A European Court decision in mid-December 2017 in the context of a Islamic divorce pronounced in Syria was bound to create headlines. Too often these were potentially misleading when the issue of law was a fairly narrow one and moderately legal technical. Nevertheless, within that legal technical description covers a wider issue of the interrelationship of personal laws and national laws in the future of family laws across the world. This article looks at the context and possible future directions.
On Wednesday, 20 December 2017, the European Court, CJEU, handed down judgement on a request by the German court for a preliminary ruling. It is action number C372/16 and the case is Sahyouni v Mamisch. The Attorney General opinion is of 14 September 2017. They can be found here, respectively:
Irrespective of Brexit, the UK is not directly affected by the judgement because we are not party to the EU legislation before the European Court namely Rome III. (The UK is indirectly affected in that if in a UK forum case with another EU member state, a Rome III signatory which has divorce jurisdiction under Brussels II, the latter will have to decide which country’s laws to apply under Rome III. It might for example decide it had to apply UK law e.g. English or Scottish et cetera as applicable. Nevertheless most UK specialists would nevertheless prefer proceedings to have the application of their own law in the courts of their own home country.)
The case has given rise to some potentially misleading headlines. The European Court to rule on legality of sharia divorce. No, it didn’t. Instant Islamic divorces are not legal under EU laws. Only if this is a very strained reference to an applicable law provisions.
The facts can be simply stated. The husband and wife have dual Syrian and German citizenship and are currently resident in Germany, albeit at separate addresses. In 2013 the husband divorced his then wife in Syria. He did so by his representative attending before a religious sharia court in Syria, pronouncing the necessary form of words for an Islamic divorce. There was apparently no involvement of any of the state or public authorities and it was said the involvement of the so-called religious sharia court did not constitute it a divorce under Syrian law. The wife was involved to an extent although not in the divorce itself. About four months after the event, she acknowledged she had received the necessary financial payments under the marriage contract and declaring that her then husband was released from his marital obligations to her (see para 19 of the judgement).
The former husband then applied in Germany for recognition of that divorce under German law. The first instance court accepted the application and recognised. Crucially it did so using EU law known as Rome III. This is set out more below. The former wife challenged that outcome and the court referred the matter to the CJEU for a preliminary ruling on a number of questions, broadly on the application of Rome III to private, including private foreign, divorces. The Attorney General gave his Opinion in September 2017 which is a preliminary to the court judgement although invariably gives a good indication of the likely judgement. The European Court decision in mid-December is this judgement. It’s not binding on the facts of this particular case because it is referred back to the German court which has said it will review matters and consider the judgement carefully.
Nevertheless it is strongly indicative of a number of elements pertaining to recognition of foreign divorces and the involvement of personal laws. Both have relevance for the UK and outside the EU.
This is EU Regulation No 1259/2010 on enhanced cooperation in the area of law applicable to divorce and legal separation. The UK is not a signatory. It has an interesting history, particularly now in the hindsight of Brexit.
Across many continental EU countries, the law applied in any family law case is not necessarily local law, the law of the country of the courts and the law of the country itself. The UK is in a real minority within the EU in always applying its own local law, lex fori. The many continental EU countries had various laws to determine which foreign laws would be applied to any particular couple. So a French couple getting divorced before a German court would need a decision as to whether it was French law or German law which would be applied. This is variously known as choice of law or applicable law. As there were conflicts and confusions between these countries, the EU said, quite rightly, that there should be uniform law. This received significant support from the UK until the EU endeavoured over many years to impose applicable law on the UK. It has been one of the chief battlegrounds between the UK and the EU over the past decade. Eventually, and it took many years and strong opposition in a number of places both political and legal, the EU relented and created what was then a unique position in EU law whereby there was an EU Regulation entered into only by some EU member states. It was known as enhanced cooperation and made perfect sense.
Rome III now determines which national law will be applied in any particular set of circumstances on divorce and legal separation. On my reading, it looks a fairly complicated piece of law and I have also been told this anecdotally by continental European family lawyers who have to use the law. Nevertheless it is settled law and works in those countries which operate applicable law. Since the law was introduced, more countries have become signatories. Much more is set out in the Jordans Lexis Nexis textbook “The International Family Law Practice” where I have written on this legislation
Because the EU intends its laws to have universal application i.e. not just limited to intra-EU cases, it expects this law should be applied between EU member states which are signatories and non-EU countries. This ignores the fact that those non-EU countries will quite possibly ignore the EU legislation. So for example in a French Australian case, France may decide it should apply Australian law whereas Australia, from whence of this article is presently being written, would never decide it should apply French law. But this is one reason why the German court in this particular case, looking at a Syria divorce, even a private divorce, felt it should apply Rome III as the legislative criteria.
The CJEU quickly deals with the central point. It said it had already, in a previous ruling, said that Rome III does not of itself apply to recognition of a divorce granted in a third country. That decision is C 281/15. This might have been the end of it but fortunately the CJEU goes on to give other comments, perhaps aware of the wider context to this case.
