Normativity and Diversity in Family Law: Lessons from Comparative Law (Ius Comparatum - Global Studies in Comparative Law, 57) 3030831051, 9783030831059

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Ius Comparatum – Global Studies in Comparative Law

Nadjma Yassari Marie-Claire Foblets   Editors

Normativity and Diversity in Family Law Lessons from Comparative Law

Ius Comparatum – Global Studies in Comparative Law Founding Editors Jürgen Basedow, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany George A. Bermann, Columbia University, New York, USA

Volume 57

Series Editors Katharina Boele-Woelki, Bucerius Law School, Hamburg, Hamburg, Germany Diego P. Fernández Arroyo, Institut d’Études Politiques de Paris (Sciences Po), Paris, France Editorial Board Members Joost Blom, University of British Columbia, Vancouver, Canada Vivian Curran, University of Pittsburgh, Pittsburgh, PA, USA Giuseppe Franco Ferrari, Università Bocconi, Milan, Italy Makane Moïse Mbengue, Université de Genève, Geneva, Switzerland Marilda Rosado de Sá Ribeiro, Universidade do Estado do Rio de Janeiro, Rio de Janeiro, Brazil Ulrich Sieber, Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany Dan Wei, University of Macau, Macau, China

As globalization proceeds, the significance of the comparative approach in legal scholarship increases. The IACL / AIDC with almost 800 members is the major universal organization promoting comparative research in law and organizing congresses with hundreds of participants in all parts of the world. The results of those congresses should be disseminated and be available for legal scholars in a single book series which would make both the Academy and its contribution to comparative law more visible. The series aims to publish the scholarship emerging from the congresses of IACL / AIDC, including: 1. of the General Congresses of Comparative Law, which take place every 4 years (Brisbane 2002; Utrecht 2006, Washington 2010, Vienna 2014, Fukuoka 2018 etc.) and which generate (a) one volume of General Reports edited by the local organizers of the Congress; (b) up to 30 volumes of selected thematic reports dealing with the topics of the single sections of the congress and containing the General Report as well as the National Reports of that section; these volumes would be edited by the General Reporters of the respective sections; 2. the volumes containing selected contributions to the smaller (2-3 days) thematic congresses which take place between the International Congresses (Mexico 2008; Taipei 2012; Montevideo 2016 etc.); these congresses have a general theme such as “Codification” or “The Enforcement of Law” and will be edited by the local organizers of the respective Congress. All publications may contain contributions in English and French, the official languages of the Academy.

More information about this series at http://www.springer.com/series/11943

Académie Internationale de Droit Comparé International Academy of Comparative Law

Nadjma Yassari • Marie-Claire Foblets Editors

Normativity and Diversity in Family Law Lessons from Comparative Law

Editors Marie-Claire Foblets Nadjma Yassari Max Planck Institute for Comparative and Max Planck Institute for Social Anthropology Halle, Germany International Private Law Hamburg, Germany

ISSN 2214-6881 ISSN 2214-689X (electronic) Ius Comparatum - Global Studies in Comparative Law ISBN 978-3-030-83105-9 ISBN 978-3-030-83106-6 (eBook) https://doi.org/10.1007/978-3-030-83106-6 © Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Contents

Diverse Families: A Challenge to Family Law? A Comparative Exercise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nadjma Yassari and Marie-Claire Foblets

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Uniform Law in a Divided Society: A Closer Look at the Iraqi Personal Status Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Haider Ala Hamoudi

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Pakistan: Challenges and Prospects . . . . . . . . . . . . . . . . . . . . . . . . . . . . Shaheen Sardar Ali

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Quelle place pour la diversité en droit tunisien du statut personnel ? . . . Asma Alouane

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United Arab Emirates: Temporary Multiculturalism, but Permanent Legal Pluralism? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Lena-Maria Möller Bottom-Up Action and Hesitant Steps Towards Accommodating Multicultural Claims in Japanese Family Law . . . . . . . . . . . . . . . . . . . . 119 Maia Roots South Africa’s Family Laws: A Potpourri of Some Sort? . . . . . . . . . . . . 147 Christa Rautenbach Hidden but Significant Problems of Pluralism in the Family Law of the Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Helena Hofmannová and Karel Řepa Hungary: The Concept of Family Within the Framework of “Illiberal Democracy” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Lídia Balogh, András L. Pap, and Emese Pásztor

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Contents

The Treatment of Diversity in Family Law in Belgium: Between Acknowledgment and Indifference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 Jinske Verhellen and Patrick Wautelet Between Openness and Restriction: German Family Law and Multicultural Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 Anatol Dutta Love, Law, Limits and Loopholes: How Diversity Challenges Austrian Family Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Agnes Balthasar-Wach and Maximilian Engel Balancing Cultural Claims and Universal Rights in Finnish Family Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Sanna Mustasaari Managing Religious Law in a Secular State: The Case of the Muslims of Western Thrace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327 Vassiliki Koumpli How Does Turkish Family Law Cope with Different Ways of Living? . . 351 Ceyda Süral Efeçınar and Ekin Ömeroǧlu Questionnaires . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371

Diverse Families: A Challenge to Family Law? A Comparative Exercise Nadjma Yassari and Marie-Claire Foblets

Abstract This report is based on 14 country reports namely Iraq, Pakistan, Tunisia, United Arab Emirates, Japan, South Africa, Czech Republic, Hungary, Germany, Belgium, Austria, Finland, Greece, and Turkey. It aims at detecting the ways in which claims relating to cultural traditions, ethnic customs, religious convictions, and sexual orientation—or any other kinds of claims that are not officially accommodated in state law—are raised and dealt with in those jurisdictions. The comparison first sets family law in its historical and demographic context, including the implications of mobility and migration as well as of technological and social developments. Secondly it analyzes the actions and reactions of the entities involved, namely the legislature and the judiciary, but also civil society actors. Furthermore, it explores the reactions of the communities concerned and, finally, draws conclusions on some of the challenges that multiculturalism poses to family law today.

1 Introduction 1.1

Context

This report is a comparative exercise based on 14 country reports on the topic of multicultural challenges in family law. The topic was defined at the initiative of the International Academy of Comparative Law (hereafter IACL), in preparation for the congress held in Fukuoka, Japan, in July 2018. The national reporters who agreed to draw up a report for their respective countries were signing on to a project that required them to address questions that in many cases are unprecedented and have

N. Yassari (*) Max Planck Institute for Comparative and International Private Law, Hamburg, Germany e-mail: [email protected] M.-C. Foblets MPI for Social Anthropology, Halle, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_1

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therefore not yet found a legislative answer in the domestic legal orders of their countries: namely questions that revolve around the many challenges facing family law in the light of growing cultural and religious diversity in today’s societies. What makes the topic particularly intriguing is the observation that several of these questions have frequently given rise to lively political debates, given that family relationships and the way these are organized, by their very nature, often cut to the core of a society: family and kinship ties reflect—more than anything—the inherent value system of any society and its transmission down through the generations. We would therefore like to express our profound gratitude to each of the national rapporteurs for having agreed to meet the challenge of this vast comparative undertaking which the IACL invited us to take on, and for having done so with the dedication necessary to produce well documented and carefully structured reports. It is thanks to their efforts that in our capacity of general rapporteurs we are able to present here the main lessons we propose to draw from the information gathered in the various reports. We hope we have done so with the requisite respect for the analyses put forward by the rapporteurs themselves and that we have accurately captured the specificities of the various situations they have studied.

1.2

Methodology

We received a total of 14 reports.1 It goes without saying that these do not exhaust the topic, but given the broad geographic span they cover, as well as the wealth of information contained in each of them, they provide a good illustration of its potential scope. Clearly, one could easily imagine a multitude of other examples that could serve to illustrate the many new situations that confront legislatures, public administrations and not least the judiciary with the question of whether and how to accommodate or reject cultural and religious diversity in the vast field of family law. For the sake of comparability, the national rapporteurs were asked to follow a number of guidelines when preparing their individual chapters. In our letter of invitation to them they were reminded of the overarching aim of the project, namely to detect the ways in which, in the field of family law, cultural traditions, ethnic minority practices, religious convictions or sexual orientation raise issues of accommodation of diversity and to examine how these are dealt with in the domestic jurisdiction of the country under investigation. Some of these claims concern situations and legal statuses created abroad in conformity with foreign law but which the legal practice in the country under study has difficulties dealing with, while others reflect new ways of conceiving of family life and of establishing,

1

Namely: Iraq, Pakistan, Tunisia, UAE, Japan, South Africa, Czech Republic, Hungary, Germany, Belgium, Austria, Finland, Greece and Turkey.

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maintaining and/or putting an end to family and kinship relations in the domestic setting.

1.3

Instructions

The national rapporteurs received four types of instructions from us: The first instruction laid out the conceptual framework, the second related to the scope of the investigation, the third concerned the structure of the reports and the fourth called for an investigation into the reactions of the communities.

1.3.1

Conceptual Framework

The terms “multiculturalism” and “multicultural challenges”—terms chosen by the academy—may have very different meanings in different settings and countries across the world and also across academic disciplines, and they may carry divergent connotations, from positive to the exact opposite.2 Therefore, the national rapporteurs were offered and encouraged to use the following frame of reference: we suggested that “multiculturalism” be understood as the presence of multiple “ways of life” (of individuals or communities) within a single jurisdiction that are relevant to family law; “ways of life” here refers to any legal or social phenomenon or normative system in the rapporteurs’ respective jurisdiction that encompasses aspects of religion, ethnicity, race, indigenous identity, economy, language, sexual orientation or regional affiliation (and other “cultural” aspects) and that, in the context of contemporary plural society, raises issues regarding the regulation of family life and kinship relations.

1.3.2

Scope of Investigation

The second instruction was a reminder that what we wanted to hear from the national rapporteurs was how, concretely, some “ways of life” in particular are perceived as a challenge to mainstream ideas on family and statutory family law. And where they are, how these challenges are addressed in legal practice. What we were mainly interested in are the ongoing interactions and dynamics between, on the one hand, family-life related claims and behaviours stemming from a variety of sources (such as faith-based claims; customary practices; indigenous communities; sexual orientation; as well as any other “diversity” characteristic or dimension that makes for a plural society) and, on the other hand, state law and the state institutions to which claims for recognition and/or protection of these behaviours are addressed.

2

See among others, Levy (2004), Hall (2011).

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1.3.3

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Structure of the Reports

The third instruction was no doubt the most critical in allowing for comparison among the several reports, namely how to structure the reports. Our suggestion to the national rapporteurs was to distribute their analysis over three main parts. By way of an “entrée en matière” (the introduction), we wanted to receive the relevant background information on the jurisdiction in question: how does the law in place treat social, cultural and/or religious diversity (e.g. a historically developed recognition of a diversity of family law systems; a tolerant response to new demands for recognition; or, conversely, a rejection of such demands for the sake of legal unity); are there de facto alternative normative systems in place, including (inter)religious or (inter)regional laws below or alongside state institutions and structures; what are the burning issues? Can a link be drawn between the constitutional structure of the state (e.g. parliamentary democracy; the existence of a state church; the principle of laïcité (secularism); national minority protection; concordat arrangements, to name a few) and the family policies in place? Our approach was to not limit the enquiry to the way in which positive law regulates certain family situations, but also to focus in as much detail as possible on the context—including the historical, social and economic context—in which the search for a specific solution takes place. With this background in mind, the national rapporteurs were asked to provide, in a second part, a detailed description and analysis of relevant legislation and court practice in the following four contexts: first, two-person relations (i.e. hetero- and homosexual marriage and non-marital relationships), second, parental and child relationships (parental care, custody, guardianship, adoption, foster care), third, dissolution of relationships (divorce, annulment, the financial consequences of the dissolution of marriage—such as maintenance, claim for damages and other claims—and matrimonial property regimes), and fourth, any specific instances and situations that have proven particularly difficult to resolve in practice. Regarding the fourth field, the rapporteurs were also invited to explain, to the extent possible, the reason(s) for those specific difficulties. With a view to ensuring consistency across the reports, we asked the rapporteurs to systematically consider the following questions: • What specific diversity claims are made by litigants in courts? Can you identify specific reasons (including social, economic and policy considerations) for raising such claims? What recurrent situations/cases arise? And why are some claims regarded as particularly contentious (in law)? • What responses are already available in the jurisdiction under consideration (either in legislation or case law, or perhaps as also suggested by other relevant actors, be they practitioners, academics, etc.) to specific diversity claims? Do the competent authorities in the field of family law in fact have the necessary room to manoeuvre to accommodate such demands? Are there significant constraints to be taken account of, and if so, what are these constraints? • Is it possible to identify general trends in the way the authorities in the country under investigation address diversity issues? Is there any relevant case law to be

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mentioned here? If so, please describe and discuss the main lines of argumentation. • Where are the critical tensions? Is there a general consensus in society on certain matters and/or do you see any particularly contentious matters that need to be mentioned in the report, and if so, why? National rapporteurs were encouraged not only to survey these questions within the purview of their own domestic family law system strictly speaking but, where relevant, also to extend the scope of the survey to include situations that raise questions of private international law, taking into consideration that these questions are integrally part of the domestic system.

1.3.4

Reactions of the Communities

Lastly, in the fourth instruction, we asked the national rapporteurs to try to assess whether and, if so, in which ways individuals or communities who have requested legal recognition and protection, either in court or via other channels, for their family relationships as they live and understand them, have reacted to the responses they have received, whether from the legislature, the judiciary or any other competent decision-making body. This last instruction was left to the discretion of the national rapporteurs since they are the best placed to know and assess whether or not they have access to data that would allow them to incorporate relevant information in this regard in their report. Doing so requires that they venture beyond the available classic sources, such as legislation (including “travaux préparatoires”) and published case law, and explore the contextual circumstances in which any given decision is received: how do the communities concerned (or individual members) interpret the response they received to their claim? Perhaps communities have no expectation whatsoever of a response by state authorities to their specific concerns and have therefore established (or maintained) their own bodies and dispute resolution mechanisms that settle family matters. Some communities might prefer to handle issues relating to the establishment and control of family and kinship relationships within their own inner circle, outside the sphere of official (state) law. These reactions can be understood as indications of the degree of trust that any given community places in the domestic legal order and in state institutions. One can think of at least three positions: the first sees the coexistence of official family law and alternative mechanisms for regulating family and kinship relationships as a threat to state law regulation;3 the second position is more pragmatic and considers that there is an unavoidable empirical reality that comes with increasing cultural and religious diversity in contemporary societies;4 the third position is radically in favour 3

See i.a. Meulders-Klein (1996). See i.a. Cadet (2005), Nichols (2012), Zuanazzi and Ruscazio (2018), Foblets (2013), Grillo (2008), Boele-Woelki et al. (2014). 4

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of normative plurality in the broad field of family law and sees it as a development to be further accommodated in law.5 There may be various reasons why one may or may not be supportive of alternative mechanisms of control in matters of family law. In the invitation to contribute to this volume, we left the national rapporteurs completely free to decide whether or not to take a position at all, and if so, which one. But if they decided to express a position, we asked that for the purposes of this volume they also clearly explain the reasons for their position. In any case, the fourth instruction was not meant to be strictly binding on the rapporteurs since an in-depth assessment of the existence and functioning of normative plurality within family law today is probably too much to ask of authors who, for the most part, are experts in positive/official/formal family law (and some also in private international law) but who are not socio-legal scholars. Nevertheless, some of them have made the effort to address the challenges that came with the fourth instruction as well, and we are all the more grateful to them, since it is certainly a valuable endeavour to complete the picture and give an assessment of the “success” of family policies in managing normative diversity—the “multicultural challenges”—in one’s jurisdiction. This was far from the easiest part of the task the national rapporteurs had committed to accomplish. In what follows, some of the concepts, situations and responses in the fourteen jurisdictions under review shall be reviewed, without any claim to completeness. This synopsis will first set family law in its historical and demographic context, including the implications of mobility and migration as well as of technological and social developments. We will then analyze the actions and reactions of the entities involved, namely the legislature and the judiciary, but also civil society actors. Furthermore, we shall attempt to explore the reactions of the communities concerned and, finally, draw conclusions on the challenges that multiculturalism poses to family law.

2 Family Law in Context 2.1

History, Demography and Mobility

One of the first factors to consider is that in order to understand the role of law in regulating the lives of families in contemporary plural societies and the expectations one may have regarding this role, it is essential to consider the specific historical context of each society in which that plurality has unfolded. Taking the specificities of each context into account invites greater sensitivity to the kind of legal solutions one may expect in response to the ever-greater diversification in forms of family life and in the organization of kinship relationships. If one is to understand why in some countries the law attempts to provide solutions to certain (new) situations while in

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See i.a. Roy (2015).

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other countries it fails to do so, it is important to take an interest in the (recent and less recent) history of those societies and in how the law has evolved within them over time. This is especially important in family law, as the regulation of social relations is absolutely central to the construction of a person’s identity and its protection and thus to sustaining a cultural narrative. For our specific topic, one decisive factor is the historical background that has shaped demography. Some societies exhibit a fair degree of diversity in the demographic composition of their populace. Such diversity may stem from a long history of various population groups living in the same geographic area, whether because of internal policies of population location and relocation, the presence of ethnic or religious minorities or a colonial background, to name but a few possible reasons. Elsewhere, the diversification of a country’s demography and the consequent variety of family forms may be the result of more recent (intentional and unintentional) migration.6 This is reflected in several country reports: countries such as Iraq, Pakistan, or South Africa have had a history of different religions, confessions and ethnicities living in the same geographic area for centuries, forging a multifaceted society with various outlooks. This is also true to some extent for Greece and Turkey. Others, in particular European countries as well as Tunisia and Japan, have a more “homogeneous” population, even if that might be a consequence of the formation of the nation-state over the last century. Because of their economic wealth, some countries, such as the United Arab Emirates (UAE), have become popular destinations for temporary labour migrants, forming a populace that consists of roughly 10% nationals and 90% foreigners. As the Emirati report emphasizes, because Emirati labour laws are not designed to host those foreigners permanently, the UAE is not an immigration country but has become a “multicultural society by necessity”.7 Invoking demographic trends as an explanatory factor may allow for a greater understanding of why one and the same family situation is given legal protection in one jurisdiction, whereas the very same situation may be prohibited/criminalized in another. Context must therefore be taken into consideration in order to better understand certain differences among the various systems of family law in force today. At the same time, this mix of internal and external factors has facilitated the emergence of binational, religiously and ethnically mixed families. These families and the various models they choose to organize their life have raised a number of legal questions regarding the competent jurisdiction, the applicable law and last but not least the question of cultural identity.

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See for Europe, i.a. Grillo (2008), Wyvekens (2016). See in this volume, Möller, United Arab Emirates, before Sect. 1.1.

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2.2

Transnational Families

The family constellations stemming from history, demography and mobility taken together are as diverse as the reasons why they have come to exist, and so, too, are the ensuing legal issues. They may arise from relationships between family members who do not share the same nationality or where one or more of them holds multiple nationalities; they may be the result of cross-border mobility: one or more of the parties may be residing, temporarily or permanently, as foreign nationals in a country other than the one whose nationality they hold. They may also result from international migration by refugees fleeing wars, such as those who have increasingly been escaping extreme violence in countries such as Syria, Iraq and Afghanistan and seeking refuge chiefly in neighbouring countries such as Lebanon and Jordan as well as in European countries, and particularly in Germany. Whereas some people have migrated as families, increasingly often new family situations come about in the new country of residence.8 Moreover, in more and more cases, family members have acquired the nationality of the new country of residence, even if they also remain nationals of their country of origin. These persons may change their family status in their country of origin and subsequently seek recognition of that status in the place of their habitual residence, e.g. recognition of the conclusion or dissolution of their marriages. There are many more such constellations. These situations may be seen as the concomitant effect of perpetuating cross-border exchanges with the country of emigration in a world where the means of communication are ever more easily accessible, and contacts therefore more frequent, denser and all-encompassing. The sociological literature on this topic describes these situations as “transnational”,9 i.e. families who in their composition and/or organization have to deal with the—often considerable—differences between legal systems. The legal issues that may arise in these transnational families are complex. Often, they encounter situations where they are considered married/divorced/parents in one country, while being deprived of that status or forced into another when crossing borders. The challenge is to seek legal solutions that guarantee a harmonious international situation and to find legal forms for the family situation that may be accepted by the different legal orders involved, this meaning their country of origin and their new place of habitual residence and sometimes also that of other countries with which their situation has a connection. Generally speaking, questions as to the law applicable to family life in crossborder situations are handled under private international law and international civil procedure law. The national reports clearly indicate how, in the vast majority of countries that experience substantial migratory flows, the techniques of private international law continue to this day to be useful for handling questions relating to the reception, in domestic law, of family situations created in a foreign country: marriages concluded 8 9

Heinemann (2015), Beauchemin (2018), Çitlak et al. (2017). See in particular, Bramadat and Koenig (2009).

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abroad, decrees of divorce handed down by a foreign judge, etc. At first sight, these techniques seem to make it possible to handle international cases in a neutral way. Conflict-of-law rules designate the applicable law by a chosen connecting factor. The applicable law governs the case and a solution is found. However, private international law and its instruments are themselves the outcomes of policy choices. In the UAE, for example, nationality is not only a matter of determining the applicable law by means of technical devices. Even more frequently, in public debates nationality is linked to “national culture”, a paradigm change where belonging starts to be framed in terms of nationality, whereas until recently religious affiliation was the first and decisive connecting factor.10 For example, until not so long ago, in cases of separation or divorce, non-Muslim mothers lost custody of their child as soon as the child reached the age of five. More recently, in public debates pointing to different national traditions and cultural environments between nationals and foreigners, demands have been made to preclude foreign mothers (regardless of their religion) from gaining custody of Emirati children. The argument given is that differences in nationality posed an even greater danger to a child’s upbringing and loss of national identity than the custodian’s religious affiliation. While no such rule has been enacted, the discussions show the sensitivity and also the relevance of nationality as a matter of culture and identity. Another example of the policy-driven and hence sensitive nature of private international law is illustrated in the Tunisia report. The choice of the Tunisian legislature to abandon in domestic law some conceptions of Islamic family law, such as the prerogative of the husband to repudiate unilaterally his wife or to practise polygamy, has hindered the recognition of family law constellations established in another Muslim jurisdiction.11 While the Tunisian courts regulate those cases by means of public policy, other countries have resorted to an increase in escape clauses. The Belgian report highlights this point, showing how the legislature has circumvented the application of foreign law with escape clauses according to which specific constellations are subject to Belgian law whenever one of the parties is Belgian.12 This tendency to appropriate and submit international cases to domestic law can be seen more recently particularly with regard to underage marriages in Europe. In Germany, for instance, first the substantive domestic rules were amended to outlaw marriage below the age of majority. Then, the application of foreign law was also restricted, nullifying any marriage involving a minor who at the time of the conclusion of the marriage was under the age of 16 and making any marriage concluded by a spouse between the ages of 16 and 18 voidable under German law. Other European countries have been following the same approach, modifying their national and

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See in this volume, Möller, United Arab Emirates, Sect. 2.2. See in this volume, Alouane, Tunisia, Sect. 2.2.1. 12 See in this volume the Belgian report regarding the applicable divorce law, Verhellen and Wautelet, Belgium, Sect. 1 (n. 8). 11

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private international law.13 The policy pursued is intended to withdraw specific sensitive cases from private international law and subject them to the lex fori. Interestingly, no jurisdiction has gone as far as Germany: most countries still offer some kind of remedy for the minor marriage, in particular when the spouses come of age or if the woman is expecting or has delivered a child, and/or where the spouses have confirmed their will to remain married. While the prevailing view is that early marriages are to be avoided, most jurisdictions have developed certain principles to allow for exceptions on a case-by-case approach. These factors include the context of the early marriage and the maturity of the spouses, as well as ethnicity, religion and other factors informing marriage behaviours. This approach takes into consideration the specific cultural, economic and social circumstances under which the marriage took place, and it allows deciding on a case-to-case basis whether to recognize or reject the marriage in question. Another point regarding the application of foreign law in domestic courts that deserves to be mentioned here is the question of feasibility. In practice, the task of the civil servants or judges responsible for applying the techniques of private international law is a difficult one. One of the principal difficulties is often the severe lack of time for the civil servant or judge to understand and assess the foreign element involved in a family situation on which they are asked to rule. The parties are certainly under the obligation to provide proof of the foreign legal rule, but it is also the responsibility of the competent administration and/or court to ensure that the interpretation of that rule corresponds to its current meaning and scope in the foreign country in question.14 This demands research, access to the sources, the possibility of verification where such sources contradict each other or present other problems, and the use of expert opinions, all of which are very costly and often very timeconsuming. In some cases, however, as a comparative examination of case law indicates, judges have developed a deep personal interest in these matters, often after having been appointed to a judicial district where there is a large concentration of people from the same country of origin and where they are regularly called upon to handle cases which involve the legal rules of that country’s legal system.15

2.3

Transnational Citizens

Whereas until the beginning of the twenty-first century the nationality of a person was considered the main connecting factor determining his or her closest connection to a legal system, in recent decades a paradigm change has taken place, at least in European domestic legal systems.16 In private international family law today, the

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Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg (2020). See on that issue, Esplugues et al. (2011), Verhellen (2016), Nishitani (2017). 15 We collected a number of testimonies of judges, see Vetters and Foblets (2016). 16 See i.a. McEleavy (2011), Bonomi and Schmid (2014). 14

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habitual residence of a person is generally considered more indicative of his or her closest connection to a jurisdiction than his or her nationality.17 This has a discernible impact on the point of departure: legal questions about the organization of international families now fall first and foremost within the ambit of domestic law. At the same time, questions of diversity remain: transnational families present a new legal profile and raise new questions that no longer have any direct connection to private international law. We are in a sense seeing the multicultural evolution of an increasing number of families, whose members have become full citizens of their new home country and who are bound to comply with its domestic law, but who are still very closely attached to cultural and religious norms that have shaped their family life and that are unknown to the lex fori, potentially disrupting the consistency of domestic family law concepts.18 The example given in many reports is the Islamic dower, the mahr. Typically, the claim for the mahr is brought by Muslims (citizens or not) to the domestic court of the country of their habitual residence, where, according to the conflict-of-law rules, the claim falls within the ambit of domestic law.19 In Germany, for example, the German Federal Supreme Court (BGH) decided in 2009 that a mahr agreement was a valid obligation under German law that the husband had to honour.20 The reasoning was based on the contractual character of the mahr. At the same time, the Supreme Court held that in interpreting the mahr agreement, the court had to consider the latter’s nature and concept under Islamic law, acknowledging its various functions in Muslim jurisdictions. While lower courts have followed this ruling rather consistently, more recently courts have—contrary to the Supreme Court’s decision—started invalidating mahr agreements on the grounds that the mahr was an archaic relic of traditional law representing the “sale-price” for the bride.21 Mahr claims occur frequently in Turkish courts, too. However, Turkish statutory law does not regulate the mahr, as the codification of Turkish family law in the new Turkish Civil Code of 1926 draws from Swiss law while Islamic law was discarded as a source of (family) law. The Turkish Court of Cassation characterized the mahr as a donation or—where it had not yet been given—as the promise of a donation. By means of this technicality, the courts found a legal ground to grant the mahr without, however, invoking its Islamic nature.22 17

Examples include among others the Rome III Regulation, the Hague Protocol, the Hague Convention on parental responsibility and protection of children and the Matrimonial regime regulation. 18 For illustrations, see i.a. Berger (2013), Shah et al. (2016). 19 On the mahr in German courts, see Yassari (2014), p. 293ff. 20 BGH 9 December 2009, BGHZ 183, p. 287 ¼ FamRZ 2010, pp. 533, 534f; see in this volume Dutta, Germany, Sect. 2.1.2. 21 See, for example, Court of First Instance (AG) of Darmstadt 15 May 2014, FamRZ 2015, pp. 408–409. The decision resembles a decision taken by the Regional Court (LG) of Cologne on 27 October 1980, IPRspr. 1980, no 83, p. 248. 22 See in this volume, Efeçınar and Ömeroǧlu, Turkey, Sect. 2.5.2.

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In other parts of the world, particularly in Muslim jurisdictions, nationality is still the predominant connecting factor in family law in statutory law. This does not come as a surprise, considering the colonial or quasi-colonial history of many such countries. In Iran and Egypt (but also in Japan), European powers established so-called capitulation regimes, according to which foreign citizens did not fall under the domestic jurisdiction of the country in which they resided.23 Instead, they were subject to the adjudication of consular “courts” of their own states. In the aftermath of World War I and during the emergence of independent nation states in the Middle East, those regimes were abolished. To assure their sovereignty and minimize the potentiality of foreign domination, those countries concluded agreements to ensure that the law of nationality is applied to their citizens abroad.24 The policies of the respective legislatures were and still are geared towards securing the application of the law of one’s nationality to all matters of family and succession law as a matter of national sovereignty. This explains to a certain extent why the integrative idea of submitting foreign nationals to the law of their habitual residence has still not taken root in these countries. Moreover, the idea that nationality transcends some sort of cultural identity remains a leading principle when it comes to the question of which law applies in family matters. This emphasis on nationality and the resulting identity policies are very well illustrated in the Emirati report. The prevalence of nationality in the Emirati conflict-of-law rules exemplifies the country’s reluctance to consider foreigners as an integral part—let alone permanent members—of Emirati society. It also highlights citizenship as an expression of cultural belonging and a matter of national coherence. Ethnicity is another factor that forges a plural society.25 However, it seems that ethnicity as a basis for asserting family law claims is often overlooked by other factors (mostly religion). Few are the demands to accommodate ethnic norms in law, even though some examples could be found in the reports. One example of ethnically based claims are the demands of Kurds in northern Iraq and in Kurdishcontrolled areas of Syria to adapt family law norms to what they see as consistent with their perceived national, i.e. ethnic, identity.26 Another example is the European Roma, who live across national borders and therefore bear different nationalities. There, the issues are reversed, as it seems that it is not so much the Roma community that advances claims but the state that perceives some of their family behaviours as harmful and feels compelled to intervene in their family lives.27 Both the Hungarian report as well as the report on the Czech Republic show how the number of Roma children in state care institutions is disproportionally high. The removal of these

23

See among others, Yassari (2017), Cobbing (2018), Marston (1997). See Yassari (2019). 25 For an overview on the debates on the definition of the term ethnicity, see Hale (2004). 26 See in this volume, Hamoudi, Iraq, Sects. 1.1 and 1.3.3. 27 See in this volume, Hofmannová and Řepa, Czech Republic, Sect. 2.2.4, and Balogh et al., Hungary, Sect. 2.2. 24

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children from their home illustrates the high number of cases where Roma parents have been stripped of their parental rights to care and custody of their children. The reports are more specific on questions of religious law, on how claims are or are not based on religion as well as the ways in which state bodies have (or have not) responded to those demands. The plasticity of state law as regards its interaction with religious law depends on many factors: one is whether the state takes the position of a neutral broker between the several religious groups present within its jurisdiction, as a secular state, or whether the state is more supportive of one religion in particular, while other (minority) religious groups are officially recognized.

2.4

Preservation and Evolution of Family and Lifestyles

Most legislation is still deeply marked by the way the family and its role in society have traditionally been conceived. Therefore, any shift either by legislative amendments to existing law or by bold and transformative case law requires determination on the part of the relevant actors. An interesting example of a state with a strong position on the concept of family is Hungary. The report shows how, in particular since the 2010s, traditional gender roles are being promoted by the state via school education, where textbooks depict women almost exclusively as mothers and wives and, in some cases, as less intelligent than fathers. Also, the Fundamental Law (Hungary’s Constitution) and the preamble of the Family Protection Act both stress the importance of marriage in forming a family. However, as is pointed out in the report, this does not necessarily reflect the common views of Hungarians on the matter. At the same time, the reports also show how mainstream concepts of the family, inherited from the past, are being gradually revisited. New social and technological developments and realities in society make people push for profound modifications to the existing legislative framework. Thus, in many regions of the world diverse ways of life emerge from within: often they originate in a shift in social and popular attitudes and the evolution and renegotiation of mainstream ideas and technological progress. This includes the emergence of alternative concepts of family, marriage, patriarchy, religion, feminism, gender and sexual orientation. An interesting path is described in the Japanese report, which reveals how concepts of family and marriage have come to change and impact the ways in which the population is pushing for legislative change. In recent years, Japanese society has seen an increase in bachelorhood among men and women and in unmarried parenthood, as well as the emergence of an awareness of the rights and demands of sexual minorities, in particular same-sex couples.28 However, state law has been particularly resistant to change. For instance, while same-sex marriages are not legally recognized in Japan,

28

See in this volume, Roots, Japan, Sect. 1.

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there is at the same time increasing support among both legal practitioners and scholars for the formal recognition of same-sex marriages. One can see an increasing individualization of the views of how law ought to react to social change. This trend toward individualization is certainly one of the main causes of the pluralization of forms of family life and kinship ties, particularly within liberal democracies today. It is probably no exaggeration to say that this individualization of lifestyles, not least facilitated by recourse to human rights protection, has revolutionized the family over the past few decades. It often happens that legislatures find themselves compelled to amend the law in order to enable persons to manage their lives openly as they see fit and to gain legal protection for their exercise of self-determination. As a consequence, positive law has had to adapt in various ways to the variety of forms of family life in either of the possible constellations—couple relations, parent and child relations—or to the breakdown/ dissolution of the relationship. Legislatures are being asked to offer solutions that meet the ever more diverse needs in given situations: the dissolution of the bond between partners and recognition of the various types of family reconfiguration that often follow, the use of medically assisted reproduction and/or surrogacy that results in multiple adults contributing to bringing a child into the world and/or assuming parental responsibility, the relaxation of the rules governing the division of assets after death, etc. These changes are inevitably accompanied by clashes: activities such as strategic litigation in court, solidarity campaigns and media campaigns exert considerable pressure on family law and, where these lead to the desired result, force it to give way. One striking example of the kinds of challenges legislatures are facing are the ever more widely practiced assisted reproduction technologies that have seen enormous growth since the 1970s and that continue to evolve very rapidly. With the increase in individualization and its legal corollary, the principle of individual selfdetermination, the availability of these technologies—in some countries more widely accessible than in others—has opened up the way to new forms of parenthood that, in many situations, do not sit comfortably within the given legal framework: surrogate motherhood (carrying a child for someone else), requests for post-mortem insemination, the possibility of pre-implantation diagnosis, the right of the child conceived by artificial insemination to find out the identity of the sperm donor, trans father/motherhood, to cite but a few examples, are all situations that in the legislation of many countries remain either unregulated or explicitly forbidden. They are nevertheless very real situations, and the lack of a legislative framework leaves the persons concerned without establishing legal protection and therefore dependent on legal recourse, on the condition, of course, that they feel confident enough to do so, which in turn raises the issue of access to justice. Should blame be attributed to technology and its often staggeringly rapid advancement? Both the law and lawmakers are clearly hard-pressed to keep up with the progress of medical science. Strikingly, in the area of human procreation, situations where positive law is unable to offer an unambiguous response have

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become more and more common in recent years.29 They serve as the textbook example of the slowness with which positive law is able to adapt and of its lag behind the empirical realities of social life. The slow pace at which family law adjusts to social developments in some jurisdictions can be evaluated in different ways. On the one hand, it is understandable if a country wishes to be cautious and not overly flexible: before changing legal rules, the legislature wants to take the time needed to weigh the risks of change and to balance the various interests at stake. From this point of view, law benefits from being stable, as stability is what guarantees its protective dimension. On the other hand, the petrification of historical values in family law regulations does not offer the necessary guarantees or allow individuals and families, in specific situations, to (re)organize their lives in the best possible way, within the framework and with the support of the country’s legal system. This being said, it is not only the breakneck speed of the development of medically assisted reproduction technologies that is revolutionizing family life. One might mention as well the length of time it has taken the vast majority of countries to relax the rules governing access to divorce or the debate, still ongoing in several countries, about legalizing same-sex marriage.

2.5

Interaction with the State

New thoughts and discourses also influence the ways in which public opinion perceives the state and constructs the state’s role in controlling, recording and transforming matters related to the family. At the same time, deliberate policy choices by the state re-shape the self-awareness of state authority, rights and duties as well as the limits on the state’s ability to interfere in the family lives of its citizens. This is well illustrated in the Hungarian report. There, a (new) narrative about the state’s authority has emerged, with the idea of the “proper” demographical composition of the population.30 The report suggests that since the 2010s a specific perception of the nature of Hungary is being promoted by the state. The latter distinguishes between the “multi-nationality root system and cultural background” and “multiculturalism”. In that sense, “multiculturalism denotes the cohabitation of people of various civilizations, the coexistence of Islam, Asian religions and Christianity”. This kind of co-habitation, as stated by President Viktor Orbán in an interview with daily Napi Gazdaság, must be avoided at all costs to prevent harm to Hungarians. Another indication of a re-shaping of the role of the state is the renegotiation of the demarcation line between the private and the public spheres and the lines drawn between the areas reserved for individual autonomy and self-determination and those

29 30

See i.a. Margaria (2019). See in this volume, Balogh et al., Hungary, Sect. 1.4.

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that need supervision and state oversight. An example of such changing lines of demarcation are divorce laws. In European countries, for example, divorce is still the monopoly of the state, but dissolving a marriage is increasingly becoming a private matter with the dissolution of the marital bond being registered or sanctioned by the municipality or other administrative bodies rather than adjudicated in a court.31 Conversely, in countries where divorce had been perceived as a largely private matter, as is the case in some Middle Eastern and Southeast Asian countries, legislatures endeavour continuously to control and institutionalize divorce and bring it within the realm of state authority. Although the points of departure are different, the main concern of both trends is a renegotiation of the boundaries of the private and public sphere. Marriage formalities are another example of that re-shaping. In several countries under review here, the conclusion of marriage has remained the state’s prerogative. In most countries, couples can be validly married only by state bodies in civil marriage (e.g. Germany, Austria, Tunisia). In some cases, this right is also conferred on religious authorities, who then conclude the marriage as state civil servant (e.g. in Spain, Italy, Poland, Finland, the Czech Republic, Great Britain, and most recently in Turkey). Interestingly enough, the national reports evaluate this dichotomy differently, depending on the self-awareness of the state: in some countries the option to authorize religious figures to perform marriages as civil servants might be considered as an example of the unduly role being assigned to religious actors. In others, the fact that a religious marriage can take place only with or after the civil marriage may be deemed as an unduly neglect of religion. But other opinions are also possible. In yet other jurisdictions, the state has no constitutive role in the conclusion of the marriage, but spouses are under an administrative obligation to register their religious marriage with state bodies after its conclusion (e.g. Muslim jurisdictions, South Asian countries). One particularly topical issue is “non-state” (informal) marriages. The reactions of the state authorities to such marriages are, broadly speaking, twofold: in jurisdictions with a state monopoly on the conclusion of marriages, non-state marriages (with the exception of marriages contracted before the competent consular authorities) generally have no legal effect. The law remains indifferent toward those unions. A solely religious marriage between Muslims, Jews, Hindus or Christians, or any marriage performed according to religious customs and habits in any country that requires the participation of state bodies as a conditio sine qua non for the validity of the marriage, will be considered non-existent;32 some countries go as far as to penalize religious authorities who perform such marriages (i.e. Belgium and France). In countries where the participation of the state is not constitutive for the validity of the marriage, penal sanctions may still apply, but the marriage will be considered valid. Where, however, marital rights are being claimed in court by parties involved in such “informal” unions, these claims will be assessed only after 31 32

See Dutta et al. (2017). For recent developments on this sensitive issue, see i.a. Akhtar et al. (2020), Rutten et al. (2019).

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the existence of the marriage has first been proven in court. Inevitably, legal problems will arise in such situations: what is the status of the “spouses” as regards financial claims, the status of their common children, and the possibility of dissolving their unions? What are the social costs and consequences of the interaction or refused interaction by the state? An interesting case study is the comparative analysis of Turkish and German marriage laws: in both countries, the state has a monopoly on concluding marriages (i.e. civil marriage); such a monopoly was introduced with the aim of distancing the state from religious institutions and secularizing family law.33 In the 1870s in Germany, the so-called Kulturkampf led to the abolition of the church’s jurisdiction in family law, much as in 1926 in Turkey, Kemal Atatürk abolished the Caliphate and moved away from Islamic family law to adopt a code based on Swiss family law. In both countries, marriage celebrated without regard for the formal requirements is considered null and void. But whereas in Germany this situation remains (largely) uncontested, in Turkey the picture is different: not infrequently, couples petition for marital rights in the courts, notwithstanding the fact that they are not married officially under state law. However, they do consider themselves married as they celebrated a religious ceremony. The Turkish report shows how the courts refuse to validate such marriages but at the same time are prepared to repair potential “damage” incurred and remedy the rightless “spouse” with entitlements under tort law.34 Similar techniques are being used by Belgian courts.35 In some instances of couples who were married only religiously, the courts have honoured the “spouse’s” marital (monetary) claim despite the absence of a civil marriage. In one case, the court invoked the concept of a “putative marriage” and the good faith of the couple in the existence of their marriage (in the case of a Catholic marriage), while in another case, the court based its reasoning on the stability of the relationship (in a case of a Jewish couple). Both the Turkish and the Belgian reports describe this approach as a “technical” one, where the claim is examined within a larger, neutral framework, using civil law devices without referring to the underlying religious foundation of the marriage.

33

See in this volume, Dutta, Germany, Sect. 1, and Efeçınar and Ömeroǧlu, Turkey, Sect. 1. A similar argument was made in 1958 by the Belgian Supreme Court in a case involving an informal Jewish marriage. See in this volume, Verhellen and Wautelet, Belgium, Sect. 1. 35 See in this volume, Verhellen and Wautelet, Belgium, Sect. 2.1.2 (“Religious Marriages”). 34

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3 Agents of Diversity In a second step, the reports proceeded to identify the potential agents of diversity. By agents we mean, very broadly, the decision-making bodies, communities or individuals who claim, accommodate or reject, adapt or suffer from any given new situation related to family matters.

3.1

Legislating Diversity: Always One Step Behind?

The first agent we asked rapporteurs to consider is the state and its role as the organizer and registrar of family relations.36 One way to identify the state’s position when it comes to managing multicultural claims is to analyze its legislation on the applicable law, its court structure as well as its ambitions and policies. The national reports reveal the various approaches of the national legislatures and their perceived role in regulating family matters in a multicultural setting. A first object of study has been the codification or compilation of family laws in each country. Generally, reports suggest that these laws have been enacted to consolidate a system of relationships based mainly on religious values (in Europe on Christianity and in the Middle East on Islam, for example). Most rapporteurs describe their respective country’s first statutory family laws as conservative, as not having been conceived to allow for or accommodate diversity. In some countries, the codification of family law was a latecomer and to a certain extent meant to defeat the influence of religious institutions and to create a uniform law that is equally applicable to all citizens. Given the foremost aim of forging unity within the nation state, diversity is—by definition—not given much room. An interesting example is the Iraqi Code of Personal Status of 1959. As the Muslim population of Iraq is composed of Sunnis and Shiites, the legislature, while incorporating some progressive rules that diverge from Islamic law, drew from the rules of both confessions in establishing its rules.37 The most distinguishing feature of the Code as originally drafted, therefore, was its uncompromising uniformity, being applicable to all Muslims without distinction for the school to which they belong. The idea was to forge national unity, regardless of the differences in the social and political sphere. Ultimately this proved unsustainable, and more plurality crept into state regulation of family law, in both form and court practice. Similarly, the Tunisian legislature in 1956 conceived of its Family Code as a unifying corpus iuris for all its citizens. Therefore, it abolished the interreligious system that had prevailed until then and installed a unified law to be applied in national courts. The aim was to rally the population under a national banner rather than divide it across religious lines. Like the Iraqi Code of Personal Status, the 36 37

See for an example of the state’s role in family law, Engelcke (2019). See in this volume, Hamoudi, Iraq, Sect. 1.3.1.

