-based Arbitration: Friend or Foe? An Evaluation of Religious}

Arbitration Systems and their Interaction with Secular Courts” (2006) 75 Fordham L Rev

^{427 at 461.}

Arbitration is a form of ADR whereby conflicting parties refer a dispute to an independent third party for determination.¹¹ The decision of the arbitrator is called an ‘award’,¹² and the disputants agree to be bound it.¹³ Thus, of all available forms of ADR, it is the most akin to litigation.¹⁴ However, in addition to saving time and expense, arbitration offers numerous benefits over litigation.¹⁵ These benefits are generally attributable to the significant control parties retain over the procedural aspects of their dispute.¹⁶ For example, parties can agree on an arbitrator with special expertise in the matter being arbitrated; the dispute is kept private; and because the process tends to be less adversarial than litigation, the parties are more likely to foster an amicable relationship after a determination is made.¹⁷ Finally, the private resolution of disputes eases pressure on the judicial system and as such most governments enact legislative provisions enabling civil courts to enforce the decisions of arbitrators.¹⁸ In New Zealand, the legislation governing arbitrations is the Arbitration Act 1996.

2. Faith-based arbitration

Faith-based arbitration is when the parties agree to their dispute being resolved by an arbitrator according to religious laws. In New Zealand, this possibility is accommodated for under article 28(1) of Schedule 1 to the Arbitration Act 1996, which provides that the dispute must be decided “...in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute.” The extent to which faith-based arbitration is utilised in New Zealand in the context of family disputes, however, is unclear.¹⁹ Unlike arbitration acts in many

¹¹ Phillip Green and Barbara Hunt Green & Hunt on Arbitration Law & Practice (looseleaf ed, Thomson Brookers) at [DA1.2.01].

^{12 Arbitration Act 1996, s 2(1).}

¹³ The award is enforceable as a judgement of the court: Arbitration Act 1996, art 35 of sch 1. See also Green and Hunt, above n 11, at [DA1.2.01].

¹⁴ Wolfe, above n 10, at 430; Mediation is another form of ADR; however, the mediator cannot make a binding decision on the parties.

¹⁵ Wolfe, above n 10, at 430 and 431; Green and Hunt, above n 11, at [DA.1.3.01] to

^[DA.1.3.03].

¹⁶ Wolfe, above n 10, at 430; Green and Hunt, above n 11, at [DA.1.3.03].

^{17 Wolfe, above n 10, at 431; Green and Hunt, ibid.}

¹⁸ Wolfe, ibid; Marion Boyd Dispute Resolution in Family Law: Protecting Choice, Promoting

^{Inclusion (prepared for the Ministry of the Attorney General, Ontario, Canada 2004) at 10.}

¹⁹ Deborah Hart, Chief executive of the Arbitrators’ and Mediators’ Institute of New

^{Zealand Inc. (AMINZ) was unaware of any instances in which arbitration was utilised to}

other countries, there is no express prohibition of such a practice in New Zealand.²⁰ However, it is important to recognise that the primary focus of the Arbitration Act 1996 is to facilitate the private resolution of commercial, rather than family disputes.²¹ Furthermore, all of New Zealand’s family law statutes are silent as to the appropriate role of any form of arbitration, let alone faith-based arbitration. ²²

B. The Scope for Faith-based Arbitration of Family Law

Disputes in New Zealand

Despite the apparent dearth of cases in New Zealand in which citizens have utilised faith-based arbitration to resolve family law disputes, there are no explicit legal impediments to doing so. Under the Arbitration Act 1996, in addition to satisfying the technicalities contained in article

8 of Schedule 1,²³ the primary requirement is that the dispute be arbitrable under s 10.²⁴ Section 10(1) provides two situations in which a dispute is not arbitrable. The first is if the arbitration agreement is contrary to public policy, and the second is if “under any other law, such a dispute is not capable of determination by arbitration.”²⁵ This second limitation would not preclude the arbitration of a family law dispute. This is because s 10(2) provides that the fact that an enactment does not expressly stipulate that a dispute is capable of determination by arbitration does not, in and of itself, prevent the matter from being arbitrated upon.²⁶

resolve a family law dispute in New Zealand: email from Deborah Hart to Laura

^{Ashworth regarding the role of faith-based arbitration in New Zealand (15 September}

2009) (copy on file with author).

