I’m keeping my eye on Sahyouni v. Mamisch, Case No. C-372/16, a case in the EU Court of Justice. The husband and the wife, both Syrian nationals by birth, were married in an Islamic court in Homs, Syria in 1999. They moved to Germany, and both were German citizens. In 2013, the husband divorced the wife by making the appropriate declaration in the Islamic court in Latakia, Syria, and the court approved the divorce. Shortly thereafter, the wife signed a document acknowledging she had received the amount due to her under the Islamic marriage contract and releasing the husband from further obligation. The husband then sought recognition of the judgment in Germany. The Oberlandesgericht München recognized the divorce and denied the wife’s request to set the decision aside. The wife appealed, and the court referred questions to the EU Court of Justice about the interpretation of Regulation 1259/2010, the Rome III regulation. (Of course, Rome III does not apply directly, as Syrian is not an EU state. I won’t address that point further except to say that the Advocate General nevertheless felt it important to consider the interpretation of Rome III).
The case came to my attention because of news reports that the Advocate General had given an opinion to the Court on the matter.1 The AG came to two interesting conclusions. First, he concluded that Rome III does not apply to require the recognition divorces that are obtained by the unilateral action of one party, even if registered by a religious court, rather than declared on the basis of a decision of a court or other public authority. But even if the divorce were within the scope of the regulation, EU member states bound by Rome III would not be required to recognize a divorce where the access the foreign law provides to divorce discriminates on the basis of sex. He viewed this discrimination as so beyond the pale that no case-by-case consideration would be necessary and the consent of the wife to the divorce should not matter, either.
The Court may or may not adopt the AG’s reasoning, so there’s not much to say now. I don’t know enough about Syria to know whether the first part of the AG’s decision makes sense: I wonder whether, in Syria, there were non-Islamic options for divorce available to Muslims in the country. If not, is it really sensible to point to the use of a religious court and religious law that gives the power of divorce to the husband as a reason for non-recognition? I also think the second part of the decision is fairly extreme. Is it really sensible to disallow recognition of Islamic divorce on a categorical basis even if, in a particular case, it’s clear that the wife consented? Imagine that the validity of the divorce became relevant to decide some legal question in Germany about inheritance, or bigamy, or adultery, or whatever. Do we really want to say that the answer to all those questions has to start from the premise that the marriage still exists?
But these are just questions. There will be more to say after the court decides, and of course experts in EU law (which I plainly am not) may have more insights, too.