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Tunisian code has survived until now, even if, as the Tunisian report states, its status sometimes proves to be fragile.38 A second technique used to process diversity by legislation, more particularly in jurisdictions with strong religious and/or ethnic minorities, is to subject the different groups to separate family law systems.39 Countries like Iraq, Pakistan and the UAE (and for that matter all Muslim jurisdictions with the exception of Tunisia) adopted a system based on the coexistence of religious laws, subjecting citizens to the religious rules of their own religion or confession. This is also true in Greece, but only for the Muslim population of Western Thrace. In Muslim majority jurisdictions, inter-religiosity is reflected in the various sources of family law: generally, there is a common code on family law, compiling the majoritarian view of the predominant school of Islamic law as well as separate codes or compilations of Jewish, Christian, Zoroastrian, Hindu law and so on. Diversity is recognized, but at the same time mechanisms are put in place to neatly separate the different groups. In such systems, however, groups or minorities who are not acknowledged by the state will remain invisible. Also, individuals wishing to cross religious lines defined by the state will have to be creative if they wish their family situation to be granted recognition. A first illustration is the case of the Ahmadiyya community in Pakistan. This religious minority was founded in 1889 in India by Mirza Ghulam Ahmed, who declared himself the promised messiah.40 The main point of divergence with the general Muslim population is that their founder was seen as a prophet—in direct conflict with the belief by Muslims that the final prophet is Muhammad. In the 1970s, the anti-Ahmadiyya movement had reached a peak, with the members of the Ahmadiyya community being declared non-Muslims through an amendment to the 1973 Constitution of the Islamic Republic of Pakistan.41 Thus, whenever members of the Ahmadiyya communities approach a court for a resolution of their family disputes, courts are inevitably faced with the question as to the applicable law governing their family law matters. Unlike Christians or Hindus, who have been afforded special family law rules, there is no normative system accepted by the state to regulate family law matters in the Ahmadiyya community. The task is thus left to the courts, who, as the Pakistani report discusses, are wary of rendering categorical and clear pronouncements. The second illustration is the case of individuals who decide to cross the demarcation between religious lines. The Emirati report refers to the heated debate on custody regulations for non-Muslim mothers of Muslim children. While the marriage of Muslim men with non-Muslim women is allowed, a non-Muslim mother will lose custody of her minor child in the event of a divorce. This rule, which has no foundation in Islamic law, is a way to dissuade inter-religious marriages and prevent

38

See in this volume, Alouane, Tunisia, Sect. 1. On interreligious family law, see Gallala-Arndt (2017). 40 Cf Sofianto (2016). 41 Cf in this volume, Ali, Pakistan, Sect. 4.1. 39

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male exogamy.42 Another example of people crossing religious boundaries are cases of interfaith marriages in Lebanon and Israel. Because bi-religious unions are not facilitated by either state, Lebanese or Israeli couples who are prohibited from marrying in their own country marry abroad.43 Later, they seek to have their union recognized as a foreign union in their home country. A general observation that emanates from several reports is the visible unease with which legislatures tackle family law issues.44 Lawmakers often oscillate between accommodation and rejection and seem to be caught between two extremes: on one hand a sense of being overwhelmed and on the other a desire to take the lead, depending on the issue at stake. This idea is nicely illustrated by the titles chosen by the rapporteurs for their respective reports, which often hint at this notion of ambivalence and incoherence. What seems to be common to most legislative action, however, is its relative lateness and the sense that lawmakers are struggling to find sustainable and reasonable positions on any given issue. This is reflected in all reports: more often than not, the task is left to the judiciary. An area where European legislatures in particular have been very active is legislation on homosexual relations, be it in the form of registered partnerships or same-sex marriages. In some cases, this activity is a consequence of cases brought to the highest courts, while in others lobby groups were very active. In some jurisdictions, legislators have taken up the subject and legalized unions between homosexual partners. However, the controversy surrounding those laws and the public uproar they have caused have been very strong in many jurisdictions under review. Where laws have been passed, the reformers have generally based their initiative on the principles of freedom and equality and non-discrimination. Opponents of such laws have at times tried to resist change by suggesting that the Constitution be amended so as to include a clear definition of marriage as a union between a man and a woman.45 Often these claims are not framed within a “multicultural” setting, instead drawing on considerations of non-discrimination and equality. They bear witness to the changes in attitudes towards addressing these issues in public and seeking acceptance. In countries where only registered partnership exists as an institutional framework for homosexual couples, adoption remains a contentious issue. While generally speaking an individual as well as a heterosexual married couple may adopt a child together, this is often not an option for registered partners. The Czech report gives an interesting example. In 2016 the Constitutional Court declared unconstitutional a provision forbidding a person who has entered into a registered partnership from adopting a child, reasoning that any other individual could do so. The report, however, also mentions that even after the judgment—and to date—adoption by

42

Cf in this volume, Möller, United Arab Emirates, Sect. 2.2. Cf Triger (2012), De Giacometti (2019). 44 For example, regarding the dissolution of informal marriages in Egypt, see Alim and Yassari (2016). 45 See in this volume, Hofmannová and Řepa, Czech Republic, Sect. 2.1. 43

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couples is still limited to heterosexual couples. A child cannot be adopted by two persons of the same sex, regardless of their status.46 In other cases, the legislature has been reacting swiftly without waiting for a judicial decision. In Greece, for example, the Molla Sali v Greece case, regarding an inheritance case among Muslim Greeks in the Western Thrace, was still pending with the European Court of Human Rights when the Greek legislature enacted a law to make the application of Islamic law to the said group optional rather than mandatory.47 In the same vein, the German legislature passed a law to avoid and prohibit child marriages while the case of a Syrian minor marriage was still under examination by the German Federal Supreme Court.48 Although the subsequent amendments did not change the legal grounds under which both cases had to be examined, they were a signal of the state’s own position in the matter. Yet another relevant experience of the interplay between legislation and diversity is seen in South Africa. South Africa’s population is divided along religious, racial, linguistic, cultural and other lines. This division is reflected in the country’s legal sources, which constitute a pluralistic legal system. The official system comprises transplanted Western law (a mixture of Roman-Dutch and English law) and customary law (the local rules of traditional communities). At the same time, it also allows for limited recognition of non-state law (i.e. aspects of Jewish, Muslim and Hindu family law). Although the latter normative orders are not officially recognized, there are examples where the courts have admitted the existence of non-state family law. The basis for such claims is the Constitution, its committing both to the protection of equality and to the freedom of religion clauses. The South African legislature has opted for a diversity of laws giving effect to a variety of relationships. Thus, a South African couple’s marriage may be governed by common law, customary law or religious law, or it might be concluded as a civil union. The way diversity is recognized in family law in South Africa is, as the report points out, often seen as a “painful headache”.49 In ascertaining the applicable rules, South African legal practitioners need to look to a variety of statutes, case law, common law rules (the mix of Roman-Dutch and English law), living customs and non-state religious norms. Thus, in South Africa complexity seems to be the price, as it were, of accommodating diversity.

See in this volume, Hofmannová and Řepa, Czech Republic, Sect. 2.2.2. See in this volume, Koumpli, Greece, Sect. 2.2.3. 48 The Federal Supreme Court subsequently referred the case to the German Federal Constitutional Court for possible unconstitutionality of the respective law, Yassari and Michaels (2021). As of October 2021, the case has not been decided. 49 See in this volume, Rautenbach, South Africa, Sect. 1. 46 47

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Adjudicating Multiculturalism: A Realistic Endeavour?

The second agent that reports looked at is the judiciary and court practice in general. We start from the premise that adjudication in family law entails a varying degree of discretion on the part of the judge to assess, interpret and concretize family law terms and concepts that more often than not are formulated in vague, indeterminate terms, such as the “best interests of the child” or “hardship”. Also, legal entities that have been associated with specific content are being challenged and revisited: is a “marriage” to be defined exclusively as a union that binds two persons of different sexes? Can it be expanded to same-sex unions? Does it necessarily entail the Christian-inspired notion of monogamy or can more than two people form a marital union? Does the notion still entail concepts of the roles of the spouses? What makes the analysis of court decisions even more revelatory is the fact that they often have to solve problems for which the legislatures have not yet designed a legal solution because of their reluctance, inadequacy or belated reaction to a multicultural phenomenon. The example of marriage formalities is instructive: given that informal marriages are not regulated by law yet take place nevertheless, the courts are asked to resolve the legal problems that informal spouses may face. Another interesting example of how the judicial rulings have preceded legislative reform is given in the Pakistani report on the transgender community and, in particular, the case of transgender persons. It traces how Pakistani courts and especially the Supreme Court became their “champion”, handing down decisions and asking Parliament to adopt laws in accordance with the principle of equality and non-discrimination.50 When in 2018 the Pakistani Parliament adopted the Transgender (Protection of Rights) Act decriminalizing transgender persons and affording them fundamental rights, the religious establishment followed suit and backed the Act with a corresponding fatwa issued by the Pakistani religious establishment. Other reports also demonstrate the role of their constitutional courts in filling a lacuna or advancing the causes of minorities. For example, in 2017 the Austrian Constitutional Court suspended the marriage ban for same-sex couples, declaring the differentiation made under Austrian law between hetero- and homosexual couples unconstitutional.51 The provisions concerned subsequently ceased to apply. However, the Austrian legislature remained inactive and has to date not changed the existing laws on marriage and registered partnership. This means that courts will continue to interpret and shape contentious family law issues. Similarly, in South Africa, after rendering a decision concerning the registration of the union of a lesbian couple, the Constitutional Court ordered Parliament to pass legislation that would allow same-sex marriages. Parliament responded to the Court’s order by adopting the Civil Union Act 17 of 2006, which allows for heterosexual and same-sex marriages/unions to be registered under the law. Another 50

See in this volume, Ali, Pakistan, Sect. 4.4. See in this volume, Balthasar-Wach and Engel, Austria, Sect. 2.1.1 (“Reactions and Responses, Marriage and Sexual Orientation”).

51

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example from South Africa is the case of non-state and unrecognized (religious) marriages. While such marriages do not create any marital bond, the judiciary has been creative in giving legal protection to some of these relationships’ consequences, mainly to protect women. This attitude can also be found in Germany in relation to polygynous marriages concluded validly abroad: although the polygynous marriage will not be recognized in Germany, some effects of a marriage will be afforded to the spouses, based on the idea of vested rights, essentially protecting the good faith belief of the spouses that they are married.

3.3

Civil Society, Lobby Groups and Communities

Finally, the third agent under review consists of civil society actors, individuals, communities or lobby groups who navigate through the framework offered (in its broadest sense) by the state. In some countries, those groups display a strong selfawareness of their interests and tend to take their claims to the courts. Other communities resent the state’s reaction and tend instead to seclude themselves in their own communities. A first illustration of such activities is given in the Japanese report. In 2015, a small group of individuals submitted a petition for human rights relief to the Japan Federation of Bar Associations (JFBA) contesting the absence of a possibility for same-sex couples to marry, claiming that the denial of their right to marriage violated the Constitution.52 In 2019, the JFBA supported that view and called upon the legislature to amend the law. Simultaneously, a group of lawyers embarked upon four concurrent lawsuits concerning same-sex marriage. In reaction to that action, some 23 municipalities in Japan started issuing so-called “partnership certifications” to same-sex couples. In the same vein, private corporations started to provide employees in a same-sex partnership with the same family benefits as those in heterosexual marriages. While, as the report points out, these certificates do not have any legal effects whatsoever, they have a strong symbolic effect. Rather than being a means of acquiring legal rights and obligations, they represent a first step towards official recognition of same-sex couples and a wider awareness of their specific family-law-related needs. Furthermore, the Austrian report illustrates an interesting conflict of interest regarding the availability of surrogacy for male same-sex couples. In 2013 the Austrian Constitutional Court held that the provision of the Reproductive Medicine Act that limited artificial insemination and in-vitro fertilization to heterosexual couples was unconstitutional, yet it opened these practices up to female same-sex couples only in order to avoid the potential for abuse of women in surrogacy

52

See in this volume, Roots, Japan, Sect. 2.1.2 (“Human Rights Relief Petition to JFBA and Lawsuits”).

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procedures.53 As a consequence, male same-sex couples desirous of children are denied access to those techniques. Interestingly, this decision was supported by the organization Homosexuelle Initiative Wien (HOSI), which was strongly opposed to opening surrogacy up to male same-sex couples for fear of female exploitation, in particular considering the economic inequalities between the country of the surrogate mother and that of the potential parents. At the same time, HOSI has also been instrumental in advancing the right of same-sex couples to adopt a child, which was legalized in 2016. Other examples of active civil society groups are the various Muslim communities in South Africa who have been lobbying for a codification and legalization of Muslim marriages. As the report shows, various religious groups within the Muslim communities have joined forces with gender activists to support the enactment of a Muslim Personal Law. A shared argument of these supporters was that religious Muslim marriages were already widespread in the communities in South Africa. People de facto live and abide by Muslim family law, a situation that ought to be recognized by state law.54 Another illustration of how legal constraints have produced de-facto realities is given in the Finnish report. It describes how, for administrative and other reasons, minority groups and (in the example sketched by the author) Muslim communities, in some cases do not have access to a state-sanctioned, i.e. legal, marriage.55 Therefore, marriages are often concluded in a religious ceremony. If the marriage breaks down, the state can offer no remedy to dissolve the marriage, since as far as state law is concerned no valid marriage was concluded in the first place. Spouses seeking divorce would then turn to their mosque to seek relief. The report draws attention to the needs of the spouses concerned, who are looking for responses from those they approach for help, i.e. the mosques, and shows the variety of reasons why people rely on these institutions, seeking fatwas, counselling, mediation and in some cases the performance of a religious divorce so as to clarify their status. All this occurs notwithstanding the fact that neither the marriage nor the divorce is recognized under Finnish state law. Thus, the report shows how people navigate among the religious, secular and cultural norms at hand, seeking recognition of their choices in life.

4 Conclusion The national reports published in this volume show how the law of the countries under examination handle cultural and religious diversity, in particular as regards the regulation of family life. They offer the reader a series of studies, each of which in its

53

See in this volume, Balthasar-Wach and Engel, Austria, Sect. 2.2.2. See in this volume, Rautenbach, South Africa, Sect. 2.1.1 (“Religious Marriages”). 55 See in this volume, Mustasaari, Finland, Sect. 2.1. 54

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own way arrives at sophisticated analyses of the domestic legal system, presenting it not simply as a set of rules but as a process that is in constant evolution, change and adaptation, and one that ought to be seen as playing out within its own context. The changes that the law undergoes may be deemed either too slow and conservative or, to the contrary, too rapid and in certain situations even unfair. By showing that positive law does not offer an adequate solution to every situation that presents itself today in the context of a plural society, the reports help us to better understand that the quest for justice in family matters—that is, the search for fair and balanced solutions in specific cases—does not stop with the positive law as decreed and inherited from the past but demands instead a continual attentiveness to the need for it to be updated.

References Akhtar R, Nash P, Probert R (eds) (2020) Cohabitation and religious marriage. Bristol University Press, Bristol Alim N, Yassari N (2016) Between procedure and substance – a review of law making in Egypt. In: Yassari N (ed) Changing God’s law – the dynamics of Middle Eastern family law. Islamic law in context. Routledge, London, pp 113–130 Beauchemin C (ed) (2018) Migration between Africa and Europe. Springer, Cham Berger MS (ed) (2013) Applying Shariʻa in the West. Leiden University Press, Leiden Boele-Woelki K, Dethloff N, Gephart W (eds) (2014) Family law and culture in Europe – developments, challenges and opportunities. Intersentia, Cambridge Bonomi A, Schmid C (eds) (2014) Droit international privé de la famille – Les développements récents en Suisse et en Europe. Schulthess Verlag, Zürich Bramadat P, Koenig M (eds) (2009) International migration and the governance of religious diversity. Metropolis, Montreal Cadet F (2005) L’ordre public en droit international de la famille. Etude comparée France/Espagne. L’Harmattan, Paris Çitlak B, Kurtenbach S, Lueneburg M et al (eds) (2017) The new diversity of family life in Europe: Mobile ethnic groups and flexible boundaries. Springer VS, Wiesbaden Cobbing A (2018) A Victorian embarrassment: consular jurisdiction and the evils of extraterritoriality. Int Hist Rev 40(2):273–291 De Giacometti M (2019) The Island of Love. Bulletin de correspondance hellénique moderne et contemporain 1. http://journals.openedition.org/bchmc/300. Accessed 5 Jan 2021. https://doi. org/10.4000/bchmc.300 Dutta A, Schwab D, Henrich D et al (eds) (2017) Scheidung ohne Gericht? Neue Entwicklungen im europäischen Scheidungsrecht. Beiträge zum europäischen Familien- und Erbrecht, vol 18. Gieseking Verlag, Bielefeld, pp 315–336 Engelcke D (2019) Establishing filiation (nasab) and the placement of destitute children into new families: what role does the state play? J Law Relig 34(3):408–432 Esplugues C, Iglesias JL, Palao G (eds) (2011) Application of foreign law. Sellier Publisher, Munich Foblets M-C (2013) Accommodating Islamic family law(s). A critical analysis of some recent developments and experiments throughout Europe. In: Berger MS (ed) Applying Shariʻa in the West. Leiden University Press, Leiden, pp 207–226 Gallala-Arndt I (2017) Interreligious law. In: Basedow J, Rühl G, Ferrari F et al (eds) Encyclopedia of private international law, vol 3. Edward Elgar Publishing, Cheltenham, pp 1020–1026

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Grillo R (ed) (2008) The family in question. Immigrant and ethnic minorities in multicultural Europe. Amsterdam University Press (Imiscoe Research), Amsterdam Hale HE (2004) Explaining ethnicity. Comp Pol Stud 37(4):458–485 Hall S (2011) Political belonging in a world of multiple identities. In: Baumann G, Vertovec S (eds) Multiculturalism. Critical concepts in sociology, vol 4: Crises and transformations: challenges and futures. Routledge, London, pp 151–157 Heinemann T (2015) Suspect families: DNA analysis, family reunification and immigration policies. Ashgate, Farnham/Surrey Levy JT (2004) Cruelty and conflict in multiethnic politics. In: Levy JT (ed) The multiculturalism of fear. Oxford University Press, Oxford, pp 40–65 Margaria A (2019) The construction of fatherhood – the jurisprudence of the European court of human rights. Cambridge University Press, Cambridge et al Marston G (1997) British extra-territorial jurisdiction in Japan: the case of the Ravenna and the Chishima. Br Yearb Int Law 68(1):219–245. https://doi.org/10.1093/bybil/68.1.219 Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg (2020) Die Frühehe im Rechtsvergleich: Praxis, Sachrecht, Kollisionsrecht. Rabels Zeitschrift für ausländisches und internationales Privatrecht 84:705–785 McEleavy P (2011) La résidence habituelle, un critère de rattachement en quête de son identité: perspectives de common law. Droit international privé: travaux du Comité français de droit international privé (2008–2010) 19:127–155 Meulders-Klein M-T (1996) Quels fondements pour la parenté? In: Steichen R, de Villers G (eds) La famille et les familles: quelle identité aujourd’hui? Academia Bruylant, Louvain-la-Neuve, pp 41–55 Nichols JA (ed) (2012) Marriage and divorce in a multicultural context, multi-tiered marriage and the boundaries of civil law and religion. Cambridge University Press, New York Nishitani Y (ed) (2017) Treatment of foreign law – dynamics towards convergence? Springer, Cham Roy A (2015) Pour un droit de la famille adapté aux nouvelles réalités conjugales et familiales – le rapport du Comité consultatif sur le droit de la famille. In: Barreau du Québec, Service de la formation permanente du Barreau (ed) Développements récents en droit familial. Éditions Yvon Blais, Cowansville, pp 1–18 Rutten S, Deogratias B, Kruiniger P (eds) (2019) Marital captivity – divorce, religion and human rights. Eleven International Publishing, The Hague Shah P, Foblets M-C, Rohe M (eds) (2016) Family, law and religion – cultural encounters in Europe. Routledge, Abingdon Sofianto K (2016) Mirza Ghulam Ahmad: founder of the Ahmadiyya Muslim from Qadian, India. TAWARIKH: Int J Hist Stud 7(2):183–200 Triger Z (2012) Freedom from religion in Israel – civil marriages and cohabitation of Jews enter the rabbinical courts. Israel Stud Rev 27(2):1–17. https://doi.org/10.3167/isr.2012.270202 Verhellen J (2016) Access to foreign law in practice: easier said than done. J Priv Int Law 12(2):281–300 Vetters L, Foblets M-C (2016) Culture all around? Contextualising anthropological expertise in European courtroom settings. Int J Law Context 12(3):272–292 Wyvekens A (2016) Justice familiale et migration: de la diversité culturelle à la double appartenance. Recherches Familiales 1(13):65–77 Yassari N (2014) Die Brautgabe im Familienvermögensrecht. Mohr Siebeck, Tübingen

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Yassari N (2017) National report – Egypt. In: Basedow J, Rühl G, Ferrari F et al (eds) Encyclopedia of private international law, vol 3. Edward Elgar Publishing, Cheltenham, pp 2054–2061 Yassari N (2019) The relations of Iran with EU member states. In: Dutta A, Wurmnest W (eds) European private international law and member state treaties with third states – the case of the European succession regulation. Intersentia, Cambridge, pp 253–266 Yassari N, Michaels R (2021) Die Frühehe im Rechtsvergleich – Praxis, Sachrecht, Kollisionsrecht. In: Yassari N, Michaels R (eds) Die Frühehe im Recht – Praxis, Rechtsvergleich, Kollisionsrecht, höherrangiges Recht. Mohr Siebeck, Tübingen, pp 17–97 Zuanazzi I, Ruscazio MC (eds) (2018) Le relazioni familiari nel diritto interculturale. Libellula Edizioni, Tricase Nadjma Yassari LL.M. (SOAS) is the leader of the research group “Changes in God’s Law – An Inner-Islamic Comparison of Family and Succession Laws” at the Max Planck Institute for Comparative and International Private Law in Hamburg. Her main fields of research are national and private international law of Islamic countries, in particular the Arab Middle East, Iran, Afghanistan and Pakistan, with a special focus on family and succession law. Born on 6 March 1971 in Teheran, Iran, Nadjma Yassari studied law in Vienna, Paris and London. She holds an LL. M. degree from the University of London, School of Oriental and African Studies and an LL.D. from the University of Innsbruck, Austria. In 2000/2001 she spent a year at the Faculty of Language at the University of Damascus in Syria. In 2016 she was awarded a post-doctoral degree (Habilitation) from the University of Hamburg. Marie-Claire Foblets Lic. Iur., Lic. Phil., Ph.D. Anthrop. (Belgium) is director at the Max Planck Institute for Social Anthropology and head of the Department of Law & Anthropology, which she founded in 2012. She is also Professor of Law at the University of Louvain (KUL) and an honorary professor at Martin Luther University Halle-Wittenberg. She has held various visiting professorships both within and outside Europe. She has conducted extensive research and published widely on issues of migration law, the topics including the elaboration of European migration law after the Treaty of Amsterdam, citizenship/nationality laws, compulsory integration, anti-racism and non-discrimination. In the field of anthropology of law, her research focuses on cultural diversity and legal practice, with a particular interest in the application of Islamic family law in Europe and, more recently, the accommodation of cultural and religious diversity under state law. She has received honorary doctorates from the Law Faculty of the Facultés universitaires Saint-Louis, Brussels, Belgium, and from the Law Faculty of the University of Uppsala, Sweden, in 2016 and 2019 respectively. In 2001, Professor Foblets was elected to the Royal Flemish Academy of Belgium for Science and the Arts (KVAB), and in 2015 to the Saxon Academy of Sciences and Humanities in Leipzig (Germany).

Uniform Law in a Divided Society: A Closer Look at the Iraqi Personal Status Code Haider Ala Hamoudi

Abstract Iraq is a deeply diverse society. Among its divisions are those between centralists and pluralists, more religious elements and more secular ones, Arabs and Kurds, and, of course, Sunnis and Shi’is. Each of these has a role to play in the operation of family law in Iraq, which is dominated by a single, putatively uniform law, the Personal Status Code of 1959. The manner in which the Code, controversial from its inception, has been able to survive has been through managing the various demands of these different elements of Iraqi society. Hence, for example, the courts interpret the Code in a manner that defers to sectarian rules in those areas where their application is important to the sects. The Code offers uniformity and progressivity in other places as a means to placate secularist demands, and courts then relax some of those provisions in places in Iraq where they might be controversial. Finally, the Code balances the competing claims of religious conservatives and progressives through a liberal use of talfiq, or a patching together of various Islamic rules in a manner that achieves the most progressive outcome that might be considered compliant with traditional understandings of shari’a. While none of this is without controversy, and the Code remains a target of attack from various Iraqi elements, most notably conservative Shi’i parties, the Code has managed to survive. This is because, simply stated, the parties can find no better bargain to manage their divisions.

1 Introduction: The Outlines of Iraqi Family Law 1.1

Iraqi Divisions

It is impossible to describe how Iraqi family law has evolved over the decades without at least a brief primer on the divides that exist within Iraqi society, and the

H. A. Hamoudi (*) University of Pittsburgh School of Law, Pittsburgh, PA, USA e-mail: [email protected] © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_2

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manner in which those affect law and legal outcomes in Iraq. By far the most commented upon divide is the one between the Sunnis and the Shi’a. Even those only faintly aware of Iraqi political history know that Iraq was, from its inception until the ouster of the Ba’ath regime in 2003, a state with a Shi’i majority whose political class was dominated by a Sunni elite. As a result, this created challenges toward the establishment of a uniform code of personal status that had any Islamic content, because the rules of personal status across the sects are not uniform. Indeed, perhaps the one area where the rules between the sects diverge the most substantially—as a matter of both theory and practice—is in the law of inheritance, which is an integral part of virtually any personal status code within the Muslim world.1 At the same time, the sectarian divide for most of Iraq’s history can be an over simplification inasmuch as it is understood to concern questions of Islamic law doctrine. Rather, the divide within Iraqi relates to, but is distinct from, a more fundamental divide that the Slugletts describe as being between the “haves” and the “have-nots”.2 Because the former Ottoman officer corps who effectively created the Iraqi State around King Faysal were to a person Sunni (as was King Faysal himself), Shi’is never grew particularly enamored of the nationalist project within Iraq, nor of the trends of Arab nationalism that dominated in the region.3 For decades, therefore, the Sunnis were the backbone of Iraq’s various nationalist parties, committed to centralizing power in Baghdad, and contemptuous of any efforts to divide power, whether delegated to subnational institutions through a form of federalism or to non-state institutions through less formal types of pluralism. The Shi’a, on the other hand, were the underclass, more pluralist and suspicious of Sunni-dominated Baghdad. Accordingly, for example, many Shi’a did not regard the state as the sole issuer of valid law. Instead, they deemed the Najaf clerical institutions known collectively as the marjaʿiyya to be the authentic voice of Islamic law wherever Islamic law was to apply, including personal status.4 This pluralistic conception diverged sharply with that of Sunni nationalists, who sought to squelch such sentiments as a form of dangerous foreign allegiance. However, it is not the case that every Shi’i is a pluralist who regards Najaf as the only authority that can pronounce rules of personal status, and not every Sunni is a nationalist who regards alternative forms of authority as suspect. There are no small number of urban Shi’i nationalists from merchant families who, while not holding political power, did quite well for themselves by the time the monarchy had ended and for decades afterwards.5 Many belonged to secular, nationalist parties alongside Sunnis. There are, likewise, Sunnis far from urban centers far more likely to turn to a tribal shaykh to resolve a dispute than an Iraqi court.

1

Hamoudi and Cammack (2018), pp. 35–36. Farouk-Sluglett and Sluglett (2003), p. 190. 3 Sluglett (2007), p. 32. 4 Hamoudi (2014b), pp. 101–102. 5 Batatu (1978), p. 47. 2

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The other major divide within Iraqi state and society worth mentioning at the outset concerns the ever-present Kurdish question. Specifically, Iraq has always had a significant population of Kurds, approximately 20–25% of the population. They continually sought some form of autonomy from Baghdad and were long denied it. They finally received a significant form of self-rule after 2003, and the current Constitution specifically confers upon the Kurdish region the power to make or amend all national law that does not relate to the state’s exclusive powers. Personal status law, under this formulation, lies very much under Kurdish control as a result.6 The Kurds have used this power to make significant amendments to the Personal Status Code applicable in their region. The Kurdish question relates to family law only incidentally. Yet the presence of the Kurds points to another divide with important implications for family law. This is between those favoring a more secular legal system and those preferring a more Islamically oriented one. The Kurds generally trend toward the former pole, and the Arabs toward the latter. As with the Sunni-Shi’a divide, the mapping is not perfect— many Arab nationalists are inherently secular, and Iraq’s Arab region has no small number of civil society and women’s rights activists who agitate regularly for a more secular personal status law. Certainly, the original Personal Status Code of 1959 was, as is shown below, quite progressive for its time. This had virtually nothing to do with the Kurds, who were not involved in its drafting or enactment. Similarly, there is no shortage of Kurdish Islamist political parties who oppose secularization of any sort, including within the Personal Status Code. Nevertheless, it is fair to say that the participation of the Kurds within Iraq prior to 2003 advanced the efforts of secularists to introduce reforms to traditional Islamic rules. Their general removal from the scene since then, because they have had no interest in the terms of a national law that they can amend or ignore at will in their region, has stunted efforts at any further secularization. Finally, it should be mentioned that Iraq’s diversity is far broader than is described above. There are significant populations of religious minorities (among them Christians, Yazidis, Sabians, and, historically, Jews) as well as ethnic ones (among them Turkomans, Shabaks, and Persians).7 They are important to understanding Iraq’s rich mosaic of peoples in any number of contexts. However, due to their relatively small size, their influence and role in setting any sort of personal status law agenda has been marginal, and they have therefore been either the incidental beneficiaries or victims of various measures, rather than their causes.

6 7

Arts. 110, 115, 121(2) Constitution of Iraq. Marr (2012), pp. 17–19.

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Iraqi Family Law Before the 1959 Code

Prior to 1959, Iraqi family law was sectarian based, with shari’a courts set up in major urban centers applying a traditional and uncodified version of shari’a, based upon the sect of the litigants.8 Special provisions were inserted to ensure that where the only shari’a court was a Sunni one, the Sunni judge would make use of Shi’i religious experts to ensure that any ruling conformed to Shi’i rulings.9 Special councils for Christians and Jews existed as well, to adjudicate disputes within those communities.10 This overt adoption of a form of legal pluralism to span Iraq’s sectarian and religious divides should be viewed as a response to the reality of Iraq’s core sectarian division. King Faysal and his advisers saw no other way to legitimize the state in the eyes of its majority Shi’i population than to recognize Shi’i rules as binding in the vitally important area of family law. As such, the monarchical authorities responsible for creating this dual system of family law never intended to continue it forever. They thus tried over a period of decades to replace it with a more uniform code that would be binding upon all Iraqis, in particular as at least some prominent Shi’a families grew more integrated into the state. The most advanced effort was a 1947 proposal that unified some aspects of family law but left large portions of it to be determined by the rules of the relevant sect of the affected party or parties.11 Even this relatively modest undertaking ultimately failed, largely due to vociferous objection from the Shi’i clerical forces who commanded substantial loyalty from the Shi’i population.12 Sunni clerics proved more supportive, or at least less overtly in opposition, toward the 1947 draft, given their more nationalistic outlook and their own suspicions respecting Shi’i particularism.13 In addition, as noted earlier, there were a significant number of secular forces, primarily among Arab nationalist elites, who were desirous of both uniformity and secular reform of Islamic family law rules they regarded as antiquated and retrograde.14 Thus, by the end of the monarchy, there were, broadly speaking, three different socio-cultural ways of life that dominated discussions respecting the future of family law. One was deeply nationalist and secularist (and primarily Sunni), one was pluralist and Shi’i Islamist, and the third was largely nationalist and Sunni Islamist. What ultimately emerged, following the 1958 coup, was a law that intended to amalgamate these diverging experiences into a single, uniform code. This was the 1959 Personal Status Code, still in force, in amended form, to this date.

8

Law of the Religious Courts of 1923 (Iraq). Id. at Art. 6. 10 Art. 78, § 5 Constitution of the Kingdom of Iraq (1925). 11 Stilt (2004), p. 748. 12 Stilt (2004), p. 748. 13 Stilt (2004), p. 748. 14 Hamoudi (2014b), pp. 48–49. 9

Uniform Law in a Divided Society: A Closer Look at the Iraqi Personal. . .

1.3 1.3.1

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The 1959 Personal Status Code Original Text

The Personal Status Code was neither particularly Sunni, nor Shi’i, in that it plainly drew from the rules of both sects in establishing its rules.15 Hence, for example, a divorce that a husband pronounced in anger was deemed invalid, in conformity with the position of the Shi’i jurists, while a marriage required two witnesses to be valid, a condition of marriage among the Sunni sects, but not the Shi’a.16 Moreover, in deference to a rising urban elite who sought to reform traditional Islamic law rules, the Code contained a number of progressive provisions taken from neither sect. These include a ban on child marriage,17 a requirement of court approval for polygamous marriages,18 and, most radically, a rule whereby male and female heirs inherit equally, as opposed to the 2:1 formulation that predominates in Islamic law.19 The most distinguishing feature of the Code as originally drafted, however, and the one that earned it the implacable and enduring opposition of the Shi’i clerical elite in Najaf, was its uncompromising uniformity. There was simply no reference, at all, to the idea that a Shi’i or a Sunni—or a Christian or a Sabian for that matter— would somehow have a different rule apply to them. Indeed, even in setting forth interpretive rules, the Code directs courts to search for appropriate rules from among those of Islamic law, without being bound by the rules of any particular sect.20 There is nothing, therefore, that would prevent a court from filling gaps in the Code using a Sunni rule, or a Shi’i one, without regard to the sect of the litigants, so long as the Court found it harmonious to do so.

1.3.2

Major Reforms

The rigid conception of uniformity and the comparatively radical secular reform envisaged in the original version of the Code did not survive. Pluralists and religious conservatives were too implacably opposed to too many provisions to make this possible. Erosions were therefore swift. The most significant early repeal, undertaken only 4 years after the enactment of the Code, related to inheritance. The Code’s original provisions had been by far the most radical in their departure from both Islamic tradition and, arguably, Qur’anic text, given the equal distribution prescribed

15

Hamoudi (2016), p. 336. Arts. 35 and 36 Personal Status Code, Law No. 188 of 1959 (Iraq). 17 Art. 1(1) Personal Status Code, Law No. 188 of 1959 (Iraq). 18 Art. 3(4)-(7) Personal Status Code, Law No. 188 of 1959 (Iraq). 19 Art. 89(4) Personal Status Code, Law No. 188 of 1959 (Iraq). 20 Art. 1(2) Personal Status Code, Law No. 188 of 1959 (Iraq). 16

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for males and females.21 In their place, legislators inserted somewhat ambiguous text that the Court of Cassation understood as bringing inheritance rules back to the way that they had been prior to enactment of a uniform Code.22 This reversion to uncodified shari’a was not entire, and there were some legislative interventions over time, undertaken in order to favor close female relatives such as daughters and sisters.23 As these were an adoption of Shi’i rules, and as it was the Shi’a who were most hostile to the idea of uniformity, these reforms have proven largely uncontroversial. The second manner in which this conceptually uniform Code began to show signs of accommodation to Shi’i demands for pluralism related less to formal amendment and more to judicial interpretation. Specifically, Iraq’s judiciary began to interpose a great deal of non-uniformity into the Code that was not present in the text. This is most obvious in connection with the provisions pertaining to the traditional right under shari’a of a husband to end his marriage at will through an oral pronouncement known as talaq. The Code’s provisions on this subject are brief, comprising only six relatively short articles.24 As discussed subsequently, this has left courts free to fill gaps by inserting traditional Islamic law rules taken from the particular sect, or religion, of the married parties.25 The result is effectively two separate sets of rules in the area of talaq, one of which pertains to Shi’i husbands who seek to pronounce it and one to Sunni husbands. Courts are also able to manage pluralistic social expectations in many cases through varying interpretations of inherently ambiguous text. For example, Article 3(6) of the Code indicates that a judge may only grant permission for a polygamous marriage when there is a “legitimate reason” for the husband to seek one.26 The determination of what constitutes a legitimate reason varies widely across Iraqi courts. Some courts in Baghdad deny permission to take a second wife under almost all circumstances, with one going so far as to cite the Convention on the Elimination of all Forms of Discrimination against Women to justify the refusal.27 Other courts are far more permissive, and seemingly only ensure that the husband is capable of providing necessary financial support, which is already a separate requirement under the Code. Even as the secular elite was effectively forced to give ground in favor of more traditional Islamic rules and more non-uniformity, they were able over time to achieve significant, uniform changes to family law in a plainly progressive direction.

21

Anderson (1963), p. 1028. Al-Kubaysi (2008), pp. 149–150. 23 Arts. 89(4) and 91(2) Personal Status Code, Law No. 188 of 1959 (Iraq). 24 Arts. 34–39 Personal Status Code, Law No. 188 of 1959 (Iraq). 25 Personal Status Court of Baya’ (sitting in cassation), decision no. 5145/186 of January 14, 2009 (Iraq). 26 Art. 3(6) Personal Status Code, Law No. 188 of 1959 (Iraq). 27 The S.J.N. Petition, Personal Status Court of the Sha’ab District (unnumbered, and decided August 5, 2009) (Iraq). 22

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For example, one Ba’ath era Revolutionary Command Council Decree ordered that the dower due to a wife at marriage be measured in its value in gold at the time of the marriage contract, to the extent that the dower had been set in the form of Iraqi dinars.28 This was intended to address the problem of Iraqi hyperinflation after the First Gulf War in 1990, as a result of which wives’ dowers were reduced from the thousands of dollars that had been intended to values of less than a dollar in some cases.29 That decree has survived constitutional scrutiny and has not been repealed, well into the post-Ba’ath era. Other reforms enacted through legislative amendment include an obligation on the part of a husband who “capriciously” divorces his wife to provide her a sum necessary to support her for a period of up to 2 years,30 and provisions that expand the right of a wife to obtain a judicial dissolution of her marriage from her husband.31 Procedural tricks can also be deployed by courts to limit the effect of secular reforms where they would be most resisted. Thus, an Iraqi court in the conservative, Holy City of Kerbala was able to dismiss the dual claims of a 15-year-old girl that her marriage was coerced and that she was underage on the grounds that Iraqi courts do not permit alternative pleading. The decision was upheld on appeal.32

1.3.3

Contemporary Challenges to the Code

The Code in its current form is thus effectively a pastiche that reflects Iraq’s major social, cultural, and religious divisions. For the nationalists, it is putatively uniform, and indeed many of its rules apply uniformly. However, to appease pluralists and conservative religious forces, there is some deference to traditional rules of sect to fill gaps. Finally, over time the Code has incorporated limited secular reform (applied unevenly to manage social expectations of religious forces). This combination has allowed the Code to survive from 1959 to this day. This result was hardly foreordained, in particular with the rise of Shi’i Islamism as a robust political force following the end of Ba’ath rule. The Shi’i juristic classes and their political allies had opposed the Personal Status Code at its inception and continue at least in theory to oppose it.33 In fact, in deference to their demands, Article 41 of the current

28

Mahkamat al-Tamyiz [Court of Cassation], Personal Status Panel, decision no. 863 of March 13, 2008 (Iraq). 29 See, e.g., id. (When the bride and the groom were married in 1976, a 1000-dinar deferred dower was equivalent to approximately $3500 at that time, and $14,000 today. By contrast, after the hyperinflation Iraq endured in the decade following the First Gulf War, 1,000 Iraqi dinars is now worth less than $1). 30 Art. 39(3) Personal Status Code, Law No. 188 of 1959 (Iraq). 31 Personal Status Code, Law No. 21 of 1978 (Iraq) (amends Art. 43 of Personal Status Code, Law No. 188 of 1959). 32 Mahkamat al-Tamyiz [Court of Cassation], Personal Status Panel, decision no. 2055 of 2008 (Iraq). 33 Hamoudi (2016), pp. 336–340.

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Constitution calls for the replacement of the Personal Status Code, and its supposed stifling uniformity, with a set of rules that give Iraqis the “freedom” to live by their own religions, sects, beliefs, and choices as concerns family law.34 However, that same provision calls for this matter to be organized by law, and the Federal Supreme Court has refused to set aside the Personal Status Code until such time as Iraq’s legislature enacts a replacement law.35 It has to date been unable to do this, though various draft laws have been proposed from time to time, usually just before national elections.36 Despite the remarkable, and quite unexpected, endurance of the Code in the postBa’ath era, the constitutional debate over its future reveals the continued tensions inherent in Iraqi society over the substance of family law and the proper authorities to articulate it. The Code’s quite limited pluralism, most of it of a de facto nature, continues to trouble Shi’i Islamists, who feel that their jurists, and only their jurists, have the legitimacy to declare what Islamic law is for the Shi’a. Sunni Islamists are less troubled by uniformity, but find some of the reforms of the Code offensive. And, obviously, progressive elements of Iraqi society are troubled by the relative lack of reform of Islamic law in the Code. Progressives have been further stymied by the relative lack of interest on the part of the Kurds, their traditional secular allies, in the Code. This is because, as noted above, the Kurds have made their own amendments to the Code in a plainly secularizing direction after having achieved self-rule subsequent to 2003. The Kurdistan amendments render polygamy nearly impossible to undertake. They also abolish the husband’s unilateral right to retract, without the wife’s consent, a marriage dissolution he pronounced through talaq during a wife’s waiting period. Finally, the amendments grant a wife the right to unilaterally end her marriage to her husband over his objection by returning the marriage dower to him, in a process known as khulʿ.37 (Traditionally, khulʿ requires the husband’s consent to be effective). The rather ironic result of all of this is that while it was Iraq’s Shi’a who long clamored for a family law that was more pluralistic, in fact it is the Iraqi Kurds, historically less concerned with family law, who have managed to develop and apply their own family law within the autonomous Kurdistan region. The final aspect of accommodation to demands of non-uniformity that deserves mention lies beyond the power of state administration. Even if the Personal Status Code has managed to meld progressive and conservative elements, and even if it has managed a sectarian divide by proving far less uniform in application than it purports to be, Iraq’s myriad of social and economic structures have proven too disparate to be able to merge themselves into a single law. Various social elements have therefore administered their family affairs independently of the state law. Studies have shown

See Art. 41, § 2 Constitution of the Republic of Iraq (2005). Federal Supreme Court of Iraq, decision no. 59 of 2011. 36 Tariq (2017). 37 Hamoudi (forthcoming 2021), pp. 10–11. 34 35

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that it is common for Iraqis in rural or tribal areas—Sunni and Shi’i; Arab and Kurdish—to marry without registering the marriage with the state, for example, which is technically a crime under the Personal Status Code.38 In such circumstances, the couple only seeks to register the marriage after the fact, when there is some needed interaction with the state—collecting rations for children born to the marriage, for example, or registering the children in school. Along the same lines, and as discussed further below, divorces are routinely administered by clerics out of court and registered in court long after the fact, usually without comment from Iraqi judicial authorities. As these examples show, the pluralistic structure that reveals itself is not one that involves hostility to or avoidance of state law in its entirety— nearly everyone registers their marriages and divorces eventually—but it is one that shows sufficient discomfort with state practices as to prefer not to use them, at least in the first instance. It also reveals an implicit willingness on the part of Iraqi courts to tolerate such non-state mechanisms as a means to manage the demands of tribes and religious authorities alike. The next section describes some of these broader themes in more specific contexts, beginning with the subject of entry into marriage.

