Case of the Day: Sahyouni v. Mamisch

The case of the day is Sahyouni v. Mamisch (ECJ 2017). I previewed the case in September. Here was my description:

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.

The basic conclusion of the decision is simple:

In the light of the definition of the concept of ‘divorce’ in Regulation No 2201/2003, it is clear from the objectives pursued by Regulation No 1259/2010 that the latter regulation covers solely divorces pronounced either by a national court or by, or under the supervision of, a public authority.

In light of the foregoing considerations, the answer to the first question is that Article 1 of Regulation No 1259/2010 must be interpreted as meaning that 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 that regulation.

I have significant questions about this holding. Part of my question is about the status of the Islamic religious courts in Syria under Syrian law. What is their relationship to the Syrian state? I wonder whether it’s right to treat the religious court as a private religious body rather than as a national court. It’s just not clear from the decision. Perhaps there are no non-religious courts that handle divorce in Syria for Muslims?

But I also wonder whether a unilateral declaration that effects a divorce is really that different from what happens in a typical non-contested no-fault divorce case, where one spouse is more or less entitled to a divorce without anything really being adjudicated. Of course, in many cases, disagreements about money or custody require real adjudication, but in many cases there are no real disputes, and in fact, in today’s case it seems that at the time of the Syrian divorce the spouses were in agreement at least regarding the monetary aspects.

Paragraph 30 of the decision suggests that the real issue of German law here is not whether the divorce should be recognized, but rather whether the German court should scrutinize its legality, or whether, on the other hand, it should simply recognize it without making any inquiry, as it typically would do in cases of private divorce. But even in such cases, if I understand paragraph 30 correctly, the question will be whether the divorce was legal under the law of the foreign country, not under German law.

In short, I obviously can’t comment on the technical details of the decision, but I am not sure I see why, on a more general level, it makes much sense. I welcome thoughts from informed EU readers.

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