^{20 Compare, art 2639 of the Civil Code of Quebec, which provides “Disputes over the}

status and capacity of persons, family matters, or other matters of public order may not be submitted to arbitration” (emphasis added).

²¹ See Arbitration Act 1996, s 5(a) and (b), which make express reference to the resolution of commercial disputes, and to international commercial arbitration regimes; Green and Hunt, above n 11, at [DA.2.4.04].

^{22 See generally, Care of Children Act 2004; Family Proceedings Act 1980; Child Support}

Act 1991; and Property (Relationships) Act 1976.

^{23 The arbitration agreement must not be null and void, inoperative, or incapable of being}

performed and there must in fact be a dispute between the parties with respect to the matters being referred to arbitration.

²⁴ See Green and Hunt, above n 11, at [DA2.4.01].

^{25 Arbitration Act 1996, s 10(1); See also Green and Hunt, above n 11, at [DA2.4.01] to}

[DA2.4.03].

^{26 Arbitration Act 1996, s 10(2).}

Whether an agreement to arbitrate a family law dispute based on religious laws is contrary to public policy is more contentious.²⁷ It is more likely that the court would deem an Islamic agreement to arbitrate matters relating to children (such as day-to-day care and guardianship) as contrary to public policy, than matters related to property division. As noted by Bakht, citing the Canadian authorities of Duguay v Thompson-Duguay²⁸ and Hercus v Hercus,²⁹ this is because the courts have an inherent ‘parens patriae’ jurisdiction to promote and protect the

‘best interests of the child’.³⁰ Such reasoning is pertinent in New Zealand, where the ‘welfare and best interests of the child’ is enshrined in statute as the paramount consideration of the court in all relevant proceedings that come before it.³¹ Campaign groups have raised particular concerns that Islamic arbitration will be conducted in accordance with pre-set Islamic laws governing, for example, the age at which a child of a particular gender passes into the day-to-day care of the father,³² without any regard to the best interests of that particular child.³³ In principle, mediation (a form of ADR actively encouraged by the New Zealand legislature with respect to child matters) avoids such risks. This is because parties to mediation are facilitated by the mediator in coming to an agreement based on mutual compromise, rather than through the imposition of absolute religious laws.³⁴

In the event that an Islamic arbitral award relating to child matters was challenged and found to ignore the welfare and best interests of the

²⁷ See below ‘Objections to the faith-based arbitration of family law disputes.’ See also

Green and Hunt, above n 11, at [DA2.4.02].

^{28 [2000] R.F.L (5th) 301 at [31] and [41].}

²⁹ [2001] O.T.C. 108 at [76].

^{30 Natasha Bakht, “Arbitration, Religion and Family Law: Private Justice on the Backs of}

Women” (2005) National Association of Women and the Law at 12

^{<www.nawl.ca/ns/en/documents/Pub_ Report_ReligArb05_en.rtf >}

³¹ Care of Children Act 2004, s 4.

^{32 Boys usually around age 7, and girls usually around age 9; see Boyd, above n 18, at 48}

(Submission of CCMW, received July 23 2004).

^{33 One Law for All “Sharia Law in Britain: a threat to one law for all & equal rights”}

(report, June 2010) at 13 and 14.

^{34 Potential issues related to Islamic mediation are beyond the scope of this paper. The}

One Law for All Campaign argues that Islamic mediators tend to exert an undue influence over the mediation outcome, and are in reality perceived no differently to Islamic arbitrators by the Muslim community. See One Law for All, above n 33, at 10 to

^15.

child, it is highly likely the court would refuse to recognise the award on public policy grounds under article 36 (1)(b)(ii) of Schedule 1 of the Arbitration Act 1996.