2 Management of Iraqi Divides in the Personal Status Code 2.1 2.1.1

Marriage Intersectarian Diversity and the Code

The Personal Status Code makes little attempt to manage intersectarian diversity through its rules on marriage. The relevant provisions make no reference to either sect, are on balance rather detailed, and generally favor the Sunni interpretations over those of the Shi’a. Hence, for example, the Code specifically adopts the Sunni Hanafi formulation that two witnesses are required for a valid marriage contract.39 Along the same lines, the Code incorporates the Sunni position across the schools respecting the permissibility of Muslim men, but not Muslim women, marrying members of other monotheistic religions, and in particular Christians, Jews, and a small non-Muslim minority known as the Sabians.40 Despite their variance from Shi’i doctrine, these rules do not generally lead to litigation, perhaps for obvious reasons. Any Shi’i who seeks to marry in court is able to secure two witnesses, even if the sect’s rules do not require it, and the only Shi’i men who would even think of marrying non-Muslims would belong to the secular, nationalist elite. For the reasons described above, such individuals would probably not particularly care about their

38

Hamoudi (2014a), p. 150. Art. 6(1)(d) Personal Status Code, Law No. 188 of 1959 (Iraq). 40 Art. 17 Personal Status Code, Law No. 188 of 1959 (Iraq). 39

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violation of Shi’i religious rules so long as their marriage complied with national law. More pertinently, the Code contains no rules respecting temporary marriage. This is a uniquely Shi’i doctrine, which Shi’i jurists expound upon at length. Under the rules of a temporary marriage contract, a woman receives a specified dower in exchange for the right of her putative husband to engage in sexual relations with her whenever he wishes for a specified period of time. This period, the jurists note, can be an hour or shorter, or a year or longer.41 Not only does the very idea of a marriage limited by time go unmentioned in the Code, but the unique features of such marriages within Shi’i doctrine (such as the contract being void where no dower is specified, or the inability of a husband to end a temporary marriage through talaq)42 are also not included. Courts seem to have regarded these omissions as a categorical rejection of temporary marriage, as a result of which such unions, to the extent they exist, are never registered in state offices. As a theoretical matter, the absence of any Shi’i rules on temporary marriage is rather radical, given its centrality to Shi’i marriage doctrine. However, in practice, the omission has proven uncontroversial, largely because of the broad rejection of the institution of temporary marriage in Iraqi society. Most Iraqi Shi’i discourse centered on temporary marriage tends to be an extended exercise in defensive apologetics, claiming it is in fact rather marginal and distinguishing it from the type of prostitution arrangement it appears to resemble.43 Shi’i polemics against the Code, and the drafts that Shi’i Islamists advance to repeal or substantially amend the Code, make scant mention of temporary marriage, if they mention it at all.44 In this respect, the Sunnization of the Personal Status Code, undertaken over the course of decades, seems so deeply ingrained into Iraqi consciousness as to be irreversible.

2.1.2

Progressive Innovations

The more controversial aspects of the Code’s provisions on marriage are progressive innovations favored by secular forces, including Arab nationalist elites as well as the Kurds. These innovations depart from the rules of both sects, in deference to more modern conceptions of autonomy, gender equality and the rights of children. Such provisions have met relatively more resistance, from courts and social actors alike. I focus here on two provisions—the first of which concerns the age of marriage and the second of which concerns a wife’s obligation of obedience to her husband. From the nature of the claims that litigants bring, the court reactions to them and legislative amendments over time, it is easy to identify the competing forces at work within

41

Al-Sistani (2008), paras 30, 233. Al-Sistani (2008), para 233. 43 Hamoudi (2014b), p. 352. 44 Hamoudi (2014b), pp. 354–355. 42

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Iraq’s diverse society—religious and secular, Shi’i and Sunni, centralist and pluralist—and the manner in which the dynamic interaction among them has evolved.

Child Marriage From the outset, the obvious goal of the left-leaning secularist and nationalist drafters of the 1959 Personal Status Code was to establish a minimum age of eighteen for marriage, with specific allowance for those as young as fifteen to marry with parental and court permission.45 In the early years of the Code, the Court of Cassation did its utmost to avoid the true impact of these rules. When marriages were brokered by fathers, as they invariably were, the Court of Cassation took the position that the Code had only set the age of eighteen as the age at which a party could marry themselves. The circumstances under which a guardian had the capacity to enter a ward into marriage, the Court maintained, were not addressed. In light of this “gap”, the juristic rules “most harmonious with the provisions” of the Code apply, as per Article 1(2). Under the juristic rules of virtually any Islamic school, a father could contract his minor daughter into marriage, meaning that such marriages were valid.46 The determination of the existence of a “gap” in the Code respecting guardian-arranged marriage merely by the fact of its omission was tendentious to say the least. It could just as easily be maintained that the omission reflected an intention to reject the validity of any marriage contracted by a guardian for a minor child. After all, as shown above, the absence of reference to temporary marriage rules in the Code has long been understood to signify its absolute prohibition under Iraqi law. That the Court of Cassation chose instead to deem child marriages valid reveals the extent to which child marriage was deeply inculcated into Iraqi society and the extent to which courts were reluctant to engage in extensive social engineering to change that. This result did not redound to the satisfaction of secular forces, closer to the center of political power. To them, the very idea of a child marriage was retrograde and morally offensive, and the state should play no role in endorsing the hideous practice. As the Iraq nationalization project continued and the numbers of urban elites grew, so did the demands for amendment until, finally, in 1978, a new Article 9 was added to the Personal Status Code, which remains in effect to this day. It prohibits coerced marriages, whether contracted by guardians or otherwise. The broad reaction among Iraq’s more conservative and tribal elements, whether Sunni or Shi’i, has been rather predictable. They kept practicing marriage as they always had, with fathers arranging the marriages of their underage children in large numbers of cases. Those marriages were then not recorded in state registries until such time as the married couple became of age.47 A separate Code provision, also

45

Arts. 8, 9 Personal Status Code, Law No. 188 of 1959 (Iraq) (as originally enacted). Mahkamat al-Tamyiz [Court of Cassation], Shari’a Panel, decision no. 520 of 1963 (Iraq). 47 Hamoudi and Cammack (2018), p. 344. 46

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enacted in 1978, was supposed to address this problem by requiring that all marriages be registered, and it further punished husbands with criminal sanction if they did not register a marriage.48 The mandate is blunt and accordingly ineffective. To this day, Iraqi judges simply do not enforce it, as they see little to be gained in jailing the sole breadwinner of a poor, rural family who is himself almost always a minor as well.49 Instead, marriages are state-recorded long after the fact, in some cases in the presence of the couple’s children.50 This is not to say that the incidence of child marriage has not decreased substantially in Iraq over the past century. Certainly it has, driven by the massive growth of the state, the increasing dependence of Iraq’s citizenry upon its oil-driven largesse and social modernization generally. The Code’s actual role in any decrease in child marriage rates seems rather marginal, however.

Obedience A more mixed picture arises as concerns a wife’s duty of obedience. Interestingly, the Code nowhere explicitly references the classical law’s specific obligation of a wife to make herself sexually available to her husband. Instead, Article 25 merely indicates that a wife is not entitled to maintenance from her husband if, without permission or religious justification (i) she leaves the marital home, (ii) is imprisoned, or (iii) refuses to travel with her husband. That said, Iraqi courts across the decades have had no trouble reading the classical obligation of sexual obedience into the first and third of these categories. They therefore routinely deny support to women who are not in the marital home on the ground that that they are “rebellious” (nashiz) and not fulfilling their core duty of rendering their bodies available to their husbands for sexual enjoyment.51 Women faced with a rebelliousness claim have defenses available to them. By far the most common is that the home in which they are asked to reside is not one that complies with the husband’s maintenance obligation. This is generally in keeping with traditional understandings of Islamic law, which require the husband to support a wife in a marital home that is suitable to their social and economic circumstances if she is going to be expected to be there.52 In such cases, the court undertakes an inquiry into the home and makes a determination. To the extent that the home is satisfactory, based on the social and economic conditions of the couple, the wife must return, or she will have no right to any economic support. On the other hand, if the home is not suitable, the husband is ordered to provide a suitable home, and his obligation to support his wife in the interim continues unabated.53

48

Art. 10(5) Personal Status Code, Law No. 188 of 1959 (Iraq). Hamoudi and Cammack (2018), p. 344. 50 Hamoudi and Cammack (2018), p. 344. 51 See, e.g., Personal Status Court of Hayy al-Sha’ab (unnumbered, and decided August 24, 2008). 52 Art. 10(5) Personal Status Code, Law No. 188 of 1959 (Iraq); al-Sistani (2008), para 420. 53 See, e.g., Mahkamat al-Tamyiz [Court of Cassation], Shari’a Panel, decision no. 756 of 1969 (Iraq) (examining the question of a suitable marital home where the wife alleged that she was forced 49

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The most interesting claims involve wives who are not in the marital home because they do not wish to relocate with their husbands to another city or country. As late as 1969, the Court of Cassation proved supremely unreceptive to such claims, indicating that a wife was obligated to leave the country to live in Kuwait with her husband if he could provide her a materially suitable home there.54 Over time, however, the position of the Court evolved to such an extent that, in the post2003 period, a wife can refuse to leave Basra, where her entire family lives, to relocate with her husband to the town of Umm Qasr, about 90 min away.55 In fact, a husband cannot even ask his wife to move to a location where it would be hard for her to continue to work at her place of employment.56 The ostensible reason for the judicial evolution is Article 25(2), added to the Code in 1980. It indicates that a wife has no duty of obedience if a husband is “capricious” in his obedience demand, including as an example of this the preparation of a marital home far from a wife’s place of work. The result of all of these innovations and the efforts to find some balance as between traditionalists of both the Sunni and Shi’i variety (who demand adherence to longstanding Islamic rules) and progressives and secular forces (who seek to change them) is a certain level of incoherence and instability as concerns the respective marital obligations of husband and wife. On the one hand, a wife must live in the marital home and make herself available for sexual enjoyment by her husband. On the other hand, she may work outside of the home, and indeed may refuse to live in a marital home that is far from her work. Similarly, a husband must house his wife in a place befitting her economic circumstances, irrespective of whether she has means to house herself. Yet the husband may not discharge this obligation of support by finding a place of employment far from his wife’s place of employment. The blend reflects the tensions between modernity and tradition, and secular progressivity and religious conservatism that are endemic in Iraqi society generally.

2.2

Parents and Children

The Personal Status Code does not contain extensive provisions respecting the relationship of parents to children. Hence, for example, and in keeping with traditionalist Islamic prohibitions, there is no recognized adoption procedure in the Code.

to live with other relatives of the husband); Mahkamat al-Tamyiz [Court of Cassation], Shari’a Panel, decision no. 567 of 1972 (Iraq) (declaring a home unsuitable when the husband sought to house his second wife in it, along with his first). 54 Mahkamat al-Tamyiz [Court of Cassation], Shari’a Panel, decision no. 527 of 1969 (Iraq). 55 Mahkamat al-Tamyiz [Court of Cassation], Personal Status Panel, decision no. 2964 of 2010 (Iraq). 56 Mahkamat al-Tamyiz [Court of Cassation], Shari’a Panel, decision no. 4056 of 1969 (Iraq).

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That said, Article 52 indicates that the acknowledgment of parenthood as to a child whose circumstances of birth are unknown establishes as a legal matter the parent-child bond, so long as parenthood is theoretically possible.57 There are anecdotal reports that some prospective parents have used this Article in order to adopt orphans, though it is difficult to know the prevalence of the practice. More commonly at issue is the question of who may exercise rights of custody and guardianship over minor children upon the divorce or death of a parent. The Code has undergone considerable evolution over the years, but it remains decidedly out of step with global expectations, as shown further below.

2.2.1

Custody

From its inception, the Code has maintained the common Islamic division as between those who may exercise guardianship, or wilaya, over a child, and those who exercise rights of care and custody, or hadana. A mother’s rights as concerns custody have always been relatively broad, and they have expanded over the decades. Initially, a mother presumptively exercised rights of custody until a child was seven unless this would harm the child. Subsequent amendments to the Code have extended this to the age of ten. From the age of ten until the age of fifteen, a mother may retain custody if a court is persuaded that this is in the best interests of the child.58 The best interest standard also applies if the mother remarries, irrespective of the age of the children, up to the age of fifteen. At fifteen, in all cases, the child is free to determine which parent the child would rather live with until the age of eighteen. The father has the right to monitor such matters as education and upbringing when the child is in the mother’s custody, but all relevant decisions in this regard presumptively remain the mother’s.59 On the basis of these provisions, Iraqi courts routinely order children under ten to be in the custody of their mothers absent a clear showing of harm to the child.60 By contrast, if a mother dies, a father is only able to exercise the right of custody if it is in the best interests of the child, a decidedly stricter standard than that applied to the mother.61

57

Art. 52 Personal Status Code, Law No. 188 of 1959 (Iraq). Art. 57(4) Personal Status Code, Law No. 188 of 1959 (Iraq) (as amended). 59 Art. 57(4) Personal Status Code, Law No. 188 of 1959 (Iraq) (as amended). 60 See, e.g., Mahkamat al-Tamyiz [Court of Cassation], Personal Status Panel, decision no. 153 of 2012 (Iraq). 61 Art. 57(7) Personal Status Code, Law No. 188 of 1959 (Iraq) (as amended). 58

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Guardianship

Under the Civil Code, the legal guardian of a child is the child’s father, not his mother. If the father is dead or lacks capacity, the guardian is someone to whom the father has delegated that responsibility in his absence, most commonly his brother or the paternal grandfather.62 A mother, accordingly, is almost never the legal guardian of her children. This is limiting to mothers in some important respects, even if they have custody of their children. Most prominently, a mother will have a difficult time asserting rights in court on behalf of her children against a legal guardian. Hence, for example, a paternal uncle who was legal guardian of his nephews and who failed to provide for them could not be sued by the mother of the children until she first obtained an order from a court permitting her to serve as guardian ad litem.63 As concerns the rights of children and parents, the Code provisions are broadly out of step with global expectations in the respective presumptions they create in favor of mothers and fathers. The presumption against women serving as legal guardians is obviously problematic. Also problematic is the legal presumption operating in favor of the mother over the father in matters of custody in most instances, rather than simply assigning custody on the basis of the child’s best interests. By and large, Iraqi lawyers do not seem concerned about these deviations from the global norm.

2.2.3

Child Support

The only other frequent area of litigation as between parents and children concerns suits for support. As is common in the Islamic world, the Code obligates fathers to support their daughters until they marry and their sons until they should be earning on their own, in each case based on the expectations of those of their station.64 The more interesting suits are those instituted by parents against their children, pursuant to Article 61, which obligates child-to-parent support if the child has means and the parents are poor, except where the father refuses to work. Such obligations also run to more distant relatives from whom one would be an heir under Islamic law, to the full extent of the potential inheritance. Cases involving claims by relatives seem to arise with increasing frequency in Iraqi courts, which must then determine the relative economic circumstances of the parties before making an award, if any. This need to resort to courts on the part of indigent relatives may demonstrate increasing individualism in a modernizing society, where there is less concern with the welfare of relatives, even if the law continues to reflect a more communitarian vision.

62

Art. 102 Civil Code, Law No. 40 of 1951 (Iraq). Mahkamat al-Tamyiz [Court of Cassation], Shari’a Panel, decision no. 713 of 1969 (Iraq). 64 Art. 59 Personal Status Code, Law No. 188 of 1959 (Iraq). 63

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Dissolution of Marriage

In the area of marriage dissolution, there have been two primary trends. Pursuant to the first, the courts have read into the Code rules a deference to rules of sect that does not appear in the text, largely to placate traditionalists and pluralists eager to maintain the Islamic rules of their respective schools to the greatest extent possible. The second trend, intended as a means to balance the interests of more secular nationalists and those who desire greater Islamicity, has involved the introduction of a series of progressive, uniform reforms, which have met with mixed success in the courts. Each of these is discussed in turn below.

2.3.1

Pluralism and Marital Dissolution

As mentioned in the Introduction, in the area of talaq, or the unilateral right of a husband to end his marriage through oral pronouncement, the courts have found a need to create considerable pluralism given the different rules of the sects. Within Shi’ism, the talaq must be pronounced when a wife is not menstruating, must include the word talaq or a variant thereof, and must be pronounced before two male, Muslim witnesses. A violation of any of these rules means that the talaq is invalid. By contrast, among the Sunni schools, a talaq requires no witnesses and, while it is a sin to pronounce it during a wife’s menstrual period, such a pronouncement is nonetheless effective. Iraqi courts are therefore faced with no small number of cases in which a man pronounces talaq in the absence of two male witnesses, or pronounces it during a wife’s menstrual period, and a question arises as to whether or not that talaq was valid. To force uniformity would result in inconsistencies between Islamic law and state law in a manner that would not be tolerable in much of Iraq. Elements of Iraqi society might very well ignore a court ruling respecting the validity of a divorce in such instances and insist that the Islamic law rules continue to apply. Much confusion could very well result. Accordingly, as a general matter, in the area of talaq, courts take advantage of the Code’s sparse provisions on the subject by filling in gaps in deference to the sect under which the party was married. For Sunnis, the Sunni rule applies, and for Shi’is, it is the Shi’i rule. The resolution seems to manage the sectarian divide in a reasonably effective fashion.

2.3.2

Progressive Reforms and Their Limitations

Selectivity and Progressive Reform Concerns about inflaming Iraq’s more conservative Islamic forces—Sunni and Shi’i—very much animate and limit what types of reforms the Code attempts, and what types the courts ultimately accept, in the area of marital dissolution. By far the

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most successful reforms are those that derive from what is known as talfiq, or the selection of a rule of one school of Islamic law for uniform application. Such an approach is potentially controversial, which is why the deference to sect referenced above remains the norm in the area of talaq. However, in circumstances where a particular rule is not universally shared across Islamic schools, nor broadly socially embraced, there is a potential for legal reform through talfiq. Good examples of this are the Code provisions regarding as invalid a talaq uttered by a drunk husband, by a husband so angry as to have lost the capacity of discernment, and by a husband on his deathbed.65 These are Shi’i rules, and yet it is hard to imagine very many Sunni tribes rising in protest against a rule invalidating the divorce of a man who is not supposed to be drinking in the first place because he uttered the talaq formula when drunk. A more interesting reform concerns the ban on the so-called “triple divorce”, the notorious method by which a man ends his marriage to his wife by repeating the divorce formula three times. Though regarded among all schools as a sin, among the Sunni schools the effect of the triple pronouncement is that the husband is irrevocably divorced from his wife and unable to marry her again unless she marries someone else and is then divorced from that man. Seemingly adopting the Shi’i rule,66 the Code indicates that “talaqs linked by a multiple number, pronounced or by signal, only occur once,” thereby rendering the talaq into a revocable one.67 Initially, this change was not warmly received in the Iraqi Court of Cassation, which tried to limit it on textual grounds to circumstances where the husband’s talaq was declared “triple” through the use of the word “three” or a gesture indicating as much, as opposed to one where the husband declared the divorce three times in immediate succession.68 However, certainly by 2003, and probably well before, the courts abandoned this seemingly bizarre position. In its place, they established the principle that any attempted “triple” talaq pronounced in a single setting would be deemed a single, revocable divorce. This is now so deeply ingrained that courts often assume it in their rulings rather than cite to the Code to defend it.69 The Code also makes use of talfiq to broaden the bases upon which a wife (or a husband, for that matter) can petition a court to dissolve a marriage for cause, without the consent of the other party. Some of these provisions are particularly heavily litigated. By far the most common are those enabling abused wives to seek marital dissolutions from their husbands for the abuse they have endured. While there is juristic support for such a right in some Islamic schools, and while Iraqi courts order dissolutions on these grounds, there are hurdles. The biggest problem is

65

Art. 35 Personal Status Code, Law No. 188 of 1959 (Iraq). Hamoudi and Cammack (2018), p. 416. 67 Art. 37 Personal Status Code, Law No. 188 of 1959 (Iraq). 68 Mahkamat al-Tamyiz [Court of Cassation], Shari’a Panel, decision no. 385 of 1968 (Iraq). 69 See, e.g., Personal Status Court of Baya’ (sitting in cassation), decision no. 5145/186, decided January 14, 2009 (certifying an attempted triple talaq as a single talaq that was revocable without explanation). 66

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the reluctance of judges to order a dissolution unless the physical harm suffered is “severe.” The reason is that under traditional accounts of Islamic law, a husband has a right to use moderate physical discipline against his wife if she refuses to make herself sexually available to him. This creates an evidentiary problem for wives in many circumstances. In particularly extreme cases—such as where a husband attempted to drown his wife in a bathtub, hit her on the head with a car belt and a bottle, and did this all in front of witnesses—the burden can be sustained with some ease.70 In many other cases, however, the Court of Cassation has insisted on either a medical report or a criminal case filing, refusing to issue judgment for dissolution in the case of the latter until the criminal court reached a final determination on whether the husband’s assaults were in fact criminal in nature.71 While this limits the utility of the dissolution right, it has not deterred substantial numbers of abused wives from seeking to invoke it. The second most common ground for marital dissolution on the part of wives arises from a failure of their husbands to support them. Modern Shi’i jurists endorse a right of dissolution in such circumstances, as do certain Sunni schools. Given the existence of juristic support, Iraqi courts generally seem to find no difficulty in ordering dissolutions for failure to support, so long as the refusal to support exceeds sixty days and the husband is notified that his marriage is at risk if he does not support his wife.72

Innovations in Marital Dissolution More significant reforms supported by secular forces that are not based on talfiq tend to be more limited and are read narrowly by the courts. An excellent example of this is provided in Article 39(1) of the Code. This section indicates that a talaq is supposed to be pronounced in court, rather than out of court, unless it is impracticable to do so, and even then the talaq should be registered in court during the wife’s waiting period, which is generally three menstrual cycles. This requirement of pronouncing talaq in court absent impracticability would represent quite a significant change to the rules on talaq if it were enforced. But it is not. Instead, divorces are routinely pronounced out of court and then recorded in court long after the fact, and certainly beyond the wife’s waiting period. In fact, this appears to be the norm, with the number of talaqs pronounced in court being a distinct minority of those ultimately registered in the court records. Courts do not seem to interpose any

70

See, e.g., Personal Status Court of Kadhimiyya, case no. 2601/2001 (decided September 5, 2001) (Iraq). 71 Mahkamat al-Tamyiz [Court of Cassation], Personal Status Panel, decision no. 4765 of 2011 (Iraq). 72 See, e.g., Personal Status Court of Kadhimiyya, case no. 591/2002 (decided March 31, 2002) (Iraq).

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objections to this practice notwithstanding the obvious violation of the rules of Article 39(1). This is not to say that the registration requirement has no legal effect, even if it is commonly ignored. Article 39(2) indicates that the legal effect of the marriage remains in place until a talaq is registered in court, and courts have used this to order back-support to wives divorced outside of court. Separately, and additionally, Article 39(3) permits a wife’s support beyond that mandated in Islamic law, and specifically up to two years of support, if a husband pronounces a talaq “capriciously.” While not every out-of-court talaq is deemed capricious, those courts that do order additional support pursuant to Article 39(3) invariably do so following outof-court talaqs. These include divorces pronounced via text message or at a wife’s place of work, among others.73 A separate innovation that is similarly applied with some regularity in Iraqi courts is legislation giving a wife the right to remain in the marital home for up to three years following talaq.74 The seeming willingness of Iraqi courts to depart from Islamic law on this kind of support is somewhat understandable, in that the courts are merely allocating resources rather than ruling on the underlying validity of a marital dissolution not recognized in Islamic law. This might explain why courts are less willing to enforce Code provisions that permit a wife to dissolve her marriage because it was entered into either because she was underage at the time or because she was coerced into the marriage by her guardian. As the Introduction points out, in the rare case where a challenge is made, Iraqi courts seem to find ways to defer to custom, and to patriarchy, rather than enforce the Code provisions.75 Similarly, the Code has a provision that permits marital dissolution upon irreconcilable differences. Effectively, under Article 41 of the Code, if either of the married parties finds that there are insurmountable differences between them, they can petition for a procedure involving mediation featuring family representatives on each side. If the representatives cannot reach an amicable solution, they are to try to apportion blame, and the wife’s dower is then divided between the parties according to the blame they bear. While wives constitute the majority of those filing such petitions, husbands are known to do so as well, primarily because the process could in theory reduce the deferred dower amount they owe their wives. Iraqi courts have proven extremely hostile to Article 41, to such an extent that it does not serve much practical use at all. Basically, the courts insist that the

73

See, e.g., Personal Status Court of the Sha’ab District (unnumbered, and decided May 13, 2010) (Iraq); Mahkamat al-Tamyiz [Court of Cassation], Personal Status Panel, decision no. 3866 of 2010 (Iraq). 74 Art. 1 Law of the Right of the Divorced Wife to Housing, Law No. 77 of 1983 (Iraq); Mahkamat al-Tamyiz [Court of Cassation], Personal Status Panel, decision no. 1354 of 2011 (Iraq) (remanding a case to determine if the marital home was jointly occupied by others, and, if it was not, granting the wife the right to reside there). 75 See note 32 above, wherein the Court of Cassation rejected a dissolution of an alleged forced, underage marriage on narrow procedural grounds.

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differences giving rise to any petition be sufficiently “deep rooted” (mustahkima) before they merit a petition for the appointment of mediators. The bar for establishing such deep-rootedness, which is purely a judicial invention and appears nowhere in the text of Article 41, is extremely high. Even a public slandering of a spouse is not sufficient, on the ground that the tort of defamation is a private right that does not preclude the possibility of reconciliation.76 The few cases that have permitted an Article 41 procedure to be completed involve allegations of physical harm, denial of support, or some other cause that would be sufficient to seek a dissolution on other grounds. Nevertheless, the fact that Article 41 continues to be raised so often in court, despite judicial hostility, suggests social change in its own right, away from Iraqi tradition and Islamic law. Whether or not this change will be sufficient to shift judicial attitudes remains to be seen, but it is fair to say that, by all appearances, so far it has not done so. That said, there is some innovation with respect to marriage dissolution that is not based on talfiq and that has found its way to court recognition. Regularly awarded are dissolutions requested by a wife when the husband undertakes a second out-ofcourt marriage, as well as dissolutions of unconsummated marriages. Both of these are explicitly authorized by the Code.77 As to the first, courts seem to be rather untroubled by the fact that a husband who has committed the criminal act that unsanctioned polygamy constitutes can have his marriage dissolved without his consent. Hence, they are willing to enforce this provision, largely demanded by secularists who regard the entire idea of polygamy with significant distaste. Ironically, however, under the terms of Article 40(5) and in deference to more traditionalist forces who would limit a wife’s rights of dissolution to those existing under Islamic law, a wife seeking a marital dissolution for unsanctioned polygamy effectively waives her right to pursue criminal charges against her husband for the polygamy. In other words, a wife can have her husband prosecuted for the second marriage, or she can end her marriage to him, but she cannot do both. As concerns a wife’s right to dissolve an unconsummated marriage, the departure from Islamic law appears to derive from common Iraqi—and Arab—custom in modernity wherein the parties marry before the wife moves into the marital home, with the intervening period constituting a trial engagement of sorts.78 Accordingly, the idea that a woman would wish to exit the marriage during this period—so long as she is willing to return the dower and any other gifts given to her—seems to strike Iraqi courts as entirely logical, even if it is a right that is unrecognized in the classical law. The only real concern of courts is ensuring that the marriage is indeed unconsummated.79 Court reticence to change Islamic law, this seems to show, is

Personal Status Court of ‘Adhamiyya, case no. 2363/2011 (decided October 23, 2011) (Iraq). Personal Status Code, Law No. 188 of 1959 (Iraq) at Art. 40(5) (out of court polygamous marriages); Art. 43(2) (unconsummated marriages). 78 Hamoudi and Cammack (2018), pp. 427–428. 79 See, e.g., Personal Status Court of Mahmuhdiyya, case no. 144/2006 (decided May 14, 2006) (Iraq). 76 77

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not necessarily universal, and in areas where the Code appears to coincide with custom, the courts feel relatively unconstrained in applying innovations.

3 Conclusion As was noted in the Introduction, the survival of the Personal Status Code to this day is something of a surprise. The Introduction also alludes to the many reasons for this. These include secular support for its provisions among an urban elite, broad popular support (even among those who purport to oppose the idea of a uniform Code) for at least some of its innovations that move away from Islamic law, judicial interpretations that at times defer to traditional hierarchies, and the frequent application of a supposedly uniform Code in decidedly non-uniform fashions. Also noted was a certain willingness of state authorities to defer to non-state authorities on particular aspects of family law. Because of all of these factors, a supposedly single uniform Personal Status Code can continue to formally reign over Iraq’s diverse society, from the urban elite to the rural tribespeople with little interest in state law, from Shi’i to Sunni to Kurd, and from the most secular to the most religious within each grouping. The broader question is whether all of this can continue while state function within Iraq, including very much the court system, continues to deteriorate. The earlier fear among progressives and human rights groups that the Code would be repealed or substantially amended has not abated entirely, but it has been ameliorated. However, the slow erosion of state authority in favor of tribes and jurists is harder to arrest. Such non-state figures are unlikely to be able to orchestrate a repeal of the Code, but they are increasingly able to ignore it. As such, the relevance of the Code might very well recede among increasing numbers of Iraqis. Were the state to ever reassert itself, it seems inevitable that tensions would ensue, and the détente that has so far held as concerns application of the Personal Status Code might seem more precarious. This is not, to be sure, merely a question of family law. Such core state functions as the maintenance of security and the resolution of tort claims have also been implicitly and explicitly delegated to non-state entities, from traditional tribes to recently created “popular mobilization units”. Yet family law is perhaps the area in which Iraq’s various identities most clearly collide. It is also the area where resistance to state authority is the greatest. In the absence of the accommodation and management that the Code provides, the future might be an ominous one. In this sense, considering the future viability of Iraqi family law is another way of considering the broader future viability of Iraq itself.

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References Al-Kubaysi A (2008) Al-Ahwal al-Shakhsiyya fi al-Fiqh wa-l-Qadaˡ wa-l-Qanun (Personal Status in Islamic Law, Courts and Legislation), vol 2, 2nd edn. Al-ʿAtik, Baghdad Al-Sistani A (2008) Minhaj al-Salihin (Path of the Virtuous), vol 2. Dar al-Muˡarrikh al-Arabi, Beirut Anderson JND (1963) Changes in the law of personal status in Iraq. Int Comp Law Q 12:1026–1028 Batatu H (1978) The old social classes and the revolutionary movements of Iraq. Saqi, London Farouk-Sluglett M, Sluglett P (2003) Iraq since 1958: from revolution to Dictatorship. I.B. Tauris, London Hamoudi HA (2014a) Decolonizing the centralist mind: legal pluralism and the rule of law. In: Marshall D (ed) The international rule of law movement: the crisis of legitimacy and the way forward. Harvard University Press, Cambridge MA, pp 135–165 Hamoudi HA (2014b) Negotiating in civil conflict: constitutional construction and imperfect bargaining in Iraq. University of Chicago Press, Chicago Hamoudi HA (2016) Resurrecting Islam or cementing social hierarchy?: reexamining the codification of “Islamic” personal status law. Ariz J Int Comp Law:329–382 Hamoudi HA (forthcoming 2021) Juristic and legislative rulemaking: a history of the personal status code of Iraq, 1959-2017. In: Wing A, Kassim H (eds) Family law and gender in the modern middle East and North Africa. Cambridge University Press, New York Hamoudi HA, Cammack M (2018) Islamic law in modern courts. Aspen, New York Marr P (2012) The modern history of Iraq. Westview, New York Sluglett P (2007) Britain in Iraq: contriving king and country. Columbia University Press, New York Stilt KA (2004) Islamic law and the making and remaking of the Iraqi legal system. Geo Wash Int Law Rev 37:695–757 Tariq A (2017) Al-Sumiriyya Niyuz Tunashir Nass Muqtarah Taʿdil Qanun al-Ahwal al-Shakhsiyya (Al Sumaria News Publishes the Text of the Draft Amendment to the Personal Status Code). Al Sumaria TV. https://www.alsumaria.tv/news/220401. Accessed 10 May 2019

Haider Ala Hamoudi is the Vice Dean of the University of Pittsburgh School of Law. His scholarship focuses on Middle Eastern and Islamic Law. In addition to his numerous articles and book chapters in a wide variety of law school journals, university presses and other scholarly venues, he has coauthored a casebook on Islamic Law published by Aspen, and has written a nutshell on Islamic Law published by West.

Pakistan: Challenges and Prospects Shaheen Sardar Ali

Abstract This paper proposes to offer specific examples of some multicultural challenges to family law of an on-going nature by focusing on (i) the Ahmadiyya communities to whom Muslim family law is no longer formally considered applicable since they were declared non-Muslim in 1974, and (ii) transgender communities known variously as hijra, khusra or khwajasara, whose claims for civil and political rights as well as application of family laws to them have in recent years met with some success. Using legislation (or lack thereof) and case law from Pakistani courts, this report will highlight the erratic and ad-hoc manner in which claims are made and responded to by courts and state institutions. It will advance the argument that Muslim family law in Pakistan is of a porous, amoebic nature, plural, diverse and often inconsistent in its responses. Finding answers to challenging questions such as what family law governs the Ahmadiyya communities and on what basis, or how, to calculate inheritance rights of transgender persons falls almost invariably to the judiciary, who then direct the government to legislate accordingly (A third example relates to Hindu and Christian communities where federal and provincial legislatures have recently passed laws, including the Sindh Hindu Marriage Act 2016 and the Hindu Marriage Act 2017. Due to constraints of space, this example will not be dealt with in any detail, but it is flagged up here as an example of how the state and her institutions respond to family law matters of religious minorities.). The report concludes through these selected examples that Pakistan’s family law is a complex multi-layered phenomenon: clear at times, opaque at others. Whilst the Pakistan judiciary has taken upon itself the interpretation and application of Muslim family law, it is treading cautiously and stops short of offering solutions on sensitive and potentially explosive issues such as application of Muslim family law to the

I benefitted from discussions with and research support from Isfandyar Ali Khan, Barrister-at-law, and Laila Shafi, both based in Peshawar, Pakistan. Their assistance is gratefully acknowledged. Any errors and shortcomings are mine. S. S. Ali (*) University of Warwick, School of Law, Coventry, UK e-mail: [email protected] © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_3

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Ahmadiyya communities, leaving significant numbers of Pakistanis in ‘limping’ situations (Tanveer, Ahmadi, Christian marriages not being registered, 2016). On the other hand, in the case of transgender communities and their access to rights and entitlements in family law, Pakistani courts have demonstrated a robust and courageous approach, moving well beyond conventional positions on the subject. The concluding reflections will also highlight some implications for private international law.

1 Background and Context This paper reports on how ‘claims’ based on cultural traditions, ethnic background, custom, religious conviction and gender identity (as well as any other kinds of ‘claims’ that are not officially accommodated in state law) are raised and dealt with in the field of family law and its articulation through case law in Pakistan. There is a rich body of existing literature on Muslim family law as understood and applied in Pakistan. Most of this scholarship offers detailed historical perspectives, elucidating its development both descriptively and analytically, and does not need to be reiterated here except to provide a historical backdrop and context to the multicultural challenges. Pakistan, a South Asian jurisdiction carved out of the Indian sub-continent in 1947 through accession to Indian Muslims’ demands for a separate homeland, came into existence with the departure of British colonial rulers. In fact, Pakistan came into existence in the name of Islam; it is, along with Israel, one of the only two countries in the world whose raison d’être is religion. Islam is therefore integral to Pakistani statehood itself, and the assertion of Pakistan’s Muslim identity is visible explicitly in her various constitutional iterations as well as laws, regulations and policies over the seven decades of her existence.1 Alongside this explicit Muslim identity, Pakistan is also a country with a multiethnic and multi-religious population, albeit with a predominantly Muslim population. As of the latest census (2017), Pakistan has a population of approximately 209.97 million.2 Of these, Muslims comprise 96.4% of the population (with a further sub-division into 75% Sunnis and 25% Shia). Hindus form 1.60% and Christians 1.59% of the population, whereas Ahmadiyya (or Qadianis as they are also called) are placed at 0.22%.3 Other religious categories include Bahai, Sikh, and Kalasha

Under the present (1973) constitution, Pakistan is a federal Islamic republic comprising five provinces: Baluchistan, Punjab, Sindh, Khyber Pukhtunkhwa and Gilgit Baltistan, as well as Federally Administered Tribal Areas (FATA) and the (contested) area of Azad Jammu and Kashmir (AJK). All laws of Pakistan do not apply uniformly across the various provinces. Ali (2000), p. 98; Shahid and Khan (2017), p. 170. 2 Pakistan Bureau of Statistics—6th Population Housing Census, www.pbscensus.gov.pk. 3 This figure is contested as the Ahmadiyya communities have boycotted the census in Pakistan since the constitutional amendment declaring them non-Muslims in 1974. 1

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(0.3%).4 The population of transgender persons stands at 10,418, most of whom reside in the Punjab province of Pakistan. The 2017 census is the first national census in which transgender persons have been counted.5

2 Sources of Law As Pakistan is a polity comprising diverse multi-ethnic and multi-religious communities governed by equally diverse governance structures, the country’s family law is confronted with complex and at times conflictual regulatory norms with varied origins. Colonial family laws sit uneasily with Muslim family principles and customary practices, as well as post-independence Pakistan legislation creating a pluralist legal system. Given that Pakistan is a common law jurisdiction inherited from the British, Pakistani judges ascribe to themselves the authority to interpret and apply principles of Islamic law, although not in a consistent manner. The following sources inform and constitute the body of family law in Pakistan: 1. Principles of Islamic law based on the religious texts in Islam (Qur’an, sunna, ijma, qiyas, ijtihad, as well as fiqh); 2. Colonial family law statutes, including the Christian Marriage Act, 1872; Special Marriage Act, 1872; Divorce Act, 1869 (IV of 1869); Guardians and Wards Act, 1890 (VIII of 1890); Child Marriage Restraint Act, 1929; Parsi Marriage and Divorce Act, 1936; Muslim Personal Law (Shariat) Application Act, 1937 (and its various iterations after 1947 in independent Pakistan); Dissolution of Muslim Marriages Act, 1939. 3. Post-independence laws, including the Muslim Family Laws Ordinance, 1961 (MFLO); West Pakistan Muslim Personal Law (Shariat) Application Act, 1962; Family Courts Act, 1964; Dowry and Bridal Gifts (Restriction) Act, 1976. 4. Legislation applied to religious minorities adopted after 1947 in independent Pakistan, including the Sindh Hindu Marriage Act, 2016, and the Hindu Marriage Act, 2017. 5. The Transgender Persons (Protection of Rights) Act, 2018. Passed by the Senate of Pakistan in March 2018 and the National Assembly in May 2018; 6. Landmark decisions of the High Courts and Supreme Court of Pakistan in a wide range of family law issues. In particular, this report will discuss judgments relating to Ahmadiyya and transgender communities and how these impact on family law in Pakistan.

4 5

Pakistan Bureau of Statistics—6th Population Housing Census, www.pbscensus.gov.pk. Ibid.

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3 Family Law in Pakistan: An Overview Islamic/Muslim family law, as practised in contemporary Pakistan, has passed through a number of transformative phases at various historical junctures. It may be seen as an example of legal pluralism at play, with a variety of regulatory norms having influenced the formation of what is described as Islamic family law in this jurisdiction. Family law in the Islamic legal traditions and as applied in the Muslim world, including Pakistan, has historically been conceptualized within a framework of patriarchal norms. The general premise underlying Islamic family law is that society consists of male-headed households where men hold authority and provide for and protect vulnerable, weak, and dependent women in their charge. Marriage is thus the union of a man and woman for the procreation and legalisation of children. Relationships outside of this format are challenging to the system. Women marrying of their own volition without the presence and consent of their male guardians, and interfaith marriages, especially where Muslim women marry non-Muslim men, are some of the challenges confronting a patriarchal family law. In relation to the focus of the present report, it is important to state that according family rights such as rights to marriage, inheritance, etc. to transgender persons is a challenge to the patriarchal architecture of the Muslim family and, indeed, to the very definition of ‘marriage’ as understood in Islamic jurisprudence. The notion of marriage as the union of a man and woman for the procreation and legalisation of children is challenged by the existence of transgender persons who do not (and often cannot) procreate. A distinctive feature of family law in Pakistan is its embeddedness within the common law colonial legacy of ‘Anglo-Muhammadan’ as well as Islamic law. This legacy manifests itself in codification projects at state level as well as through the case law of the High Courts and Supreme Court. Whilst both arenas of legal development are informed by Islamic law, they do not always reinforce one another, resulting in less coherence and continuity between the two than is desirable. One of the hallmarks of Sharia is its plurality of opinion, which is responsible for legal change as well as flexibility in the application of the law. Codification, on the other hand, removes the possibility of change and leaves little room for judicial flexibility. Contemporary codified law reform in the Muslim world, including Pakistan, is thus a double-edged sword, shutting down the flexible interpretative space of the Islamic legal traditions. In other words, the evolutionary potential and dynamic streak inherent within Islamic law has been and is being ‘fossilised’ by Western-inspired codification. The historical development of ‘modern’ Pakistani family law is an intricate canvas which brings into relief features that are specific to the Pakistani legal landscape. These include the influence of Pakistan’s colonial legacy and common law, the powers and place of the courts, the ‘myth’ of the ‘Islamic’ character of the state, and the influence of all of these on the development and the dynamics of family law in Pakistan today. Family law operating within these plural legalities is never

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static due to the ‘subtle, almost imperceptible process of filtration through a maze of cultural norms and prevailing political . . . compulsions’.6 In attempting to explore and explain the overall attitude towards normative and social diversity, the departure point has to be the intrinsic plurality of norms influencing family law in Pakistan. To this end, one image of family law lies in the form of concentric circles, with each circle representing the diverse norms informing its broader landscape. The innermost tenacious circle closest to people’s lives and practice is made up of customary practices, followed by the second layer comprising ‘Islamic’ family law principles. Both circles intersect and interact, often blurring the boundaries between these two normative influences. A third layer consists of codified versions of the two previously mentioned circles; these versions were initially the result of colonial attempts at codification of Anglo-Muhammadan law and thereafter of codification by independent Muslim states. A historical overview of Pakistan’s colonial legacy and the influence of common law demonstrates this layer of family law. A final superficial outer layer in the field of family law in Pakistan contains elements of international human rights law and its use in legislation as well as the judiciary. Family law in Pakistan is therefore in and of itself susceptible to plurality and diversity, and both state and society are aware of this diversity and embrace it—at times—under pretences of a homogenous ‘Muslim’ family law umbrella. Islamic law was applied on the Indian subcontinent for centuries prior to British colonisation.7 The British shed some aspects of the Indian and Mughal legal system in their pursuit of a colonial system of legal dispensation retaining the ‘family laws’ of native communities, including Muslims. The colonial policy of retaining Islamic family law, it is argued, resulted from a convergence of economic interests between colonial legal systems (whose aim was to extract economic surplus) and the indigenous Muslim elite (whose aim was to reinforce their economic and socio-political dominance).8 Convergence of the interests of both constituencies resulted in the lending of support to existing patriarchal structures as well as the favouring of colonial policies of governance. In order to implement the legal system to advance the interests of the British colonial state, adjustments were made to existing structural features to set up new institutional forums, including the establishment of the colonial court. The Hastings Plan of 1772 established a hierarchy of civil and criminal courts tasked with applying indigenous legal norms. For Muslim communities this meant the application of ‘the laws of the Koran . . . in all suits regarding inheritance, marriage, caste, and other religious usages or institutions’.9 ‘Anglo-Muhammadan law’ thus came about

6

Ali (2002), p. 317. See Jung (1980), pp. 57–88, for details regarding the administration of justice in India during early Muslim and Mughal rule. 8 For this line of argument, see Siddique (2013), Washbrook (1981), pp. 649–721, cited in Anderson (1990), p. 206, note 2. 9 Ibid, p. 209. 7

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through the application of British models of procedure and adjudication to a literalist, scripturalist ‘Islamic law’ explained by maulvis, religious scholars who acted as advisers to the courts. A slow but sure process of displacing ‘Anglo-Muhammadan Law’ with new colonial codes, except for family law and certain property transactions, was set in motion.10 For instance, where indigenous laws seemed to provide no rule, the matter was to be decided according to the Roman law formula of ‘justice, equity, and good conscience’.11 Derrett is of the view that by 1887, this was held ‘to mean the rules of English law if found applicable to society and circumstances’.12 The procedural Anglicisation of Islamic law as well as its substantive content became coloured by the British rulers’ insistence on a black-letter approach to law.13 As I have observed elsewhere: “The interpretative plurality within Islamic law that had allowed it to remain cognitively open to changing societal needs and contexts was now frozen in its tracks by colonial judges’ demands for simplistic responses that constituted ‘the’ law. Two contemporaneous developments fed into this process: because of the need for knowledge of indigenous legal arrangements, the translation of works on Sharia and fiqh from Arabic and Persian into English and the collection of local customary ‘laws’ was undertaken, leading to an impressive body of scholarship. But in trying to pin down ‘Islamic law’ its flexibility was lost; some texts and perspectives became privileged, while others were ignored.”14 A number of secondary sources of Islamic law were translated into English, becoming its textual basis. These include Charles Hamilton’s 1791 translation of Hedaya,15 Neil Baillie’s rendering of Fatawa Alamgiri,16 Sir William Jones’s 1792 translation of Al-Sirajiyya, and the translation of Mishkat-ul-Masabith (extracts from Fatawa Kazee Khan) and Principles and Precedents of Muhammadan Law by William H. Macnaghten. Local Muslim elites also contributed to the development of Anglo-Muhammadan law through their

10

For example, Code of Civil Procedure (Act VIII of 1859); Indian Penal Code (Act XLV of 1860); Criminal Procedure Code (Act XXV of 1861); Indian Evidence Act (Act I of 1872). 11 See Derrett (1963), cited in Anderson (1990), p. 209, note 17. 12 Waghela v Sheikh Musludin [1887] 14 IA 89, 96, as cited in Anderson (1990), p. 209, note 18. 13 This is a puzzling contradiction in terms. Historically, the common law legacy is celebrated for its responsiveness to society; hence the difficulty in understanding why this undue emphasis was placed on the ‘written law’. It may well be that imperial and colonial imperatives drove this approach. 14 Ali (2016), p. 88. 15 A 12th-century text of Central Asian origin that relied mainly on Abu Yusuf and Al-Shaybani. 16 A collection of fatāwā (legal opinions) in the fiqh tradition commissioned by the Mughal Emperor Aurangzeb was translated as Baillie (1965).