The German court pointed out that even if Rome III did not directly apply to private divorces granted abroad, the question of recognition of a foreign divorce would in any event have to be resolved on the basis of the German rules governing the conflict of laws i.e. which laws would be applied. Which brought the matter back to Rome III! Did this EU law have any relevancy? The CJEU said no.
(It is of interest to contrast the AG opinion with the judgement. The former gave the view that if it did come within Rome III then local law should nevertheless apply if the applicable law was discriminatory in the abstract rather than in any particular given case and see paras 73 and 89 of the AG opinion. This is similar to the permission of refusal of recognition on public policy grounds found elsewhere in EU family law. Interestingly the AG opinion added that if the discriminatory effect was based on a particular given case rather than the abstract, then consent could not be given to the discriminatory effects of divorce for the purposes of Rome III. The wife’s signing of divorce papers in Syria was not consent to have the effect of precluding the application of the law of the forum, para 104.)
Rome III solely covers divorces pronounced either by a national court, a civil court, or under the supervision of a public authority. A divorce resulting from a unilateral declaration by one spouse before a religious court, as here, did not come within the substantive scope of Rome III. There was no mention of private divorces in the Rome III negotiations (para 46); at the time of the adoption it expected only public bodies should deal with divorces (para 45). So the German court should not be using Rome III in the consideration of the recognition of such a private, non-civil court and non-public authority endorsed divorce. The role of the CJEU is to give EU wide guidance and application on EU laws and therefore took the opportunity to make it clear that this EU law did not embrace this recognition situation.
There is repeated reference in the judgement to the Syrian divorce being unilateral. It’s a matter of comment on whether a non-unilateral divorce such as a khula (an Islamic divorce initiated by the wife) would also come outside Rome III due to the absence of any civil court or public organisation. Moreover, as found continually in English case law on recognition of religious divorces, many countries now embrace a form of registration process on top of the sharia divorce itself. England is more likely to recognise these divorces but would they come within Rome III?
A CJEU warning
There is a sting in the tail of the judgement. A warning is given to all EU member states which are signatories to Rome III. The CJEU notes that a number of member states have, since adopting Rome III, introduced into their legal systems the opportunity for divorces to be pronounced without the involvement of a state authority i.e. informal private divorces. It states very clearly that doing so requires arrangements to come under the competency of EU legislation alone. This is reference to the fact that member states are powerless to make their own laws, either domestic or vis-a-vis non-EU countries, unless given permission by the EU i.e. given competency to do so. In reality this permission will not be given unless it is EU wide and therefore requires discussion between all EU member states. This question of EU created exclusive competency has been a very controversial one, obviously with the UK but also with a number of other EU member states.
It has significant relevancy because, under Brussels II, there is automatic recognition of divorces granted in member states. So the EU cannot have some EU member states granting or allowing private, non-civil court divorces which would then have implications across the EU. (See para 42 of the judgement where this is specifically addressed by the CJEU).
This is a strong warning and likely to result in a review of internal national laws in some EU member states. It may have particular significance for those member states with strong Islamic communities which have been sympathetic to recognising sharia divorces.
Relevancy to the UK
This is at several levels.
First, the problem of divorces abroad, yet recognised here, thereby preventing an applicant with a good connection with England and Wales from being able to bring divorce type financial claims here if there had been inadequate provision ancillary to the divorce abroad was overcome under our national law with the MFPA 1984. England and Wales has discretionary power to grant financial provision after a foreign divorce. There are only a few other countries around the world, primarily common-law jurisdictions, which have this power. It is used quite extensively in situations where one party to a divorce abroad has had inadequate provision e.g. because of the particular laws of that country on divorce which might be perceived as unfair based on gender, not being a national or other discriminatory type situations. Before 1984 there had been a number of cases on quite technical issues of recognition of foreign divorces, including a number of Islamic divorces. The 1984 legislation removed the need for much of this litigation. On the facts of the case before the German court, even if the Syrian divorce was recognised the former wife might well still have had opportunity to bring financial claims in the English courts as if the divorce had been made in England. This 1984 legislation has consequently removed from our courts many disputed recognition cases which were relatively sterile and only based on the opportunity for financial claims. As this legislation is not available in many other countries, these recognition cases remain of importance.
Secondly, in part as a consequence of this power above although more probably because of the nature of our country, England and Wales has always had a very liberal policy on recognition of foreign marriages and divorces. Even if such foreign marriages or divorces could not have been legitimate here for any number of reasons, they may still be recognised. It was always liberal but it has quite apparent even in the past decade that English policy has become even more broad and liberal in recognising foreign divorces, often quite informal divorces with a religious element. They certainly don’t have to be before the civil courts. English legislation specifically anticipates recognising non-judicial proceedings divorces. English case law requires some public involvement beyond the entirely informal. But this can be some registration process or the informal religious process being through some public or state registered body. There doesn’t have to be even the opportunity to oppose the divorce although there has to be opportunity to take part in some way. I have written more on recognition of foreign marriages and divorces in the Jordans Lexis Nexis textbook “The International Family Law Practice”. England might not have recognised this Syrian divorce because it seems to have been very private. But if that Syrian divorce had had any reference to a state or public registration process then we might well have recognised. This would have been entirely using English statute law with application through English case law. There would be no reference to Rome III as we are specifically not a party. It is quite probably the case that England and Wales is far more liberal in recognition of foreign marriages and divorces than most EU member states.
