The private Islamic divorce that is decided by a religious Court will most likely not be considered legal in the European Union. This is because the unilateral decision to put an end to marriage would violate one of the principles guaranteed by the Charter of Fundamental Rights: the principle of non-discrimination.
This opinion is expressed by the Advocate General of the Court of Justice of the European Union. His opinion is based on an application by a woman against the recognition in Germany of a divorce declared in Syria. Although the opinion is not binding, the Court of Justice generally confirms the Advocate General’s approach.
The case concerns a married couple, Raja Mamisch, and Soha Sahyouni, both of them with a dual German and Syrian citizenship, and residents in Germany.
In 2013, Mr Mamisch went to Syria in order to obtain a divorce in front of a religious Court. This must be considered as a private divorce, since it is based not on a decision of a judicial authority but on unilateral declaration by one of the spouses, followed by an act of a mere registration of a foreign religious authority.
Subsequently, the woman had to sign a statement in which she acknowledged that she had received all the benefits given to her under the marriage contract and she released her husband from all obligations.
Back in Germany, Mr Mamisch asked for and obtained the recognition of Islamic divorce from the Munich Superior Court (Oberlandesgericht München), as indicated in the EU Regulation 1259/2010, also called Regulation Rome III. According to Article 8 (c) of that regulation, the applicable law to divorce is, in this particular case, the Syrian one.
The German Court established that this regulation would also apply to private divorces, as in this case. Moreover, since the woman had accepted the divorce, despite a possible discrimination, Article 10 of that regulation would not prevent the application of Syrian law. In fact, art. 10 allows the court to not apply a discriminatory foreign law when such a law, in case of divorce, provides for a distinction between spouses based on sex.
However, Mrs Sahyouni objected to the recognition of the divorce. As a response, the German Court has referred the matter to the Court of Justice, asking if Regulation No 1259/2010 also applies in cases of private divorce.
The Advocate General Henrik Saugmandsgaard Øe of the Court of Justice, in his opinion has established that the application of the Regulation Rome III is legitimate only in the presence of a judgment of a judicial authority and not a decision of a religious Court, even if it has legal value in Syria. Hence, that Regulation does not apply to private divorce.
Even though the Court of Justice stated that this regulation also applies to private divorces, Syrian law should be set aside because it is still discriminatory. In fact, this Regulation provides that if a foreign law is discriminatory, this law cannot be applied. As a result, the Regulation of the European Union cannot be applied in order to recognise the Islamic divorce.
The Advocate General concluded by stating that although the woman had consented to divorce in Syria, the German Court could not decide to apply discriminatory foreign law. He declared that Article 10 of the Regulation (which is based on the fundamental principle of non-discrimination) is imperative. He indicated that the discrimination based on sex of spouses is of such gravity as to lead to absolute rejection, without any possibility of exception. Thus, it applies irrespective of the will of the people concerned, so the statement of the woman in which she released her husband from all obligations was irrelevant.
A similar case has happened recently in India, where the Supreme Court declared the practice of triple talaq unconstitutional; the formula pronounced by Muslims to divorce instantly.
This practice was a prerogative exclusively for husbands, and allowed them to repudiate their wife anytime and not necessarily in their presence. In fact, it was enough to say or write three times talaq, even by Whatsapp or Skype, and a Muslim man could divorce his wife.
Prime Minister of India Narendra Modi, as defined the decision of the Supreme as historical. The verdict was reached by a majority (three judges against two) and put an end to a debate that has been in India for a long time.
In many Islamic countries such as Pakistan, Saudi Arabia and Bangladesh, this practice is forbidden. In India, however, it was very widespread, and considering that muslims represent about 14% of the total Indian population of 1.25 billion, this decision will lead to considerable changes.
Another recent change has also occurred in Tunisia. A new law has guaranteed women the right to marry who they want, regardless of religion belonging.
According to a law of 1973, Tunisian women could only marry men of Muslim faith, but this law was considered unconstitutional by Tunisian President Beji Caid Essebsi and it was abolished by a circular signed by Tunisian Justice Minister Ghazi Jeribi. On the same day, the Tunisian parliament also abolished a law that allowed men guilty of rape not to be sentenced in case they married their victim.
The decision of the Indian Supreme Court, the Tunisian Parliament and the opinion of the Advocate General of the Court of Justice, demonstrate how Islamic Sharia law cannot be used as a pretext for overcoming human rights.
The consequences of the Court’s decision are still unclear whether it confirms the opinion of the Advocate General or not. However, Islamic divorce and the status of Muslim women in the Union depend on this.
Nowadays the European Union has achieved equality between men and women, as indicated in the Charter of Fundamental Rights. However, Islamic divorce remains a delicate matter in the Union. If the Court of Justice confirms the opinion of the Advocate General, this will prove that times are changing and that could lead to greater equality in Islamic country.
The road is still long, but this year Muslim women have celebrated a victory, and one more step forward for women’s rights has been made.