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Lecture 6 – Religion and Family Law ina European Context
Materials
M. Wells-Greco, ‘Recognition of Islamic marriages in the UK:
Continuity of marriage status or non-existent marriages?’ in
Breger, M. EXPLORING NORMS AND FAMILY LAWS
ACROSS THE GLOBE (LEXINGTON BOOKS, 2021,
forthcoming)
The limits of the supervisory role of the European Court of Human Rights (the ECtHR’s) are
defined by the doctrine of the ‘margin of appreciation’, which recognizes that national
authorities are in the best place to decide how human rights should be applied. It is not the
ECtHR’s task to take the place of national courts, but rather to review the decisions they
deliver in the exercise of their domestic authority.
Public policy = be treated “as the result of a dynamic process of osmosis between local and
regional policies […] i.e. a perspective where the point of view of the forum is no longer a
merely national one, but embodies that state’s international undertakings concerning, inter
alia, the protection of human rights”
a. Non-recognition of a foreign marriage:
Mary Green and Ajad Farhat v. Malta
This case arose out of the Maltese authorities’ refusal to recognize the validity of a marriage
in Libya of a Maltese citizen, Ms. Green. The problem was that Ms. Green was already
married in Malta to Mr. X, a citizen of Malta. At the time, divorce was unknown in Maltese
law. As a result, Ms. Green had gone to Libya, converted to Islam by means of a declaration
– which had the added benefit of automatically dissolving her marriage to a Christian,
according to precepts of Islamic law and in conformity with Libyan law – and had married Mr.
Farhat. The spouses then established their matrimonial domicile in Libya. The fact remains
that when, after some 20 years of residence in Libya, Ms. Green and her new husband
applied to have their marriage registered in Malta, the Director of the Public Registry refused
to do so. The Director claimed that Ms. Green had not proven that her first marriage had
been dissolved and that her second marriage had not been polygamous, and therefore, the
marriage in Libya could not be recognized as it was contrary to Maltese public policy. The
Maltese courts upheld this determination. The ECtHR found that the national authorities had
not exceeded their margin of appreciation either in imposing the requirements or in applying
them in the applicants’ case. For the Court:
[the] requirements [of a valid foreign marriage] fall within the sphere of the respondent
State’s public policy […]. In view of the interests of the community in ensuring monogamous
marriages, and those of the third party directly involved, namely the first applicant’s first
husband, the Court cannot find that, in the circumstances of the case the domestic courts
failed to strike a fair balance between the conflicting interests. Thus, the situation
,complained of can be regarded as necessary in a democratic society for the prevention of
disorder and the protection of the rights of others.
Cases
● Soha Sahyouni v Raja Mamisch, 20 December 2017,
Case C-372/16
A divorce resulting from a unilateral declaration made by one of the
spouses before a religious court, such as that at issue in the main
proceedings, does not come within the substantive scope of European PIL-
Regulation (Rome III & Brussels IIBis/ter). → so not all divorces fall within
the scope of the regulations
● Z.H. & R.H. v. Switzerland, ECtHR 8 December 2015,
appl.no. 60119/12
Non-recognition of a foreign child marriage
Facts
In Z.H. & R.H. v. Switzerland , the two applicants - ZH and RH - were Afghan nationals who
had married in a religious ceremony in September 2010 in Iran where they were residing
illegally. At the time, ZH was 14 years old and RH was 18 years old. Their marriage was not
registered. In September 2011 the applicants applied for asylum in Switzerland. The Swiss
authorities refused asylum because the applicants had already been granted asylum in Italy.
The refusal also noted that the applicants had failed to provide evidence of marriage and
that their alleged marriage could not be validly recognized in Switzerland because it was
illegal under the relevant provision of the Afghan Civil Code, which contained an absolute
prohibition on marriage for women under 15 years of age, as well as manifestly incompatible
with Swiss law, since sexual intercourse with a child under the age of 16 was a crime under
the Swiss Criminal Code.