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writings.17 The results and consequences of these rewritings of Islamic law are felt to this day, skewing the meaning, scope and content of Sharia.18 British colonisers did not fully appreciate the complex and rich discursive nature of the pluralist Islamic legal traditions; hence their distrust of native maulvis who reflected the complexity of pluralist legal traditions in their guidance to colonial judges. They therefore embarked on a parallel enquiry of natives laws, leading to the collection and compilation of a corpus of local ‘customary law’. After the adoption of the Punjab Laws Act of 1872, revenue collectors were tasked with ascertaining customary practices in every village. This project, too, was flawed in that it started from a preconceived notion that ‘custom’ was stable within a fairly static society and that, once ascertained, ‘customary law’ could be codified and dispensed within a British-inspired, colonial legal system. One result of the codification of custom arrived at by ‘useful’ collusion between the colonial power and landed Muslim gentry was the exclusion of Muslim women from inheriting land and other immovable property, for instance in the Muslim Personal Law (Shariat) Application Act, 1937. Although these simplistic understandings of the nature of ‘customary law’ were not strictly inaccurate, they nevertheless ‘were arrested, frozen forms of representation’ taken forward into family law reform in postcolonial Pakistan, which reflect the struggle between these frozen forms of representation on the one hand and varying perspectives at the grassroots on the other hand. The hybridity and plurality of norms informing Anglo-Muhammadan law was one of its main features, which, ironically, was the opposite of the artificial uniformity that it set out to achieve. Principles of Islamic law, English secular legal principles, and customary norms interacted to provide an ‘amoebic, boundary-less set of regulatory norms’.19 Anglo-Muhammadan law also accorded continued privilege to autonomous legal orderings away from the capital in peripheral regions where panchayats (village councils), jirgas (decision-making assemblies), and other local dispute-resolution forums prevailed, leaving them untouched. These parallel legal systems and norms, including local customary law and ‘cultural Islam’, thrived well into post-independence Pakistan with her pluralist legal and judicial system.20 Upon achieving independence from British rule in 1947, Pakistan inherited a pluralist legal system fraught with contradictions, duality, and (colonial) compromise. Not only was a major part of substantive law a colonial construct, so too were the rules of procedure an alien legal system for the vast majority of the population. The widespread and mandatory use of documentation in matters of law and 17

Some of the most well-known texts include the Tagore Law Lectures of 1891–1892, Abdur Rahim’s Muhammadan Jurisprudence, and Mulla’s Principles of Muhammadan Law. These ‘textbooks’ of Anglo-Muhammadan law have now became part of a definitive, textual Islamic law as inherited by postcolonial Pakistan. Siddique (2013). 18 Kugle (2001), p. 304. 19 Ali (2000), p. 92. 20 For a detailed overview and analysis of local dispute resolution forums, see Ali and Rehman (2001).

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evidence, together with the amplified role of the scribe, led to the alienation of a largely non-literate people, making legal institutions inaccessible to most of the population. Ironically, therefore, it was Anglo-Muhammadan law, this inflexible, scripturalist, and colonially generated version of Islamic law, that became the enduring legacy Pakistan inherited at the time of partition in 1947.

4 Management of Diversity in Family Law in Pakistan: Some Examples 4.1

Which Family Law Applies to Us? The Unanswered Question of the Ahmadiyya Communities in Pakistan

One example of how family law in Pakistan responds to diversity relates to the Ahmadiyya communities. This (Muslim) sect was founded in in Qadian (northern India) in 1889 by Mirza Ghulam Ahmed, who declared himself the promised masih (messiah) and mahdi (the rightly guided). The main point of divergence between the general Muslim population and Ahmadis was that their founder was seen as a prophet—in direct conflict with the belief by Muslims that the last/final prophet is Muhammad.21 In Muslim countries, in particular in Pakistan, there have been a number of anti-Ahmadiyya movements and protests demanding that they be declared non-Muslims.22 In independent Pakistan, these protests came to a head in 1953, leading to civil unrest, including the deaths of some involved. In the 1970s, the anti-Ahmadiyya/Qadiani movement again surfaced and, following parliamentary hearings, the Ahmadiyya were declared non-Muslims on 17 September 1974 through an amendment to the Constitution of Islamic Republic of Pakistan, 1973.23 The regime of General Zia-ul-Haq (1977–1988) adopted further restrictions on the Ahmadiyya. Ordinance XX of April 1984 prohibited the Ahmadiyya from calling themselves Muslim. Subsequent prohibitions, notably on publishing and on calling their places of worship mosques, severely restricted Ahmadiyya religious life

In 1914, a split occurred in the Ahmadiyya community. The ‘Lahori group’, as it came to be known, referred to Mirza Ghulam Ahmed as a reformer and not a prophet but continued to call him the promised messiah. 22 The Organisation of Islamic Cooperation (OIC) adopted a resolution drafted by the OIC Fiqh Academy declaring Ahmadiyya as non-Muslims. 23 Constitution (second amendment) Act 1974. Amendment of Article 260 of the Constitution.In the Constitution, in Article 260, after clause (2) the following new clause shall be added, namely-- (3) A person who does not believe in the absolute and unqualified finality of The Prophethood of MUHAMMAD (Peace be upon him), the last of the Prophets or claims to be a Prophet, in any sense of the word or of any description whatsoever, after MUHAMMAD (Peace be upon him), or recognizes such a claimant as a Prophet or religious reformer, is not a Muslim for the purposes of the Constitution or law. 21

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in Pakistan, including how and under what law they conducted their marriages and divorces, as well as matters of inheritance. As a consequence of their having been declared non-Muslims, whenever members of the Ahmadiyya communities approach a court of law for resolution of their family disputes, courts are inevitably faced with a perplexing question: which law governs the family law matters of the Ahmadiyya, given that they are declared non-Muslims in Pakistan? In particular and even more difficult to address is the question of what law governs a marriage solemnised prior to 1974, when the Ahmadiyya were within the umbrella of Muslim family law. Further, where one of the parties to the marriage is an Ahmadiyya and the other spouse is not and belongs to the Sunni/Shia denominations of Islam, what is the status of this union? To date, there has been very little discussion within relevant government institutions, civil society organisations or indeed parliament as to what family law applies to the heretofore Muslim community now (formally) declared to be outside the pale of Islam. Whilst the Ahmadiyya have been recognised as a ‘minority’ and allocated seats in parliament, no similar move has been made to declare what family law applies to them. Since the subject is politically and socially explosive, with feelings running high among the general population when the religious convictions of Ahmadiyya communities are being discussed, no politician takes the risk of raising the question of family law for Ahmadis in Pakistan. In the absence of such laws, it has fallen to the Pakistan judiciary to decide cases from Ahmadiyya communities in the area of family law. A further layer of complexity arises from the fact that the Ahmadiyya communities take issue with their being placed outside the fold of Islam, which leads to two situations: (i) where Ahmadiyya do not declare themselves as Ahmadiyya before official forums or in their identity documents, marriage certificates etc., Islamic family law applies to them as long as they have declared themselves to be described as ‘Muslim’; (ii) where Ahmadiyya have self-identified as belonging to this religious denomination, courts have resultantly felt conflicted. The colonial law called the Special Marriage Act, 1872, would apply to the Ahmadiyya, but parties before a court resist this application, stating that they believe in the Qur’an and sunna, and hence Muslim family law ought to govern their personal status. Case law discussed below highlights some of these challenges and how Pakistani courts have dealt with them. As indicated in a previous section of this paper, different religious communities have been accorded different laws of personal status for centuries. But as the Ahmadiyya have been declared as non-Muslims since 1974 and legislators have provided no substitute law for them, they are at a loss as to how or where to register their marriages. In trying to understand this dilemma, I draw upon personal communications with members of the Ahmadiyya communities, as well as some newspaper and other media reports, to shed light on how these communities make claims vis-à-vis the state institutions and what responses they have received to address these issues in practice. In order to ascertain how the Pakistani judiciary has engaged with the question, a close analysis of case law on the subject was undertaken. On the basis of this analysis, it may be concluded that with the exception of some earlier cases, the

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Pakistani judiciary has developed a jurisprudence of legal exclusion vis-à-vis family law matters relating to the Ahmadiyya. Courts have held that since the Ahmadiyya have been declared non-Muslims under the Constitution, Muslim personal law (i.e., Islamic family law as applied in Pakistan) does not apply to them, without stating which law applies in its place. Some examples are provided below.

4.2

Case Law Analysis

Abdur Rahman Mobashir v Amir Ali Shah is the first case which dealt with the question of the relevant personal law of the Ahmadiyya in the post-Amendment period.24 This case is the only one of its kind where the court held that Muslim personal law can be applied to the Ahmadiyya on the basis of justice, equity, and good conscience. Justice Aftab Hussain held that although Islamic law does not apply to non-Muslims, it can still be applied to Ahmadis because they claim to be bound by the law of the Qur’an and sunna. This potentially fateful observation by Justice Hussain, however, did not form the ratio decidendi of the case and was only a passing remark and is not regarded as an authoritative ruling on the question. The dominant legal position is that even though the Ahmadiyya can bring their family disputes before a family court, substantive Muslim personal law does not apply to the Ahmadiyya because they are not considered Muslim under the Constitution of Islamic Republic of Pakistan, 1973. A few years after the Abdur Rahman case, the Lahore High Court (LHC), in Muhammad Rashid Ahmad v Nusrat Jehan Begum,25 dealt with the issue of whether the Muslim Family Laws Ordinance, 1961 (MFLO)—the law under which all Muslim marriages are solemnized and registered—applies to the Ahmadiyya. According to the facts of the case, the petitioner and respondent, both Ahmadiyya, got married in 1973. After a few years, their marriage broke down. Subsequently, the respondent filed a suit for maintenance against the petitioner. The family judge decreed the suit and directed the petitioner to pay maintenance to the respondent. In an appeal before the High Court, the main legal issue was whether the husband was required to give notice of divorce under the MFLO. The Court held that the provision of the MFLO dealing with the notice requirement did not apply in this case because the parties were Ahmadiyya. In another case, Farah Chaudhry v Shahid Mahmood Malik,26 concerning issues of inheritance, the main question before the Court was whether the provisions of the MFLO are applicable to the Ahmadiyya. The Court looked into section 1 of the MFLO, which explicitly states that the provisions of the MFLO would not be applied to non-Muslims, ruling that it could not be applied in this case. Likewise, in Amjad Khan Yousafzai v Arshad Khan, the

24

PLD 1978 Lah 113. 1986 MLD 1010. 26 2005 YLR 29. 25

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Sindh High Court (SHC) held that Ahmadiyya cannot make an oral gift which is valid only under Muslim law.27 In a recent case, the LHC held that an Ahmadiyya wife does not have the right to khula because this right is not available to non-Muslim wives.28 Interestingly, the judge remanded the case to the family court to be decided according to ‘the law’ without specifying the applicable law. With regard to Muslim personal law in general, the Supreme Court, in Farida Malik v Khalida Malik,29 made it clear that since members of the Ahmadiyya faith have been declared non-Muslims under Article 260 of the Constitution, as long as an individual openly professes to belong to the Ahmaddiya sect, the argument that they are governed by the personal law of the Muslims cannot be accepted.30 This case concerned shares of inheritance that the legal heirs of a deceased person were entitled to. The parties had appointed an arbitrator to settle the dispute and determine the division of assets. This division was, however, challenged before the Supreme Court by the appellants, who felt aggrieved by the arbitrator’s ruling. The Court rejected the position of the respondent that the arbitral award was to be governed by the rules of Muslim personal law and set aside the award reached by the arbitrators, as it went beyond the particular matters entrusted to them. In Mubasher Ahmad v Talat Khurshed,31 the Lahore High Court (LHC) held that while the Family Courts Act, 1964, applies to Ahmadiyya, the Dissolution of Muslim Marriages Act, 1939, does not. The Court held that because there was no legislation governing dissolution of marriage within the Ahmaddiya community and no particular forum had been provided, the Family Courts Act 1964 might apply to them as well. The Court referred to the preamble of the MFLO, which stated that the legislation in question would apply ‘to all Muslim citizens of Pakistan, wherever they may be,’ and the preamble and section 2 of the Dissolution of Muslim Marriages Act, 1939, which clearly stated its restriction upon Muslims only, whereas a similar provision is not provided in the Family Courts Act 1964. In Riaz Javed v Sheraz Ahmed, the LHC again delved into the issue of the applicability of the Family Courts Act, 1964, and the MFLO for the Ahmaddiyya community.32 This case related to maintenance, dower and dissolution of marriage. The petitioner had argued that the MFLO and the Family Courts Act, 1964, did not apply to the Ahmadiyya and so the case could not be heard in a family court. The Court, however, held that the jurisdiction of the family court was only subject to the MFLO in the case of Muslims. It held that in the case of a conflict between the MFLO and the Family Court Act, 1964, the former would take precedence for Muslims. However, in the case of non-Muslims such as the Ahmadiyya, ‘the “subject to” clause in Section 5 of the Family Courts Act has no relevance whatsoever because “MFLO” does not apply 27

2009 CLC 1057 [Kar]. Basharat Ahmed v Mst Shamim PLD 2016 Lahore 271. 29 1998 SCMR 816. 30 Ibid., 13. 31 1996 CLC 1963 [Lah]. 32 W.P. No. 49 of 2010. 28

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to non-Muslims and, therefore, there can be no possible conflict between “MFLO” and the “Act” in cases of non-Muslims’.33 The Court, in substantiating this point, referred to the numerous cases involving Hindus and Christians that have been heard before the family courts.34 Notwithstanding the dominant trend of denying the Ahmadiyya the right to be governed in family law matters under the MFLO and principles of Islamic family law, in Bashir Ahmed v Muhammad Boota, the court held that determination of the question of the faith of a person is a question of fact,35 and the court cannot test or gauge the sincerity of a person’s religious beliefs. This is an interesting case where the cause of action arose on 18 February 1969—4 years before the Ahmadiyya/ Qadianis were declared non-Muslim. At the time, both parties were Muslim and arguably within the remit of Muslim personal law. However, in the arguments before the court, the respondents took the position that since they were Ahmadiyya/ Qadianis, therefore Muslim personal law was not applicable to them. Thus, on the one hand, members of the Ahmadiyya communities object to Muslim law not being applied to their cases; on the other, the fact of being non-Muslim is employed to evade application of this law. In another case, the court declared that it is sufficient for a court to be satisfied that the person professes to belong to a certain faith, without inquiring further into his/her state of mind.36 This case arose when the inheritance rights of a Muslim woman married to an Ahmadiyya man were challenged by her siblings declaring that she was an Ahmadiyya—a non-Muslim—and hence not entitled to inherit from her late father. The court observed that since the lady herself had declared under oath that she was Muslim, albeit married to an Ahmadiyya, this was sufficient for the court to accept her as such. Her marriage may have been in question but not her right to inheritance.37 However, this observation and the one we found in the Abdur Rahman case, wherein the court held Muslim personal law applicable to the Ahmadiyya on the basis of justice, equity and good conscience, are the exception rather than the rule, the norm being that Muslim personal law does not apply to the Ahmadiyya because they have been declared non-Muslims under Article 260 of the Constitution. The reluctance of Pakistani courts to apply Islamic family law to the Ahmadiyya is also reinforced at the institutional levels within various governmental departments. The Express Tribune reported in its 28 July 2016 edition that ‘The Walton Cantonment Board and the Lahore Cantonment Board do not register marriages of Christians and Ahmadiyya, stating that they only register marriages solemnised under

33

Ibid., p. 17. Ibid., p. 20. 35 Bashir Ahmed v Muhammad Boota 1991 CLC 1153. 36 Mst Bhagari v Khia 2006 YLR 394. 37 Mst Bhagari v Khia 2006 YLR 394. 34

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Muslim Family Laws Ordinance 1961.’ Both these communities have made arrangements on their own for registration.38 In conclusion, it is evident that Ahmadiyya communities pose a challenge to family law in Pakistan in view of the complex situation where this community resists its minority status and hence does not use laws applicable to religious minorities. The review of case law related to Ahmadiyya above presents a complex picture not only of how Pakistan law and courts respond to various family law claims, but also of the response of the Ahmadiyya communities themselves. An element of skilful navigation is discernible on the part of the Ahmadiyya: depending upon the interests of the litigants, Islamic law is or is not invoked. The position of courts could be contrasted to the possibly differing positions of the Ahmadiyya concerned, which may be seen as reciprocity for the lack of legal security regarding the law applicable to them. The lack of registration facilities also has a number of spin-off challenges such as those regarding the issuance of passports and national identity cards, as well as in the area of private international law, where family law issues, applicable law and status need to be determined.

4.3

Coming Home at Last? Transgender Communities and Their Place in Pakistan Family Law39

This section interrogates how ‘claims’ based on sexual identities and orientation that were, until recently, neither publicly articulated nor officially accommodated in state law are raised and dealt with in legislation and case law in Pakistan. Focussing on transgender communities in Pakistan, it analyses implications of their successful claims for civil and political rights as well as the application of family laws to them. Using legislation and case law from Pakistani courts, this section highlights the far-reaching potential for challenging established and entrenched norms in Muslim family law in Pakistan as a result of identity rights accorded to transgender persons. In a strongly patriarchal society, transgender persons may now declare their ‘neither man nor woman’ identity in government documents; ascribe their paternity to a non-biological father (‘guru’); marry and found a family; and claim inheritance rights—to name just a few of the implications. However, this right to self-identify as transgender has associated costs: giving up male prerogatives of superior claims

38

Saleemudin, a Jamaat Ahmadiyya spokesperson, told The Express Tribune that they had established their own system for registering marriages. ‘After some effort, we were able to convince NADRA to acknowledge our marriages. Nevertheless, our people still face problems when they are asked to prove their marital relationship to embassies and consulates while applying for visas,’ he said, see Tanveer (2016). 39 There is a growing body of academic literature as well as newspaper articles, blogs and case law on the rights and status of transgender persons in South Asia. They include: Chowdhury (2016), pp. 43–60; Zainuddin and Mahdy (2017), pp. 353–360; Pamment (2010), pp. 29–50; Bukhari (2016), Kapur (2016).

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to, for instance, inheritance, as well as obtaining medical certification of their transgender biological being. More importantly, self-identification as a transgender person brings risks of ostracisation from the natal family, who perceive this identification as an affront to their ‘normal’ position within society. Thus, this report calls for a more nuanced interpretation of the formal success of transgender rights, arguing that, in practical terms, recognition of their claims may result in rather limited advantages. This section of the report poses the following inter-connected questions: How might the supportive approach of the Pakistani legislature and judiciary towards transgender persons be interpreted in heterogeneous transgender communities as well as in an increasingly intolerant and fractured society based upon the sexual binary of male-female? Are these developments responsive to claims of transgender communities asserting their right to self-identify, or proactive steps in light of constitutional provisions of equality and non-discrimination–or both? What are the implications of these rights for same-sex marriage, filiation, and other aspects of ‘stable’ Muslim family law and the wider societal order?40 In the context of regulations relating to transgender persons in Pakistan, why and how they became marginalized in society is a complex and contested historical question. Postcolonial discourse on the subject largely places the blame for their disenfranchisement on the laws introduced by the colonisers—in particular, the Criminal Tribes Act of 1871.41 This law criminalised transgender persons (referred to as eunuchs in this Act) along with so-called ‘robber tribes’. Lately, some scholars challenging what they describe as an uncritical and simplistic perspective have presented evidence that, although the British colonisers did promulgate the written law on criminal tribes, it was nevertheless informed by pre-existing societal and selfperceptions of these communities and prevalent customary practices.42 Whilst not completely disagreeing with a more multi-layered and complex analysis of colonial legislation that allowed for inclusion of customary practices, I have elsewhere argued that: culture is an evolutionary process of our ‘beings’ and ‘doings’. It is an intricate tapestry that both reflects and detracts from collusions and resistances (individual/collective), to dominant behavioural norms in society at various points in our histories . . . [I]t is important to remind ourselves of the highly political nature of this project: Who has the power to define culture determines whose voices are being heard and represented in this undertaking.43

40

There are a variety of complex themes and aspects of the study of transgender identity in Pakistan. The present report engages with the subject from the perspective of family law only. 41 The Criminal Tribes Act, 1871. Act XXVII. British Library, Oriental and India Office Collections, shelfmark V/8/42. There is a rich body of literature adopting a postcolonial approach. Spearheaded by the late Edward Said, Orientalism (Penguin Books 1978), it has a significant following, too numerous to cite here. 42 For an interesting exposition of this line of argument, see Piliavsky (2015), pp, 323–354. 43 Ali (2007), pp. 77–78.

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Certain examples of the codification of custom arrived at by ‘useful’ collusion between the colonial power and the landed Muslim gentry, such as the exclusion of Muslim women from inheriting land and other immovable property, were subsequently contested politically. Examples include the Muslim Personal Law (Shariat) Application Act, 1937. Whilst such colonial understandings of the nature of ‘customary law’ were not strictly inaccurate, they nevertheless ‘were arrested, frozen forms of representation’.44 The status of transgender persons and communities is another example of this historical and societal collusion and may be located in the ‘Anglo’ aspect of the hybrid ‘Anglo-Indian’ nature of law in the form of the Criminal Tribes Act of 1871—an Act for the Registration of Criminal Tribes and Eunuchs. Whilst culture and custom evolve, once entrenched into statute, they have the propensity to freeze—as happened with this particular law affecting transgender persons and communities. The preamble of the law states: ‘Whereas it is expedient to provide for the registration, surveillance and control of certain criminal tribes and eunuchs . . .’ leading transgender persons to state that their status and place in society was marred by being grouped with criminal tribes, making it appear that they too, were a kind of ‘criminal tribe’ or tribes. Part II of this law, devoted to ‘eunuchs’, illustrates how societal and selfperceptions of transgender persons found a place in colonial legislation.45 Section 24(b) sets out to define eunuch in the following manner: ‘The term “eunuch” shall, for the purposes of this Act, be deemed to include all persons of the male sex who admit themselves, or on medical inspection clearly appear, to be impotent.’ Their main ‘claim’ to criminality appears to be voiced in section 24(a) of the Act, which provides that a register of the names and residences of all eunuchs residing in any town or place to which the Local Government specially extends this Part of this Act, who are reasonably suspected of kidnapping or castrating children, or of committing offences under section three hundred and seventy-seven of the Indian Penal Code, or of abetting the commission of any of the said offences

is to be maintained. In addition to their names, a register of their property is to be maintained (section 24(b); a penalty on a registered eunuch appearing in female clothes or dancing in public or for hire was imposed under section 26; a eunuch who has in his charge and under his control a boy below the age of sixteen ‘shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.’ (section 27). The Criminal Tribes Act of 1871 also infringes on some basic rights of transgender persons by denying them the capacity to do the following: (a) Of being or acting as guardian to any minor, (b) Of making a gift,

44 45

Ali (2016), p. 89. Sections 24–31 of the Criminal Tribes Act of 1871 are devoted to ‘eunuchs’.

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(c) Of making a will, or (d) Of adopting a son.46 In light of the above, the question is whether this configuration and criminalizing of eunuchs, as they were called in the Criminal Tribes Act 1871, can be ascribed completely to the colonizing powers as a means of controlling ‘troublemakers’ in Indian society.47 Or does this conceptualization bear a semblance of how society at the time perceived transgender persons and communities? Some discussion of the historical antecedents of this constituency of persons will shed light on the issue and it is to this that we turn our attention. Claire Pamment, in a perceptive and sensitively written article, states that transgender persons describe themselves as ‘neither men nor women,’48 residing in a location beyond dichotomous gender categorization.49 They have variously been described as hijra (in Urdu); khusra (in Punjabi); bugga (in Baluchistan), and more elegantly khwajasara, a term from the Mughal era, when they enjoyed some standing in court circles. Transgender persons in Pakistan as well as other parts of South Asia draw upon a long history of cultures that ascribed special ritual powers to ‘bestow fertility blessings’ as compensation for their own inability to bear children. Historically, transgender persons were present at rituals of birth, marriage and death where they were rewarded for their blessings, dancing and presence, and this was their main source of income.50 If the patrons did not reward them, then the ‘curse’ of transgender persons fell upon them—a widely held belief among South Asians, who remain in fear of these ‘powers’. Transgender persons (born as men, or with undeveloped genitalia) either leave their natal families by choice or are made unwelcome by their families, as their presence appears problematic in a society that is unable to deal with their ambiguous gender identity. They seek out existing transgender communities under the patronage of a guru (teacher, mentor, appointed and accepted as such by other transgender persons) and become their chela (follower). Large communities of transgender persons operate as families in the guru/chela hierarchy and lately as associations and groups. Transgender persons ascribe their loss of status and turning to prostitution to the humiliating manner in which their communities were treated during colonial rule and from which they could not recover. With the decline of the Mughal court, khwajasara, as they were known at the time, lost their positions and became vulnerable to abuse and begging to survive. The British stripped them of all their privileges and saw their dancing and other activities as an affront to their morals. 46

Section 29, the Criminal Tribes Act of 1871. This Act was repealed in India in 1952, leading to the decriminalization of 2.3 million members of tribes. 48 As cited in Pamment (2010), p. 29. 49 Ibid. 50 This ‘work’ has now decreased and high numbers of transgender persons are in the sex trade, particularly in Pakistan. 47

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With the passage of the Criminal Tribes Act of 1871, registration, surveillance, and control of all ‘eunuchs’ became mandatory. Transgender communities did not recover from this criminalisation of their very being—which gradually seeped into the consciousness of local communities even after the departure of the British.

4.4

Judiciary as Allies?

After the independence of Pakistan in 1947, transgender communities in Pakistan (as in other South Asian countries) continued to exist at the margins of society, both feared and ridiculed for their ‘difference’ from the mainstream male/female categorisation. They were seen as challenging existing patriarchal family structures as well as societal norms in terms of conventional relationships (husband/wife, mother/father, parent/child, and so on). Perhaps the most challenging and disconcerting aspect of their existence was the ‘violation’ of prevalent norms of the public/ private dichotomy through uninhibited occupation of public space despite their ‘woman-like’ personae. Gradually, over the years, and responding to their marginalisation as well as discrimination in all spheres of life, transgendered communities organised themselves more formally and became vocal in challenging their harsh treatment by state and society. Of all state institutions, the Supreme Court of Pakistan became their champion, handing down decisions and asking Parliament to adopt laws in accordance with the principle of equality and non-discrimination. Finally, in 2009, a landmark judgement was delivered by the Supreme Court of Pakistan, wherein transgender persons were allowed to register themselves as a third gender; they had rights to inherit, vote, contest elections, and access education and employment. In particular, police and other governmental institutions were instructed against discrimination and harassment of these communities. The opening lines of the order sheet expressed the view that these communities had been neglected due to the ‘genetic disorders in their bodies’, despite the fact that they were equal citizens of the state and entitled to all rights as stated in the Constitution of Pakistan.51 This ruling by the highest court of the country encouraged transgender persons to register themselves to receive identity cards and passports, as well as to avail themselves of other rights including education, health and employment. This ruling was the beginning of a number of other rulings as well as laws adopted to redress the neglect and discrimination against transgender communities. Although not stated in so many words, the new-found identity of transgender persons has significant implications for family law in Pakistan. These will unfold in the course of the discussion below.

51

Dr. Muhammad Aslam Khaki and others vs. SSP (Operations) Rawalpindi and others (Petition No. 43 of 2009), https://www.icj.org/wp-content/uploads/2012/07/Khaki-v.-Rawalpindi-SupremeCourt-of-Pakistan.pdf.

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Following from the 2009 ruling (Petition No. 43 of 2009), a number of complications arose and further clarification was required regarding the legal status and rights of transgender persons. In Dr. Muhammad Aslam Khaki and another v. Senior Superintendent of Police (Operation), Rawalpindi and others (2013 SCMR 187), the Supreme Court directed provincial and federal governments to protect the identity of transgender persons as well as their right to inherit property, right to education and right to life, which includes employment and quality of life. The matter was once again brought to the notice of the Supreme Court of Pakistan in Dr. Muhammad Aslam Khaki and others v. SSP (Operations) Rawalpindi and others (PLD 2013 SC 188), when transgender persons were not issued National Identity Cards by NADRA, the National Database and Registration Authority, despite earlier rulings of the Supreme Court of Pakistan. As a consequence of this string of cases, in Mian Asia v. Federation of Pakistan and others (2017) LHC 3212, the parentage of transgender persons in the National Identity Card came into question along with other issues raised in earlier cases. A transgender person named Mian Asia had, in accordance with permission granted by the Supreme Court, put down the name of their guru as their father. After the death of the guru/father, Mian Asia was refused renewal of their identity card on the basis that the column of ‘father’ was blank and the name of the late guru was no longer acceptable. The Supreme Court issued a comprehensive policy in this regard, which is reproduced here at length in view of its importance: In compliance of Lahore High Court Order in Writ Petition No.31581/2016, following procedure for issuance of CNICs to Eunuchs has been approved by Competent Authority:Eunuchs with known Parents: Cases may be dealt as per Registration Policy as it covers processing of CNICs of Eunuchs with known Biological Parentage. Eunuchs with Unknown Parentage: As a first step, already registered Eunuchs whosever are willing shall get themselves registered as ‘Guru’ in NADRA database. Guru registration will be carried out at HQ NADRA through a module already being used for registration of Orphanages. Procedure for Guru Registration: Copy of CNIC alongwith an affidavit of Rs.20/- attested by Magistrate Class I shall be submitted by the individual (Format attached). After scrutiny, RHO will forward said documents to HQ NADRA by registration of GURU. Just like orphans with unknown parentage, CNIC of Eunuchs with unknown parentage will be processed by selecting random parents name from database. Registered Guru will be the head of applicant (Eunuch) and will give Biometric verification. Biometric witness of another person (any valid CNIC holder) also be obtained. Vigilance Deptt will conduct post verification. Post Verification data analysis will be decision shall be made after one year experience and result revealed by post verification and data analysis.

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The implications for Muslim family law in Pakistan are significant: The Supreme Court of Pakistan and government institutions have acknowledged that a person other than the biological father may be accepted as ‘father’. Does this flexibility open up possibilities for the adoption of children in Pakistani communities? Further, by ruling that transgender persons are entitled to inherit from their families, diversity in sexualities hitherto unacknowledged is finding a place in the legal and societal landscape. The latest law bringing together the various rulings and policies into one consolidated piece of legislation for transgender persons was adopted by the Senate in March 2018 and by the National Assembly of Pakistan in May 2018. The statement of object and purpose of the Transgender (Protection of Rights) Act of 2018 is stated thus: ‘Transgender people constitute one of the most marginalized communities in the country and they face problems ranging from social exclusion to discrimination, lack of education facilities, unemployment, lack of medical facilities and so on. The Supreme Court of Pakistan passed a ruling in 2009 stating that no Pakistani laws provide room to disenfranchise “eunuchs” from their fundamental rights. Though Article 25 of the Constitution of the Islamic Republic of Pakistan guarantees to all citizens equality before law, clause (1) of Article 26 and clause (1) of Article 27, inter alia prohibit, in explicit terms, discrimination on the basis of sex and Article 19 ensures freedom of speech and expression to all citizens, yet the discrimination and atrocities against Transgender Persons continue to take place.’ The definition of transgender persons was also clarified as below: Section 1 (n) ‘Transgender Person’ is a person who is:(i) Intersex (Khunsa) with mixture of male and female genital features or congenital ambiguities; or (ii) Eunuch assigned male at birth, but undergoes genital excision or castration; or (iii) a Transgender Man, Transgender Woman, KhawajaSira or any person whose gender identity and/or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth.

In the area of family law, the following right is important: 7. Right to Inherit. (1) There shall be no discrimination against Transgender Persons in acquiring the rightful share of property as prescribed under the law of inheritance. (2) The share of Transgender Persons shall be determined as per the gender declared on CNIC in accordance with the law of inheritance in Pakistan. (3) The share of inheritance for transgender persons will be as follows: (i) For Transgender Male, the share of inheritance will be that of man; (ii) For Transgender Female, the share of inheritance will be that of woman; (iii) For person who has both male and female or ambiguous characteristics, such as their state is difficult to determine upon birth, following shall apply:(a) Upon reaching the age of 18 years, if the person’s self-perceived gender identity is Transgender Male, the share of inheritance will be that of man;

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Despite the challenges confronted by the government amidst an increasingly conservative and extremist-leaning polity, minorities such as transgender persons have been accorded a number of fundamental rights, including non-discrimination and equality, as pronounced in the constitution of Pakistan. The extent to which these rights will be implemented on the ground and in reality remains to be seen. But the very fact that a subject of this level of sensitivity was taken up by Pakistan’s Parliament is uplifting. A further development in the family law aspect of transgender rights is a fatwa issued by fifty Pakistani clerics based in Lahore declaring that transgender men and women have the right to marry. The religious decree also provides the transgender community with inheritance and funeral rights under Islamic law. The fatwa was issued by the Tanzeem Ittehad-i-Ummat Pakistan. The body’s chairman, Zia-ul-Haq Naqshbandi, said he wanted a ruling from Islamic scholars to prevent discrimination against Pakistan’s transgender community. ‘We need to accept them as God’s creation too. Whoever treats them badly, society, the government, their own parents, are sinners,’ Naqshbandi said, according to the Wall Street Journal.52 ‘It is permissible for a transgender person with male indications on his body to marry a transgender person with female indications on her body,’ the fatwa stated. ‘Also, normal men and women can also marry such transgender people as have clear indications on their body.’53

5 Some Concluding Reflections These concluding reflections sum up the findings of this research on multicultural challenges to family law in Pakistan and how state and governmental institutions including the judiciary, as well as society, respond to them. Whilst there are a number of these challenges confronting family law as applicable to minorities, the present report focused on two main communities, (i) Ahmadiyya and (ii) transgender persons, to reflect upon responses by the state and government as well as society at large. Research in the area demonstrates the lack of proactive legislative initiatives to respond to challenges arising in most fields of law, including family law. It normally falls to the Pakistani courts, as the first port of call for those affected, to respond. This 52 53

Nauman (2016). Bukhari (2016).

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report has highlighted the erratic and ad-hoc manner in which claims are made and responded to by courts and state institutions. Both examples show variation in the courts’ approach when addressing minority rights claims in family law. Thus, in the case of what family law governs the Ahmadiyya communities and on what basis, the Pakistan judiciary is wary of rendering categorical and clear pronouncements—obviously—in view of the socio-political volatility of the subject matter. On the other hand, in the case of transgender communities and their access to rights and entitlements in family law, Pakistani courts have demonstrated a robust and courageous approach, moving well beyond conventional positions on the subject. Why this position was adopted both by courts and the government is puzzling to understand, particularly as the dress, behaviour, demeanour, and indeed the very existence of transgender communities fly in the face of majority communities’ worldview on family and family law. The reality, however, is that whilst existing in the periphery and margins of society, transgender communities have the ability to destabilise the status quo of family and society as well as the political equilibrium by challenging established hierarchies and roles. Reluctance to accord Ahmadiyya alternative, specific family laws to operate under is equally destabilizing, but in different ways. The Ahmadiyya challenge is a two-way tussle; the judiciary, state and society resist their self-declared Muslim-ness in family law. The Ahmadiyya communities are equally resistant to being accorded a minority status and unwilling to resort to the Special Marriage Act available to religious minorities without a specific personal status law. Neither can afford to explicitly raise the level of confrontation because both are painfully aware of the volatility and destabilisation of the situation should this happen. In summation, it may be briefly mentioned that family law challenges to Ahmadiyya and transgender communities in the area of family law do have private international law implications. Where Ahmadiyya travel or reside outside Pakistan, travel documents are required as evidence of (family/personal) status. This evidence is also relevant when there is a breakdown in a relationship and the custody and guardianship of children is to be judged. What law is applicable to these parties is a question that may be difficult to ascertain in view of the lack of clarity within Pakistan itself (the country where the marriage, etc., took place, or where the property is located). Transgender persons may similarly be confronted with questions of parentage, personal status and other matters in jurisdictions where laws may not have a third gender option and courts need to revert to the country of origin’s laws on the subject. In conclusion, it may be suggested that multicultural challenges to family law have always been present in Pakistan and in other postcolonial and plural legal systems in multi-ethnic and multi-religious populations. Whether responses, strategies and mechanisms have been successful is a difficult question and, as examples used in the present report have shown, the broad approach taken is an ad-hoc and case-by-case position. Family law is never a private and personal affair, and tends to spill into the public domain, affecting state and government as well as society more generally.

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References Ali SS (2000) Gender and human rights in islam and international law: equal before Allah, unequal before man? Kluwer Law International, The Hague Ali SS (2002) Testing the limits of family law reform in Pakistan: a critical analysis of the Muslim family laws ordinance 1961. In: Bainham A (ed) The international survey of family law. Jordan Publishing, Bristol, pp 317–335 Ali SS (2007) Overlapping discursive terrains of culture, law and women’s rights: an exploratory study on legal pluralism at play in Pakistan. In: Bennett J (ed) Scratching the surface: democracy, traditions, gender. Heinrich Böll Foundation, Lahore, pp 77–100 Ali SS (2016) Modern challenges to Islamic law. Cambridge University Press, Cambridge Ali SS, Rehman J (2001) Indigenous peoples and ethnic minorities of Pakistan: constitutional and legal perspectives. Curzon, Richmond/Surrey Anderson MR (1990) Islamic law and the colonial encounter in British India. In: Mallat C, Connors J (eds) Islamic family law. Graham & Trotman, London, pp 205–223 Baillie NBE (1965) Digest of Moohammudan law. Premier Book House, Lahore Bukhari M (2016) Pakistani clerics declare transgender marriages legal under Islamic law. Reuters, 27 June 2016. https://www.reuters.com/article/idUSKCN0ZD1IZ. Accessed 28 Apr 2021 Chowdhury DTA (2016) Recognizing the right of the third gender to marriage and inheritance under Hindu personal law in India. BRICS Law J 3(3):43–60 Derrett JDM (1963) Justice, equity and good conscience. In: Anderson JND (ed) Changing law in developing countries. Allen & Unwin, London Jung MUIS (1980) The administration of justice in Islam. Law Publishing House, Lahore Kapur R (2016) Pakistani clerics issue fatwa approving transgender marriage. The Diplomat, 1 July 2016. https://thediplomat.com/2016/07/pakistani-clerics-issue-fatwa-approving-transgendermarriage/. Accessed 28 Apr 2021 Kugle SA (2001) Framed, blamed and renamed: the recasting of Islamic jurisprudence in colonial South Asia. Mod Asian Stud 35(2):257–313 Nauman Q (2016) Pakistani Islamic clerics say transgender men and women have right to marry. The Wall Street Journal, 28 June 2016. https://blogs.wsj.com/indiarealtime/2016/06/28/ pakistani-islamic-clerics-say-transgender-men-and-women-have-right-to-marry/. Accessed 1 July 2019 Pamment C (2010) Hijraism: jostling for a third space in Pakistani politics. Drama Rev 54 (2):29–50. http://www.jstor.org/stable/40650610. Accessed 28 Apr 2021 Piliavsky A (2015) The “Criminal Tribe” in India before the British. Comp Stud Soc Hist 57 (2):323–354 Shahid A, Khan IA (2017) Pakistan. In: Yassari N, Möller L-M, Gallala-Arndt I (eds) Parental care and the best interests of the child in Muslim countries. T.M.C. Asser Press, The Hague, pp 169–204 Siddique O (2013) Pakistan’s experience with formal law: an Alien justice. CUP, Cambridge Tanveer R (2016) Ahmadi, Christian marriages not being registered. The Express Tribune, 28 July 2016. https://tribune.com.pk/story/1150717/basic-right-ahmadi-christian-marriages-not-regis tered/. Accessed 28 Apr 2021 Washbrook D (1981) Law, state, and Agrarian society in colonial India. Mod Asian Stud 15 (3):649–721 Zainuddin AA, Mahdy ZA (2017) The Islamic perspectives of gender-related issues in the management of patients with disorders of sex development. Arch Sex Behav 46(2):353–360. https:// link.springer.com/content/pdf/10.1007%2Fs10508-016-0754-y.pdf. Accessed 28 Apr 2021

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Shaheen Sardar Ali is currently serving as Rector of the National Academy of Higher Education (NAHE), Islamabad, Pakistan and Professor of Law at the University of Warwick, UK; Fellow of the Royal Society of Arts and Associate Member of the International Academy of Comparative Law; Vice-Chair of the United Nations Working Group on Arbitrary Detention (2008–2014); Professor II University of Oslo; Professor of Law, University of Peshawar, Pakistan, as well as Director of the Women’s Study Centre at the same university. She has served as cabinet Minister for Health, Population Welfare and Women Development, Government of the Khyber Pukhtunkhwa Province of Pakistan and Chair of Pakistan’s first National Commission on the Status of Women. She has received a number of national and international awards including the Public Sector Award (Asian Women Achievements Awards) 2005 and was named one of the 100 most influential women of Pakistan in 2012. Professor Ali has published extensively in Islamic law, international human rights law including human rights of women and children and family law. Her most recent monograph, Modern Challenges to Islamic Law (Cambridge University Press, 2016) has been widely acclaimed as a ground-breaking contribution to Islamic law scholarship.

Quelle place pour la diversité en droit tunisien du statut personnel ? Asma Alouane

Abstract The study of the role of multiculturalism in Tunisian family law reveals a paradox. Before independence, Jews and Muslims had their own courts which applied their own religious law, whereas French and other European citizens went to colonial courts. Right after independence, however, Tunisian family law broke with this pluralistic logic as far as religion was concerned. It also turned its back on traditional Islamic family law and adopted a modern family law that provided practically no room for diversity. Because its family model was unique among Arabic countries, the Tunisian legal system and its courts protected it by rejecting all other family models, especially those that were inspired by the Islamic tradition. Some courts, however, still follow an Islamic interpretation of Tunisian family law. By doing so, they have adopted an Islamic conception of the family which excludes non-Muslim persons. Religious distinctions have thus been brought back into a system which, at first glance, appears not to make such distinctions. Ultimately, religious diversity is becoming a source of discrimination.