C. Objections to the Faith-based arbitration of Family Law

Disputes

I will now critique the objections raised to the faith-based arbitration of family law disputes. My focus will be specifically on the arguments for and against faith-based arbitration of family law disputes as the arguments for and against the arbitration of family law disputes in general are beyond the scope of this paper.

1. Faith-based arbitration is discriminatory against women

(a) Patriarchal religious laws be will imposed upon women

The concern that faith-based arbitration is discriminatory against women is the most prominent objection raised by its opponents, and is a significant issue in the context of family disputes. This is because patriarchal religious laws tend to govern most, if not all, aspects of a marital breakdown.³⁵ Traditional Islamic family law is highly patriarchal; however, it would be impossible to provide a universally accurate representation, as multiple schools of thought interpret the Quran differently.³⁶ Nevertheless, the Canadian Council of Muslim Women (CCMW) has identified some of the more generally accepted Islamic laws with respect to the family. These include laws permitting men to: marry multiple wives; discipline ‘disobedient’ wives; gain custody of children at predetermined ages;³⁷ and divorce unilaterally (as opposed to women, who are required to seek permission from the Islamic courts to do the same).³⁸ There is also the concern that women are often

³⁵ Wolfe, above n 10, at 447 and 448; As mentioned, patriarchal religious laws are not unique to Islam, and in principle similar reasoning applies to the arbitration of family law disputes by, for example, Jewish or Christian tribunals.

³⁶ Bano, above n 3, at 287; Bakht, above n 3, at 76; Because art 28 of sch 1 to the Arbitration Act 1996 permits disputing parties to use “such rules of law” as they agree to, it would be possible for any interpretation of the Quran to be applied by a Muslim tribunal.

³⁷ See above n 32.

^{38 Boyd, above n 18, at 48 (Submission of CCMW, received July 23 2004).}

disadvantaged in the event of an Islamic divorce, as courts frequently refuse to enforce traditional marital agreements such as the Mahr (a compulsory gift that must be made by the husband to the wife at the time of an Islamic marriage, and that becomes the wife’s permanent property³⁹).⁴⁰ Finally, women are said to lack bargaining power when it comes to faith-based arbitration, because patriarchal religious laws tend to perpetuate the image of them as subordinate to men.⁴¹ Indeed, Bano documents that many women who utilised Sharia tribunals in the United Kingdom felt disproportionate pressure to compromise, as they were seen as “nurturers” of the family.⁴²

It is not disputed that traditional Islamic family laws are patriarchal in nature; nor should one underestimate the extent to which women may feel pressure to conform to their faith. However, there is a danger of overlooking the complex ways in which Muslim women practise and identify with Islamic law in contemporary society. This was one of the major criticisms advanced by Bano in response to the controversial foundation lecture⁴³ delivered by the Archbishop of Canterbury, Dr. Rowan Williams, at the Royal Courts of Justice in February 2008.⁴⁴

There is, for example, a strong body of work that supports an interpretation of the Quran advancing the equal rights of men and women.⁴⁵ Many contemporary Muslim jurists also stress that Islam is not a static body of rules, and that scriptural interpretation must give account to the contemporary context in which the scripture is being applied.⁴⁶ Furthermore, there are aspects of traditional Islamic law that can favour women, such as property rights upon divorce.⁴⁷

³⁹ Kaddoura v Hammond (1998) 168 D.L.R. (4^th) 503 at 507.

^{40 Wolfe, above n 10, at 451 and 460; Boyd, above n 18, at 49 (Submission of CCMW,}

received July 23 2004).

^{41 Wolfe, above n 10, at 460 and 461.}

⁴² Bano, above n 3, at 302.

^{43 See Williams, above n 1; The Archbishop’s lecture prompted an outcry in the United}

Kingdom, due to his suggestion that aspects of Islamic law should be incorporated into the British legal system

⁴⁴ Bano, above n 3, at 286.

^{45 Bakht, above n 3, at 76.}

⁴⁶ Natasha Bakht “Religious Arbitration in Canada: Protecting Women by Protecting them from Religion” (2007) 19 Can. J. Women & L. 119, at 132.

