The European Court of Justice is considering whether a foreign divorce, granted by a Sharia court, is valid in Germany. The German case raises the issue of when foreign laws conflict with rights protected in other countries, an issue Florida has grappled with.
Sharia Divorce in Europe
On Thursday this week, the advocate general at the European Court of Justice (ECJ), issued an opinion saying that a foreign divorce under Sharia law should not be recognized.
The ECJ judgment is still pending; however, judges often follow such recommendations.
The case involves a couple from Syria with German nationality. They married in 1999 in Homs, Syria, before moving to Germany. Four years ago, in a Syrian Sharia court, the husband ended the marriage by repeating the word “talaq” (“I divorce you”) three times.
Florida Divorces and Sharia
I have written extensively on foreign divorce before, and the triple Talaq issue specifically. As the European case suggests, the Triple Talaq allows Muslim men to leave their wives instantaneously by saying “talaq,” meaning divorce, three times.
The thousand-year-old custom of triple talaq was recently banned by the Indian Supreme Court.
Florida has resolved the issue of the enforcement of foreign divorce in Florida to a certain extent when it enacted Florida Statute 61.0401. The statute prohibits courts in Florida from enforcing:
- A choice of law provision in a contract selecting the law of a foreign country which contravenes the strong public policy of this state or that is unjust or unreasonable.
- A forum selection clause in a contract that selects a forum in a foreign country if the clause is shown to be unreasonable or unjust or if strong public policy would prohibit the enforceability of the clause.
- A judgment or order of a court of a foreign country is not entitled to comity if the foreign court offends the public policy of this state.
Florida Statutes do not mention Sharia, or any religious divorce law at all. However, in an international divorce case in Florida, to the extent the Syrian divorce (triple talaq) law violates the U.S. and Florida Constitution, the Syrian law may not be enforceable.
The European Divorce Debate
The European Union Divorce Law Pact, known in family law circles as “Rome III Regulation”, governs the recognition of private divorces, meaning divorces that were not granted by a state court.
Under Rome III, a foreign law is not applied in European courts if men and women do not have equal power in divorce proceedings.
Many Germans are concerned about the recognition of foreign divorces, especially when they are based on Sharia. “Many people have a one-sided understanding of Sharia law. There are problematic areas in traditional Sharia law, which allows corporal punishment for criminals; is patriarchal and does not recognize gender or religious equality.
When foreign laws are applied in Germany, their effect is subject to scrutiny, such that if it results in gross injustice and a violation of fundamental rights, the state will correct it. This has been standard practice in Germany for 100 years now.
“This is an election year. Europe is losing faith. If the ECJ now said, ‘This is applicable; we will examine the individual cases,’ then the headlines would read: ECJ says Sharia divorce is valid. And then I would not like to see how anti-Islam groups such as Pegida, AfD and the like would react.”
The Deutsche Welle, article is available here.