1 Introduction Jusqu’à son indépendance en 1956, prévalait en Tunisie un pluralisme juridique. Hérité du système statutaire musulman, il a été renforcé par les capitulations ottomanes. Durant la période du Protectorat, l’État français a mis fin au système capitulaire mais a maintenu le système pluraliste : les musulmans et les juifs relevaient de tribunaux charaïques et rabbiniques, qui appliquaient leur loi religieuse. Les juridictions françaises étaient compétentes lorsque le litige impliquait

A. Alouane (*) Université Paris 2 Panthéon-Assas, Centre de recherche de droit international privé et du commerce international (CRDI), Paris, France © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_4

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une partie non tunisienne.1 À l’indépendance, la Tunisie a abandonné le pluralisme juridictionnel et législatif.2 Procédant d’abord à l’unification juridictionnelle, l’État tunisien a unifié aussi l’application du droit. Mais l’unification du droit applicable au statut personnel ne pouvait se faire en s’appuyant sur la reproduction d’un modèle destiné aux seuls musulmans. Cela aurait été méconnaître la diversité de la société tunisienne.3 C’est un droit indifférent à l’élément religieux qui est applicable à tous les Tunisiens. À travers cette double unification, le législateur a affirmé « une identité nationale aux lieu et place de l’identité religieuse »4 qui prévalait. Appliquant ainsi un statut personnel unifié et unique à tous les Tunisiens, le législateur a rompu aussi bien avec le pluralisme juridique5 qu’avec le modèle traditionnel patriarcal et inégalitaire. Promulgué à quelques mois après l’indépendance,6 le Code du statut personnel tunisien (CSP) a fait l’effet d’un « Big Bang sur le plan du droit et des mœurs ».7 La tutelle matrimoniale et le droit de contrainte sont abandonnés, la polygamie et la répudiation rejetées. . . Autant de mesures symboliquement fortes qui ont fait entrer la Tunisie dans la modernité.8 Célébré en Occident, le modèle familial tunisien a été mal reçu dans les pays arabo-musulmans.9 Il a aussi été l’objet de critiques internes.10 Pour s’assurer de l’acceptation du nouveau modèle, le Président Habib Bourguiba, fort de sa légitimité politique de vainqueur de l’occupant colonial, a affirmé que loin d’être en contradiction avec le droit musulman, le modèle tunisien était au contraire « un retour aux sources pures de l’Islam ».11 Ce même discours a été repris par les pouvoirs en place pour poursuivre l’œuvre réformatrice.12 Déterminé d’une part par son contexte politique et juridique particulier et, d’autre part, confronté à des revendications pressantes l’invitant à reconnaître de plus grandes sphères de libertés aux individus13 et à accepter « la coexistence des modes et de styles de vie différents selon les communautés et les groupes de Meziou (2017), n 1. Charfi (2005), p. 336. 3 Cette démarche s’explique aussi par le contexte de la décolonisation. Elle garantit lors de la dévolution de la compétence des tribunaux français aux autorités tunisiennes que leurs justiciables ne seront pas soumis à un code religieux. V. Bostanji (2009), p. 36. 4 Bostanji, ibid. 5 Ben Jémia (2010), p. 577. 6 Décret du 13 août 1956 portant promulgation du Code du statut personnel. 7 Charfi (2005), p. 337. 8 Meziou (2005a), p. 815. 9 Bostanji (2009), p. 9. 10 Tobich (2008). 11 H. Bourguiba, Discours prononcé le 29 juin 1966 à l’occasion de la fête du Mouled, cité par Bostanji (2009), p. 30. 12 Ben Jemia (2012), p. 159; Ben Achour (2010), p. 17. 13 V. le rapport de la Commission des libertés individuelles et de l’égalité (COLIBE), Présidence de la République, Tunis, 1er juin 2018, qui propose de nombreuses mesures visant à éliminer les 1 2

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personnes qui les adoptent »14 l’ordre juridique tunisien semble tiraillé quant à la place qu’il fait à la diversité en matière de statut personnel. L’attachement de l’ordre juridique tunisien à faire accepter le nouveau modèle familial de référence s’est traduit par une uniformisation qui a laissé peu de place à la diversité des modes de vie dont certains, d’inspiration charaïque, sont perçus comme porteurs d’une menace de retour vers un modèle rejeté. Soixante ans après son adoption, l’enracinement du modèle familial porté par le CSP est encore fragile. Alors que c’est au nom de la défense de ses choix fondamentaux que l’ordre juridique tunisien rejette les modèles familiaux d’inspiration religieuse, c’est paradoxalement au nom de ce même référentiel islamique qu’il érige la diversité religieuse en obstacle à l’exercice de certains droits. Une conception islamique du modèle familial est privilégiée. Les non-musulmans en sont exclus.15 Remettant en cause le principe de l’indifférence des solutions du CSP à l’appartenance religieuse, cette lecture instaure des discriminations entre les communautés religieuses.16 Tantôt justifiée par la place qu’occupe le droit musulman parmi les sources formelles du droit du statut personnel tunisien, tantôt rejetée au nom de la conception libérale des droits fondamentaux que consacrent la Constitution et les instruments internationaux ratifiés par l’État tunisien, cette lecture ambivalente des textes rejaillit sur la place de la diversité au sein du modèle familial tunisien.17 Aussi, si l’instauration du modèle national de référence s’est accompagnée par une reconnaissance limitée de la diversité des modes de vie, la lecture qu’en retient la jurisprudence fait douter de sa pérennité. La place que fait l’ordre juridique tunisien à la diversité est pleine d’incertitudes.

2 Une place limitée Soucieux d’instituer un modèle familial en rupture, par certains aspects, avec l’héritage de droit musulman, l’ordre juridique tunisien tient peu compte du pluralisme familial. Les manifestations d’une diversité des modèles familiaux sont parcellaires. Dans l’ensemble, il semble réfractaire à l’admission de revendications de modes de vie différents de la conception nationale, qu’il s’agisse de ressusciter un passé pas complètement révolu ou de demandes nouvelles.

différentes formes de discriminations et les atteintes aux libertés individuelles existant en droit tunisien. 14 Définition du multiculturalisme proposée par les organisatrices de ce projet de recherche. 15 Ben Jemia (2008), p. 261. 16 V. pour une étude des différentes discriminations notamment en raison de la religion à travers le prisme de la condition des étrangers, Ben Achour (2019). 17 V. Ben Achour (1974), p. 77; Charfi (2008), p. 425; Ben Halima (2000), p. 107; Kari (2005), p. 603; Ben Achour (2010), p. 19 et la bibliographie citée.

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Des manifestations parcellaires

Voulant rompre avec le modèle traditionnel musulman, la conception nouvelle portée par le CSP est peu réceptive au pluralisme des modèles familiaux. Il n’existe ainsi qu’un unique modèle familial de référence. Justifiée par la nécessité d’assurer une protection de l’enfant, seule la filiation apparaît comme un îlot de diversité ouvert au pluralisme des modèles.

2.1.1

Un modèle de référence

Le modèle du mariage tunisien est hétérosexuel et monogame. Exigeant le consentement des deux époux,18 c’est un acte solennel19 qui obéit à des conditions de forme obligatoires.20 En revanche, le droit tunisien ne connaît aucune autre forme de conjugalité qu’elle soit de fait ou de droit. Dans le cadre des relations des parents avec l’enfant, une distinction est établie entre la garde et la tutelle. Le père est seul titulaire de la tutelle.21 Elle ne peut être accordée à la mère qu’en cas de décès du père et, exceptionnellement, en cas de divorce. Abandonnant en 1966 l’ordre des dévolutaires de la garde inspiré du droit musulman, le CSP prévoit que son attribution s’effectue en fonction du critère de l’intérêt de l’enfant.22 S’il est vrai que l’époux demeure le chef de famille, la loi de 1993 a mis fin au devoir d’obéissance de l’épouse.23 Les rapports entre époux sont fondés sur l’entraide et la réciprocité.24 Rejetant le modèle musulman de la répudiation, la dissolution du mariage ne s’effectue que par voie judiciaire25 et les mêmes causes de divorce sont ouvertes aux deux époux.26 Enfin, conservant la conception classique du droit musulman, le CSP rattache la matière des successions au statut personnel.27 Il reprend les règles applicables en droit musulman.28

18

Art. 3 du CSP. Art. 4 du CSP. 20 Art. 31 de la loi n 57-3 du 1 août 1957 réglementant l’état civil. 21 Ben Achour (2017b), p. 265. 22 Art. 67 du CSP. 23 Loi n 93-74 du 12 juillet 1993. 24 Art. 23 du CSP. 25 Art. 30 du CSP. 26 Art. 31 du CSP. 27 Selon la conception extensive du droit musulman, le statut personnel comprend en plus de l’état et de la capacité des personnes, les relations familiales personnelles et patrimoniales. V. Meziou (2005a), p. 818. 28 Sur leur apparente conformité au droit musulman, v. Meziou (2005b), p. 907. 19

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Cependant, derrière cette apparence d’uniformité, la diversité des modèles familiaux n’est pas totalement ignorée. Sa reconnaissance juridique est justifiée par une seule finalité : assurer la protection de l’enfant.

2.1.2

Un îlot de diversité : la filiation

Se caractérisant par une politique législative soucieuse de la protection de l’enfant, l’ordre juridique tunisien a accepté d’infléchir le modèle de référence de la famille fondé sur le mariage et les liens du sang.29 Alors que le CSP ne reconnaît que la filiation par le nasab, le législateur s’est d’abord écarté du fondement biologique en admettant, avec l’adoption, une filiation affective. Il a ensuite remis en cause le principe de légitimité en faisant une place à la filiation naturelle. La filiation adoptive Confronté au problème épineux des enfants abandonnés,30 le jeune législateur tunisien a adopté la loi du 4 mars 1958 relative à la tutelle publique, à la tutelle officieuse et à l’adoption.31 Organisant la protection des enfants, elle a été complétée par la loi du 21 novembre 1967 relative au placement familial.32 La tutelle publique et le placement familial ont en principe une vocation provisoire et n’ont pas pour finalité d’assurer l’intégration de l’enfant dans une famille. La kafala et l’adoption paraissent davantage tournées vers cet objectif.33 Toutefois, leurs régimes sont différents. Alors que l’adoption crée des liens de filiation entre l’adopté et la famille adoptive en assimilant totalement l’enfant à l’enfant légitime,34 la kafala emporte des effets moindres. Définie comme « l’acte par lequel une personne majeure, jouissant de la pleine capacité civile, ou un organisme d’assistance, prend en charge un enfant mineur dont il assure la garde et subvient aux besoins »,35 elle constitue « un simple mode de prise en charge morale et matérielle de l’enfant ».36 La kafala n’entraîne pas une rupture des liens de l’enfant avec sa famille. L’enfant makful reste rattaché à sa famille d’origine pour le nom et les droits successoraux. Sa tutelle demeure exercée par ses parents d’origine ou, s’il est abandonné, par l’institution publique.37 Le kafil est investi de la garde et de l’obligation alimentaire. La kafala prend fin à la majorité de l’enfant et peut faire l’objet d’une révocation. 29

Meziou (2013), p. 8. Ben Achour (2013), p. 19. 31 La terminologie utilisée pour désigner la kafala dans la version française est maladroite. L’utilisation du terme « tutelle » est erroné, le tuteur officieux (le kafil) n’a pas les attributs de la tutelle. V. Meziou (2013), note 20, p. 12. 32 Loi n 67-47 du 21 novembre 1967 relative au placement familial. 33 Pour un exposé des différents régimes, v. Ben Achour (2013), p. 19. 34 Art. 15 de la loi du 4 mars 1958. 35 Art. 3 de la loi du 4 mars 1958. 36 Ben Achour (2013), p. 27. 37 En ce sens, la kafala se révèle le mode de protection adéquat lorsque la famille d’origine souhaite maintenir le lien avec l’enfant. V. Ben Achour (2013), p. 33. 30

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Coexistent ainsi au sein de l’ordre juridique tunisien la kafala, qui est le mode d’intégration de l’enfant dans une famille préconisé par le droit musulman, et l’adoption, l’institution qu’il proscrit. Donnant le choix aux personnes désireuses de recueillir un enfant entre l’une ou l’autre des institutions, le législateur tunisien prend le parti d’un pluralisme juridique au service de la protection de l’enfant. Offrant, par certains aspects, une protection moindre comparée à celles que prévoient d’autres législations en la matière,38 la kafala tunisienne paraît insuffisante à assurer l’intégration de l’enfant dans la famille. Cependant, en admettant la révocabilité de l’adoption, la jurisprudence en affaiblit la protection.39 Elle semble la ramener « beaucoup plus à un mode de prise en charge moral et matériel de l’enfant qu’un lien de filiation ».40 Opérant ainsi un rapprochement avec le régime de la kafala, la démarche va à l’encontre du pluralisme voulu par le législateur. La filiation naturelle Une considération similaire de protection des enfants a poussé le législateur à adopter la loi du 28 octobre 1998 relative à l’attribution d’un nom patronymique aux enfants abandonnés ou de filiation inconnue. Ne connaissant que la filiation par le nasab qui permet « d’inscrire l’enfant dans une ascendance masculine »,41 le droit tunisien ignorait la filiation naturelle. Alors que l’article 68 du CSP prévoit qu’il est possible de rapporter la preuve de la filiation par le firash, synonyme de mariage, l’aveu ou le témoignage, la jurisprudence a retenu une lecture restrictive de ce texte excluant ainsi tout autre mode que le mariage.42 Avec la loi de 1998, les enfants naturels sont juridiquement reconnus. Contrairement à « son intitulé trompeur »,43 elle a bien pour objet l’établissement de la filiation naturelle de l’enfant né hors mariage en lui permettant d’agir en recherche de paternité.44 Cette loi reconnaît à l’enfant naturel le droit au nom patronymique de son père, le droit à des aliments et les droits découlant de la garde et de la tutelle. Toutefois, aucune mention n’est faite quant au droit à l’héritage. Les opinions divergent sur le sens à donner à cette omission. Alors que certains estiment que dès lors que la filiation est établie, l’enfant a la qualité

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Le droit algérien reconnaît au kafil la possibilité d’attribuer son nom à l’enfant recueilli. De plus, il exerce sur le makful une tutelle légale. V. Boulenouar Azzemou (2009). 39 Critiquant cette solution, v. Ben Achour (2013), p. 32; Ben Halima (2012) Note sous CA de Sousse, 5 mai 1993, n 2074. In: Recueil de commentaires de décisions relatives au statut personnel. Centre de Publication Universitaire, Tunis, p. 1147; contra: Bejaoui Attar (2003), p. 100. 40 Ben Achour (2013), p. 32. 41 Meziou (2013), p. 11. 42 La jurisprudence refuse d’établir la filiation si l’aveu ou le témoignage laissent apparaître l’origine illicite de l’enfant. V. Ben Halima (2003), p. 23. 43 Meziou (2013), p. 10. 44 La loi se réfère au terme bunuwwa qui signifie filiation lors que l’article 68 du CSP renvoie au nasab qui ne concerne que la filiation légitime. Sur l’ambigüité terminologique de la loi du 28 octobre 1998, v. Mezghani (2005), p. 660.

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d’héritier,45 d’autres considèrent qu’il est exclu du bénéfice de la succession de son père.46 À côté du statut de référence de l’enfant légitime, le droit tunisien reconnaît donc un statut juridique à l’enfant naturel. Cependant, il semble que, si la deuxième lecture du régime de la loi de 1998 venait à être confirmée, ils ne bénéficieraient pas des mêmes droits. Sensible à la situation des enfants naturels ou abandonnés, le droit tunisien a accepté de bouleverser la structure traditionnelle de la famille en reconnaissant, à côté du modèle de la filiation légitime, les filiations naturelles et adoptives. En dépit, ou peut-être à cause, des modifications fondamentales qu’elles portent, les lois de 1958 et 1998 n’ont pas été insérées dans le CSP. Le législateur ne semble pas complètement assumer de s’être écarté du modèle de référence.47 Mis à part le domaine particulier de la filiation, l’ordre juridique semble manifester peu de tolérance à l’égard des modes de vie qui s’écartent du modèle de référence.

2.2

Un ordre juridique peu tolérant à l’égard des modèles différents

Mesures symboliques du CSP,48 l’interdiction de la polygamie et de la répudiation sont celles qui incarnent le mieux la rupture du modèle familial tunisien avec le modèle de droit musulman classique. Isolée parmi les législations des autres pays arabo-musulmans, la conception tunisienne du mariage et de sa dissolution est fragile. Afin de la préserver, l’ordre juridique tunisien affiche une attitude hostile à l’égard de toute revendication interne ou externe qui pourrait la remettre en cause. Si la crainte d’un retour vers un passé réprouvé a amené l’ordre juridique tunisien à rejeter les institutions fondées sur des normes religieuses, il semblerait que le souci d’assurer la pérennité du modèle de référence pourrait aussi le conduire à faire preuve de peu de tolérance face à des formes de conjugalités pourtant sans lien avec le modèle religieux rejeté.

2.2.1

Le rejet des revendications fondées sur un modèle religieux

Le mariage polygamique Expressément prohibée par l’article 20 du CSP, la conclusion d’un mariage polygamique entraîne la nullité du mariage. En plus de cette sanction civile, des sanctions pénales dissuasives sont prévues. L’article 18 du 45

Mezghani (2005), p. 664. Ben Halima (2003), p. 35. 47 Meziou (2005a), p. 821. 48 Meziou (2006), p. 11. 46

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CSP prévoit que le bigame et son complice sont passibles d’une peine d’un an d’emprisonnement et d’une amende. Cependant, le droit tunisien ne prohibe pas seulement la polygamie, mais aussi tout mariage conclu en dehors des formes prévues par la loi.49 Visant ainsi à éviter que les personnes qui désirent conclure une union polygamique ne contournent l’interdiction en recourant à la tradition du mariage consensuel, le mariage « orf »,50 le législateur sanctionne pénalement toute union conclue en dehors des formes légales, même si elle ne présente pas un caractère polygamique.51 Ainsi, affichant une franche hostilité à l’égard de toute union qui s’écarte du modèle de référence, le législateur impose le modèle tunisien du mariage en assortissant les violations de sanctions sévères. La même préoccupation est relayée dans les relations internationales. Les autorités tunisiennes ne peuvent célébrer un mariage polygamique, quand bien même les lois nationales de chacun des prétendants le permettent.52 Conscient du risque pour les autorités locales de célébrer malgré elles un mariage polygamique lorsque l’un des époux est ressortissant d’un pays autorisant ce type d’union, l’article 46 al. 2 du Code de droit international privé (CDIP) exige du ressortissant de ce pays qu’il produise un certificat officiel attestant sa qualité de célibataire.53 « La forme est ici au service du fond ».54 Par ailleurs, l’hostilité à l’égard de la polygamie est telle que les juridictions tunisiennes n’ont pas hésité, en méconnaissance du principe de la territorialité de la loi pénale, à condamner du chef de bigamie les époux qui ont conclu le second mariage à l’étranger.55 Cependant, malgré leur aversion pour le mariage polygamique, les juridictions tunisiennes admettent qu’au nom de l’ordre public atténué que ce type de mariage puisse produire certains effets dans le for. La cour d’appel de Tunis a ainsi estimé que « tirer l’intérêt et la qualité pour agir d’une situation contraire à l’ordre public est conforme à l’article 37 qui autorise que de telles situations créées à l’étranger puissent en Tunisie y produire des effets successoraux. Ainsi, le second mariage célébré à l’étranger (en Libye) entre l’intimée et le défunt peut, malgré sa contrariété à l’ordre public international, produire des effets en Tunisie, et donner à la Libyenne la qualité de veuve légitime au même titre que la Tunisienne et donc la qualité et l’intérêt à agir ».56 Toutefois, comme le relève la doctrine, si la reconnaissance de certains effets tels que les droits successoraux ou le droit à une pension alimentaire est possible, d’autres, en revanche, ne pourraient être admis sans porter atteinte au Art. 31 et s. de la loi n 57-3 du 1 août 1957 réglementant l’état civil. Ben Halima (2011), p. 67. 51 Art. 36 de la loi du 1 août 1957. Sur le plan civil, le mariage est considéré comme nul. 52 Meziou (2006), p. 14. 53 Sur les difficultés de rapporter un tel certificat, v. Meziou (2006), p. 19. 54 Mezghani (1999), p. 113. 55 TPI de Sousse, 24 sept. 2001, n 9672, Revue Tunisienne de Droit 2002, p. 195, note S Ben Achour; Meziou (2006), p. 23. 56 CA de Tunis, 13 déc. 2002, n 91565, inédit, cité par Ben Jemia (2006), p. 33. 49 50

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choix fondamental du for en faveur de la monogamie.57 C’est une réaction encore plus hostile qu’affiche la jurisprudence à l’égard des répudiations prononcées à l’étranger. La répudiation Refusant d’atténuer les exigences de l’ordre public international, elle s’oppose à leur accueil au motif que « la répudiation est un mode classique et religieux de dissolution du lien conjugal qui repose sur la volonté unilatérale de l’époux ».58 Cela contrevient à la conception du « législateur tunisien [qui] a interdit le recours à ce mode de dissolution du mariage depuis la promulgation du Code du statut personnel en instaurant un droit légitime, pour chacun des deux époux, de recourir au divorce judiciaire ».59 S’appuyant, d’une part, sur l’article 6 de la Constitution qui pose le principe de l’égalité des citoyens devant la loi et, d’autre part, sur la Convention de Copenhague de 1979 sur l’élimination de toutes les formes de discrimination à l’égard des femmes60 et la Déclaration universelle des droits de l’homme du 10 décembre 1948, la jurisprudence estime que la répudiation est contraire au « principe d’égalité entre l’homme et la femme » qu’elle désigne comme faisant « partie des choix fondamentaux sur lesquels se base l’ordre juridique tunisien ».61 Pourtant, comme le fait valoir la doctrine, le refus de reconnaissance des répudiations prononcées à l’étranger revient à « enchaîner définitivement, en Tunisie, une citoyenne tunisienne à un homme qui l’a répudiée ».62 En effet, au vu des règles de compétence directe prévues par le Code de droit international privé, les juridictions tunisiennes ne peuvent connaître de la demande de divorce que souhaite introduire

57

Ben Jemia (2006), p. 34. TPI de Tunis, 27 juin 2000, n 34179, Revue Tunisienne de Droit 2000, p. 425, note M Ben Jemia. 59 TPI de Tunis, 1er déc. 2003, n 47564, rapporté par Chedly et Ghazouani (2008), p. 248. Comp. le jugement du TPI de Tunis 14 nov. 2017, n 86358, Revue critique de droit international privé 2018, p. 211, note S Ben Achour acceptant la transcription d’un divorce français extrajudiciaire. Malgré l’impérativité du divorce judiciaire dans les relations internes, lorsque ce caractère est défaillant dans les relations internationales, les juges font preuve de tolérance. Toutefois, s’il est vrai que le divorce sans juge partage avec la répudiation islamique sa nature d’acte non judiciaire il s’en distingue radicalement en ce qu’il ne méconnaît pas le principe d’égalité entre les époux. 60 La Tunisie avait assorti son adhésion à la Convention par des réserves notamment à l’article 16 c) relatif à l’égalité des époux pendant le mariage et lors de sa dissolution. Incompatible avec la conception égalitaire du divorce que garantit le CSP, la réserve ne concernait que l’égalité entre les époux au cours du mariage. V. Chekir (1989), p. 51; Ben Jemia (2003), p. 141. Les réserves particulières comme celle de l’article 16 à la Convention ont été levées par un décret-loi en date du 24 octobre 2011 (Journal Officiel de la République Tunisienne 2011, n 82, p. 246) mais la déclaration générale émise lors de la ratification de la Convention en 1985 a été maintenue. Sur la portée de cette levée, v. Ben Jémia (2011). 61 TPI de Tunis, 1er déc. 2003, n 47564, rapporté par Chedly et Ghazouani (2008), p. 248. 62 Ben Jemia (2003), p. 143. 58

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l’épouse.63 Après une période d’hésitations,64 la jurisprudence est revenue à une position de fermeté. Rappelant son hostilité aux répudiations, la Cour de cassation a déclaré que « le divorce par voie de khôl contredit les choix fondamentaux de l’ordre juridique tunisien qui préserve la dignité de la femme, garantit le principe d’égalité entre les sexes, protège la vie privée et le droit au mariage même après le divorce. Il s’agit de principes fondamentaux garantis par la Constitution et par la Convention sur l’élimination de toutes les formes de discrimination à l’égard des femmes du 18 décembre 1979 ».65 Elle a néanmoins accepté de reconnaître la compétence des juridictions tunisiennes pour connaître du divorce d’une Tunisienne dont l’époux égyptien était domicilié en Égypte. Observant que l’épouse n’avait d’autre choix que de saisir les juridictions égyptiennes d’une demande de dissolution du mariage par la voie du khôl, la Cour constate que la décision égyptienne, dans la mesure où elle serait contraire aux choix fondamentaux du for, ne saurait être reconnue lors de l’instance indirecte par les juridictions tunisiennes.66 C’est donc par souci d’éviter un déni de justice que la compétence des juridictions tunisiennes est retenue.67 Substituant au mécanisme de l’ordre public atténué la consécration d’un for de nécessité, un compromis semble avoir été trouvé entre, d’une part, le refus du for d’infléchir sa politique à l’égard des répudiations et, d’autre part, son souhait de ne pas affecter par cette prise de position la situation des femmes répudiées ou susceptibles de l’être à l’étranger.68 En rejetant la vision inégalitaire du lien conjugal que véhicule la polygamie et la répudiation, l’ordre juridique tunisien se prémunit des modèles familiaux fondés sur des normes d’origine islamique. Cependant, ces modèles ne sont pas les seuls à être rejetés par le for. La Cour de cassation a ainsi refusé d’accorder l’exequatur à une décision italienne de séparation de corps.69

63

Rompant avec la pratique antérieure des juridictions qui retenaient de manière large leur compétence du seul chef de la nationalité tunisienne de l’une des parties, le CDIP a rejeté la compétence fondée sur le critère de nationalité. Il ne prévoit pas un chef de compétence spécial pour les actions en divorce. Les tribunaux tunisiens ne sont compétents que si le défendeur a son domicile dans le for ou s’il accepte la compétence des juridictions tunisiennes. Aussi, dans le cas où la Tunisienne est mariée à une personne dont le statut personnel est régi par le droit musulman classique ou que le couple réside dans un État appliquant ces règles, elle est confrontée à un véritable risque de déni de justice. Ses chances d’obtenir un divorce auprès des juridictions nationales ou de résidence de son époux étant quasi-nulles, elle ne peut non plus saisir les juridictions de son pays. V. Chedly (2010b), p. 25; Ben Achour (2016), p. 11. 64 Les juges ont considéré que dès lors que c’est l’épouse qui a introduit la demande d’exequatur, elle a manifesté son acceptation de la répudiation. V. CA de Tunis, 3 oct. 2001, rapportée par Chedly et Ghazouani (2008), p. 248 ; Trib. Cantonal de Tunis, 5 mai 2005, n 85376, Journal du Droit International 2007, p. 165, note M Bellamine. 65 Cass. civ., 21 mai 2009, n 32561, Bulletin civil 2009, p. 203. 66 V. Cass. civ., 15 juil. 2010, n 46449/2010, inédit, rapporté par Ben Achour (2017a), p. 102. 67 Ben Achour (2016), p. 49. 68 Ben Achour (2016), p. 50; Ben Achour (2006), p. 65; Chedly (2010a), p. 272. 69 Cass. civ., 12 juin 2000, n 570, Revue Tunisienne de Droit 2001, p. 187, note M Ghazouani.

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Elle a affirmé que « la séparation de corps contredit la législation tunisienne et l’ordre public tunisien, dans la mesure où la Tunisie est un pays musulman qui autorise le divorce, mais ne permet pas le recours à d’autres procédés qui s’opposent à l’ordre social ». Il semble que le rejet a été motivé par un ordre public à coloration religieuse. Rejetant les normes d’origine charaïque en raison de leur contrariété avec sa conception de la dissolution du lien conjugal, il est pour le moins étrange que ce soit au nom d’une conception islamique du divorce que la Cour de cassation ait refusé la reconnaissance de la séparation de corps.70 « À la conception chrétienne prônant l’indissolubilité du lien matrimonial, s’oppose une conception islamique qui y voit une relation assez lâche, facile à dissoudre ».71 Cependant, derrière cet ordre public confessionnel, il est possible de voir l’affirmation d’un véritable droit au divorce.72 L’indissolubilité du lien conjugal qu’exprime la séparation de corps apparaît alors contraire à la conception tunisienne du mariage.73 Il apparaît que le souci du for de protéger le modèle familial national le conduit à rejeter les modèles familiaux fondés sur un référent religieux. Toutefois, il ne semble que ce soit le fondement religieux qui est à l’origine de l’exclusion mais plutôt la conception de la dissolution du lien conjugal que ce fondement véhicule. Porteur d’une conception inégalitaire de la dissolution du mariage pour la répudiation et la niant dans son principe pour la séparation de corps, ces modèles sont rejetés en raison de leur contradiction avec les choix fondamentaux du for. Le souci du for à préserver le modèle national du couple rejaillit sur son appréhension d’autres formes de conjugalités pourtant non fondées sur un référent religieux.

2.2.2

La neutralisation des revendications non fondées sur un modèle religieux :

Alors qu’en Europe se multiplient les législations qui reconnaissent des conjugalités alternatives au mariage74 et que le mariage n’est plus limité aux seuls couples hétérosexuels,75 l’ordre juridique tunisien ne semble pas disposé à accepter une diversité des modes de conjugalités.76

70

Et ce d’autant plus que le CDIP vise spécifiquement à l’article 49 la séparation de corps. Ben Achour (2017a), p. 105. 72 Ben Achour (2017a), p. 105. Cette conception pourrait aussi justifier l’acceptation des juridictions tunisiennes de reconnaître le divorce extrajudiciaire français d’un couple bi-national, cf. supra note n 59. 73 Mezghani (1999), p. 119. 74 Pour un panorama des différentes options ouvertes aux couples en Europe, v. Fulli-Lemaire (2017), p. 19 et la bibliographie citée. 75 16 pays européens reconnaissent le mariage homosexuel. 76 Koumdadji (2017), p. 310. 71

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Le mariage homosexuel La question de la célébration et de la reconnaissance d’un mariage homosexuel est loin d’être à l’ordre du jour. En Tunisie, l’homosexualité constitue un délit au sens du droit pénal.77 Il est dès lors inconcevable qu’une telle union puisse y être célébrée. Quand bien même les lois nationales de chacun des prétendants l’autorisent, l’effet plein de l’ordre public international s’oppose à une telle union. Le sort réservé aux mariages célébrés à l’étranger n’est pas différent. La conception traditionnelle de la famille qui prévaut en Tunisie ne permet pas l’atténuation de la réaction de l’ordre public international.78 La question se pose de manière plus délicate pour les modes de conjugalités alternatives au mariage tels que les partenariats enregistrés ou le concubinage. Les partenariats enregistrés L’ordre juridique tunisien réservera le même traitement aux demandes de reconnaissance de mariage homosexuel et de partenariat enregistré à l’étranger entre deux personnes de même sexe. En revanche, il en est autrement du partenariat enregistré entre deux personnes de sexe différent. On peut légitimement s’interroger sur l’accueil qui lui sera destiné. Inconnu du droit tunisien, le partenariat enregistré est un mode d’organisation des relations de couple79 qui, selon les réglementations, se distingue plus ou moins du mariage.80 Ne connaissant qu’un modèle conjugal unique reposant sur le mariage, l’ordre juridique tunisien peut-il s’opposer à la réception d’un partenariat enregistré dans le for ? Il semble difficile de se prononcer. Si d’emblée l’attachement du for au caractère institutionnel du mariage pourrait justifier qu’il s’oppose à la reconnaissance d’un mode contractuel d’organisation des relations du couple, le rapprochement des régimes du partenariat et du mariage dans certaines législations européennes d’une part,81 et la persistance en droit tunisien d’un certain contractualisme d’autre part,82 permettent d’en douter. Cependant, l’attachement du for au mariage comme unique mode de conjugalité reconnu par la loi conduit à penser qu’il pourrait s’opposer à la reconnaissance d’un mode de conjugalité concurrent, qui pourrait être perçu comme fragilisant le modèle de référence. Ne concevant les relations de couple que dans le cadre du mariage,83 cet attachement rejaillit également sur l’acceptation du concubinage.

77

Art. 230 Code pénal. Dans le même sens: Ben Achour (2015), p. 160; contra: Ben Lamine (2013), p. 454. 79 L’art. 515-1 du Code civil français le définit comme « un contrat conclu par deux personnes physiques majeures, de sexe différent ou de même sexe, pour organiser leur vie commune ». 80 Fulli-Lemaire (2017), p. 19. 81 Les réformes successives du PACS français ont particulièrement rapproché son régime du mariage, ce qui a amené la doctrine à évoquer une « matrimonialisation du PACS », v. Molfessis (2000), p. 210; pour un panorama des réformes du PACS, v. Bénabent (2014), p. 279. 82 Art. 11 du CSP. Sur la nature du mariage en droit tunisien, v. Ben Halima (2011), p. 30. 83 Alyadi (2016), p. 34. 78

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Le concubinage Union de fait caractérisée par une vie commune stable et continue entre deux personnes qui vivent en couple,84 le concubinage est un état de fait auquel le droit est en principe indifférent. Toutefois, parce qu’il implique une vie commune similaire à une vie maritale, il a, parfois, entraîné pour les concubins des poursuites pénales.85 La volonté ferme de lutter contre les mariages traditionnels, potentiellement annonciateurs d’une union polygamique, conduit la jurisprudence à retenir une conception large de l’infraction du mariage conclu en dehors des formes légales. L’infraction est retenue s’il est prouvé, d’une part, que l’homme et la femme vivent ensemble maritalement, et d’autre part, qu’il existe entre eux une intention de vie maritale. L’infraction a donc en commun avec le concubinage son élément objectif.86 Aussi, bien que formellement non interdit, celui-ci peut tomber sous le coup de la prohibition de l’article 36 de la loi du 1er août 1957. La ligne de démarcation entre le concubinage et l’infraction du mariage conclu en dehors des formes légales est très fine et la situation des concubins est bien fragile.87 L’hostilité de l’ordre juridique face aux modes de vie contraires à ses valeurs ne se manifeste pas seulement à l’égard de ceux qui sont fondés sur des considérations religieuses. Les règles prévues pour éviter que l’interdiction de la polygamie ne soit contournée sont mises à contribution pour sanctionner des modes de vie éloignés de tout référent religieux. Aussi est-il possible de constater que, mis à part des manifestations limitées de diversité autorisées par le législateur, aucune revendication d’un mode de vie différent n’est tolérée au sein de l’ordre juridique tunisien. Le souci de l’ordre juridique tunisien à assurer la pérennité de son modèle familial le conduit à reconnaître une place limitée à des modes de vie différents. Cependant, retenant une lecture ambivalente du modèle national de référence, il fait particulièrement de la diversité religieuse, un obstacle à l’exercice des droits prévus par le CSP. La place de la diversité est alors affectée d’incertitudes.

3 Une place incertaine Passé maître dans « l’art de l’ambiguïté »,88 le législateur tunisien est resté vague sur les sources de son modèle de référence. Si de par son silence, il ne se prononce pas sur le rôle de la charia parmi les sources formelles du droit, à travers l’inscription du respect des droits de l’homme dans la Constitution et la ratification d’instruments

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Définition de l’art. 515-8 du Code civil français. Il y est précisé qu’il peut s’agir d’une relation entre personnes de sexe différent ou de même sexe. Tombant sous le coup de la loi pénale, la deuxième hypothèse ne peut être envisagée en droit tunisien. 85 Cass. pén., 9 oct. 1986, n 14738, Bulletin civil 1986, p. 137; Cass. pén. 27 janv. 1988, n 15899, Bulletin civil 1988, p. 122. 86 Ben Halima (2011), p. 86. 87 Meziou (2017), n 125. 88 Charfi (2005), p. 339.

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internationaux, il a exprimé son adhésion aux principes fondamentaux qu’ils portent. Aussi, confronté à la fois à un référentiel islamique et à un référentiel de droits de l’homme, la jurisprudence oscille entre une interprétation tantôt traditionnelle tantôt moderne des textes.89 Cette ambivalence rejaillit nécessairement sur son approche de la diversité. Le nouvel ordre constitutionnel en place depuis le 27 janvier 2014 ne semble pas mettre un terme aux ambiguïtés.

3.1

Une jurisprudence ambivalente

Alors que le respect des droits fondamentaux requiert une application des textes sans discrimination notamment selon la religion, l’adoption d’un référentiel islamique conduit à ériger la disparité religieuse en critère d’application du texte. Hésitant entre l’une et l’autre des interprétations, le traitement de la diversité religieuse dans la jurisprudence est ambivalent.

3.1.1

Le référentiel islamique

La place du droit musulman en droit tunisien est ambiguë. Aucun texte ne le cite comme source d’interprétation.90 Pourtant, la jurisprudence n’hésite pas à s’y référer soit pour éclairer le sens de certaines dispositions jugées ambigües, soit pour en combler les lacunes.91 Éclairer le sens : Le mariage de la musulmane avec le non-musulman S’il est vrai que la conception tunisienne du mariage a rompu avec la tradition musulmane en imposant la forme solennelle et en interdisant la polygamie, elle reste néanmoins imprégnée de droit musulman. L’article 14 du CSP a repris certains de ses empêchements tel que le triple divorce,92 l’allaitement93 ou encore le respect du délai de viduité.94 En revanche, l’empêchement de la disparité de culte n’est pas mentionné. Se prévalant du flou entourant la rédaction de l’article 5 du CSP, la jurisprudence a estimé que cette condition doit être exigée. Alors que la version française prévoit que « les futurs époux ne doivent pas se trouver dans l’un des cas d’empêchements au mariage prévus par la loi », la version arabe, utilise l’expression empêchements charaïques. Or, cette expression est susceptible de deux interprétations différentes. S’il est

89

Bostanji (2009), p. 14. Ben Jemia (2012), p. 153. 91 Ben Achour (2010), p. 18. 92 Art. 19 du CSP. 93 Art. 17 du CSP. 94 Art. 20 du CSP. 90

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possible qu’elle vise comme dans la version française les empêchements prévus par la loi, elle peut aussi signifier « relatifs à la charia ou au droit musulman ».95 Dès lors, trouvant dans le référentiel islamique une source du droit tunisien, la jurisprudence a levé le flou supposé de l’article 5 en imposant à la femme musulmane une condition de non-disparité de culte avec son conjoint. Des circulaires administratives sont venues ultérieurement appuyer cette lecture.96 La notion d’intérêt de l’enfant et l’attribution de la garde à la non-musulmane Soumise depuis 1966 au seul critère de l’intérêt de l’enfant, l’attribution de la garde reste néanmoins inspirée du droit musulman. L’article 59 du CSP prévoit que « le titulaire de la garde d’une confession autre que celle du père de l’enfant ne pourra exercer ce droit qu’autant que l’enfant n’aura pas cinq ans révolus et qu’il n’y aura aucun sujet de craindre qu’il ne soit élevé dans une autre religion que celle de son père » L’article précise que cette règle ne s’applique pas lorsque « le droit de garde est exercé par la mère ». Cependant, sous couvert de recherche de l’intérêt de l’enfant, la jurisprudence a retenu une interprétation qui revenait à priver d’effet cette dernière précision. Ainsi, tout en relevant que « cet article ne s’applique en principe pas à la mère gardienne », elle a considéré qu’en l’espèce il était inenvisageable que la garde de l’enfant puisse être attribuée à une non-musulmane. Cela contredirait « l’ordre public dont l’Islam et l’arabité font partie ». Pour le Tribunal de première instance de Tunis, ce sont « les piliers de la souveraineté selon la Constitution ».97 Une réponse similaire a été adressée aux demandes d’exequatur de jugements étrangers attribuant la garde à la mère étrangère. Le plus souvent d’origine européenne, celle-ci se voyait opposé un ordre public « à coloration religieuse ».98 A diverses reprises, la Cour de cassation a déclaré que l’appréciation de la conformité à l’ordre public « se fait sur la base de son absence de contrariété aux attributs essentiels du pays dont les plus importants, pour la Tunisie, sont l’Islam et l’authenticité arabe ». Elle considère dès lors que « le déracinement de l’enfant du milieu de vie dans lequel il a grandi et dont il parle et écrit la langue, de ses habitudes et traditions, son détachement du milieu social arabe et musulman sont de nature à faire de lui un exilé permanent, coupé de sa religion et donc un apostat ».99 95

Ben Achour (2010), p. 20. Circulaires du Ministère de l’Intérieur du 17 mars 1962, du 21 août 1974 et du 30 mars 1987 et la Circulaire du Ministère de la Justice du 5 nov. 1973 qui déclare que « le législateur a considéré que la disparité de culte constitue un empêchement charaïque et a visé à préserver l’identité musulmane de la famille tunisienne ». La circulaire du Ministère de la Justice du 5 nov. 1973 a été abrogée le 8 septembre 2017 par la circulaire n 164 du Ministère de la Justice. Le rapport de la Commission des libertés individuelles et de l’égalité (COLIBE), Présidence de la République, Tunis, 1er juin 2018, p. 122, propose de supprimer l’adjectif charaïque de la version arabe afin de lever toute ambiguïté sur le sens de l’article 5 du CSP. 97 TPI de Tunis, 20 avril 1999, n 23-843, inédit, cité par Ben Achour (2017b), p. 274. 98 Ben Achour (2017a), p. 106. 99 Cass. civ., 3 juin 1982, Bulletin civil 1982, p. 143; comp. Cass. civ., 15 mai 1979, Revue de la jurisprudence et de la législation 1980, n 10, p. 79; Cass. civ., 29 oct. 1985, Revue de la 96

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Combler les lacunes: L’adoption par le non-musulman Le référentiel islamique a aussi servi à la jurisprudence comme moyen de combler les lacunes de la loi allant parfois jusqu’à détourner l’institution de son but. Tel est particulièrement le cas de l’adoption. Alors que l’institution est interdite en droit musulman, la jurisprudence n’a pas hésité à « islamiser l’adoption ».100 En effet, constatant que l’article 10 de la loi de 1958 prévoit qu’ « un Tunisien peut adopter un étranger » mais qu’il ne dit rien quant à la capacité de l’étranger à adopter un Tunisien, elle en a déduit que cette opération n’était possible qu’à la condition que l’étranger soit musulman.101 C’est ainsi que le Tribunal de première instance de Tunis a refusé d’accorder l’exequatur à un jugement autrichien prononçant l’adoption d’un enfant tunisien par un Autrichien au motif qu’il était contraire à l’ordre public international.102 Après avoir relevé que l’article 10 de la loi de 1958 « ne permet pas à l’étranger d’adopter un Tunisien » il a jugé que « l’adoption ne peut être prononcée dans la mesure où rien, dans le dossier, ne permet de constater que le demandeur s’est converti à l’islam ». La succession en cas de disparité de culte C’est une logique similaire que suivent les juridictions tunisiennes en matière de succession. Déduisant de la rédaction de l’article 88 du CSP le caractère indicatif des empêchements à la succession qu’il prévoit,103 la jurisprudence a estimé que d’autres empêchements, telle que la disparité de culte prévue en droit musulman, pouvaient être retenus. C’est ainsi que dans différentes décisions, elle a refusé « d’admettre un parent non-musulman à la succession d’un parent musulman et inversement ».104 L’interprétation extensive de l’article 88 du CSP a ainsi autorisé, presque « naturellement »105 le retour au droit musulman. Dès lors, le débat en jurisprudence s’est déplacé de l’admission ou non de la disparité de culte comme cause d’indignité successorale vers la valeur à accorder à la conversion, parfois tardive, du non-musulman. Faisant preuve d’une certaine souplesse quant à l’admission de la preuve de la conversion,106 la

jurisprudence et de la législation 1987, p. 79; Cass. civ., 4 janv. 1999, Revue de la jurisprudence et de la législation 2002, n 1, p. 167; Cass. civ., 22 sept. 1999, n 72212-99, inédit, cité par Ben Achour (2017a), p. 109. 100 V. Ben Achour (2005b), p. 848. L’auteur qualifie la solution retenue de « schizophrénie juridique ». 101 Trib. Cantonal de Tunis, 26 déc. 1974, n 2272, Revue Tunisienne de Droit 1975, n 2, p. 117, note K Meziou, et Journal du Droit International 1979, p. 650, note M Charfi. 102 TPI de Tunis, 26 juin 2000, n 34256, rapportée par Chedly et Ghazouani (2008), p. 239. 103 Alors que la version française de l’article 88 du CSP prévoit que « l’homicide volontaire est un empêchement à la successibilité », la version arabe énonce que « l’homicide volontaire est l’un des empêchements à successibilité » (nos italiques). 104 Ben Achour (2010), p. 24. 105 Ben Achour (2005a), p. 834. 106 Ben Achour (2010), p. 25.