⁴⁷ For example, if an Islamic marriage is dissolved by the husband, the wife is entitled to keep the property she accumulated during the course of the marriage (under the New Zealand Property (Relationships) Act 1976, such property would be subject to the equal sharing regime). Furthermore, under Islamic law, the husband is required to maintain his

Unfortunately, as noted by Bakht, by advocating for a complete prohibition of faith-based arbitration, feminists “have supported the view that religion is bound to patriarchal tradition, unchangeable and ultimately dangerous for women.” ⁴⁸

(b) Muslim women are unable to give free consent to faith-based arbitration

Another ground on which faith-based arbitration has been portrayed as discriminatory towards women, is the belief that Muslim women are not able to freely consent to undertaking such arbitration.⁴⁹ This is of central importance, as it is by virtue of free consent that an arbitral award is afforded legitimacy.⁵⁰ Lack of free consent is said to be the result of strong community and religious pressures placed on women to adhere strictly to the Muslim faith.⁵¹ Such concerns are not completely unfounded. Indeed, when the debate unfolded in both Canada and the United Kingdom, it became apparent that once established, an expectation would exist for ‘proper’ Muslims to approach the tribunals over secular courts.⁵² Furthermore, as noted by Shachar, women are afforded a “heightened responsibility as emblems of culture and

‘bearers’ of tradition.”⁵³ Thus, there tends to be a disproportionate obligation on them to remain loyal adherents to their faith. Finally, the consent of Muslim women to submit to arbitration is generally under- informed, as they are frequently unaware of their entitlements under the secular law of the state.⁵⁴

If one is of the belief that Islam is unvaryingly oppressive to women, then it is understandable how concern over the consent of Muslim

wife, without any reciprocal obligation on the wife to maintain her husband.

^{48 Bakht, above n 3, at 77.}

⁴⁹ Boyd, above n 18, at 50; Joanna Sweet “A Matter of Choice? How the Construction of Muslim Women’s Identity Shaped Ontario’s Faith-Based Arbitration Debates” at 2 and 7 (paper prepared for the 81^st Annual Conference of the Canadian Political Science Association Carleton University, May 2009) (copy on file with author).

⁵⁰ Arbitration Act 1996, art 34 and 36 of sch 1; Ayelet Shachar “Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law” (2008) 9.2 Theoretical Inquiries in Law 573, at 588. See also: Green and Hunt, above n 11, at [2.2.07];

^{51 Shachar, above n 50, at 585 and 588. It is important to appreciate that such pressures}

are not unique to Islam.

^{52 Shachar, above n 50, at 585.}

⁵³ Shachar, above n 50, at 586.

^{54 Boyd, above n 18, at 105; Wolfe, above n 10, at 461.}

women to arbitration may arise.⁵⁵ However, once again it is important to avoid being overly deterministic. This is because if one believes that Muslim women are unable to freely consent, a consequent assumption is being made that Muslim women want or need to be released from the obligation to utilise the tribunals.⁵⁶ In reality, however, this is simply not the case. For some women, their identity as a Muslim is paramount, and faith-based arbitration is a necessary conduit to the exercise of religious freedom.⁵⁷ It must be understood that for these women, having a dispute resolved according to Islamic law is often more important than having it determined in their favour by a secular court.⁵⁸

As noted in a submission to the Boyd Report, provided the choice to utilise faith-based arbitration is an “informed and voluntary one,” and there is no breach of a fundamental right, Muslim women must be free to do so.⁵⁹

Indeed, it seems unduly burdensome for Muslim women to have to prove their consent, when a similar burden does not apply to other women utilising the arbitration process, who may also be subject to external pressures.⁶⁰ Furthermore, it is common practise for parties to contract out of their statutory property entitlements in the event of separation.⁶¹ Take the New Zealand Property (Relationships) Act 1976, for example. Although the Act is founded on a presumption in favour of equal sharing,⁶² it is possible for parties to contract out of this regime if they wish.⁶³ Significantly, since the Act was amended in 2001, the threshold for having a contracting out agreement set aside has become much higher. Section 21J of the Property (Relationships) Act

1976 now requires that the party wishing to have a contract set aside establish that a “serious injustice” would occur if the contract was enforced.⁶⁴ Thus, we are left asking why religious agreements are

⁵⁵ Sweet, above n 49 at 7.

