Legal Pluralism in Europa and the Ordre public Exception: Normative and Judicial Perspective International Workshop (Trento, 16-17 April 2015)

Ordre public

Exception, “Recognition Method”

and Regulation 1259/2010:

the case of Spain and other European Countries

Gloria Esteban de la RosaProfessor (Chair) of Private International Law

(University of Jaén)

Ordre public Exception, “Recognition Method”

and Council Regulation

1259/2010

I. Cultural Diversity in the European Union

II. Moroccan Moudawana: general aspects

III. Private International Law (PIL)IV. European Private International

LawV. European Case Law

Cultural Diversity and Immigration inside the European Union: General Aspects

Diversity inherent to the European Union moment of birth (different nationalities, languages, …)

Private international situations linked to immigration

New European Private International Law

Islamic Family Law: Personal Application

Family Law is not exempt from religious influence

I.e., the legal period of continence (given by the Koran)

Personal application of Islamic Law to Muslims, regardless of whether or not they hold another nationality, whilst residing in the country of origin but also overseas

The new Moroccan Moudawana (2004)

The revelations of the Prophet constituted a major change in the understanding of social relations, which is not, however, considered sufficient in our time for the defence of actual equality for women (equal opportunities) within the family and society

What’s new?

The current Moroccan Family Code is made up of 400 articles:

- Marriage (Book 1)- The dissolution of the bonds of matrimony and

its effects (Book 2)- Birth and its effects (Book 3) - Legal capacity and representation (Book 4)- Wills (Book 5)- Inheritance (Book 6)- Book 7 contains a collection of interim and

final provisions

The new Moroccan Family Code

General Presentation

The FC should be interpreted as a policy aimed at the entire family

It serves several purposes:

- to overcome the inequality that weighs upon women,

- to protect the rights of children and

- to preserve the rights of man

The new Moroccan Family

Code

It is based on the principles of Islam as an egalitarian and tolerant religion

It advocates ijtihad, which is the interpretation of the Koran in the context of modern society and its demands, contrary to patriarchal hierarchy and designed to validate arguments present in sacred legal texts

The new Moroccan Moudawana

Behind each of its articles and, relating to the institutions contained in the Code, there is a specific understanding of the world and, more specifically, family relations

Moroccan

Family

Code

(2004): Main

modifications

Malikí doctrine: main characteristics

Dissolution of marriage through tatliq or talaq

Marriage of moroccan residents abroad

The concept of head of family

Ita has been anul the “wilaya”

Polligamy and its limitations

MOROCCAN FAMILY

CODE

(2004)

It clarifies the concept of head of family, in that it considers the sharing of responsibility between the two spouses

It underlines the importance of mutual comprehension and consent in managing all issues relating to the family (ar.4)

Moroccan Moudawana: Dissolution of marriage

Regarding the dissolution of marriage, this can occur through tatliq or talaq

Talaq consists of a unilateral dissolution presented by one of the spouses, usually the husband

The wife may petition for divorce tatliq if one of the causes stipulated in article 98 of the FC occurs

The new Moroccan Family

Code

The FC has also simplified the procedure to be followed by Moroccan Muslims who wish to enter into marriage overseas

Arts. 14 and 15 of FC

Procedure to enter into marriage overseas

Moroccan Muslims can celebrate the marriage according to the local administrative procedures of their country of residence, provided that the conditions of consent (offer and acceptance), capacity and offering of the dowry are fulfilled, and the ceremony is held in the presence of at least two Muslim witnesses.

The celebration of marriage is said to be valid if the parties are in agreement, expressed through offer and acceptance.

Personal application of the Code

The provisions of the Code are for personal application, of Moroccans (Muslims), regardless of whether or not they hold another nationality, whilst residing in Morocco but also overseas

Application of Family Islamic Law in European countries (different perspectives)

Marriage and dowry

Dissolution of Marriage: talad and tatliq

Revocable and irrevocable dissolution of Marriage

Hadana and Wilaya

Kafala

Treatment of Cultural Diversity

in Private International Law (PIL)

EU legislation

Entry into force of Treaty of Amsterdam

Case law of Member States

Spain

Germany

Other European Countries

Private International Law

It must promote the continuity of the family relations of people who migrate in their foreign place of origin

And, it is to serve as a "communication channel" between legislations: the “Recognition Method” as a general clause for the interpretation of European Private International Law

Public Policy?

European Private

International Law

(PIL)

Council Regulation nº 1259/2010 of 20 December 2010, implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (Official Journal, L 343, 29.12.2010)

Art. 10

of Council

Regulation

nº 1259/2010

“Application of the law of the forum.

Where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply”.

Innovation of European PIL system??

It does not allow public policy to fulfil its function through the analysis of a particular outcome caused in a particular case by the application of foreign Law

It makes a judgement in the abstract of his incompatibility with public policy

Art. 10 of the Rome III Regulation

It leads to an abstract control on the compatibility with the public policy of foreign law applicable to divorce

German doctrine says that:

European legislature did not want the Islamic sharia Law to be applied

Case Law

(Germany).