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jurisprudence a pu contourner l’obstacle de la disparité de culte qu’elle semble donc tenir pour acquise.107 Mise en avant par la jurisprudence, la diversité religieuse est relevée pour aussitôt être érigée en obstacle. Retenant une interprétation religieuse de la norme, la disparité de culte est perçue comme un empêchement à la production de certains effets de droit. Parce qu’elle fait de l’appartenance religieuse le critère d’application de la loi, cette lecture méconnait l’abandon du système pluraliste antérieur à l’Indépendance.108 Remettant en cause le principe de l’unification de la loi, elle procède à « une ré-islamisation »109 du modèle de référence. Les non-musulmans en sont exclus. Sans aller jusqu’à renouer avec le système pluraliste d’antan, elle réserve le bénéfice du modèle national aux seuls musulmans. Cette restriction n’est pas porteuse d’une reconnaissance d’une diversité des modes de vie. Cette lecture contestée trouve un fondement dans la valeur supraconstitutionnelle qu’aurait l’article 1er de la Constitution. Cet article dispose que « la Tunisie est un État libre, indépendant et souverain, sa religion est l’Islam, sa langue l’arabe, et son régime la république ». Ainsi, parce qu’il établit la forme républicaine de l’État tunisien et les valeurs qu’elle incarne, il prévaut sur les autres dispositions constitutionnelles.110 Tel serait le cas, selon la jurisprudence, de « l’Islam et de l’authenticité arabe » qui sont parmi les « attributs essentiels (. . .) les plus importants du pays ».111 Particulièrement, en matière de statut personnel, dans la mesure où le droit musulman a été une source d’inspiration des règles du CSP, il constituerait une source formelle à laquelle la jurisprudence peut se référer.112 Cette lecture est loin de faire l’unanimité.113 Par ailleurs, à supposer qu’elle soit fondée, l’Islam et l’arabité ne sont pas les seules valeurs susceptibles de constituer les piliers de l’ordre juridique tunisien.114 Le principe de la liberté de conscience et de l’égalité des citoyens garantis par les articles 5 et 6 de la Constitution y participent tout autant. C’est semble-t-il la vision qu’a adopté la jurisprudence à partir de la fin des années quatre-vingt-dix.

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Ben Achour (2005a), p. 837. Ben Jémia (2010), p. 577; Bostanji (2009), p. 35. 109 Ben Jemia (2012), p. 160. 110 Cette lecture découlait de l’article 72 de l’ancienne Constitution qui interdisait que la forme républicaine de l’État fasse l’objet d’une révision constitutionnelle. V. Ben Jemia (2000), p. 284. 111 Cass. civ., 3 juin 1982, Bulletin civil 1982, p. 143. 112 Pour une typologie des hypothèses dans lesquelles la jurisprudence se réfère au droit musulman, v. Ben Jemia (2012), p. 154. 113 Ben Jemia (2008), p. 262 et la bibliographie citée. 114 Ben Jemia (2000), p. 283 et s. L’auteur considère qu’instituant la liberté de conscience, l’article 5 a une valeur constitutionnelle égale à celle de l’article 1er – voire même supérieure – puisque contrairement à celui-ci, il a un contenu normatif et non pas seulement descriptif. 108

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Le référentiel libéral : les droits de l’homme

Un changement de référentiel semble en effet à l’œuvre. La jurisprudence n’hésite pas à se référer aux droits fondamentaux garantis par la Constitution et les instruments internationaux ratifiés par l’État tunisien pour contrer l’interprétation traditionaliste fondée sur le référentiel islamique. Ainsi, aussi bien en matière de mariage que de succession, les juges du fond suivis de la Cour de cassation ont refusé de tenir compte de la disparité de culte. Choisissant de prendre de front la question de l’existence ou non d’un tel empêchement religieux, la cour d’appel de Tunis s’est posé la question de l’influence de la religion « sur les droits et libertés de la personne et surtout sur la liberté matrimoniale et le droit à l’héritage ». Après avoir rappelé que le droit tunisien est fondé sur la liberté religieuse et le principe d’égalité, elle a déclaré que « la garantie de la liberté religieuse n’est pas compatible avec la consécration de l’élément religieux comme empêchement matrimonial ou comme empêchement successoral ». La même constatation a été faite à propos du principe d’égalité. « L’intégration de l’élément religieux parmi les empêchements contenus dans les articles 5 et 88 du CSP conduit à contredire l’article 6 de la Constitution qui garantit l’égalité entre les citoyens, ce qui a pour conséquence de créer des catégories de droits différents, d’accorder aux hommes la liberté d’épouser des non-musulmanes, sans accorder cette liberté aux femmes, à attribuer à certains une aptitude à succéder en raison de l’identité de religion avec le de cujus, et d’en priver d’autres ».115 Exemplaire par sa motivation, ce raisonnement a été validé par la Cour de cassation.116 En outre, la jurisprudence s’est appuyée sur différents instruments internationaux pour affirmer la primauté de la liberté matrimoniale117 et la liberté de culte sur les empêchements fondés sur la disparité de religion.118 L’appel au référentiel des droits de l’homme a ainsi permis à la jurisprudence de s’inscrire dans une logique de hiérarchie des normes justifiant que les articles 5 et 88 du CSP ne peuvent, sans méconnaître les normes qui leur sont supérieures, comporter une condition de disparité de culte. De plus, l’invocation spécifique des dispositions constitutionnelles lui a donné les moyens de neutraliser l’argument tiré de l’article 1er de la Constitution.119

CA de Tunis, 6 janv. 2004, Aff. n 120, Journal du Droit International 2005, p. 1193, note S Ben Achour. 116 Cass. civ., 20 déc. 2004, n 3843-2004, Journal du Droit International 2005, 1193, note S Ben Achour. 117 La Convention de New York du 10 déc. 1962 sur le consentement au mariage, l’âge minimum du mariage et l’enregistrement du mariage citée par le TPI de Tunis, 29 juin 1999, Revue Tunisienne de Droit 2000, p. 430, note S Ben Achour; TPI de Grombalia, 23 avr. 2007, n 29061, Annales de la Faculté de sciences juridiques, économiques et de gestion de Jendouba 2007, n 1, p. 305. 118 La Déclaration universelle des droits de l’homme de 1948 et les deux Pactes de 1966 sur les droits sociaux, économiques et culturels et sur les droits civils et politiques cités par le TPI de Tunis, 18 mai 2000, Revue Tunisienne de Droit 2000, p. 247, note A Mezghani. 119 Ben Achour (2010), p. 30. 115

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La tendance du délaissement du référentiel islamique a aussi été constatée dans les décisions concernant l’enfant. La Cour de cassation a considéré que le jugement attribuant la garde à la mère danoise résidant en Belgique « ne contredit [pas] l’ordre public international tunisien ou la politique législative tunisienne. Seul l’intérêt de l’enfant doit être pris en compte sans autre considération ».120 Un affranchissement de la condition d’islamité est aussi observé en matière d’adoption. La jurisprudence ne semble plus subordonner le prononcé de l’adoption à la preuve de la conversion à l’Islam.121 Cependant, derrière cet abandon apparent du référentiel islamique, la condition d’unité confessionnelle est encore de mise. Dans les différentes affaires citées, la doctrine relève dans les faits des références à l’absence de diversité religieuse. Ainsi, s’il est vrai qu’en matière d’adoption, la disparité confessionnelle n’a motivé aucune décision de refus d’adoption, il n’en reste pas moins que sans être explicitement exigée par les juges du fond, il ressort des faits que les adoptants, soucieux de ne pas voir leur demande rejetée, ont à chaque fois fourni dans leur dossier d’adoption un certificat de conversion à l’Islam.122 Il en est de même en matière de mariage. Tout en déclarant que « la Cour d’appel a correctement interprété les articles 5 et 88 du CSP, et ce conformément aux dispositions constitutionnelles », la Cour de cassation ne manque pas de relever que « rien dans le dossier ne prouve l’absence de la conversion du défendeur au pourvoi à l’Islam au moment de la conclusion du contrat de mariage ».123 Quant à la jurisprudence en matière de succession,124 elle montre une oscillation continue entre d’une part une volonté d’adopter une lecture sécularisée et respectueuse des libertés de culte et du mariage125 et d’autre part une interprétation rigoriste attachée à la condition d’unité confessionnelle.126 Cependant, comme le relève la doctrine, cette hésitation est artificielle. La jurisprudence adopte une lecture sécularisée des relations familiales uniquement lorsqu’il ressort des faits que toutes les parties sont soit musulmanes, soit considérées comme telles. La « lecture sécularisée du droit tunisien cache donc une fidélité au droit musulman ».127

Cass. civ., 2 mars 2001, n 7286-2000, Revue Tunisienne de Droit 2001, p. 201, note M Ghazouani; comp. Cass. civ., 21 mai 2009, n 32561, Bulletin civil 2009, p. 303. 121 Ghazouani (2013), p. 389. 122 Ghazouani (2013), p. 398. 123 Cass. civ., 20 déc. 2004, n 3843-2004, Journal du Droit International 2005, 1193. 124 Ben Achour (2010), p. 35; Meziou (2016), p. 211. 125 Cass. civ., 19 juin 2006, n 4105, Bulletin civil 2006, p. 235; Cass. civ., 5 fév. 2009, n 31115, Revue de la jurisprudence et de la législation 2009, p. 106. 126 Cass. civ., 8 juin 2006, n 9658, Revue de la jurisprudence et de la législation 2006, p. 208; Cass. civ., 16 janv. 2007, n 4487, Annales de la Faculté de sciences juridiques, économiques et de gestion de Jendouba 2007, n 1, p. 297; CA de Sousse, 3 mai 2013, inédit, cité par Meziou (2016), p. 212. 127 Ben Achour (2010), p. 36. 120

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La jurisprudence a maintenu une attitude ambiguë vis à vis de la diversité religieuse. En l’absence de directives claires, la prévisibilité des solutions est défaillante128 et la diversité reste sujette à des discriminations. Accentuée durant la période de transition,129 elle ne semble pas cesser sous le nouvel ordre constitutionnel.

3.2

L’incertitude du nouvel ordre constitutionnel

La nouvelle constitution du 27 janvier 2014 ne rompt pas avec l’incertitude ambiante. Il semblerait même qu’elle l’accentue.130 Reprenant l’article 1er de la Constitution de 1959, elle le consolide en précisant qu’il ne peut être révisé. Parallèlement, elle prévoit à l’article 2 que « la Tunisie est un État civil, fondé sur la citoyenneté, la volonté du peuple et la primauté du droit ».131 Incarnant des valeurs concurrentes, ils perpétuent le conflit de référents déjà présent dans le Préambule.132 Cette même ambivalence se retrouve dans les dispositions qui concernent directement le droit de la famille. Objet d’une disposition spécifique, la famille est désignée par l’article 7 comme « la cellule essentielle de la société ». Pèse sur l’État l’obligation de la protéger. Mais, de quelle conception de la famille est-il question ? S’agit-il d’une conception traditionnelle ou d’une approche plus ouverte sur la diversité ? Ainsi, si l’article 21 proclame l’égalité entre les citoyens et les citoyennes, l’article 46, qui est spécifique aux droits des femmes, précise que « l’État s’engage à protéger les droits acquis de la femme et veille à les consolider et les promouvoir ». Toutefois, comme le déplore la doctrine, il ne reprend pas la constitutionnalisation des principes du CSP effectuée lors de la révision constitutionnelle de 1997.133 Quant à la référence à l’égalité, elle ne semble viser la femme qu’en tant que citoyenne, ce qui ne préjuge en rien de ses « droits privés et familiaux ».134 Le flou est aussi présent lorsqu’il s’agit d’apprécier l’intérêt supérieur de l’enfant. Mentionné expressément à l’article 47, l’État s’engage à « assurer aux enfants toutes les formes de protection sans discrimination ». Mais, dans la mesure où l’article 39 dispose que l’État « veille à l’enracinement des jeunes générations dans leur

128

Bostanji (2009), p. 32. Ben Jemia (2015), p. 48. 130 Contra Ben Achour (2017), p. 137. 131 L’al. 2 prévoit que « le présent article ne peut faire l’objet de révision ». 132 Le §3 exprime « l’attachement de notre peuple aux enseignements de l’Islam et ses finalités caractérisées par l’ouverture et la tolérance, ainsi qu’aux valeurs humaines et principes universels et supérieurs des droits de l’Homme». Voir: Allani (2016), p. 116. 133 Ben Jemia (2015), p. 52. 134 Ben Jemia (2015), p. 53; Ben Jemia (2016), p. 431. 129

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identité arabe et islamique et leur appartenance nationale », il semble que les mêmes arguments qui ont été utilisés pour s’opposer à la garde et à l’adoption aux non-musulmans pourront à nouveau ressurgir.135 Il en est de même pour la liberté de conscience. Garantie à l’article 6, elle est néanmoins limitée par la protection du sacré et de la religion que l’État s’engage à assurer. Le choix de la Tunisienne d’un conjoint non musulman pourrait être interprété comme une atteinte au sacré.136 Les conflits de valeurs et les référentiels qui les sous-tendent sont omniprésents dans la nouvelle Constitution.137 Les incertitudes quant au sort réservé à la diversité en matière de statut personnel s’en ressentent.138 Mise en avant pour aussitôt être stigmatisée et donner lieu à un traitement discriminatoire, la diversité, pourtant limitée, des modèles familiaux que reconnaît l’ordre juridique est menacée par la résurgence d’une conception islamique du modèle familial tunisien.139

4 Conclusion L’étude de la place que réserve l’ordre juridique tunisien au multiculturalisme en matière familiale a permis de mettre en évidence un paradoxe. En raison de la volonté de l’ordre juridique tunisien de rompre avec le modèle pluraliste religieux qui prévalait avant l’Indépendance, le modèle tunisien de référence adopté fait peu de place à la diversité. Limitée à la question des filiations, la diversité des modèles familiaux est réduite. L’ordre juridique tunisien veille jalousement à préserver son modèle en rejetant les modes de vie qui s’en écartent, particulièrement s’ils sont fondés sur un référent islamique. En même temps, c’est au nom d’une interprétation fondée sur ce même référent islamique que la jurisprudence fait à nouveau émerger, sous couvert d’interprétation, le critère de la disparité religieuse dans l’application des textes. Véhiculant une conception musulmane de la famille tunisienne, cette interprétation réserve le bénéfice du modèle de référence aux seuls musulmans.

135

V. Le Tribunal cantonal de Mareth, 12 fév. 2014, inédit, cité par Ben Jemia (2015), p. 51: S’appuyant sur l’article 47 de la Constitution, les juges du fond refusent de prononcer l’adoption d’un enfant au motif qu’elle n’est pas dans son intérêt et que c’est à la mère d’assumer ses responsabilités. Ils jugent le comportement de la mère célibataire « contraire à la loi, à la charia et aux traditions et aux coutumes de la région »; Allani (2016), p. 121. 136 Ben Jemia (2015), p. 53. 137 Hamrouni (2016), p. 381. 138 V. CA de Tunis, 26 juin 2014, inédit, cité par Meziou (2017), n 106: maintien de l’interprétation fondée sur le référentiel islamique des empêchements au mariage. Le jugement déclare que l’article 1er de la Constitution de 2014 doit recevoir la même lecture que celle de 1959; contra: TPI de Tunis, 2 mai 2016, inédit, cité par Meziou, ibid.: référence à la liberté de culte prévue par la Constitution et validité du mariage de la musulmane avec le non-musulman. 139 Meziou (2013), p. 7.

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Tantôt retenue en jurisprudence, tantôt rejetée en raison de son caractère discriminatoire, cette lecture ambivalente des textes fait planer une grande incertitude sur la place de la diversité dans l’ordre juridique tunisien. Le nouvel ordre constitutionnel ne semble pas apte à la dissiper. Quelles sont les perspectives d’évolution de la place de la diversité dans le droit de la famille tunisien ? Malgré les incertitudes référentielles et les incohérences jurisprudentielles, des signaux positifs peuvent être perçus. Portées par la consécration de la liberté d’association, des associations de défense des libertés publiques et des droits des minorités notamment sexuelles ont été créées. De plus, se regroupant au sein de collectifs, tel que le Collectif pour les libertés individuelles, leur voix est davantage audible. Certaines de leurs revendications trouvent un écho auprès des pouvoirs publics. Conscients des contradictions entre les droits fondamentaux consacrés par les normes supra-législatives et certaines dispositions législatives, les pouvoirs publics ont créé une Commission des libertés individuelles et de l’égalité (COLIBE). Annoncée le 13 août 2017, elle est chargée de rédiger un rapport sur l’état des libertés individuelles en Tunisie. Il est précisé qu’elle doit trouver les formules adéquates qui ne contredisent ni la Constitution ni les valeurs de l’Islam pour consacrer l’égalité dans tous les domaines particulièrement en matière d’héritage.140 La dynamique semble d’ailleurs enclenchée par l’abrogation de la circulaire du 5 novembre 1973 qui interdisait aux officiers d’état civil de célébrer le mariage de la musulmane avec un non-musulman.141 Cependant, ces manifestations ne sont pas pareillement reçues par la société tunisienne. Si une frange de la société applaudit le mouvement libéral, gage de reconnaissance de la diversité des modes et styles de vie, une autre plus conservatrice dénonce avec force ce qu’elle considère un dévoiement de l’ordre moral et une méconnaissance des valeurs de l’Islam.142 Le clivage, déjà présent,143 entre modernistes et conservateurs se renforce. C’est donc sur le terrain juridictionnel que le débat sera tranché. Attendue avec beaucoup de ferveur,144 la future Cour constitutionnelle aura certainement à se prononcer sur le conflit de référentiel.145 C’est seulement à cette condition que la place de la diversité en droit tunisien sera précisée.

140

Le COLIBE a rendu son rapport le 1er juin 2018. Parmi les recommandations faites, l’égalité successorale entre l’homme et la femme a été mise en avant. Un projet de loi a été présenté au Conseil des Ministres le 23 novembre 2018. Il n’a toutefois pas encore été soumis au vote du Parlement. V. le rapport de la Commission des libertés individuelles et de l’égalité (COLIBE), Présidence de la République, Tunis, 1er juin 2018. 141 Circulaire du Ministère de la Justice n 164 du 8 sept. 2017, supra n 96. 142 Ben Achour (2017), p. 125. 143 Bostanji (2009), p. 27. 144 Allani (2016), p. 125. 145 Prévue par la Constitution du 27 janvier 2014, la loi organique n 2015-50 du 3 déc. 2015 organise son fonctionnement. Pour l’heure, elle n’a pas encore vu le jour. Des divergences politiques semblent empêcher sa consécration.

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Références Allani D (2016) L’ordre public et la Constitution du 27 janvier 2014 (entre chimères et prophéties). In: Ben Achour S, Ben Jemia M (eds) Droits fondamentaux et droit international privé. Maison du livre, Tunis, pp 111–128 Alyadi S (2016) L’évolution de la notion de famille dans le droit du statut personnel tunisien. In: Jmal R, Zghal N, Gharbi W (eds) Articles de droit de la famille. Latrach Editions, Tunis, pp 9–38 Bejaoui Attar I (2003) L’intérêt de l’enfant: Fondement de l’adoption en droit tunisien. Actualités juridiques tunisiennes (numéro spécial) 16:79–101 Ben Achour S (2005a) Figures de l’altérité: À propos de l’héritage du conjoint “non-musulman”. In: Mouvements du droit contemporain: Mélanges offerts au Professeur Sassi Ben Halima. Centre de Publication Universitaire, Tunis, pp 823–842 Ben Achour S (2005b) L’adoption en droit tunisien: Réflexions sur “la condition d’islamité”. In: Mouvements du droit contemporain: Mélanges offerts au Professeur Sassi Ben Halima. Centre de Publication Universitaire, Tunis, pp 843–863 Ben Achour S (2006) L’ordre juridique tunisien face à la répudiation islamique. In: Polygamie et répudiation dans les relations internationales: Actes de la table ronde organisée à Tunis le 16 avril 2004. Editions AB Consulting, Tunis, pp 43–66 Ben Achour S (2010) L’interprétation du droit tunisien de la famille: entre référence à l’Islam et appel aux droits fondamentaux. Regards sur Cinquante années de jurisprudence (1960-2010). In: L’interprétation de la norme juridique: Actes du colloque international organisé les 5 et 6 avril 2010 à Jendouba. Faculté des Sciences Juridiques, Économiques et de Gestion de Jendouba, Jendouba, pp 17–37 Ben Achour S (2013) L’adoption et la kafala: quelles différences en droit? In: Regards croisés sur l’adoption. Publié avec le soutien de la Fondation Hanns Seidel, Tunis, pp 19–33 Ben Achour S (2015) La loi française du 17 mai 2013 ouvrant le mariage pour tous et les relations franco-maghrébines. In: Actualités du droit international privé de la famille en Tunisie et à l’étranger. Latrach Editions, Tunis, pp 139–167 Ben Achour S (2016) L’accès à la justice en droit international privé de la famille. In: Ben Achour S, Ben Jemia M (eds) Droits fondamentaux et droit international privé. Maison du livre, Tunis, pp 11–54 Ben Achour S (2017a) La réception des décisions étrangères dans l’ordre juridique tunisien. Centre de Publication Universitaire, Tunis Ben Achour S (2017b) Tunisia. In: Yassari N, Möller L-M, Gallala-Arndt I (eds) Parental Care and the Best Interests of the Child in Muslim Countries. T.M.C. Asser Press, La Haye, pp 259–284 Ben Achour S (2019) Les libertés individuelles des étrangères et des étrangers en Tunisie: Les métèques de la République. Association Tunisienne de Défense des Libertés Individuelles (ADLI), Tunis. www.adlitn.org. Consulté le 23 mai 2021 Ben Achour Y (1974) Islam et Constitution. Revue Tunisienne de Droit:77–121 Ben Achour Y (2017) Tunisie: Une révolution en pays d’islam, 2nd edn. Cérès éditions, Tunis Ben Halima S (2000) Religion et statut personnel en Tunisie. Revue Tunisienne de Droit:107–138 Ben Halima S (2003) La filiation naturelle en droit tunisien. Actualités juridiques tunisiennes (numéro spécial) 16:19–37 Ben Halima S (2011) Conférences de droit de la famille. Centre de Publication Universitaire, Tunis Ben Jemia M (2000) Ordre public, constitution et exequatur. In: Mélanges en l’honneur de Habib Ayadi. Centre de Publication Universitaire, Tunis, pp 271–300 Ben Jemia M (2003) Répudiation islamique et effet atténué de l’ordre public. In: Le Code tunisien de droit international privé: deux ans après. Centre de Publication Universitaire, Tunis, pp 129–146 Ben Jemia M (2006) L’ordre public international tunisien peut-il s’atténuer en matière de polygamie? In: Polygamie et répudiation dans les relations internationales: Actes de la table ronde organisée à Tunis le 16 avril 2004. Editions AB Consulting, Tunis, pp 27–41

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Ben Jemia M (2008) Non discrimination religieuse et Code du statut personnel tunisien. In: Droits et culture: Mélanges en l’honneur du Doyen Yadh Ben Achour. Centre de Publication Universitaire, Tunis, pp 261–276 Ben Jémia M (2010) The management of religious diversity in Tunisian family law. In: Foblets M-C, Gaudreault-Desbiens J-F, Dundes Renteln A (eds) Cultural diversity and the law. Bruylant, Bruxelles, pp 563–579 Ben Jémia M (2011) La levée des réserves à la convention CEDAW mais non au maintien de la déclaration générale: Tunisie. http://www.unfpa-tunisie.org/images/stories/pdfs/cedaw francais. pdf. Consulté le 17 novembre 2017 Ben Jemia M (2012) Le juge tunisien et la légitimation de l’ordre juridique positif par la charia. In: Dupret B (ed) La charia aujourd’hui: Usages de la référence au droit islamique. La Découverte, Paris, pp 153–165 Ben Jemia M (2015) Y a-t-il du nouveau en matière d’ordre public familial international? In: Actualités du droit international privé de la famille en Tunisie et à l’étranger. Latrach Editions, Tunis, pp 43–58 Ben Jemia M (2016) Lecture de l’article 46 de la Constitution. In: La constitution de la Tunisie : Processus, principes et perspectives. Publications du PNUD, pp 431–440. http://www.tn.undp. org/content/tunisia/fr/home/library/democratic_governance/la-constitution-de-la-tunisie-.html. Consulté le 14 juin 2019 Ben Lamine M (2013) La diversité culturelle vue à travers le prisme du droit international privé de la famille tunisien et marocain: le Maghreb aux deux visages. In: Foblets M-C, Yassari N (eds) Approches juridiques de la diversité culturelle/Legal Approaches to Cultural Diversity. Martinus Nijhoff Publishers, Leiden, pp 413–463 Bénabent A (2014) Droit de la famille, 3rd edn. Montchrestien, Paris Bostanji S (2009) Turbulences dans l’application judiciaire du Code tunisien du statut personnel: le conflit de référentiels dans l’œuvre prétorienne. Revue internationale de droit comparé 61 (1):7–47 Boulenouar Azzemou M (2009) Recueil légal (kafala) et droit(s) positif(s). Dossier La réception des institutions algériennes par le droit français. Droit de la famille n 1, Janvier 2009, Dossier n 3 Charfi M (2005) Culture et droit dans le monde musulman: L’exemple tunisien. In: Mélanges offerts au Doyen Abdelfattah Amor. Centre de Publications Universitaires, Tunis, pp 333–351 Charfi M (2008) Le droit du statut personnel tunisien entre la législation et la jurisprudence. In: Droits et culture: Mélanges en l’honneur du Doyen Yadh Ben Achour. Centre de Publication Universitaire, Tunis, pp 425–440 Chedly L (2010a) Droit d’accès à la justice tunisienne dans les relations internationales de famille et for de nationalité. In: En hommage à Dali Jazi. Centre de Publication Universitaire, La Manouba, pp 255–277 Chedly L (2010b) Rapport introductif : Le Code de Droit international privé et les Droits de l’Homme. In: Le Code tunisien de droit international privé dix ans après. Publié avec le soutien de la Fondation Hanns Seidel-Maghreb, Tunis Chedly L, Ghazouani M (2008) Code de droit international privé annoté. CEJI, Tunis Chekir H (1989) Les réserves présentées par la Tunisie. In: La non-discrimination à l’égard des femmes entre la Convention de Copenhague et le discours identitaire. Colloque Tunis 13-16 janvier 1988, UNESCO-CERP Fulli-Lemaire S (2017) Legal recognition of same-sex relationships in central Europe: steady progress. In: Boele-Woelki K, Fuchs A (eds) Same-sex relationships and beyond: gender matters in the EU, 3rd edn. Intersentia, Cambridge, pp 19–38 Ghazouani M (2013) Cent jugements d’adoptions internationales, éclairages sur une pratique éclairée du tribunal cantonal de Tunis. In: La diversité dans le droit: Mélanges offerts à la Doyenne Kalthoum Meziou-Dourai. Centre de Publication Universitaire, La Manouba, pp 389–422 Hamrouni S (2016) Les valeurs fondatrices de la deuxième République dans le préambule et principes généraux de la Constitution. In: La constitution de la Tunisie : Processus, principes

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et perspectives. Publications du PNUD, pp 381–389. http://www.tn.undp.org/content/tunisia/‌fr/ ‌home/library/democratic_governance/la-constitution-de-la-tunisie-.html. Consulté le 14 juin 2019 Kari M (2005) Autonomie constitutionnelle et droit de la famille. In: Mélanges offerts au Doyen Abdelfattah Amor. Centre de Publications Universitaires, Tunis, pp 603–612 Koumdadji A (2017) Islam et parenté. Revue internationale de droit comparé 2:307–326 Mezghani A (1999) Commentaires du Code de Droit International Privé. Centre de Publication Universitaire, Tunis Mezghani A (2005) Le droit tunisien reconnaît ses enfants naturels. In: Mouvements du droit contemporain: Mélanges offerts au Professeur Sassi Ben Halima. Centre de Publication Universitaire, Tunis, pp 651–682 Meziou K (2005a) Approche critique du code de statut personnel. In: Mélanges offerts au Doyen Abdelfattah Amor. Centre de Publications Universitaires, Tunis, pp 815–827 Meziou K (2005b) Approche iconoclaste du droit des successions. In: Mouvements du droit contemporain: Mélanges offerts au Professeur Sassi Ben Halima. Centre de Publication Universitaire, Tunis, pp 907–931 Meziou K (2006) Formation du mariage et principe de monogamie In: Polygamie et répudiation dans les relations internationales: Actes de la table ronde organisée à Tunis le 16 avril 2004. Editions AB Consulting, Tunis, pp 9–25 Meziou K (2013) L’enfant après la Révolution: un statut menacé? In: Regards croisés sur l’adoption. Publié avec le soutien de la Fondation Hanns Seidel, Tunis, pp 7–18 Meziou K (2016) Relations familiales et droits fondamentaux. In: Ben Achour S, Ben Jemia M (eds) Droits fondamentaux et droit international privé. Maison du livre, Tunis, pp 199–215 Meziou K (2017) Tunisie. In: JurisClasseur Droit comparé. LexisNexis, Paris Molfessis N (2000) La réécriture de la loi relative au PACS par le Conseil constitutionnel. La Semaine Juridique, Édition Générale, n 10, doctr. 210 Tobich F (2008) Les statuts personnels dans les Pays Arabes: de l’éclatement à l’harmonisation. Presses universitaires d’Aix-Marseille, Aix-en-Provence

Asma Alouane is currently pursuing a PhD in Private International Law at Panthéon-Assas (Paris 2) University on the topic of Private international law put to the test of the right to respect for private and family life. She studied law in Tunisia and holds a Master’s degree in Corporate Law from the Faculty of legal, political and social sciences of Tunis (FSJPST). She also holds a Master’s degree in Private International Law as well as a University Diploma in History of Law from Panthéon-Assas (Paris 2) University. She has been a Visiting Researcher at the Max Planck Institute for Comparative and International Private Law in Hamburg (2014 and 2016). Asma’s main fields of research relate to private international law and comparative law, particularly in the area of family law. She also sits on the editorial board of Conflict of Laws.net.

United Arab Emirates: Temporary Multiculturalism, but Permanent Legal Pluralism? Lena-Maria Möller

Abstract While multiculturalism is a main characteristic of society in the United Arab Emirates, the federation of seven emirates cannot be described as an immigration country per se. Rather, the United Arab Emirates form a multicultural society by necessity. The country’s immigration system is primarily oriented to immigration of a temporary nature, as labor migration is not designed to be permanent. Instead, foreigners are generally expected to return to their home countries once their employment has come to an end. Nonetheless, the multicultural and multinational makeup of the United Arab Emirates and the country’s historically developed legal pluralism give rise to multiple challenges both in domestic family law and in Emirati private international law. A clear division of family and succession law along religious lines (as regards substantive law and, more recently, jurisdiction of the courts) and the heterogeneous demographic setting of the United Arab Emirates result in the application of various family law regimes, largely depending on both the nationality and the religious affiliation of the parties. At the same time, the reality of multinationalism has not yet been fully embraced by all fragments of society. This can be seen in the debate surrounding interreligious and binational marriages as well as in the country’s private international law regime.

1 Introduction Multiculturalism is a main characteristic of society in the United Arab Emirates. Historically, the seven emirates, which in 1971 formed a federation and became an independent nation-state, witnessed migration through regional trade along the Persian Gulf as well as through European (and especially British) colonial

L.-M. Möller (*) University of Leipzig, Institute of Oriental Studies, Leipzig, Germany Max Planck Institute for Comparative and International Private Law, Hamburg, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_5

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influence.1 More recently, the oil-rich country has become one of the world’s most popular destinations for temporary labor migrants seeking employment opportunities and higher standards of living. According to the latest census in 2010, the country’s total population numbers 8,264,070, of whom merely 947,997 are national citizens.2 With an annual net immigration rate of 10.5 migrants per 1000 population, the United Arab Emirates ranks tenth in the world.3 At the same time, however, the country’s immigration system is mostly oriented to immigration of a temporary nature. Labor migration to the United Arab Emirates is not designed to be permanent, and foreigners are generally assumed to return to their home countries once their employment has come to an end.4 In this sense, the United Arab Emirates cannot be described as an immigration country, but rather as a multicultural society by necessity.

1.1

The Multicultural Landscape

Demographics in the United Arab Emirates—and in fact in all member states of the Gulf Cooperation Council—changed dramatically when vast natural resources were discovered in the middle of the twentieth century.5 The discovery and ensuing extraction of crude oil and gas resulted in a rapid increase in wealth and,

1

As opposed to other world regions under tighter colonial rule, in the small sheikhdoms along the Persian Gulf, Great Britain assumed the role of a so-called “protective power”. British interests in the Gulf region grew once the country was faced with a growing number of pirate attacks on its merchant fleets. Gulf rulers, on the other side, remained vulnerable and in need of military protection from neighboring Middle Eastern powers. The result was a series of peace and protection treaties in the nineteenth and early twentieth centuries between local sheikhs and Great Britain which were to alter the history of the Gulf significantly; for a history of the Arabian Peninsula prior to the emergence of independent nation-states, see e.g. Commins (2012) and Onley (2009); for the United Arab Emirates in particular see Heard-Bey (1982). It should also be noted that the term “Persian Gulf” remains controversial and has been disputed by the Arab states bordering it. Many Arab states instead use the term “Arabian Gulf” when referring to the body of water between the Arabian Peninsula and Iran. 2 See United Arab Emirates National Bureau of Statistics, www.uaestatistics.gov.ae/ReportPDF/ Population%20Estimates%202006%20-%202010.pdf (accessed 26 April 2021). 3 See The World Factbook, www.cia.gov/library/publications/the-world-factbook/geos/ae.html (accessed 26 April 2021); net immigration indicates an excess of persons entering a country during the year per 1000 persons. 4 In May 2019, the United Arab Emirates, for the first time, launched a long-term residency program, the so-called “golden visa” scheme, which grants 10-year residency in the country to certain investors, professionals, and specialized degree-holders. Still, the program does not entail an unrestricted right to permanent residence. 5 The Cooperation Council for the Arab States of the Gulf (also known as the Gulf Cooperation Council, GCC) is an international organization that was established in 1981 and designed to promote economic, commercial, educational, and cultural cooperation among its member states Bahrain, Kuwait, Qatar, Oman, Saudi Arabia, and the United Arab Emirates.

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subsequently, a considerable improvement in the living standards in the region. Upon gaining independence, the United Arab Emirates had become a prime example of rentierism, with none of the seven individual ruling families dependent on tax revenues from their citizens.6 The sudden economic changes facing the country and an educational system which still lagged behind new demands combined to result in large-scale labor migration that continues to shape the Gulf region to this day. Initially, it was mostly Arab migrants who settled in the United Arab Emirates. By the 1970s, however—as economic opportunities in some of the original sending states improved—the demographics of the migrant laborer community in the Gulf region shifted towards the Indian subcontinent and even further east.7 In part, the enhanced interest of Gulf rulers (all of them hereditary monarchs) in non-Arab migrant laborers was also driven by political considerations and the desire to ward off the influence of the anti-colonial and pro-republican pan-Arabism prevalent in many parts of the Middle East and North Africa at that time.8 In consequence, largescale labor migration from countries such as India, Pakistan, and Bangladesh as well as from East Asia (especially the Philippines, Thailand, and Indonesia) could be witnessed between 1975 and 1985,9 and it has continued until the present day, with around three million Indians as well as two million Pakistanis and Bangladeshis residing in the United Arab Emirates.10 These migrant worker communities include low-skilled domestic workers and laborers as well as high-skilled personnel, the latter of which usually relocate to the United Arab Emirates with their families. While there is a significant Hindu population among the expatriate community, Islam continues to be the predominant religion of the United Arab Emirates. Specifically, 76% of the country’s entire population and virtually all Emirati nationals are Muslims. Especially among the latter group, Sunnis form the clear majority.11

See e.g. Davidson (2005), pp. 65, 88
90; Möller (2015), pp. 55
58; crude oil fields are mainly located within the territory of Abu Dhabi, the largest emirate of the UAE. Upon forming a unified federal nation state in 1971, however, the country’s first ruler Shaykh Zayed bin Sultan Al Nahyan was committed to distributing Abu Dhabi’s oil revenues among all seven emirates in order to advance the entire country’s infrastructure and the citizens’ overall welfare; see Heard-Bey (2005), p. 364. 7 Abdelkarim (1999), p. 33. 8 Abdelkarim (1999), pp. 36
37; see also Davidson (2007). 9 Abdelkarim (1999), p. 37. 10 Malit and Al Youha (2013). 11 According to the Bureau of Democracy, Human Rights and Labor (2011), 85% of Emirati citizens are Sunni Muslim and 15% or less Shi’is. 6

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The Pluri-Legal Setting

Until the presence of Great Britain in the early twentieth century, administrative systems in what was to become the United Arab Emirates (at that time often referred to as the “Trucial States”) were “virtually non-existent”.12 Apart from tribal councils and religious arbitration tribunals, neither institutionalized courts nor codified law existed. When disputes arose, communities habitually called upon their tribal leaders, who were well versed in the local customary law. In addition, Islamic scholars—often with some type of formal training obtained abroad—adjudicated in civil, criminal, and personal status cases based on traditional fiqh works and their own interpretation of Islamic law.13 By the 1940s, Great Britain eventually assumed jurisdiction over (mostly non-Muslim) foreigners in the Arab Gulf region as part of their treaty relations with local rulers. At the same time, those cases exclusively involving Muslim locals continued to be settled by local judges in accordance with Islamic law, especially in matters of personal status.14 The application of British extraterritorial jurisdiction over foreign Muslim residents of the Gulf sheikhdoms remained controversial due to different conceptions of the scope of application. For the British, it was mostly a question of nationality, whereas local rulers perceived it as a matter of interreligious law, with the British (Christian) power having jurisdiction merely over non-Muslim residents in their sheikhdoms.15 Around the mid-twentieth century, the political, economic, and social situation again changed considerably. Once Britain announced its withdrawal as a protective power in the 1960s, local rulers were faced with the need to establish independent functioning legal systems which would meet the changing regulatory needs in their new sovereign nation-states. In light of the minimally developed legal and political system as well as the inadequate educational system mentioned above, foreign legal practitioners from other Arab countries (mostly Egypt, Jordan, and Sudan) joined the judicial apparatus and exercised large influence on the development of Gulf legal systems following independence.16 In line with the previous trend in other Arab countries, the United Arab Emirates also followed the civil law idea of codification and enacted codes in most legal areas.17 A civil law system particularly benefited the country’s political system, in which the monarchial ruler combined substantial legislative and executive powers.18 As opposed to civil, criminal, and constitutional 12

Al-Muhairi (1996), p. 121. Al-Muhairi (1996), pp. 120
124; Brown (1997), p. 130; Möller (2016), p. 85. 14 Al-Muhairi (1996), pp. 124
125; Baharna (1998), p. 12; for similar legal developments in neighboring Qatar, see Hamzeh (1994), p. 82. 15 Brown (1997), pp. 133
134. 16 The influence of these foreign “import jurists” has continued until today, see e.g. Elhawary (2013), p. 6. 17 Möller (2016), p. 85. 18 Brown (1997), pp. 154
155, 185. 13

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law, Muslim personal status remained one of the very few areas of the law to be left uncodified and practiced based on the traditional rules of the locally dominant school of Islamic legal thought (sing. madhhab). Upon achieving independence in 1971, the United Arab Emirates established a judicial system which, in addition to civil and criminal courts, also featured so-called “personal status courts” (sing. maḥkamat al-aḥwāl al-shakhṣiyya) primarily adjudicating in matters related to Muslim family and succession law (regardless of sectarian affiliation).19 Judgments in personal status cases can be appealed before the relevant chamber of the Appeal Courts and the Courts of Cassation of those emirates having an independent judicial system (Abu Dhabi and Dubai as well as the smaller emirate of Ras al-Khaimah) or before the Federal High Court for the remaining four emirates.20 In accordance with the large majority of legal systems in the region, family law in the United Arab Emirates is marked by a clear division along religious lines. Most recently, this division has been partially reinforced as regards jurisdiction of the courts in Abu Dhabi and Dubai, as will be discussed in due course.21 Together with the multicultural and multinational makeup of the country, such legal pluralism gives rise to multiple challenges in domestic family law as well as in Emirati private international law.

2 Multicultural Challenges in Domestic Family Law 2.1

General Remarks

Emirati family law has experienced a significant transformation within the last decade and a half. While adjudication in matters of Muslim personal status was previously based on traditional Islamic legal doctrine, in 2005 the United Arab Emirates for the first time introduced a code which comprehensively covered questions of marriage, divorce, child custody, and inheritance.22 Moreover, in the years following the introduction of the country’s first personal status code, further legislation was enacted in the area of family law as well as on related issues, such as family reconciliation or foster care for children of unknown filiation. The Emirati Code of Personal Status is largely inspired by Sunni Maliki legal doctrine, which has historically reigned supreme, given that the ruling families of the

19

Al Tamimi (2003), pp. 9
18; Möller (2015), pp. 81
82, 86
87. Ras al-Khaimah does not have a Court of Cassation; the final appellate court is the emirate’s Appeal Court. 21 See below Sect. 3.3. 22 Federal Law of Personal Status no. 28 of 2005, Official Gazette no. 439 of 30 November 2005, as amended by Decree-Law no. 8 of 2019 and Decree-Law no. 5 of 2020 (hereafter: Emirati Code of Personal Status); see also Möller (2016). 20

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two largest emirates, Abu Dhabi and Dubai, adhere to the Maliki madhhab.23 Thus, where the code remains silent on an issue, courts are required to resort to Maliki legal doctrine first and to Hanbali law (the country’s second most dominant school of legal thought) second.24 Family and inheritance law in the United Arab Emirates continues to be clearly divided along religious (but not sectarian) lines. This division—characteristic for almost all legal systems of the Middle East and North Africa—means that, in theory, the Emirati Code of Personal Status mandatorily applies only to Muslim citizens (again, regardless of their sectarian affiliation). It applies to non-Muslim citizens only insofar as their religious community does not possess its own set of laws governing matters of personal status. Foreigners, whether Muslim or not, may opt to have the code applied to their personal status affairs or may instead demand the application of foreign law in line with the Emirati rules on conflict of laws (as will be discussed below).25 Given the multinational demographic setting of the United Arab Emirates, various family law regimes are being applied in the country, largely depending on both the nationality and the religious affiliation of the parties. As soon as Muslim Emirati citizens are involved in a family dispute, the case will unquestionably be brought before the personal status court and governed by Emirati law. This does not imply, however, that multiculturalism does not pose a challenge in these cases. Instead, multinationalism has in recent years especially become a topic of controversy, particularly as regards binational marriages. Before exploring this issue further, focus should also be laid on challenges arising for religiously mixed families, given the supreme status of the Islamic faith in the United Arab Emirates.