^{56 Ibid.}

⁵⁷ Boyd, above n 18, at 63.

^{58 Ibid (Submission of Christian Legal Fellowship, received August 27, 2004).}

⁵⁹ Ibid

^{60 Sweet, above n 49, at 7.}

⁶¹ Bakht, above n 46, at 137; Sweet, above n 49, at 7.

^{62 Property (Relationships) Act 1976, s 11.}

⁶³ Ibid, s 21.

^{64 Prior to the 2001 amendment, the threshold for having a contract set aside under the}

Property (Relationships) Act 1976 was simply to establish that enforcement of the contract would be “unjust”. The case of Wood v Wood [1998] 3 NZLR 234 at [2] was one

subject to disproportionate scrutiny in establishing ‘true consent.’ As noted by Bakht, it seems that the answer to this question lies in the fact that ‘Westerners’ frequently prioritise their own value-systems over those of minority groups.⁶⁵

2. There should be ‘one law for all’

(a) The state is secular, and must remain secular

Another common objection raised by opponents of faith-based arbitration is that, by virtue of living in a secular state, all citizens should be subject to the same laws.⁶⁶ Faith-based arbitration is said to undermine this objective as it provides a way for religious norms to “operate authoritatively” within a secular state.⁶⁷ However, objections based on the secular nature of the law are flawed, as the notion of a strictly secular state is somewhat of a myth. As noted by Sweet, all laws are made in particular social contexts that are informed by certain value systems; value systems that are inevitably grounded in a specific religion.⁶⁸ For example, it is no coincidence that faith-based arbitration of family law disputes by Muslim tribunals has been most adamantly opposed in those countries in which Christian values are predominant.⁶⁹ As noted by Bakht, in Canada, Christian and Jewish tribunals operated without similar alarm, suggesting the concern was “less to do with religion generically and more to do with those religions that are less recognizable as being Canadian.”⁷⁰

While it may be asserted that many family laws based on fundamental

Christian values have been reformed in recent years,⁷¹ it is still not the

of the first cases in which a concern was raised by a member of the judiciary regarding the ease with which private agreements were being struck down by the courts. See also Patrick Mahoney (ed) Brookers Family Law: Family Property (looseleaf ed, Brookers) at [PR21J.01] to [PR21J.08].

^{65 Bakht, above n 46, at 140.}

⁶⁶ Bakht, above n 46, at 136.

^{67 Shachar, above n 50, at 575.}

⁶⁸ Sweet, above n 49, at 3 and 4.

^{69 Ibid.}

⁷⁰ Bakht, above n 46, at 121.

^{71 See Sweet, above n 49, at 3, who provides the following examples of former family}

laws that were heavily influenced by Christian values: the ‘fault divorce’, non-recognition of children born outside of marriage, and the criminalisation of homosexual relationships.

case that they are neutral with respect to religion. As noted by Sweet, the groups involved in family law reform still stem from cultures based upon Christian values.⁷² Furthermore, Beaman has observed that Christian values continue to strongly inform legal interpretation.⁷³

^{Kaddoura v Hammond,74 a decision of the Ontario Court of Justice, is a}

prime example of this. In Kaddoura, Justice Rutherford refused to enforce payment of the Mahr, justifying his finding by analogising the Mahr agreement to the vows made in the Christian marriage:⁷⁵

...I cannot help but think that the obligation of the Mahr is as unsuitable for adjudication in civil courts as is an obligation in a Christian religious marriage, such as to love, honour and cherish, or to remain faithful, or to maintain the marriage in sickness or other adversity so long as both parties live...such promises...bind the conscience as a matter of religious principle but not necessarily as a matter of enforceable civil law.