Essence
The applicants complained to the ECtHR of the Swiss State’s failure to grant RH a residence
permit in order to allow the two applicants to exercise their right to respect for family life. The
ECtHR found that there was no violation
Rule
Given the importance to be attached to the protection of children and the fostering of secure
family environments, the Court ruled that Article 8 ECHR cannot be interpreted as imposing
on any state party to the ECHR an obligation to recognize a marriage, religious or otherwise,
contracted by a 14-year- old child. Switzerland was, for the court, entitled not to recognize
the marriage resulting from what is perceived under law as an exploitative and abusive
situation.
,→ No violation
● Ismailova v. Russia, ECtHR 29 November 2007, appl.no.
37614/02
One of the parents is a Jehova Witness. Refusal of child custody based on parent’s
religious affiliation. Burden of providing concrete and direct evidence of the negative
influence of religion on the minor.
1. The choice made by the national authorities to deny custody to a parent because
of his belonging to a religious minority creates a difference in treatment that can be
considered discriminatory only in the absence of an objective and reasonable
justification, that is, if it is not justified by a legitimate aim and if there is no
reasonable relationship of proportionality between the means employed and the aim
sought to be realised.
2. If there is concrete and direct evidence of the negative influence that the
applicant’s religion has on the growth and daily life of the children, the choice to deny
her custody is a reasonable and proportional measure in relation to the objective
pursued, which is the best interest of the child. Therefore, it does not entail
discriminatory treatment detrimental to private and family life.
Consistent case law of The Court
• Distinction based essentially on a difference in religion alone, is not
acceptable
• Considerations about the actual interest of the child (and actual harm) are required
• Thus: Assessment in abstracto is not allowed; assesment in concreto is required
● Muňoz Diaz v. Spain, ECtHR 8 December 2009, appl.no.
49151/07
Violation because of the legitimate expectation
● Şerife Yeğit v. Turkey, ECtHR 2 November 2010,
appl.no. 3976/05
Non-recognition of a religious marriage
Facts
Şerife Yeğit v. Turkey concerned a man and woman entered into a religious Islamic
marriage in Turkey in 1976. Six children were born within this marriage. The husband died in
2002. The wife asked for the registration of her marriage in the Turkish register and for the
registration of the children as being the children of the deceased husband. The registration
of the children was accepted, but the registration of the marriage was refused. The wife
requested her deceased husband’s pension and health benefits both after and up until the
refusal to register the marriage. Those claims were also refused.
, Essence
The wife argued that the refusal of those benefits constituted a violation of, or at least a lack
of respect for, her right to respect for family life. The Court considered that there was a de
facto existing family life that fell within the protection of Article 8 ECHR. However, the claim
of the wife was eventually dismissed. The Court took the position that civil marriages are
available to all people in the state without distinction and therefore no breach of Article 12
ECHR right to marry (nor Article 14’s prohibition of discrimination) had occurred when the
respective states failed to recognize the informal marriage of the applicants. The ECtHR
follows the Turkish authorities in the assessment of the legitimate aim, that the aim pursued
by the Turkish legislator is the protection of women. Yet, ironically the complete denial of the
– monogamous - marriage of Şerife Yiğit, exactly had as its consequence that a woman was
left financially unprotected.
Rule
no violation. The Court took the position that civil marriages are available to all people in the
state without distinction and therefore no breach of Article 12 ECHR right to marry (nor
Article 14’s prohibition of discrimination) had occurred when the respective states failed to
recognize the informal marriage of the applicants
Questions
1. Which European PIL Regulations regulate divorce issues of
non-European Muslims residing in the EU? Argue why.
Brussel IIbis because they live in Europe and Rome III.
2. Is the recognition of foreign divorces coming from Muslim
states governed by the Brussels IIbis Regulation? Argue why or
why not.
Only if
3. Is a foreign Muslim divorce a unilateral extra-judicial divorce?
What is the relevance of this question?
No, according to Sahyouni.
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