2.2

The Challenge of Interreligiosity

In the United Arab Emirates, Islam reigns supreme, which is achieved through constitutional guarantees.26 In addition, family and succession law continue to be strongly influenced by religious law. Both factors are of direct consequence for religiously mixed couples and their children. In line with traditional Islamic legal doctrine, Muslim women, according to Emirati family law, may only marry within their own faith.27 In contrast, Muslim See for example Dubai Court of Cassation, appeal no. 23/2005 of 22 May 2006 (on file with author) and Federal High Court, appeal no. 555/26 of 12 September 2005 (on file with author), both explicitly referencing the supreme position of Maliki law in the United Arab Emirates. 24 Art. 2 (3) Emirati Code of Personal Status; Shafi῾i legal doctrine comes third and Hanafi legal doctrine last. 25 Art. 1 (2) Emirati Code of Personal Status. 26 According to Art. 7 Constitution of the United Arab Emirates, Islam is the country’s official religion and the Islamic Sharia a main source of legislation. 27 Art. 47 (8) Emirati Code of Personal Status. 23

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men are allowed to marry women from other monotheistic faiths (ahl al-kitāb, literally all those religious communities that have a holy scripture).28 Despite the theoretical permissibility of such an interreligious marriage on the part of husband, the Emirati Code of Personal Status discriminates against the non-Muslim mother of a Muslim child by generally barring her from assuming custody (ḥaḍāna) following a divorce. In such interreligious custody disputes, domestic family law only allows for the court to order a period of female custody (albeit reduced) if this is proven to be in the best interests of the child.29 While generally a divorced mother assumes custody until her son reaches the age of 11 and her daughter the age of 13 (with judicial extension possible if it is in the best interests of the child),30 a non-Muslim mother may only be awarded custody until her child turns five. Interestingly enough, Maliki jurisprudence, the school of Islamic legal thought that influenced the Emirati Code of Personal Status the most, does not consider a mother’s religious affiliation a valid reason for curtailing her right to custody.31 Consequently, it can be assumed that the legislature’s motive for such a restrictive stance on interreligious custody did not merely originate from a strict and unanimous approach articulated in traditional Islamic legal doctrine. Instead, social concerns that are particular to society in the United Arab Emirates, male exogamy and mixed marriages to be precise, are likely to have also played a notable role. The statutory rules on custody may thus serve two purposes: first, to secure a culturally specific— in essence Muslim—upbringing of children born into mixed marriages and, second, to potentially discourage non-Muslim women from concluding an interreligious union, given their awareness that they might lose custody upon the breakdown of the marriage.32 At the same time, however, the fear alleged in public discourse in the United Arab Emirates of children losing touch with their “national culture” is framed in terms of nationality rather than religious affiliation. Admittedly, given that the vast majority of Emirati citizens are Muslim, binational marriages are necessarily more likely to be religiously mixed too; yet the discourse still circles more around “national identity” as expressed though traditional and customary values. For example, the demand brought forward by a representative of Ajman in the Federal National Council (FNC) that the Emirati Code of Personal Status be amended such that differences in nationality between mothers and their children would preclude custody was a matter of great controversy in the summer of 2015.33 In his speech before the FNC, the Ajmani representative Ahmed Al Shamsi argued that different national traditions and cultural environments posed an even greater danger to a child’s upbringing and

28

Art. 47 (7) Emirati Code of Personal Status. Art. 145 Emirati Code of Personal Status. 30 Art. 156 Emirati Code of Personal Status. 31 Ibrahim (2015), p. 875. 32 Möller (2016), p. 102. 33 Al Khoori and Dajani (2015), Al Nowais (2015), Al Shamsi (2015). 29

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loss of national identity than the custodian’s religious affiliation.34 Al Shamsi’s remarks sparked a heated debate, which illustrated the sensitivity, but also the relevance, of the issue of binational marriages.

2.3

The Challenge of Multinationalism

The challenge of multinationalism has not only been of concern in the area of child custody. Similarly, binational marriages are a frequent topic in legal disputes surrounding marriage, as can be witnessed in Emirati case law on kafāˡa (equivalence of the spouses). In particular, these cases highlight the reluctance on the part of many Emirati fathers to consent to their daughters marrying foreigners. While kafāˡa plays an important role in pre-modern Islamic jurists’ discussions of marriage, the concept’s exact background and origins remain disputed. Consequently, some authors suggest that the idea of marriage equality is an obvious expression of pre-modern (Arabian or Sasanian-Persian) customary law,35 and that it actually runs counter to Islamic legal doctrine, particularly the idea of equality among all members of the Muslim community. Be that as it may, kafāˡa continues to be of relevance in some contemporary Muslim-majority societies and particularly in the Arab Gulf region where, at least nowadays, it is strongly interwoven with questions of multinationalism and ethnic diversity.36 Even though, from among all Sunni schools of legal thought, traditional Maliki jurisprudence paid the least attention to kafāˡa,37 the concept was included in the 2005 codification of family law in the United Arab Emirates. The Emirati Code of Personal Status devotes a total of five articles to the concept of marriage equality and,38 for example, stipulates that kafāˡa is a prerequisite for marriage (luzūm al-zawāj) and that, consequently, both the wife and her marriage guardian (walī) may demand that the marriage be annulled should they discover that the woman’s husband is not her equal.39 As for what constitutes kafāˡa in practice, the Emirati Code of Personal Status (in line with Maliki interpretations) only lists piety explicitly and refers to customs (ʿurf) otherwise. In modern-day Emirati society, this reference to customs has often been utilized to challenge a woman’s engagement, and potential

34

Al Khoori and Dajani (2015). See e.g. Linant de Bellefonds (2012) (suggesting that kafāˡa is an expression of pre-Islamic Arabian tribal society) and Ziadeh (1957), pp. 505
508 (arguing instead that kafāˡa originates in pre-Islamic Sasanian-Persian society). 36 In Saudi Arabia, for example, the legal and public debate mainly circles around equivalence in filiation or tribal lineage, kafāˡa fī al-nasab, see Samin (2012). 37 Zomeno (2001), pp. 88, 92. 38 Art. 21
25 Emirati Code of Personal Status. 39 Art. 21 (1) 24 Emirati Code of Personal Status; the marriage may not be annulled, however, should the wife already be pregnant, see Art. 25 Emirati Code of Personal Status. 35

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marriage, to a non-Emirati citizen. Kafāˡa has thereby become a symbol for some locals’ unease with the multinational character of Emirati society. According to Emirati family law, a wife can conclude a marriage only if her walī consents.40 However, since the judge will serve as marriage guardian for those women whose walī is absent,41 the court may also overrule a walī’s refusal to consent to the marriage of his ward if the court considers his refusal to be unjustified.42 Women in the United Arab Emirates rather frequently make use of this rule as an avenue of recourse from their father’s unwillingness to approve their choice of partner. Moreover, case law demonstrates that in multiple instances marriage guardians have refused to give their consent based exclusively on the different nationality of the husband-to-be.43 The common line of argument in such cases has been that a non-Emirati fiancé should not be considered a local woman’s equal. Emirati family courts, by contrast, have until now strongly opposed this understanding of equivalence on the part of many marriage guardians. First instance family courts as well as appeal and high courts have regularly overruled the walī’s refusal to consent to his ward’s marriage if it is solely based on the fiancé’s foreign nationality.44 In particular, the Dubai Court of Cassation has rejected a father’s claim that difference in nationality, or rather an Emirati woman marrying a foreigner, ran counter to the country’s customs and thereby served as a valid component of kafāˡa.45 Whether this line of reasoning on the part of many family court judges stems from a religious standpoint (as an expression of the aforementioned equality of all Muslims), or whether it demonstrates an acknowledgment of social realities in the country’s multicultural and multinational environment, can of course be debated. Nonetheless, it shows that discrimination on the basis of nationality is not being accepted when it comes to judicial practice regarding questions of marriage.

40

Art. 38 (1) Emirati Code of Personal Status. Art. 35 Emirati Code of Personal Status. 42 Art. 34 Emirati Code of Personal Status, for marriage guardianship in the United Arab Emirates in general see also Möller (2016), pp. 93
94. 43 See e.g. Abu Dhabi Court of Cassation (personal status chamber), appeal no. 294/2011 of 25 May 2011 (German-Turkish fiancé); Dubai Court of Cassation (personal status chamber), appeal no. 52/2007 of 19 June 2007 (foreign nationality of the fiancé not specified in the judgment); Dubai Court of Cassation (personal status chamber), appeal no. 23/2005 of 22 May 2006 (Moroccan fiancé) (all cases on file with author). 44 See cases cited above as well as Za’za’ (2016). 45 Dubai Court of Cassation (personal status chamber), appeal no. 52/2007 of 19 June 2007 (on file with author). 41

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3 Multicultural Challenges in Private International Law Given the country’s demographic makeup, it does not come as a surprise that, according to one Emirati lawyer, around 70% of cases filed with the domestic family courts have an international element.46 Should this international element be due to a foreign citizenship, the parties involved in the case have two options according to the Emirati Code of Personal Status: They may either declare domestic family and inheritance law applicable, or they may instead demand that the competent court apply the law of their home country.47 The extent and scope of this “hidden” conflict-of-law rule within the larger system of Emirati private international law remains unclear and shall be discussed in due course. Interestingly enough, according to the same Emirati lawyer, many expatriate couples shy away from requesting that the competent family court apply their national family law. Instead, they oftentimes opt to have their case resolved on the basis of the Emirati Code of Personal Status.48 In 2011, for example, 60% of divorces filed by non-Muslims in Dubai were settled according to domestic (i.e. Islamically inspired) family law.49 Among the main reasons for this phenomenon seems to be the reluctance on the part of some family court judges to apply a set of rules they are not familiar with as well as the parties fearing that the application of their own national laws will lead to their case being more costly and timeconsuming.50 Should the parties, however, decline to have their family dispute governed by domestic law, the court must also take into consideration the conflict-of-law rules contained in the Emirati Civil Code of 1985 when determining the applicable law.51 Despite the absence of a clear legislative provision to this effect, in practice the court itself will not establish the content of a foreign set of rules. Instead, it is upon the parties to present the applicable foreign law, with Emirati courts demonstrating a strong tendency to consider the foreign law as a fact which will have to be proven by the parties.52

46

Hamade (2011). Art. 1 (2) Emirati Code of Personal Status. 48 Hamade (2011). 49 Hamade (2011). 50 Hamade (2011). 51 Federal Law no. 5 of 1985 governing the Civil Code, Official Gazette no. 158 of 29 December 1985, as amended by Federal Law no. 1 of 1987 and Decree-Law no. 30 of 2020 (hereafter: Emirati Civil Code). 52 Elhawary (2013), pp. 8
9. 47

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Nationality as the Main Connecting Factor

Emirati private international law, modelled largely (but not entirely) after its Egyptian predecessor,53 continues to be dominated by nationality as the main connecting factor in matters of personal status. Once again, this legislative choice highlights the preferred temporary nature of migration and multiculturalism in the United Arab Emirates. Whereas reference to a person’s habitual residence is now perceived as a means of integration by many European legislatures, the prevalence of nationality in the Emirati conflict-of-law rules demonstrates, for one, the country’s reluctance to consider foreigners as an integral part—let alone permanent members—of Emirati society. Secondly, this approach underlines the perception that citizenship holds higher importance to a person than his or her place of habitual residence and, by extension, that nationality does not cease to be the strongest connecting factor in matters of family and inheritance law even if a person left his or her home country a long time ago and has settled somewhere else rather permanently. In the area of international family law, until very recently, preference was given to the husband’s nationality rather than to that of each individual spouse; this was achieved, for example, by not allowing for an optional connection or a choice of law from among the different sets of foreign laws involved. For instance, until legislative amendments were introduced in 2020, the law of a husband’s nationality governed the consequences of marriage, both personal and financial,54 as well as the dissolution of the marriage. Thus, the gendered and patriarchal nature of domestic family law was equally reflected in the corresponding conflict-of-law rules. A new decreelaw enacted in September 2020 changed this rule insofar as the consequences of marriage and its dissolution will henceforth be governed by the law of the country in which the marriage was concluded.55 Apart from questions of marriage and divorce, rules on international family law remain few. For example, no comprehensive conflict-of-law rule exists for filiation (nasab/bunuwwa) or parental care, the latter of which consists of custody (ḥaḍāna) and guardianship (wilāya) in domestic Emirati family law. It is only guardianship that is regulated in Emirati private international law, with the nationality of the ward—not that of his or her father—being the connecting factor.56 International family law in the United Arab Emirates therefore lacks detailed conflict-of-law rules on many aspects central to its domestic family law.

53

Elhawary (2013), p. 6. Specifically, the consequences of marriage were governed by the national law of the husband at the time the marriage was concluded, even if his nationality had changed afterwards and even if this change lead to both spouses holding the same nationality. 55 Art. 13 Emirati Civil Code as amended by Decree-Law no. 30 of 2020, Official Gazette no. 687 of 30 September 2020. 56 Art. 16 Emirati Civil Code. 54

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The Prevalence of Emirati Law

While the absence of a person’s habitual residence as a key connecting factor in the country’s international family law should regularly—at least in theory—lead to the application of foreign rules, the Emirati Civil Code in fact contains a number of provisions which demonstrate a strong prevalence of Emirati law. In particular, Emirati law applies with regard to stateless persons (irrespective of their habitual residence) as well as to dual citizens who also hold Emirati citizenship.57 While the latter rule reflects a common tendency in private international law worldwide, another conflict-of-law provision contained in the same article comes as a surprise: Should a person have multiple nationalities, Emirati law will also apply, even if none of these nationalities is that of the United Arab Emirates.58 As a result, Emirati private international law does not demand a judicial inquiry into the dominant or effective citizenship of a person; instead, it releases the competent judge from any obligation to investigate the matter further by simply referring him to domestic law. This rule stands out even among other Arab private international law regimes (including the Egyptian model rules), and, as Elwahary has rightly pointed out, the approach has far-reaching consequences, including, in many instances, the non-enforceability of such decisions abroad (especially in the home country of the parties).59 Until the recent changes in the conflict-of-law rule on marriage and its dissolution, this startling provision essentially meant that where a husband held more than one foreign nationality, divorce proceedings initiated by an affected couple were subject to Emirati family law regardless of the couple’s religious affiliation. Similarly, a non-Muslim, non-Emirati dual citizen will have his or her estate governed by domestic rules on testate and intestate succession that continue to be heavily influenced by traditional Islamic inheritance law. What remains unclear, then, is the relationship between this conflict-of-law rule and the specific provision contained in the Emirati Code of Personal Status according to which non-Muslims and foreigners may opt into the codified Muslim family and succession law, but may also have their own set of laws applied by the competent courts. This leads to the impression that the drafters of the Emirati Code of Personal Status did not pay considerable attention to the rules of private international law already in place. Likewise, the application of Islamically inspired domestic family and succession law to non-Muslim foreigners—simply because they hold dual citizenship (without at the same time being Emirati nationals)—also runs counter to recent legislative amendments in the country, both in the emirate of Abu Dhabi and at the federal level, which, inter alia, aim at granting greater leeway to non-Muslim religious denominations among the expatriate community.

57

Art. 24 Emirati Civil Code. Art. 24 (1) Emirati Civil Code. 59 Elhawary (2013), p. 20. 58

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Recent Legislative Amendments

In late summer 2017, the Abu Dhabi Judicial Department announced that the emirate would henceforth allow Christian expatriates to divorce through their church. The proposed alternative jurisdiction in matters of family law was designed to also include assistance in reaching a financial settlement arising with the dissolution of the marriage.60 Instead of filing a divorce petition with the domestic family courts, foreigners residing in the emirate of Abu Dhabi henceforth had the option of seeking mediation in their own place of worship. The proposal envisioned that once the couple, through such church-run mediation, had reached a divorce agreement settling questions regarding assets and the custody of children, these documents only needed to be authorized by the national courts in order to become enforceable.61 Initially, the amendment had been agreed upon solely between the emirate of Abu Dhabi and local Christian leaders, but the inclusion of Hindu and Sikh religious communities was equally envisioned.62 The proposal came after an earlier decision by the local government of Abu Dhabi in January 2017, according to which specialized personal status courts should be set up for non-Muslims residing in the emirate.63 These courts were intended to hear disputes in matters of personal status and be authorized to register wills for non-Muslims.64 In a similar move, the emirate of Dubai also set up a registry for non-Muslim wills in November of 2017.65 The initiative to introduce church-run mediation and dispute resolution for Christian expatriates, however, proved impractical in reality. In particular, it remained unclear what legal status such religious out-of-court agreements would actually have in the home countries of foreigners currently residing in the United Arab Emirates. This was particularly the case for all those expatriates whose home countries have abolished religious family adjudication or continue to require a court’s substantive involvement in the dissolution of a marriage.66 In consequence, the proposed alternative jurisdiction failed to meet the needs of many non-Muslim expatriates. Instead, another legislative amendment pointing in the same direction was introduced at the federal level in 2020. In September 2020, a federal decree-law amended the country’s international family law by introducing recourse to the lex loci celebrationis. Instead of applying the law of a husband’s nationality, questions of marriage and divorce are now

60

Meyer-Reumann & Partners (2017), Tribe (2017). Al Nowais (2017a, b). 62 Meyer-Reumann & Partners (2017). 63 Motei & Associates (2017), Al Nowais (2017b). 64 The National Editorial (2017). 65 STA Law Firm (2017). 66 With regards to the compatibility of family law in the UK and the proposal made by the Abu Dhabi Judicial Department, see e.g. Tribe (2017). 61

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governed by the law of the country in which the marriage was concluded.67 While, at first glance, this conflict-of-law rule signals a departure from nationality as the main connecting factor, the amendment was nonetheless framed in terms of expatriates being given the option of having “their own” laws and those to which they have a stronger connection applied.68 The new decree-law therefore also reiterated that nationality will determine the law applicable to a deceased person’s estate. The principle aim of the amendment was to offer expatriates access to a legal regime that they feel closely connected with and that meets their regulatory demands best. What will be interesting to watch, however, is whether in practice the new provisions will equally be applied to Muslim foreigners (and potentially also Emirati citizens) who concluded their marriage in a non-Muslim jurisdiction or to the estate of a deceased Muslim from a jurisdiction that does not recognize religious inheritance law. Similarly, it remains to be seen if parties to a legal dispute will request consideration of these new conflict-of-law rules given that it still falls on themselves to present the applicable foreign law. As was the case with the introduction of non-Muslim religious adjudication in the country, the latest reform of Emirati private international law may also prove impractical in reality and thus fail to meet the original intention of the legislature. Nonetheless, both legislative initiatives, despite being guided by diverging connecting factors, demonstrate that the reality of immigration to the United Arab Emirates—being in fact of a more permanent nature for many foreigners—is finally gaining broader acceptance and the lawmaker’s attention. As a reaction, greater leeway is being established for the incorporation of multiple normative orders and legal regimes into the national legal system.

4 Conclusion While multiculturalism has undoubtedly shaped society in the United Arab Emirates both historically and, in particular, since the country’s independence in 1971, the federation of seven emirates cannot be described as an immigration country as such. Rather, the United Arab Emirates comprises a multicultural society by necessity and its immigration system is mostly oriented to immigration of a temporary nature, with labor migration not intended to be permanent. Nevertheless, the multicultural and multinational makeup of the United Arab Emirates and the country’s strong legal pluralism have given rise to multiple challenges in domestic family law and Emirati private international law. In particular, a clear division of family and succession law along religious lines and the heterogeneous demographic setting of the country result in the application of multiple family law regimes, largely depending on both the

67

Art. 13 Emirati Civil Code as amended by Decree-Law no. 30 of 2020, Official Gazette no. 687 of 30 September 2020. 68 See e.g. Reynolds et al. (2020).

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nationality and the religious affiliation of the parties. With the introduction of Church-based family adjudication, this division has come to influence not only substantive law but also questions of jurisdiction, yet the practical impact of this recent change in family adjudication remained limited. At the same time, multiculturalism has not been fully embraced by all fragments of the Emirati public. The reluctance to treat a rapidly changing, multinational society as a fact can be witnessed in the debate surrounding interreligious and binational marriages as well as in the country’s private international law regime. Among the main multicultural challenges in family law, one finds (i) the supreme position of the Islamic faith as achieved through constitutional guarantees, which results in non-Muslim mothers being in a weaker legal position as regards the awarding of custody following a divorce, (ii) a general skepticism towards binational marriages, and (iii) competing conflict-of-law rules, which draw on both religious affiliation and citizenship and which do not always interact smoothly. Finally, although recent legislative amendments aim at granting greater leeway to foreigners and non-Muslims in having their own laws applied in matters of personal status, the trajectory of these initiatives initially stuck to the established religious legal pluralism historically prevalent in the country. Thus, while the Emirati lawmaker recognizes the opposition of many (non-Muslim) foreigners to being governed by Islamically inspired domestic family and succession law, the solution—in the emirate of Abu Dhabi, for example—was seen in the recognition of multiple religious jurisdictions. This decision, however, did not correspond with the actual regulatory needs and judicial demands of foreigners residing in the United Arab Emirates. Instead, by resorting to a parallel legal system intended to work to their benefit, many couples risked not having these decisions recognized in their home country. Therefore, a more viable approach is to draw upon the conflict-of-law rules as contained in the country’s Civil Code and to ensure that, in matters of personal status too, foreign family and succession laws are applied more regularly and without generating a significant increase in procedural costs.

References Abdelkarim A (1999) Oil, population and social development in the Gulf: some major trends and indicators. In: Abdelkarim A (ed) Change and development in the Gulf. Macmillan, Basingstoke, pp 25–48 Al Khoori A, Dajani H (2015) Non-Emirati mothers should not be granted child custody to ‘protect national identity’. The National of 2 June 2015. www.thenational.ae/uae/non-emirati-mothersshould-not-be-granted-child-custody-to-protect-national-identity. Accessed 26 Apr 2021 Al Nowais S (2015) Expat mothers express outrage at FNC member’s custody call. The National of 3 June 2015. www.thenational.ae/uae/expat-mothers-express-outrage-at-fnc-members-custodycall. Accessed 26 Apr 2021 Al Nowais S (2017a) Non-Muslim couples to be able to marry and divorce through churches in UAE. The National of 1 July 2017. www.thenational.ae/uae/courts/non-muslim-couples-to-beable-to-marry-and-divorce-through-churches-in-uae-1.66921. Accessed 26 Apr 2021

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Al Nowais S (2017b) New Abu Dhabi divorce and mediation system could mean an end to hefty legal fees. The National of 4 July 2017. www.thenational.ae/new-abu-dhabi-divorce-andmediation-system-could-mean-an-end-to-hefty-legal-fees-1.91842. Accessed 26 Apr 2021 Al Shamsi F (2015) Custody of children can’t be dictated by nationality. The National of 11 June 2015. www.thenational.ae/opinion/custody-of-children-cant-be-dictated-by-nationality. Accessed 26 Apr 2021 Al Tamimi E (2003) Practical guide to litigation and arbitration in the United Arab Emirates. Kluwer Law International, The Hague Al-Muhairi BSBA (1996) The development of the UAE legal system and unification with the judicial system. Arab Law Quart 11(2):116–160 Baharna HM (1998) British extra-territorial jurisdiction in the Gulf 1913–1971: an analysis of the system of British courts in the territories of the British protected states of the Gulf during the pre-independence era. Archive Editions, Slough Brown NJ (1997) The rule of law in the Arab world: courts in Egypt and the Gulf. Cambridge University Press, Cambridge Bureau of Democracy, Human Rights and Labor (United States Department of State) (2011) International Religious Freedom Report for 2011. www.state.gov/documents/organization/ 193123.pdf. Accessed 26 Apr 2021 Commins D (2012) The Gulf states: a modern history. I.B. Tauris, London Davidson CM (2005) The United Arab Emirates: a study in survival. Lynne Rienner Publishers, Boulder Davidson CM (2007) Arab nationalism and British opposition in Dubai, 1920–66. Middle East Stud 43(6):879–892 Elhawary AM (2013) Regulation of conflict of laws in the United Arab Emirates. Arab Law Quart 27(1):1–27 Hamade D (2011) As expatriates opt for Sharia, family law is under review. The National of 11 December 2011. www.thenational.ae/as-expatriates-opt-for-sharia-family-law-is-underreview-1.473678. Accessed 26 Apr 2021 Hamzeh NA (1994) Qatar: the duality of the legal system. Middle East Stud 30(1):79–90 Heard-Bey F (1982) From trucial states to United Arab Emirates: a society in transition. Longman, London Heard-Bey F (2005) The United Arab Emirates: statehood and nation-building in a traditional society. Middle East J 59(3):357–375 Ibrahim AF (2015) The best interests of the child in pre-modern Islamic juristic discourse and practice. Am J Comp Law 63(4):859–891 Linant de Bellefonds Y (2012) Kafāˡa. In: Bearman P, Bianquis T, Bosworth CE, van Donzel E, Heinrichs WP (eds) Encyclopedia of Islam, 2nd edn. https://doi.org/10.1163/1573-3912_islam_ SIM_3772. Accessed 26 Apr 2021 Malit Jr FT, Al Youha A (2013) Labor migration in the United Arab Emirates: challenges and responses. Migration Policy Institute of 18 September 2013. www.migrationpolicy.org/article/ labor-migration-united-arab-emirates-challenges-and-responses. Accessed 26 April 2021 Meyer-Reumann & Partners (2017) United Arab Emirates: New Legislation In Abu Dhabi for Divorce, Marriage and Inheritance Matters. Mondaq.com of 1 August 2017. www.mondaq. com/article.asp?articleid¼615868&email_access¼on&chk¼1762288&q¼1146420. Accessed 26 Apr 2021 Möller L-M (2015) Die Golfstaaten auf dem Weg zu einem modernen Recht für die Familie? Mohr Siebeck, Tübingen Möller L-M (2016) Struggling for a modern family law: a Khaleeji perspective. In: Yassari N (ed) Changing God’s law: the dynamics of middle eastern family law. Routledge, London, pp 83–112 Motei & Associates (2017) Establishment of a Personal Status and Inheritance court for non-Muslims In Abu Dhabi. https://www.motei.com/news/establishment-personal-statusinheritance-court-non-muslims-abu-dhabi/. Accessed 26 Apr 2021

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Onley J (2009) Britain and the Gulf Shaikhdoms, 1820–1971: The politics of protection. CIRS Occasional Paper No. 4, Georgetown University School of Foreign Affairs, Doha Reynolds R, Jarallah J, Al Nowais, S (2020) UAE sets out legal overhaul of personal and family law. The National of 7 November 2020. www.thenationalnews.com/uae/government/uae-setsout-legal-overhaul-of-personal-and-family-law-1.1107152. Accessed 26 Apr 2021 Samin N (2012) Kafāˡa fī l-Nasab in Saudi Arabia: Islamic law, tribal custom, and social change. J Arabian Stud 2(2):109–126 STA Law Firm (2017) United Arab Emirates: Dubai Issues Law Number 15 Of 2017 Concerning Inheritance, Wills, and Probate For Non-Muslims. Mondaq.com of 16 November 2017. www. mondaq.com/x/647100/wills+intestacy+estate+planning/Dubai+Issues+Law+Number+15+Of +2017+Concerning+Inheritance+Wills+And+Probate+For+NonMuslims. Accessed 26 Apr 2021 The National Editorial (2017) Abu Dhabi’s wills registry for non-Muslim expats will strengthen legal system. The National of 24 May 2017. www.thenational.ae/opinion/abu-dhabi-s-willsregistry-for-non-muslim-expats-will-strengthen-legal-system-1.611214. Accessed 26 Apr 2021 Tribe A (2017) United Arab Emirates: British Expats In Abu Dhabi to Divorce Through the Church. Mondaq.com of 26 September 2017. www.mondaq.com/article.asp?articleid¼631928&email_ access¼on&chk¼1778348&q¼1146420. Accessed 26 Apr 2021 Za’za’ B (2016) Court lets woman marry man of her choice. Gulf News of 6 December 2016. http:// gulfnews.com/news/uae/courts/court-lets-woman-marry-man-of-her-choice-1.1940908. Accessed 26 Apr 2021 Ziadeh FJ (1957) Equality (Kafāˡah) in the Muslim law of marriage. Am J Comp Law 6(4):503–517 Zomeno A (2001) Kafāˡa in the Mālikī school: a fatwā from fifteenth-century fez. In: Gleave R (ed) Islamic law: theory and practice. I.B. Tauris, London, pp 87–106

Lena-Maria Möller is Acting Professor of Islamic Law at the Institute of Oriental Studies, University of Leipzig and an affiliated research fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg. Holding an M.A. in Middle East Studies and a Ph.D. in Law (both from the University of Hamburg), her research and teaching interests concern contemporary Middle Eastern and Islamic law, with a particular focus on Muslim family law and the GCC states, as well as comparative and private international law, and, most recently, law and popular culture in the Middle East. Lena-Maria Möller is a member and former Co-President of the ArabGerman Young Academy of Sciences and Humanities and serves as Associate Editor of the Arab Law Quarterly.

Bottom-Up Action and Hesitant Steps Towards Accommodating Multicultural Claims in Japanese Family Law Maia Roots

Abstract This paper explores how the Japanese state and the courts have responded to multicultural challenges in family law, looking in particular at non-marital (heterosexual) unions, same-sex unions, transgender persons and marriage, families built around LGBT couples, the alleged medical neglect of children as a result of the religious beliefs of the parents, and the challenges faced by children of multinational families. I conclude that the state has not in general been responsive to multicultural claims, often justifying its unresponsiveness by referring to the need to protect the “traditional Japanese family”, which it construes as a formally married heterosexual couple and their (marital) children.

1 Introduction:1 The Changing Family and the Stance Towards Diversity in Family Law in Japan In Japan, family realities have changed considerably in the past decades. A small but increasing number of couples are choosing to live together and at times raise children without entering into a formal marriage, though compared to many Western nations The original national report that was submitted for the XXth International Congress of Comparative Law (Fukuoka, 22–28 July 2018) was published under the title “Multicultural Challenges in Japanese Family Law” in ICCLP Publications No. 14 (2019) – Japanese Reports for the XXth International Congress of Comparative Law (Fukuoka, 22–28 July 2018), pp 76–92. This work was supported by JSPS KAKENHI Grant Number 16H01985. 1

For those who are not familiar with the Japanese political and legal system, the following summary sets out some very basic characteristics which are relevant to the topic of multicultural challenges in Japanese family law: Japan is a parliamentary constitutional monarchy. Japanese law is part of the civil law tradition. The basic provisions concerning family law can be found in the Civil Code (if not indicated otherwise, the individual articles referred to in this report are articles of the Civil Code). Japan is a unitary state, where local authorities may enact their own

M. Roots (*) Tohoku University, Graduate School of Law, Sendai, Japan e-mail: [email protected] © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_6

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the percentage of non-marital children is still very low at just over two per cent of all births. As a result of globalization, there are a fair number of Japanese who marry and/or have children with non-Japanese citizens. Furthermore, slowly but surely, awareness concerning sexual minorities, same-sex couples, and families built around same-sex couples is increasing. As a result of these changes, perceptions of family are changing as well. However, despite these changes and despite calls from legal scholars and various interest groups for reform in the face of diversification and changing values, family law has been particularly resistant to change. Japanese statutory law does not stipulate a system of civil partnership or any kind of official registration of de facto unions. Furthermore, Japanese law continues to differentiate between marital and non-marital children, despite criticism that such a differentiation is discriminatory and therefore unconstitutional. Marriage between persons of the same sex is not recognized, although recently there have been some developments on the local government level. The Japanese state has been slow to respond to changing realities and new demands in family law. While the courts, most notably the Supreme Court, have acknowledged the diversification of family forms and brought about change in some areas, the legislature has frequently justified its apparent reluctance to respond by reiterating, among other things, the need to protect formal marriage. This paper explores how the Japanese state and the courts have responded (or not responded) to multicultural challenges in family law, first, as regards two-person relationships and, second, as regards parent-child relationships, looking in particular at non-marital (heterosexual) unions, same-sex unions, transgender persons and marriage, families built around LGBT couples, the alleged medical neglect of children as a result of the religious beliefs of the parents, and multi-national families. I have endeavoured to introduce typical cases where possible.

2 Management of Diversity 2.1 2.1.1

Two-Person Relationships Non-Marital Relationships: De Facto (Heterosexual) Unions

Japanese family law does not stipulate a system of civil partnership or any kind of official registration of de facto unions (i.e. couples who have not submitted a formal notification of marriage), this despite the fact that an increasing number of persons choose cohabitation without marriage, sometimes because they wish to opt out of

regulations within the scope of the law on certain matters (the Constitution Art. 94, Local Autonomy Act Art. 14 I). Religious law does not form part of Japanese law.

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some of the legal consequences of a formal marriage, for example the much-debated requirement that spouses share a surname (Art. 750).2 While there are no stipulations concerning de facto unions in the Civil Code, de facto heterosexual unions have a long history of enjoying considerable legal protection through case law and social security laws. In family law, de facto partners are, through application by analogy of provisions concerning formal marriage, understood to have, among others, the mutual obligation to cooperate and provide mutual assistance, the obligation to share living expenses, and the status of being jointly and severally liable for debts incurred for household necessities (Arts. 752, 760, 761, respectively, applied by analogy). Case law has also established that de facto partners have a right to make a claim for the distribution of property (Art. 768, applied by analogy) when the de facto union is dissolved.3 However, the Supreme Court has stated that the provision concerning distribution of property cannot be applied by analogy in cases where the de facto union has been dissolved due to the death of one of the partners.4 When assigning the above-mentioned protection to de facto unions, courts and scholars have reasoned that certain more stable de facto unions should be seen as “quasi-marriages” (a marriage being deemed worthy of legal protection), and the professed aim has been to protect the economic interests of the de facto partners, particularly the weaker party (usually the woman), especially when a de facto union is dissolved.5 In light of this reasoning, some scholars have criticized the above-mentioned Supreme Court judgment concerning the distribution of property where a de facto union has been dissolved due to the death of one partner. Critics argue that applying the provisions concerning the distribution of property by analogy in cases where the de facto union is broken up while both partners are still living, but denying such application in cases where the de facto union was dissolved as a result of the death of a party, is unjust from the point of view of protection of the remaining partner when one considers that, unlike a spouse in a formal marriage, a party to a de facto union does not have inheritance rights.6

2

The Supreme Court upheld the constitutionality of this requirement in its judgment of 16 December 2015 (Minshu 69-8-2586) and again in its judgment of 23 June 2021 (Saibansho Jihou 1770-3). 3 For example, adjudication of the Tokyo Family Court of 25 July 1956 (Kasai Geppou 9-10-39). 4 Judgment of 10 March 2000 (Minshu 54-3-1040). 5 Ninomiya (1998), p. 378ff; Ninomiya (2013), p. 148ff. 6 See, for example, Ninomiya (2013), p. 151.

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Same-Sex Marriages and Same-Sex Partnerships

No Protection as De Facto Unions? Same-sex marriage is not legally recognized in Japan. As explained in the previous section, parties to de facto heterosexual unions enjoy a certain level of legal protection, for example through the application by analogy of provisions concerning formal marriages. It is sometimes argued in literature that same-sex unions could be viewed as de facto unions and therefore should enjoy the same legal protection as heterosexual de facto unions.7 However, the courts have so far not addressed this question, and it is therefore unclear whether claims for distribution of property and the like from a same-sex partner—arguing that the couple was in a de facto union— would be accepted by the courts.8

Same-Sex Marriage and Art. 24 I of the Constitution The official stance at the moment concerning the legality of same-sex marriage in Japan is that statutory law in its present form does not allow for a marriage between two persons of the same sex. The main basis for this argument appears to be Art. 24 I of the Constitution, which states that “marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the 7

Ninomiya (1990), p. 345; Ninomiya (2017), p. 21ff. Tokyo Bar Association’s Committee Concerning Sexual Equality, Sexual Minority Project Team (2016), p. 133; Yamashita et al. (2015). When this paper was submitted for publication, the following case was being argued in Nagoya District Court: After the plaintiff’s same-sex partner was killed, he applied for surviving family benefits as stipulated in the Crime Victims Benefit Payment Act. Art. 5 I of the Act stipulates that a spouse, including a de facto partner, can receive the benefits. However, the plaintiff’s application for the payment of the benefits was rejected by the relevant authorities based on the fact that the plaintiff and his late partner were both male and their union therefore did not constitute a de facto union in the sense of the Act. The plaintiff disputed this interpretation in the District Court (reported by Nomura 2018). Nagoya District Court has since handed down its judgment in the case (accessible at https://www.courts.go.jp/app/files/hanrei_jp/ 615/089615_hanrei.pdf. Accessed 4 May 2021), dismissing the plaintiffs claims, and stating that in order for a same-sex union to be considered as a de facto union for the purposes of the Act, “the idea that cohabitation between two persons of the same sex could be viewed as equivalent to marriage should have become socially acceptable”. However, the court found that although understanding and acceptance of same-sex couples had progressed considerably in Japanese society in recent years, it could not yet be said to have reached the necessary level to recognize such unions as de facto unions for the purposes of the Act. On the other hand, Tokyo High Court ordered a former same-sex partner (the appellant to the High Court) to pay damages to her former partner in a case where the appellant had had sexual relations with a third party during her relationship with the respondent, and the relationship between the respondent and the appellant broke down as a result. Tokyo High Court found that, considering the facts of the case, and for the purposes of civil tort law, the union of the appellant and the respondent should be considered as equivalent to marriage (judgment of Tokyo High Court of 4 March 2020 (accessible at https://www.courts.go.jp/app/files/ hanrei_jp/563/089563_hanrei.pdf. Accessed 4 May 2021)). It was later reported in the media that the Supreme Court rejected an appeal from the appellant to the High Court and the judgment of the High Court became final and binding (Yamada 2021). 8

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equal rights of husband and wife as a basis”. Based on the wording of Art 24 I, some politicians and scholars argue that Art. 24 I excludes (or, alternatively, does not foresee) same-sex marriage by specifically referring to “both sexes” as parties to a marriage.9 However, some lawyers and academics argue that a different reading of this article is possible and that the wording of Art. 24 I does not in fact exclude parties of the same sex. These practitioners and scholars refer, among other things, to the original intent of the legislature, which was to ensure, through the introduction of Art. 24 I, that the parties getting married (especially the woman) would have a say in the choice of spouse (this was against a historical backdrop of the male head of the household having decided when and whom the other members of the family were to marry).10 There is increasing support for the recognition of formal marriage between persons of the same sex among both legal practitioners and scholars, who point out that notions of family and marriage are changing and that, among other things, procreation is no longer the main aim of marriage.11

Human Rights Relief Petition to JFBA and Lawsuits In 2015, 456 individuals submitted a petition for human rights relief to the Japan Federation of Bar Associations (JFBA) arguing that denying the right to marriage to same-sex couples violates Art. 13 and Art. 14 I of the Constitution (respect for the individual and equality under the law, respectively) and requesting JFBA to issue a recommendation to the state to draft and pass legislation that would officially recognize same-sex marriage.12 9 Miyazawa (1974), p. 430. In 2015, the then Prime Minister Shinzo Abe expressed the view that the Constitution does not foresee the recognition of same-sex marriage. He stated that “whether the Constitution should be amended in order to allow for same-sex marriage is a question that is concerned with the very core of the meaning of ‘family’ in this country, and therefore requires extremely careful deliberation”, implying that a Constitutional reform would be necessary in order to legally recognize same-sex marriage (reported by Nikaidou 2015). 10 Tsujimura (2016), p. 128ff; Miwa (2017), p. 39ff. 11 See for example Tanamura (2016), p. 4ff. 12 Yamashita et al. (2015). Although the number of petitioners might at first glance be considered low by some observers, in the author’s view it represents a rather large number. For one thing, for sexual minorities in Japan, coming out to family, friends, and co-workers is frequently not a realistic option due to stigma and prejudices still existing in society. This is illustrated, for example, by various testimonies by LGBT persons in Japan, as reported by Amnesty International (2017). A recent survey by Dentsu, a Japanese advertising and public relations company, showed that slightly more than half of the LGBT respondents felt reluctant to “come out” to their colleagues (Dentsu 2019), which could be further proof of perceived intolerance. In this climate, one can assume that many might also hesitate to speak up publicly by signing the petition. It should also be noted that JFBA rules for submitting a petition for human rights relief do not specify a minimum number of petitioners, and indeed some past petitions, where the JFBA has taken measures against an entity, have had as few as one petitioner (for past cases, see JFBA n.d.-a).

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The petition outlines the various disadvantages, many of them relevant to family law, faced by persons who cannot legally marry their same-sex partner. These include the impossibility of sharing parental authority of children who are being raised by a same-sex couple, financial and other difficulties faced when a same-sex relationship is terminated, issues relating to inheritance, and so forth. Some of these will be discussed further below. Upon receiving a human rights relief petition, the JFBA investigates the facts, and if a human rights violation is confirmed, it will issue a warning, recommendation or request to the infringing entity, seeking the elimination of the infringement. As to the effect of such warnings etc, the JFBA states that they are not legally binding but that they do have strong social influence because they are the result of strict and fair procedures conducted by a legal professional organization that, through many years and cases, has established its trustworthiness with the general public.13

In July 2019, after 4 years of investigations and deliberation on the human rights petition concerning same-sex marriage, the JFBA issued an opinion to the Prime Minister, the Minister of Justice, the Speaker of the House of Representatives and the President of the House of Councillors stating that the non-recognition of marriage between two persons of the same sex is in violation of the right to marry as well as the principle of equality under the law guaranteed by the Constitution and that it constitutes a grave human rights violation. Consequently, the JFBA called for the state to recognize same-sex marriage and to promptly amend related legislation.14 While the JFBA was still deliberating the aforementioned petition, the group of lawyers who submitted it in the name of the petitioners embarked upon four simultaneous lawsuits concerning same-sex marriage. Whereas transgender persons in Japan have over the years repeatedly turned to the courts in order to argue and assert their rights, until 2019 claims concerning same-sex marriage (or partnership) had never been brought to Japanese courts. In February 2019, several same-sex couples filed claims with the district courts in Tokyo, Osaka, Sapporo, and Nagoya for damages against the Japanese state for the mental anguish suffered as a result of the state’s failure to legislate for same-sex marriage, and argued that non-recognition of same-sex marriage was in breach of Art.-s 13, 14 and 24 of the Constitution. Later the same year, a similar lawsuit was also filed in Fukuoka. Sapporo District Court was the first (and as of April 2021, the only) court to hand down a judgment. In its judgment of 17 March 2021,15 Sapporo High Court found that articles of the Civil Code and the Family Registry Act pertaining to marriage were in breach of Art. 14 I of the Constitution (equality under the law, non-discrimination), as they allowed only heterosexual couples to 13

For details of the procedure and its effects, see JFBA (n.d.-b). The opinion can be viewed on the website of the JFBA at https://www.nichibenren.or.jp/library/ ja/opinion/report/data/2019/opinion_190718_2.pdf. Accessed 4 May 2021. 15 Accessible at https://www.courts.go.jp/app/files/hanrei_jp/200/090200_hanrei.pdf. Accessed 4 May 2021. 14

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enter into a formal marriage and consequently to acquire the various rights and obligations arising from marriage, whereas not even a fraction of such rights and obligations were recognised in case of same-sex couples. The Court found that there was no rational basis for such differential treatment, and stated that although the legislator had wide discretion when it came to amending and creating legislation concerning family and marriage, not providing any legal protection for same-sex unions exceeded the scope of such discretion.16 The court found no breach of Art.-s 24 and 13 of the Constitution.