Justice Rutherford came to an incorrect conclusion in this respect, by using Christian values as the standard against which the Islamic agreement was interpreted.⁷⁶ Fournier notes that, unlike the “indefinite” and unenforceable Christian vows to love, honour and cherish, the Mahr is a clearly defined and enforceable financial obligation.⁷⁷

(b) A secular state is a just state

Opponents of faith-based arbitration often appeal to secularism as the only way to protect Muslim women.⁷⁸ This trend has been exacerbated by the media, who commonly present secular family laws as

⁷² Sweet, above n 49, at 4.

⁷³ Lori Beaman, “The Myth of Pluralism, Diversity and Vigor: The Constitutional Privilege of Protestantism in the United States and Canada” (2003) 42 Journal for the Scientific Study of Religion 311 at 318.

^{74 (1998) 168 D.L.R. (4th) 503.}

⁷⁵ Kaddoura v Hammond, above n 74, at 511.

^{76 Pascale Fournier “The Erasure of Islamic Difference in Canadian and American Family}

Law Adjudication” (2001) J. Law & Policy 51 at 61; Natasha Bakht “Family Arbitration Using Sharia Law: Examining Ontario’s Arbitration Act and its Impact on Women” (2004) Muslim World Journal of Human Rights, article 7 at 11 to 13; Sweet, above n 49, at 4.

⁷⁷ Fournier, above n 76, at 61; Bakht, above n 76, at 12.

^{78 One Law for All, above n 33 at 25; Bakht, above n 3, at 75; Bakht, above n 46, at 135.}

“unqualified protectors of equality,” while Islamic laws and principles are presented as primitive and discriminatory.⁷⁹ In addition to encouraging a ‘moral panic’ amongst many in the West,⁸⁰ the danger in such a representation is that it posits “the secular against the religious.”⁸¹ Essentially you have the option to adhere to the state, or to adhere to your religion. However, as noted by the Archbishop of Canterbury, it is problematic to assume true citizenship entails an uninhibited commitment to the state, when the reality of a multicultural state is that citizens have “multiple affiliations.”⁸² Placing secularism and religion in such a dichotomous relationship is also artificial, as both frequently overlap when it comes to the matters that are most fundamental to us as human beings.⁸³ Finally, such a dichotomy overlooks the fact that religions are subject to multiple interpretations.⁸⁴

As discussed, Islam is not a strict set of uniformly applied rules that necessarily conflict with the laws of the state.⁸⁵

To advocate for the secular over the religious also obscures the reality of the state court system, which is generally unsympathetic, and even discriminatory, towards minority religious principles.⁸⁶ This is especially so in the wake of 9/11, as people of the Muslim faith are subject to increased suspicion.⁸⁷ Faith-based arbitration avoids this dilemma, as the beliefs of the arbitrator are clear, and will not be motivated by political aims.⁸⁸ Furthermore, courts tend to deliver conflicting judgments with respect to the enforcement of religious agreements such as the Mahr.⁸⁹ Thus, there is a higher degree of uncertainty involved for religious parties in litigation. Wolfe is also wary of the methods employed by the courts to ultimately reach a verdict, noting that they either attempt to fit the religious conflict within an existing legal framework (such as the law of contract), or they prioritise one

⁷⁹ Shachar, above n 50, at 584.

⁸⁰ Razack, above n 3, at 7; Bakht, above n 3, at 67, 69 and 70; Bano, above n 3, at 284.

^{81 Bakht, above n 46, at 135; Williams, above n 1.}

⁸² Williams, above n 1.

^{83 Mona Siddiqui, “Sharia and the Public Debate” (2008) 9 Political Theology 261, at 263.}

⁸⁴ Williams, above n 1.

^{85 See Bakht above n 46, at 132; Siddiqui, above n 83, at 263.}

⁸⁶ Wolfe, above n 10, at 451 to 455.

^{87 Bakht, above n 3, at 78.}

⁸⁸ Boyd, above n 18, at 65 (Submission of Fathercraft Canada, received August 24, 2004).