Thirdly, the EU has only very belatedly acknowledged the very many problems with the race to court, lis pendens, under Brussels II. It is a direct disincentive against mediation and reconciliation and negotiation and a direct benefit to the wealthier spouse and the one willing to break up the marriage without prior discussions. Whereas in the UK, pre- Brexit, we had made constructive proposals to the EU to overcome this, the EU response was applicable law. What did it matter where the proceedings were issued first, if each country applied the same law on the facts of the particular case following Rome III. This would be a good argument except for two fundamental facts. First, anecdotally the application of national law by judges in another country is rarely the same as application by the actual judges of that country’s laws, and this discrepancy is particularly so between common-law and civil law jurisdictions. Horror stories abound between practitioners of judges in civil law countries in continental Europe applying parts of English family law in ways which could never be contemplated before the English family courts. Secondly and even more crucially, the UK persistently refused to be part of Rome III because we are a local law jurisdiction and do not apply the law of any other country. So it had no application to us. This is one reason why it is an EU law of which only some EU members are signatories. Yet the UK was perceived as the problem country in respect of the divorce race to court. As the financial outcomes in the UK was so much more generous than other EU member states, there were more attempts to seize jurisdiction in the UK, by racing to court, than elsewhere across Europe. Yet Rome III was not the answer to the race to court because the UK was not going to become a signatory. The EU answer to the race to court proved illusory and so the racing continued, and will for UK practitioners until the UK fully leaves both the EU and any continuing commitments to forum within the EU based on racing and first to issue.
Fourthly, the case highlights a broader issue having to be tackled around the world. Whilst the CJEU has taken a predictable, and very probably legally correct, stance, it has in so doing seemingly not addressed the challenge arising in many jurisdictions. If it is right, and the EU and many EU member states consider that it is right, that family courts should apply the national law of other countries, why should this not be extended to personal and private law? After all, the EU rationale is that when a couple from one country move to another EU member state they take their original national law with them and that original national law should be applied in the country to which they then move and reside. Why should there be discrimination against the couple who move and carry with them a personal law rather than a national law? If that personal law is embodied in a marital agreement, i.e. the personal law sets out what would be the outcome on any divorce, then many EU member states would treat the marital agreement as a binding effect.
This plea for courts to adopt and apply personal law, carried with them and embodied together by the couple whether travelling internationally or being entirely national, has been raised on a number of occasions. There have been several decided cases in England where judges have had to make it clear in the family law context that only national law, English law, will be applied and not that of any personal law. This has anecdotally not stopped applicants at first instance on a number of occasions asking the family court, including deputy judges, to adopt a personal law e.g. sharia law, rather than English law. With the increasing weight given to private autonomy, and to distinctive groups in society, it is quite likely that this plea will increase. It may yet gather political momentum. It is clear the debate is happening across other EU member states because of the warning by the CJEU as above.
It is already felt in those countries with a large indigenous population. As I understand it, Australia has had to give careful consideration to the circumstances in which personal indigenous laws will be applied to and for the indigenous population in circumstances where they might conflict with national law. Other countries have given similar consideration to these issues and it has been discussed internationally. These discussions and debates will continue.
It is quite a compelling argument. If a couple are entitled, by international EU law or by a written binding agreement, to carry their own national law with them between countries and expect that national law to be applied wherever they may then be living, is it too much of a big step to extend that to personal laws? Of course it would have to be clear what were those personal laws and there are often major disagreements in this regard. It would have to be clear that both parties intended this outcome, which gives rise to opportunities for independent advice, at least in the English common law context. But it is a debate which will continue. It is a debate underneath the headlines of this European Court judgement but undoubtedly in the background thinking by some or all of the European Court judges.
The headlines in respect of the CJEU judgement may have been potentially misleading. But actually they have raised quite fundamental issues which will be of considerable importance for family law and family lawyers over the coming decade for both national and international families.
David Hodson is an English and Australian qualified family law solicitor, mediator, arbitrator and part-time English family court judge. He is co-founder and a senior partner of the International Family Law Group LLP, a practice specialising in international family law and based in Covent Garden, London. He is editor and an author of the primary English textbook on international family law. He is honorary Professor at Leicester University and visiting professor at the University of law. He was granted the OBE for services to international family law. He is grateful to his iFLG colleagues, Richard Kwan and Rishi Joshi, for their help
The International Family Law Group LLP
© December 2017