Before

the

entry

into force

of Regulation

1259/2010

OLG (Higher Regional Court of Appeals) of Munich, dated September 19, 1988

The divorce (unilateral repudiation) is not incompatible with the ordre public because it has been accepted by the wife

Case Law (Germany)

the possibility of the woman to forego the dowry, in exchange for the dissolution of the marriage

Is not contrary to the ordre public

Besides

art. 10, arts. 5 and

8 Council

Regulation

1259/2010

Art. 5: Choice of applicable Law by the parties (optio iuris)

“1. The spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws (…)”:

Article

8 of Council

Regulation 1259/2010

Applicable Law in the absence of a choice by the parties

“In the absence of a choice pursuant to Article 5, divorce and legal separation shall be subject to the law of the State (…):”

Article

8 of Council

Regulation 1259/2010

- Where the spouses are habitually resident or, failling that,

- Where the spouses were last habitually resident or failing that,

- Of wich both spouses are nationals at the time the cout is seized, or, failling that

- Where the court is seized.

Also, art. 12

of Council

Regulation 1259/2010

Public Policy: definition

Relationship between Art. 12 and Art. 10?

Application of a provision of the law designated by virtue of this Regulation may be refused only if such application is manifestly incompatible with the public policy of the forum

Case Law:

Teleological reduction

of the rule is proposed

OLG (Higher Regional Court of Appeals) of Hamburg, dated May 7, 2013

in such a way that:

it can be considered that the regulation is not inconsistent with public order, if the woman accepts the divorce

Application of Morocan Family Code by European authorities

Its application in Spain

Its application in France

Its application in Germany

Application

of the

Moroccan

Family Code

(2004) in Spain

the FC is not exempt from religious influence in Morocco

I.e., the legal period of continence (given by the Koran)

Evolution from 2000 to 2014

Application of national commun Law of spouses: Article 107 of Civil Code (Ley Orgánica 11/2003)

The case of the Dowry: evolution

The lack of correspondence at present of the dowry in Spanish legislation has led the courts, even those inclined to its recognition, to resolve inadequately those cases

Her claim be dismissed simply because the dowry constitutes an institution which does not currently exist in Spanish legislation (Court of Appeal of Castellón (section 3ª), January 21st (5/2004).

Nowadays: 2012-2014

Provincial Court of Gerona (section 1ª) nº 445/2012, of November 23

Provincial Court of Gerona (section 1ª), of Octobre, 2 (nº 413/2014)

They recognised the dowry

and also the mutca (art. 84 FC): an amount to be paid in compensation to the woman for damages caused by the dissolution of the marriage

Application

of the

Moroccan

FC by Spanish

authorities

Dissolution of Marriage

The question arises whether the fact that the FC regulates the forms of dissolution of marriage which a man or a woman can apply for differently is, in itself, incompatible with Spanish (international) public policy

Evolution

From the anticipated impact of public policy

Judgement of the Provincial Court of Murcia No 166/2003 (section 1) of May 12 suggests

To the recognition of different ways for divorce

Court of Appeal of Logroño (section 1ª) of november, 13 (nº 70/2014)

Court of Appeal of Madrid (section 22ª) nº 793/2010, of november, 23

Court of Appeal of Barcelona (section 12ª) of July, 15 (nº 304/2013)

Spanish Public Policy?

New ways of dissolution of a marriage have been introduced, allowing both parties to terminate their relationship through the same procedure and alleging the existence of disagreements must also be taken into account (art.97)

Revocable and irrevocable dissolution of marriage

The length of time for which the dissolution of the marriage is revocable corresponds to the idda (legal period of continence), which is three menstrual months

The General Directorate for Registries and Public Notaries (Resolution of 26th October 2006) denied the registration of a marriage because it was incompatible with public policy

There is uncertainty about the circumstances of the marital status of the person

Revocable and irrevocable dissolution of marriage

The divorce was not considered to be an authentic dissolution of marriage as its revocable nature meant that the ties had not been definitively broken

The similarities between the revocable nature of the dissolution of marriage and the status of legal separation

Distribution

of widow’s

pension

in case of Polygamy?

In some cases: employment of the notion of “attenuate public policy”

Distribution of the pension

Convention on Social Security between Spain and Morocco

In other cases: the pension is denied to the second wife, because of the public policy model set out in the Spanish Constitution and in the European cultural environment

Germany

if the woman has requested the dissolution of marriage in exchange for a waiver of the dowry (dissolution of marriage in exchange for compensation)

OLK of Koblenz, on September 19, 2012: it was not considered incompatible with the public policy

decision of the BGH (German Supreme Court) of October 6, 2004, on the dissolution of marriage requested by the Iranian wife

France

Court of Cassation, of October 23, 2013 (No. 12-25802 and 12-21344)

public policy of proximity is used

The husband, of Moroccan nationality and resident in France: he could have requested the dissolution of marriage under “grounds of disagreement”

This case is incompatible with public policy, given that this person should have filed for divorce under a form of dissolution of marriage that exists in his national legislation and which is more compatible with those existing under French Law.

Conclusions (I)

Critic made: poor values of the PIL

At present: Cultural Diversity is also a value for the Private International Law

The legal-family situation of immigrants in Europe cannot be treated mechanically; rather, cultural aspects must also be taken into consideration and should be promoted the continuity of personal and familiar relationships

Conclusions (II)