^{89 Wolfe, above n 10, at 451 to 455.}

interpretation of religious law over another.⁹⁰ Both of these approaches are problematic. The first risks imposing the values of the ‘majority culture’ on people who do not share those values, while the second requires the judge to make a substantive ruling on the legitimacy of a certain belief.⁹¹

3. Multiculturalism should not be encouraged

Encouraging the preservation of minority cultures is generally considered a virtuous pursuit. However, accommodating certain cultural practices can risk subjecting already vulnerable parties to increased risk.⁹² Faith-based arbitration of family law disputes is said to perpetuate this cycle, especially because it is conducted in private.⁹³

Indeed, it is a legitimate concern that matters of public importance and policy, such as the protection of vulnerable parties, will be relegated to the private realm and not subject to public scrutiny.⁹⁴ Furthermore, opponents of faith-based arbitration argue that formal recognition of religious arbitral tribunals will ostracise minority cultural groups, thus increasing the gap between majority and minority cultures.⁹⁵

These concerns are well founded. However, provided certain regulations are implemented into New Zealand’s current arbitral regime to facilitate greater judicial scrutiny of faith-based awards, and to ensure decisions to submit to faith-based arbitration are properly informed, a particular culture’s right to utilise these tribunals must be preserved. The ‘Boyd report’, commissioned by the Attorney General of Ontario in 2004, proposed numerous recommendations that should influence how the New Zealand legislature responds to the matter. For example, to enable greater judicial scrutiny of awards, Boyd recommended defining the precise boundaries of faith-based family law arbitration in legislation,⁹⁶ and requiring a mandatory record to be kept of arbitral decisions.⁹⁷ Furthermore, to ensure ‘meaningful consent’ of both

⁹⁰ Ibid.

^{91 Ibid.}

⁹² Wolfe, above n 10, at 461; Williams, above n 1.

^{93 Boyd, above n 18, at 33; Wolfe, ibid; Williams, ibid.}

⁹⁴ Boyd, ibid.

^{95 Wolfe, above n 10, at 462.}

⁹⁶ Boyd, above n 18, at 133 to 137.

^{97 Boyd, above n 18, at 136.}

parties to arbitration, Boyd recommended imposing a requirement that independent legal advice be sought prior to utilising the tribunal.⁹⁸

Boyd also encouraged efforts to be made to further educate the public as to their entitlements under state law.⁹⁹

As emphasised by the Archbishop of Canterbury, we need to facilitate cultures working together, and if we are successful in laying the ground- work for conducive relationships to flourish, we will be one step closer to attaining the ideal of ‘transformative accommodation’ advanced by Shachar.¹⁰⁰ Transformative accommodation is summarised aptly by Jackson as a scheme that: ¹⁰¹

...implies a willingness on both sides to contemplate internal change (resulting in part from mutual influence) in competing for the loyalty of subjects who are simultaneously members of both civic and religious communities.

D. What might the future hold for the faith-based arbitration of family law disputes in New Zealand?

There are currently no formal Muslim tribunals in New Zealand, and with the exception of ‘Resolve’, a Christian mediation and arbitration service, there do not appear to be many other faith-based arbitration services on offer.¹⁰² However, a difficulty arises in predicting what the future may hold for faith-based arbitration of family law disputes in New Zealand as the government has, in recent decades, maintained a relatively neutral position on questions of religion.¹⁰³ Consequently, while Muslims are not currently compelled to fight for formal recognition of their right to arbitrate family law disputes, there is correspondingly little pressure on the government to extend formal

⁹⁸ Boyd, above n 18, at 137.

^{99 Boyd, above n 18, at 138.}

¹⁰⁰ Williams, above n 1; Ayelet Shachar Multicultural Jurisdictions: Cultural Differences and

^{Women’s Rights (Cambridge University Press, Cambridge, 2001) at 117 to 143.}

¹⁰¹ Bernard Jackson “‘Transformative Accommodation’ and Religious Law” (2009) Ecc. L. J. 131 at 133.

¹⁰² See Resolve (Christian Service for Disputes Resolution Incorporated) 2010

^{<www.resolve.org.nz>.}

¹⁰³ Erich Kolig “A Gordian Knot of Rights and Duties: New Zealand’s Muslims and

^{Multiculturalism,” (2006) 8 New Zealand Journal of Asian Studies 45 at 49.}

recognition their way in the future.¹⁰⁴ Nevertheless, as a result of the growing Muslim community in New Zealand¹⁰⁵ it is only a matter of time before such expectations will come to the fore. Indeed, it has been confirmed that discussions are currently under way regarding the need for mediation and arbitration services for our Muslim community.¹⁰⁶ It is also worthy of note that the Muslim population in New Zealand encompasses an extensive array of ethnicities that adhere to different versions of Islam.¹⁰⁷ Some New Zealand Muslims have even expressed interest in developing a ‘Kiwi-specific’ Islam.¹⁰⁸ Thus, it will be of paramount importance that New Zealand dialogue regarding their integration resists all-encompassing stereotypes portraying a dangerous and united Muslim ‘other’ that is incapable of integration into a largely secular society.

Aarif Rasheed, a Barrister of the Auckland Defence Chambers, has a positive outlook for the future of faith-based arbitration in New Zealand. He stresses that the main challenge will be in establishing Muslim tribunals with sufficient knowledge and experience of both New Zealand law and Islamic laws and principles.¹⁰⁹ It is noteworthy that Rasheed does not anticipate there being any significant issues with respect to assimilating Muslim tribunals into New Zealand society. In support of this view, he observes that New Zealand Muslim legal professionals have been “proactively contributing to positive discussion rather than having to react to a negative one.”¹¹⁰ Indeed, provided the matter of faith-based arbitration is approached with caution and reason,¹¹¹ New Zealand may provide the ideal locale for ‘transformative

¹⁰⁴ Kolig, above n 103, at 50.

^{105 There are approximately 40,000 Muslims in New Zealand, forming one percent of the}

total population: Kolig and Shepard, above n 5, at 1.

^{106 Email from Aarif Rasheed, Barrister, Auckland Defence Chambers, to Laura}

Ashworth regarding Islamic Tribunals in New Zealand (17 September 2009) (copy on file with author).

¹⁰⁷ New Zealand Muslims come from all areas of the globe, including: Morocco, Indonesia, The Philippines, central Asia, the Balkans, and Africa; See Erich Kolig & William Shepard, above n 5, at 2 to 3.

^{108 Ibid.}

¹⁰⁹ Rasheed, above n 106; Rasheed notes that travelling Muslim judges tend to restrain from giving any rulings in foreign countries until they have resided there for at least two or more years.

^{110 Rasheed, above n 106.}

¹¹¹ This will be hard to control, and will depend to a large extent on media representations of the matter.

accommodation’ to take hold.¹¹²

Conclusion

In conclusion, provided faith-based arbitration is subject to adequate regulation, it is argued that such a practice should play a legitimate role in resolving family law disputes.¹¹³ This is because the existence of faith-based arbitration is crucial in enabling different cultures to exercise their religious freedom – a matter of primary importance when it comes to the family.¹¹⁴ I have supported my thesis through a critique of the three major objections raised against faith-based arbitration: that it is discriminatory against women; that there should be ‘one law for all’; and that multiculturalism should not be encouraged. I have also examined the potential future for faith-based arbitration in New Zealand; a future I believe should be informed by the notion of

‘transformative accommodation’ propounded by Shachar.

¹¹² The New Zealand Human Rights Commission’s ‘Statement on Religious Diversity’ (March 2007) appears to be informed to some extent by the notion of transformative accommodation. The Statement is available on the Human Rights Commission website at

^{<www.hrc.co.nz>.}

¹¹³ As mentioned, it was beyond the scope of this paper to assess the advantages and disadvantages of family law arbitration in general. Thus, any such considerations have not informed by conclusion.

^{114 Australian Law Reform Commission, above n 8, at 8; Parkinson, above n 8, at 478.}