Recognition of Same-Sex Partnerships by Local Governments In 2015, Tokyo’s Shibuya ward became the first municipality in Japan to issue partnership certification to same-sex couples. Since then, over a hundred further local governments (as of March 2021) have introduced similar schemes.17 The specifics of how the partnership certification works and to what extent it is legally binding vary among the different municipalities. It seems that Shibuya ward is the only municipality so far that issues the certificates based on an ordinance (“Ordinance Promoting Gender Equality etc and Respect for Diversity in Shibuya Ward”, hereafter “the Shibuya Ordinance” or “the Ordinance”).18 In the case of the other municipalities, the certificates are issued on the basis of guidelines. Shibuya ward also requires the submission of a (notarized) voluntary guardianship contract and a cohabitation contract (Art. 10 II of the Shibuya Ordinance). This is expected to give greater credibility to the certificate and the system as a whole, but it might pose a significant financial hurdle to couples who wish to have a certificate issued to them, as the preparation of the required documentation alone will cost a minimum of 80,000 yen (approx. 680 EUR).19 Other municipalities as a rule do not require the submission of such documentation. The legal (and other) effects of the partnership certificates issued by local governments are close to non-existent. In the case of Shibuya ward, where, as noted above, the certificates are issued based on an ordinance, the Ordinance stipulates that private persons and private and public entities in the ward should act with respect, consideration, and fairness in relation to partnership certificates (Art. 11 of the Shibuya Ordinance). The Shibuya Ordinance also stipulates that if a business, public entity, etc. has acted in violation of the Ordinance, the ward will 16

Sapporo High Court stated, however, that it could not be expected that at the time when the lawsuit was lodged, the legislator was aware of the fact that the pertinent articles of the Civil Code and the Family Registry Act were in breach of Art. 14 I of the Constitution, and consequently rejected the plaintiffs’ application for damages based on the State Redress Act (Act No. 125 of Oct. 27, 1947). The plaintiffs have lodged an appeal. 17 Shibuya Ward and Nijiiro Diversity (2021). 18 The Shibuya Ordinance can be viewed at https://www.city.shibuya.tokyo.jp/kusei/shisaku/ jourei/lgbt.html. Accessed 4 May 2021. 19 Esmeralda and KIRA (2015), p. 114.

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provide guidance to the violating entity and, if the violation persists, might make public the details of the violator (Art. 15 of same). Other municipalities have specifically stated that the certificates they issue are in no way legally binding. Some of the expected practical effects of the certificates are that same-sex partners will be able to rent real estate in the municipality as a couple or be considered as a family member of their partner in public medical establishments of the respective municipalities. In some municipalities, registered same-sex couples can also apply for public housing.20

Reaction of the LGBT Community to the Initiative Taken by the Local Governments Setagaya ward in Tokyo, which started issuing certificates to same-sex couples in 2015, conducted a survey in 2016 among the persons who had been issued a certificate thus far.21 The responses to the survey show that the introduction of a system to issue partnership certificates is seen by the LGBT community as a symbolic first step towards official recognition of the existence of same-sex couples and towards wider awareness of their needs, including family-law-related needs, rather than as a means of acquiring legal rights and obligations. While recognizing the effectiveness of issuing certificates in this regard, many call for a system that is legally binding or, as an ultimate goal, for recognizing same-sex marriages as equal to heterosexual marriages.

Independent Steps by Japanese Private Corporations to Give Recognition to Same-Sex Partnerships A number of Japanese corporations have started to provide employees who are in a same-sex partnership with the same family benefits as those who are in heterosexual marriages.22 Some companies also consider a same-sex partner to be a “spouse” when providing their services. An early example is NTT Docomo, Inc., a cell-phone service provider, which, in 2015, expanded their family discount to same-sex couples who have registered their partnership at a local municipality that provides for such registration.23

20

Oshima (2017), p. 47ff. A summary of the results can be found on the homepage of Setagaya Ward (Setagayaku patonashippu sensei no torikumi ni kansuru ankeeto chousa kekka (2016). http://www.city. setagaya.lg.jp/kurashi/101/167/1871/d00150344.html. Accessed 4 May 2021). 22 As reported by Kikuchi (2017). 23 See their press release at https://www.nttdocomo.co.jp/info/notice/page/151023_02_m.html. Accessed 4 May 2021. Another example is Mizuho FG, which changed their rules for providing joint mortgages to spouses to include a same-sex partner as a “spouse” Yokoyama (2017), p. 7. 21

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These initiatives by local governments and private corporations probably reflect the changing attitudes of the Japanese public towards the LGBT community and the fact that the stigma attached to same-sex couples is weakening. According to the survey by Dentsu mentioned earlier, more than 78% of the respondents were positively minded towards legally recognizing same-sex marriage.24 An earlier survey conducted by Kamano et al. in 2015 showed a much lower percentage— only 51.2% of the respondents were positively minded towards same-sex marriage. Those respondents who were against the legal recognition of same-sex marriage gave as reasons, among others, that (1) such recognition would be undesirable because same-sex marriages would not lead to the birth of children, (2) it would lead to the loss of “the traditional way of families”, and (3) although same-sex marriage is already recognized in several foreign countries, it would be inappropriate in Japanese society.25 When enquiring about the respondents’ feelings and attitudes towards sexual minorities in general, the survey also found, for example, that one in three respondents admitted that they would feel aversion if they found out that a colleague was LGBT.26

The 2019 Marriage Equality Bill In 2019, a Bill for the Partial Amendment of the Civil Code (Marriage Equality Bill) to allow for same-sex marriage was submitted to the Japanese Diet.27 The Bill stipulates that it should be clearly stated in the Civil Code that persons of the same sex could also enter into a formal marriage. The Bill also stipulates for changing the wording of a number of articles of the Civil Code to allow for same-sex marriages, such as substituting “parties to a marriage” for “husband and wife”, “parents” for “mother and father”, etc. The Bill would also allow for same-sex couples to adopt children under the same conditions as hetero-sexual couples. The Bill has, however, not been deliberated as yet.

Transgender Persons and Marriage Although Japan has been reluctant to introduce legislation or amend existing laws to guarantee equal rights to sexual minorities and to prohibit discrimination, there have been more noticeable developments in legislation and case law concerning transgender persons. In 2003, the Act on Special Cases in Handling Gender for People with Gender Identity Disorder (hereafter “the GID Act”) was passed. The Act allows

24

Dentsu (2019). Kamano et al. (2016), p. 152ff. 26 Kamano et al. (2016), p. 114. 27 The Bill can be viewed at https://www.shugiin.go.jp/internet/itdb_gian.nsf/html/gian/honbun/ youkou/g19805015.htm. Accessed 4 May 2021. 25

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a transgender person to legally change their gender in the family registry when the conditions listed in Art. 3 I (1)-(5) of the Act (see below) are met. Although the GID Act had a profound effect on raising awareness about and recognizing the rights of transgender persons, it has consequently received criticism both from inside Japan as well as from international human rights organizations, as critics argue that the conditions for a gender change, such as undergoing surgery and sterilization (Art. 3 I (5) and (4)), being unmarried (Art. 3 I (2)), having no minor children (Art. 3 I (3)), and being above the age of 20 (Art. 3 I (1)), violate the basic human rights of transgender persons who might wish to legally change their gender.28 In early 2019 the Japanese Supreme Court upheld the Constitutionality of Art. 3 I (4) of the Act (sterilization as condition for officially recognized gender change), arguing that a trans man becoming pregnant would cause confusion in society in general, and when determining legal parent-child relationships in particular, and that there was “a need to avoid abrupt changes in a society where the distinction of men and women has long been based on biological gender”.29 Concerning transgender persons and marriage after they have undergone legal change of gender, Art. 4 I of the GID Act states that persons who have legally changed their gender “are regarded as having changed to an alternative gender in the application of the Civil Code and all other laws and regulations, except when specifically provided otherwise in the laws”. Therefore, a person who was assigned as male at birth and identifies as female (and who has legally changed their gender to female) can legally marry a man, and the other way around. On the other hand, as mentioned above, a transgender person seeking to legally change their gender must be single at the time (Art. 3 I (2)). The reasoning behind introducing this condition was to avoid a situation where two persons of the same gender were married to each other, in consideration of the fact that Japanese law at present does not allow for marriage between persons of the same sex.30 This requirement has been criticized as violating the freedom of marriage of both the transgender person and their spouse prior to the legal gender change, as it in effect forces a person who is already married but who wishes to change their gender legally to divorce their spouse even if neither of the spouses wish to divorce.31 Nevertheless, in 2020, the Supreme Court upheld the constitutionality of Art. 3 I (2) of the GID Act.32

28

Taniguchi (2013), Amnesty International (2017), p. 5ff; Ishijima (2017). Judgment of the Supreme Court of 23 January 2019 (Hanrei Taimuzu No. 1463, p 74). For a critical assessment of this judgment, see for example Watanabe (2019), pp. 3–4. For criticism of the sterilization requirement in Japan from an international human rights perspective, see Human Rights Watch (2019). 30 Noono (2004), p. 89. 31 Taniguchi (2013), p. 111ff; Watanabe (2017), p. 201. 32 Judgment of the Supreme Court of 11 March 2020 (the text of the judgment is available on the website of the Supreme Court (www.courts.go.jp). 29

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The Adoption of One’s Same-Sex Partner In order to attain some of the rights and duties enjoyed by heterosexual spouses, same-sex couples in Japan have tried to make due with alternative means available under substantive law. As an “alternative” to marriage, some same-sex couples opt for adoption by one partner of the other partner. Japanese law allows for the adoption of an adult. In case of adoption of an adult, involvement by a court is not required, and it is sufficient if the parties agree to the adoption and a notification is submitted to the municipal office (Art. 799, Art. 739). The conditions for this type of adoption are very relaxed. The person adopting must be older than the person being adopted (Art. 793); however, a difference of one day in age is sufficient. As a result of the adoption, the parties will, as a parent and child in the legal sense, have a mutual obligation to support each other. However, adoption of a same-sex partner will not guarantee the inheritance rights that a formal marriage would. For instance, the partner who was the adoptive parent will become an heir only if the deceased partner had no legal spouse or children (Art. 887, Art. 889), whereas a legal spouse is always an heir (Art. 890). There is also a possibility that, for instance, a relative with an inheritance interest might claim that the adoption is void due to a lack of intent to adopt and be adopted (Art. 802 I). Different interpretations exist concerning what constitutes an “intent to adopt and be adopted”.33 Due to a lack of case law specifically concerning adoption of a same-sex partner, it is not clear whether the courts would consider the adoption of a same-sex partner void. The Supreme Court has stated that the existence of past or “incidental” sexual relations between the adopting person and the adoptee do not automatically make an adoption void.34

2.2 2.2.1

Parents and Children Same-Sex Couples and Their Children

Same-Sex Couples and Parental Authority The Japanese Civil Code stipulates that (only) parents who are formally married to each other exercise parental authority jointly (Art. 818 III). It is also not possible for a same-sex couple to acquire joint parental authority through adoption. This is true both in cases where a same-sex couple wishes to adopt a child that is not a (biological) child of either of the partners and in cases where a same-sex partner wishes to adopt the child of their partner. A child can only be adopted by a (legally)

33 34

For a concise summary see Maeda (2015), p. 166. Judgment of the Supreme Court of 22 October 1971 (Minshu 25-7-985).

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married couple or a single person (Art. 795; in the case of special adoption (a type of closed adoption), only by a married couple (Art. 817-3)).35

Care of the Child After the Death of the Partner with Sole Parental Custody When a person exercising sole parental authority of a minor passes away, guardianship of a minor commences (Art. 838 I). The partner who exercises sole parental authority in relation to the child can appoint their same-sex partner as guardian of the minor in their will (Art. 839 I). If no such appointment has been made, the Family Court may appoint a guardian on the application of the minor or his/her relative or another interested person (Art. 840 I). The above-mentioned persons can name the same-sex partner as candidate for guardianship of a minor. However, the Family Court may appoint a different person than the one submitted as candidate.36

Same-Sex Couples as Foster Parents The basic provisions concerning foster care are found in the Child Welfare Act (Act No. 164 of December 12, 1947). This Act and other national legislation, together with the Foster Parenting Guidelines compiled by the Ministry of Health, Labour and Welfare, provide the basic requirements and standards for persons wishing to become parents (these differ somewhat depending on the type of foster parent). The materials do not contain an (explicit) prohibition against approving an LGBT person or same-sex couple as foster parent(s).37 Setting more specific rules concerning the conditions for approving foster parents falls under the jurisdiction of local governments. According to a 2017 survey conducted by the daily newspaper Mainichi Shinbun, most local governments lacked prohibitive provisions.38 The only local government that was found to exclude samesex couples as foster parents—that of Tokyo metropolitan area—has since revised its criteria.39 Although there is no legal prohibition against same-sex couples becoming foster parents, it is thought that same-sex couples have been hesitant to apply to be foster parents, as many assume that there would be legal obstacles. The media and LGBT support organizations also report that there have been cases where same-sex couples 35

The special provisions concerning the adoption of a stepchild (proviso to Art. 795, Art. 817-3 II) also do not apply. 36 It should also be noted that in cases where the partner who has sole parental authority was previously formally married, the former spouse may apply to the family court for a change in the allocation of parental authority (819 VI, applied by analogy in cases where the spouse who exercised sole parental authority after the divorce has passed away). 37 Though, for example, foster parents intending to adopt are expected to be married couples. 38 Reported by Kuroda and Fujisawa (2017), p. 27. 39 Reported by Fujisawa (2018), p. 27.

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have been misinformed by local authorities or have met with discriminatory attitudes when inquiring about becoming foster parents.40 Public interest groups and LGBT support organizations have contributed greatly to raising awareness concerning same-sex partners as potential foster parents, both among public servants and the LGBT community.41 As a result of such activities, in December 2016, Osaka city was the first municipality in Japan to approve and register a gay couple as foster parents.42 The couple was later entrusted with the care of a foster child. After this was reported in national media, the (then) Minister of Health, Labour and Welfare, Yasuhisa Shiozaki, stated at a press conference in April 2017: Regardless of whether [the foster parents are] a heterosexual or a homosexual couple, the important thing is that the foster parents provide an affectionate, healthy and financially stable home for the child . . ., and as long as this is achieved, we are grateful, and it does not matter whether the foster parents be a heterosexual couple or a homosexual couple.43

2.2.2

Transgender Persons, Artificial Reproductive Technology, and Legal Parenthood

Since the GID Act came into force in 2004, transgender persons who have legally changed their gender are regarded as having changed to an alternative gender in application of the Civil Code (Art. 4 I of the GID Act). Whether this also applies in terms of the rules set down by the Civil Code concerning the parent-child relationship was relatively recently contested in the courts. It is reported that since 2004 there have been a number of cases where a person who was assigned as female at birth and who identifies as male, and who had legally changed their sex to male, had subsequently married and their wife had later given birth to a child through AID (artificial insemination by donor); however, in these case the local authorities had refused to register the husband as the father of the child in the family registry.44 Learning of this practice by local authorities, the Japan Society of Obstetrics and Gynaecology (JSOG) requested clarification from the Ministry of Justice, and in 2011 the Ministry issued a reply stating that the presumption in Art. 722 I (a child conceived by a wife during marriage is presumed to be a child of her husband) did not apply in cases where the husband was a transgender person who had changed their gender legally.45 40

As reported, for example, by Hokkaido Shinbun (2017). See also Rainbow Foster Care (2016). Most notably Rainbow Foster Care (https://rainbowfostercare.jimdofree.com/. Accessed 4 May 2021). 42 As reported by Asahi Shinbun (2017), p. 1. 43 The text of the press conference can be viewed at http://www.mhlw.go.jp/stf/kaiken/daijin/ 0000161271.html (accessed 4 May 2021). 44 Nakamura (2011), p. 45. 45 The reply can be viewed at the website of JSOG http://www.jsog.or.jp/news/pdf/announce_ 20110226.pdf (accessed 4 May 2021). 41

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The Supreme Court ultimately decided on one such case on 10 December 2013.46 The plaintiffs argued, referring to Art. 4 I of the GID Act, that the presumption in Art. 722 I also applied in their case. Their claims were rejected by the Family Court and the High Court, which stated that one of the premises underlying the presumption in Art. 772 I was the existence of a blood tie between the husband and the child. The courts argued that since the family registry of a transgender person who has changed their gender legally has a mandatory entry to this effect, it was clear from the family registry that there was no blood relationship between the husband and the child. Therefore, the lower courts argued, the abovementioned premise for the application for Art. 772 I was lacking. The Supreme Court revoked the decision of the High Court and ordered the family registry to include the name of the husband as the name of the father of the child, stating: . . . [E]ven though in a case [where the husband is a transgender person who has legally changed their gender] it cannot be assumed that the child was born as a result of sexual relations between the husband and wife, it would not be appropriate to, on the one hand, recognize that such a person can marry, but, at the same time, not allow the application of the presumption of a child in wedlock of [Art. 772], which is an important effect of marriage, based on the fact that the child could not have been conceived as a result of sexual relations between the husband and wife.

Following the Supreme Court decision, the Ministry of Justice issued a Notice instructing the municipal authorities to accept the birth certificates with the name of the father in cases like the one described above.47 Although the above Supreme Court judgment was hailed on the one hand as pronouncing a just judgment for this individual case, some scholars point out that the judgment is further proof of Japanese courts’ tendency to stress the paramountcy of formal marriage and to necessarily link marriage and reproduction.48

2.2.3

Parental Care and Religious Beliefs

Jehovah’s Witnesses, Blood Transfusions, and Medical Neglect by Parents In a recently published court order (provisional order of 14 April 201549), the Tokyo Family Court suspended the performance of parental authority of the parents of an infant when the parents, who were Jehovah’s Witnesses (hereafter: JW), refused to consent to a potential blood transfusion during a planned medical operation. As this is a recent (published) example of how religious beliefs pose a challenge to family law in Japan, I will introduce the case and the legal issues involved below. 46

Minshu 67-9-1847. Ministry of Justice, Civil Affairs Bureau, Civil Affairs Division 1, Notification No. 77, 27 January 2014. 48 For example Ninomiya (2015), p. 56. 49 Houritsu Jihou No. 2284, p. 109. 47

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Parents’ refusal to provide consent to medical procedures for a minor is handled as an issue of what is termed medical neglect.50 There is not much published case law in Japan concerning medical neglect that is attributable to religious reasons,51 but this case is typical of published cases as it concerns a very young child.

The 2015 Tokyo Family Court Provisional Order As is common in situations where parents refuse to consent to medical procedures, the child guidance centre of the area had been notified of the parents’ refusal by hospital officials. Subsequently, the head of the centre made an application to the Tokyo Family Court for suspension of the parental rights of the parents (Art. 834-2) as well as an application for an interim order of suspension to be applicable until the final ruling on the petition for the suspension of parental authority became effective (Art. 174 of the Domestic Relations Case Procedure Act (hereafter DRCPA)). The hospital had judged that the infant needed to undergo surgery and that there was no alternative treatment. The interim order of the court also stated that if the surgery was undertaken, the infant’s health would return to normal; if, however, it was not undertaken, the minor would soon die. Furthermore, the order stated that the surgery was extremely low risk. The parents had given their consent to the surgery but refused to consent to a possible blood transfusion during the surgery. The court ruled that based on the above facts and circumstances, “in order to secure the minor’s life and [his/her] sound development”, the minor should undergo surgery as soon as possible, and that it was necessary to obtain consent for a blood transfusion beforehand, in order to be prepared for emergencies. Therefore, “even if the refusal of consent is based on religious beliefs”, the “threat to the life of the minor is extremely high, and it is clear that [the parents] are incapable or unfit to exercise parental authority and thereby the interests of the child are harmed”.

Child Abuse and Law Reform The law concerning the restriction of parental authority was amended in 2011, in the face of an increase in reported cases of child abuse and a consequent rise in awareness of the need to amend the existing legal framework. Prior to 2011, the legal means to resort to in child abuse cases (including medical neglect cases) was a

50

Medical neglect is understood to be a type of child abuse as defined in Art. 2 of the Act on the Prevention, etc. of Child Abuse. More specifically, it is understood to fall under Art. 2 III of the Act—“[the custodian] otherwise materially fails to perform the duty of custody as custodian”. 51 The most recent published cases besides the aforementioned Tokyo Family Court case are the provisional order of the Nagoya Family Court of 25 July 2006 (Kasai Geppou 29-4-127) and the provisional order of the Osaka Family Court of 15 February 2005 (Kasai Geppou 59-4-135). Another fairly recent case concerning JW parents, a provisional order by the Saitama Family Court of 16 July 2008, was reported by Itou (2010). See also Itou (2018).

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Family Court adjudication completely stripping the parents of parental authority (Art. 834). In cases where the children needed immediate medical attention, a petition would also be made for a provisional order for the suspension of the exercise of parental authority prior to the above adjudication (at the time, Art. 15 III of the Domestic Relations Trial Act and Art. 74 of the Domestic Relations Trial Rules).52 However, due to the strictness of the conditions set out in Art. 834, and the severity of the legal consequences of an adjudication to strip parents of parental authority (a complete and permanent loss of parental authority), child protection authorities and others often hesitated to employ this legal means in cases of “milder” child abuse. It was pointed out that in cases where it was probable that the child and its parents could be reunited in the future (as is usually the case where the parents withhold consent to a medical procedure based on religious grounds), a temporary suspension of parental rights would often suffice.53 In 2011, a new provision was introduced into the Civil Code allowing for the option of suspending parental authority under less severe conditions than those set out for loss of parental authority (Art. 834-2). It was expected that this new system would make it easier to employ legal means when necessary in medical neglect cases.

What Constitutes Medical Neglect? Common interpretations of medical neglect are a “failure to assure that the child receives necessary medical attention” or “refusal to give consent to medical procedures”.54 However, as in many cases there is often more than one method of treatment available, it is understood that, as a general rule, persons exercising parental authority have the power to decide which treatment to pursue (provided that the effects and levels of risk of each of the methods are comparable), and therefore some argue that the refusal of a parent to follow a doctor’s default recommendation should not automatically be construed as child abuse.55 When judging what qualifies as medical neglect—i.e. in which cases a suspension of parental authority is justified—the basic criterion is the interests of the child concerned. The courts have stated that, as a general premise, the life of the child is of the highest value.56 On a more specific level, the following factors are comprehensively considered in each case: (1) the minor’s diagnosis and current condition; 52

The provisional orders by the Nagoya Family Court (2006) and the Osaka Family Court (2005), mentioned in the previous footnote, were issued in cases from before the 2011 reform. 53 Tobisawa (2011), p. 45. 54 Nagamizu (2012), p. 331. 55 Yoshida (2008), p. 16; Nagamizu (2012), p. 331; see also Itou (2018), p. 144. See also the commentary on the adjudication of the Tokyo Family Court of 14 April 2015, in Hanrei Taimuzu No. 1423, p. 379. 56 See for example the provisional order by the Tsu Family Court of 25 January 2008 (Kasai Geppou 62-8-83).

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(2) the medical procedure suggested by the doctor along with its merits and risks; (3) the risks foreseen if the medical procedure is not undergone; (4) the level of urgency; (5) the reason why the custodian is refusing consent.57 The Tokyo Family Court, in the case introduced above, employed a similar standard.

The Patient’s Right to Self-Determination In a case involving an adult JW patient, the Supreme Court recognized the patient`s right to self-determination in relation to medical treatment, stating: Where a patient has expressed a clear wish to forego any medical treatment involving a blood transfusion on the grounds that such treatment would go against their religious beliefs, the right to make such a decision should be respected as a part of their personality rights.58

It is understood, however, that the above only applies in the case of adult patients concerning their own treatment.59 The 2000 decision of the Supreme Court caused medical associations and individual hospitals to revise their policies concerning the treatment of JW patients. One such example is the Guidelines Concerning Refusal of Blood Transfusion on Religious Grounds, compiled by the Japan Society of Transfusion Medicine and Cell Therapy (hereafter “Guidelines”).60 These Guidelines state that in all cases involving patients over 18 years old, as well as in cases involving patients between the ages of 15–17 who are deemed to have sufficient mental capacity to decide for themselves concerning their medical treatment, their wishes should be respected and blood transfusion refrained from (for patients aged 15–17, only in cases where both the patient as well as both parents refuse a blood transfusion). In all other cases, hospitals are instructed to consider other means of treatment, or a transfer to a different hospital where treatment without a blood transfusion would be possible, and should endeavour to explain the necessity etc. of blood transfusion to the patient and/or their parents, but they are to go ahead with blood transfusions as a last resort if medically necessary (after having obtained a court order). The commentary to the Guidelines, referring to case law, stresses the patients’ right to self-determination on the one hand, but on the other hand it underlines the basic approach of going ahead with blood transfusions when necessary for the preservation of the life of a young child. It is noteworthy that the Guidelines also state that with children who have been born to JW parents and brought up in that faith, a blood transfusion against their will and against the will of their parents might cause the children considerable guilt and self-loathing. Therefore, the Guidelines

57

Yoshida (2008), p. 16; see also Kamitani (2007), p. 61. Judgment of 29 February 2000 (Minshu 54-2-582). 59 Shiomi (2006), p. 97. 60 JSTMCT (2008). 58

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instruct the hospitals to provide specialized counselling and care.61 Some scholars also argue for greater consideration of the wishes and feelings of the minor concerned.62

Religious Freedom of the Parents and the Child Some of the literature refers to the freedom to choose one’s religion and live according to it, but authors generally deem it inappropriate to extend such freedom of the parents so as to allow decisions on the life or death of their child based on the parents’ religious beliefs.63 Academics as well as the courts refer to the UN Convention on the Rights of the Child which, on the one hand, stipulates that states are to respect the rights and duties of the parents to provide direction to the child in the exercise of his or her right to freedom of religion (Art. 14 I, II), but which at the same time stresses that states parties recognize that “every child has an inherent right to life” (Art. 6). Based on this it is argued that “it is the child’s life that is the supreme value when making a decision about the welfare of the child”.64

2.2.4

Status of Children from Multinational Families

Japanese-Filipino Children Japanese-Filipino children (JFC), i.e. children born to a Japanese father and a Filipina mother, are one group residing in or having close ties to Japan that face various family-law-related problems. The number of JFC began increasing rapidly from the 1980s, when many Filipina women came to Japan on an entertainer visa (a visa for applicants who will engage in theatrical performances, arts, dance, musical performances, or other show business). Typically, when the Filipina woman became pregnant, she returned to the Philippines to give birth, though some mothers chose to remain in Japan. In the former case, the Japanese father would at first visit mother and child and send them money. However, after some time the payments would stop and the father could no longer be reached. In these situations, the mother/JFC will attempt to ascertain the whereabouts of the father and re-establish contact in order to request that the father voluntarily acknowledge paternity and resume payment of child support. The mother/JFC often turns to the Citizen’s Network for Japanese-Filipino Children (CNJFC) or to other NGOs for assistance with finding the father. If the father is located but refuses to acknowledge paternity and/or pay child support, the mother/JFC (again often with 61

JSTMCT (2008), pp. 3–4. Itou (2018), p. 144. 63 Ishikawa (1991), p. 31. 64 Tanaka (2008), p. 111. See also Otsuka (2017), p. 341, arguing that such exercise of parental authority is “against public policy” as stipulated in Art. 90 of the Civil Code. 62

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the assistance of CNJFC) will turn to the (Japanese) courts. In many cases, the mother/JFC will also attempt to acquire Japanese nationality for the child. A relatively large number of lawsuits concerning these three issues have been filed in Japanese courts. However, regrettably, there is almost no published case law.65 From the point of view of Japanese family law, which has retained a distinction between marital children and non-marital children, an important factor in these cases is whether the mother and the father are/were legally married to each other.66 Therefore, the following four constellations are legally relevant: (1) (2) (3) (4)

the JFC is a marital child;67 mother and child are living in Japan; the JFC is a non-marital child; mother and child are living in Japan; the JFC is a marital child; mother and child are living in the Philippines; the JFC is a non-marital child; mother and child are living in the Philippines.

According to practitioners, constellations (3) and especially (4) are the most common and potentially the most contentious. Below, I will briefly introduce the non-legal and legal issues and obstacles that arise in relation to acknowledgment, child support, and acquisition of Japanese nationality by JFC (and other children from multinational families). Concerning the acquisition of Japanese nationality, although this is not strictly speaking a family law matter, I have chosen to include it in this paper for two reasons. Firstly, because Japanese law has adopted the principle of jus sanguinis as the (default) principle for the acquisition of Japanese nationality, the rules concerning who the (legal) parents of a child are have a direct bearing on determining whether the child has or can acquire Japanese nationality as well as the basic rights that come with it. Secondly, the lawsuits filed by JFC concerning the acquisition of Japanese nationality are a good example of how a minority group has contributed in challenging the status quo of Japanese law—or more specifically, to challenging the still persisting legal and societal discrimination of non-marital children in Japan.

65

I am basing this section of the paper on the information and data compiled by CNJFC (their annual reports, which include statistics on the legal cases that they have been involved in as well as brief analyses of the trends in the legal cases, are available at http://www.jfcnet.org/about/ movement/ (last accessed 4 May 2021)) as well as on interviews with lawyers who have represented JFC and their mothers. I would like to express my deepest gratitude to attorneys-at-law Ms Lila Abiko and Mr Hironori Kondo for taking the time to talk to me and for sharing their invaluable knowledge and expertise. 66 Art. 772 I stipulates that a child conceived by a wife during marriage will be presumed to be the child of her husband. However, for children born to parents who are not married to each other, acknowledgment by the father is necessary in order to establish a legal father-child relationship (Art. 779ff). 67 “Marital child” in this paper generally refers to a child born at least 200 days after the formation of the marriage of the parents or within 300 days of the dissolution or rescission of the marriage (Art. 772 II). In addition, according to Art. 789, a non-marital child will obtain the legal status of a marital child (or “a child in wedlock”) through the subsequent marriage of the parents.

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Practical Obstacles Before Making Claims in Court In addition to the purely legal challenges, which are described further below, JFC face a number of non-legal obstacles when attempting to make claims and assert their rights in Japanese courts. Firstly, in all four constellations described above, the language barrier often becomes a very real barrier to access to justice for JFCs and their Filipina mothers, and it might hinder them in launching a claim in the courts at all. Secondly, verifying the whereabouts of the Japanese father in cases where contact has ceased, in order to initiate negotiations or court proceedings, often poses a serious problem. For JFC and their mothers residing in the Philippines, it is virtually impossible to single-handedly discover the whereabouts of the father. It is necessary to know the Chinese characters (or kanji) of the father’s name as well as information such as the passport number or address of the father, but these are often unknown to the mother.68 Thirdly, access to legal aid poses a serious problem. Many of the mothers of the JFC are single mothers and not economically well off. Consequently, they often lack sufficient funds to hire a lawyer in Japan to represent them in court. For JFC and their mothers residing in Japan, public legal aid is available. However, public legal aid in Japan does not cover foreigners residing abroad.69 The Japanese Federation of Bar Associations offers an additional type of legal aid to foreigners residing abroad, but this covers only a certain very limited types of cases.

Acknowledgment of Paternity Where the child is a non-marital child, the father needs to acknowledge paternity in order to establish a legal parent-child relationship. This is a prerequisite to any claims for child support, as well as for acquisition of Japanese nationality. Acknowledgment can be voluntary (in case of voluntary acknowledgement, the child can also be acknowledged before birth (Art. 783 I)) or compulsory (Art. 787).70 Acknowledgment has retroactive effect from the time of birth (Art. 784). If an action for (compulsory) acknowledgment is brought to the courts, the plaintiff must prove that there is a biological father-child relationship. Formerly, 68

In practice, even where the kanji of the father’s name are unknown to the mother, it is possible to obtain further information on the father from the Japanese Ministry of Foreign Affairs if the mother does know the father’s passport number (this might, for instance, be written on the JFC’s birth certificate if it was issued in the Philippines) or if she knows his mobile phone number. According to the statistics compiled by CNJFC concerning the cases that were brought to CNJFC by JFC and their mothers, in almost a quarter of the cases the father could not be found (Annual Report for 2018, pp. 19–20). 69 Comprehensive Legal Support Act, Art. 30 I (2). 70 Art. 787 stipulates that a child, his/her lineal descendant or the child’s or the descendant’s legal representative can bring an action for acknowledgment of paternity to the courts. This does not apply in respect of children who are not yet born.

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the plaintiff had to prove the existence of a biological father-child relationship indirectly, by providing evidence that there was a sexual relationship between the father and mother at the time when the child was conceived. Nowadays, a biological relationship can be proven via a DNA test. However, if the father refuses to voluntarily undergo a DNA test, Japanese courts cannot force the father to submit to one. In a recent reported case concerning an action for acknowledgment of a JFC (adjudication of the Shizuoka Family Court (Hamamatsu branch) from 26 April 2016),71 DNA evidence could not be obtained, and the alleged father did not appear in court or submit any evidence. Nonetheless, the court held that a legal father-child relationship existed, taking into consideration that the mother and the defendant were sexually involved at the time when the mother became pregnant, that the defendant bore the costs of the birth and attempted to submit a notification of birth with his name marked as the name of father, and that he did not attempt to dispute the asserted parent-child relationship during the proceedings.

Acknowledgment After the Death of the (Biological) Father An action of acknowledgment can also be brought after the death of the father. However, this must be done within 3 years of the death of the father (proviso to Art. 787). This provision can create a considerable disadvantage in cases of JFC, as well as for other children from multinational families, since it can be extremely difficult for these children and their mothers to learn of the father’s death in cases where there was little or no contact. Even in the context of “domestic” cases (cases where all the parties are Japanese nationals living in Japan), there is considerable criticism of the three-year limit, including calls for the abolition of the proviso to Art. 787. Although it is argued that the three-year limit is justified by considerations of legal certainty and the difficulty of fact-finding after a long time has lapsed, critics point out, among other things, that these reasons are not adequate to justify a strict three-year limit (or any time limit) and that the current regulation is unreasonable from the point of view of the best interests of a (non-marital) child.72 Although proviso to Art. 787 does not disadvantage JFC and children from other multinational families exclusively, due to the additional practical issues, such as a great geographical distance and other obstacles in learning of the death of the father, the problematic nature of this provision is heightened and highlighted in JFC and other multinational cases.

71 72

Reported in Koseki jihou No. 748, p. 35 (by N Takasugi). Maeda (2017), pp. 640, 655–656; Ninomiya (2006).

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Child Support According to Japanese law, parents have an obligation to support their children, both marital and non-marital.73 As already mentioned, acknowledgment of paternity is a prerequisite to claims of support in cases of non-marital children. The most common issues related to child support in cases involving JFC and children from other multinational families are the amount ordered by the courts and the difficulties with the enforcement of court rulings when the father refuses to comply. These are briefly discussed below. Firstly, concerning the amount of child support ordered by the courts, when deciding on the amount Japanese courts as a rule apply a standard calculation table, where the amounts are calculated based on the income of both parents and the number and age(s) of the child(ren).74 This table is also applied in cases involving JFC who reside in Japan, but not for JFC residing in the Philippines. In the latter instances, the difference in the cost of living between Japan and the Philippines is taken into account, and consequently practitioners report that the amount of child support ordered is very low.75 Secondly, national surveys indicate that in Japan the rates of payment of child support are very low.76 Again, this is a general tendency and one true not only in respect of multinational families. One of the reasons for this is that the legal means for the enforcement of the payment of child support in Japan are insufficient. Despite calls for reform of the relevant laws, thus far there have been no significant improvements. As already mentioned, many JFC live in economically tight circumstances, and whether child support is received or not is of great importance to them and their mothers. The most recent published case involving JFC and child support seems to be the adjudication of the Urawa Family Court (Kawagoe branch) of 8 July 199977 (constellation (2)—non-marital child, residing in Japan). In this case the father had acknowledged paternity before the birth of the child. The child was born in the Philippines, and the father initially provided financial support to mother and child; however, at some point, the payments as well as contact to the father stopped, whereupon the mother and child returned to Japan and turned to the courts. The father refused to submit documentation to the court concerning his income. The 73

Art. 877, Art. 766, Art. 788. Published in Hanrei Taimuzu No. 1111, p. 285ff. Note on the applicable law: for an application concerning child support, the law of the habitual residence of the support obligee (the child) will be the applicable law (Art. 2 of the Law Applicable to the Obligation of Support). 75 Abiko (2017). 76 See Nationwide Survey on Fatherless etc. Families (2016) https://www.mhlw.go.jp/file/06Seisakujouhou-11920000-Kodomokateikyoku/0000188168.pdf. Accessed 4 May 2021. In addition, CNJFC reports that payments are often interrupted or stopped after a while (Annual Report for 2020, p. 33). 77 Kasai Geppou 51-12-37. The adjudication of the Osaka Family Court of 19 September 2014 (Hanrei Jihou No. 2270, p. 96) is a more recent published case concerning child support involving an international element (mother is a foreigner, nationality not clear). 74

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court estimated the father’s income based on the results of the Unincorporated Enterprise Survey of the (now) Ministry of Internal Affairs and Communications for the preceding year and consequently ordered the father to pay 40,000 yen per month as child support.78

Acquisition of Japanese Nationality As mentioned above, Japanese nationality law has adopted the jus sanguinis principle.79 Whereas marital children who have at least one Japanese parent acquire Japanese nationality automatically at birth, in the case of non-marital children who have a Japanese father and a non-Japanese mother, acknowledgment of paternity by the father and notification to the Ministry of Justice are required for the acquisition of Japanese nationality (Art. 3 of the Nationality Act). Prior to 2009, Art. 3 I of the Nationality Act stipulated that unless the parents married following the birth of the child, children acknowledged after birth could not acquire Japanese nationality. The discriminatory treatment of non-marital children in nationality law (especially children born to foreign mothers who were recognized by their Japanese fathers after their birth), as well as in other laws,80 had long been criticized by scholars and practitioners, including the Japanese Federation of Bar Associations, which argued that discrimination based on birth was unconstitutional as well as in violation of international human rights standards.81 After receiving a petition for human rights relief from non-marital children of foreign mothers and Japanese fathers concerning the discriminatory treatment in the Nationality Act, the JFBA issued a warning to the state as early as 1996, declaring that the interpretation and operation of the Nationality Act at the time violated Art. 14 I of the Japanese

78

As a point of reference, according to judicial statistics (shihou toukei) from around this time, the amount most frequently ordered in family court mediation proceedings and family court adjudications was around 40,000 yen. However, it should be noted that in this case the calculation was based on a conservative estimate of the father’s income. 79 The Nationality Act Art. 2 stipulates that a child is a Japanese citizen if at least one of his/her parents is a Japanese citizen at the time of his/her birth. 80 Unlike many Western nations, Japan still retains a legal differentiation between marital and non-marital children. The latter are often disadvantaged under the laws. For example, whether a child is a marital or a non-marital child must be recorded on their notification of birth. Parents of a non-marital child cannot exercise joint custody, and compared to marital children there are few legal limitations to contesting a non-marital child’s paternity. Until declared unconstitutional by the Supreme Court in 2013, a proviso to Art. 900 IV of the Civil Code stipulated that a non-marital child’s share in inheritance was half of that of a marital child (judgment of 4 September 2019 (Minshu 67-6-1320)). Although the judgment was long overdue from a human rights point of view, it immediately caused an uproar among politicians and scholars advocating for the interests of wives of formal marriages, resulting in amendments to the inheritance law regime in 2019 so as to strengthen the legal position of formal spouses. 81 Okuda (2003), Kobayashi (2004 and 2005), JFBA (2003), pp 17, 19, 49ff.

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Constitution (equal treatment under the law) as well as various international human rights instruments.82 In 2005, nine Filipina mothers and their JFC children initiated a legal action, claiming that Art. 3 I of the Nationality Act violated Art. 14 I of the Constitution as it discriminated against non-marital children whose parents did not (or sometimes could not) marry after the birth of the child. It should be noted here that CNJFC acted as an agent for these plaintiffs and had sought them out as further plaintiffs after an initial suit had been filed by one Filipina mother and her JFC child (the two cases were later deliberated and decided together by the Supreme Court). It has also been reported that individual attorneys and other concerned citizens played an active part in encouraging and supporting the lawsuit.83 When the case reached the Supreme Court, the Court pointed out that since the time when Art 3 I of the Nationality Act was established, “the views regarding family lifestyles” and “the realities of family life and parent-child relationships have changed and become diverse”, as evidenced by the fact that the percentage of non-marital children had been increasing (albeit still comparatively low at just over 2%). The Court added: In combination with these changes . . ., as Japan has recently become more international . . . the number of children born to Japanese fathers and non-Japanese mothers has been increasing. In the case of children whose parents are couples of Japanese citizens and foreign citizens, the realities of their family lifestyles . . . as well as the views regarding a legal marriage and the ideal form of parent-child relationship based thereon are more complicated and diverse than in the case of children whose parents are both Japanese citizens, and in the former case, it is impossible to measure the degree of closeness of the tie between children and Japan just by examining whether or not their parents are legally married. ... In addition, it seems that other states are moving toward abolishing discriminatory treatment by law against non-marital children, and in fact, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, which Japan has ratified, also contain such provisions to the effect that children shall not be subject to discrimination of any kind because of birth.

Taking the above into account, the Court ruled that the differential treatment in Art. 3 I of the Nationality Act was indeed in violation of Art. 14 I of the Constitution.84 A corresponding amendment to the Nationality Act followed in December of the same year.

82

JFBA (1996, 2008). As reported by Suzuki (2010), p. 42ff. 84 Judgment of the Supreme Court, 4 June 2008 (Minshu 62-6-1367). The Court also confirmed that the children involved in the lawsuit had Japanese nationality. 83

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3 Conclusion The Japanese state has in general been passive in managing diversity in the sphere of family law and related spheres. This tendency is also clearly visible in the cases and instances introduced in this paper. Sometimes the persons/groups concerned have challenged the state through the courts (a) and sometimes through professional authoritative associations such as the JFBA (b). Some of these claims have been accommodated by the state, many have not. Occasionally, local governments have taken the initiative (c). (a) An example of the state being challenged through the courts that was introduced in this paper is the lawsuits brought by Japanese-Filipino children as regards nationality law (and, in essence, the law’s differential treatment of marital and non-marital children). The endeavours of JFC in Japanese courts eventually led to an accommodation of their individual claims, as well as to a reform of statutory law that would have an impact on other children born as non-marital children to a Japanese father and a foreign mother. An example of a different development is the response given to claims related to the treatment of de facto (heterosexual) unions. Although the courts have provided considerable protection to such unions by applying certain articles of the Civil Code concerning formal marriage mutatis mutandis, the courts have recognized the need to legally protect de facto unions only in limited situations, and this recognition has not led to any fundamental changes in statutory law (something which is all the more significant since Japan is a civil law country). Notably, it is only very recently (since 2018) that parties to same-sex relationships have challenged the state’s interpretation of “de facto partner” or the state’s legislative inactivity concerning same-sex marriage in the courts, and so far these challenges have met with varying degrees of success. Why sexual minorities (other than transgender persons) were so late to turn to the courts with their claims is a point that merits further investigation and discussion. (b) The JFBA has acted as advocate for the claims of various minorities. JCF and sexual minorities, to name just a few examples, have indirectly addressed their claims to the state through the JFBA via human rights relief petitions. Although the warnings etc. issued by the JFBA as a result of some of these petitions do not have a legally binding effect on the addressee, they do have at the very least a social influence that is ensured by the reputation and authority of this professional institution. (c) Same-sex partnership registration initiatives and recognition of same-sex couples as foster parents are examples where local governments have been more active and responsive to multicultural needs and claims. Although same-sex partnership registration does not give rise to legal rights and obligations, it is expected that these initiatives will have an important effect on social awareness and spur further debate on the national level. Legislative reform has, at least in theory, facilitated interference by the state when parents refuse to consent to medical procedures for their minor children due to

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religious reasons. Some medical and legal practitioners call for greater consideration of the wishes and beliefs of the minors themselves. Although there has been increased public awareness, and an increasing focus in the media and among jurists on the topic of diversity, in family matters the state has justified its unresponsiveness to multicultural and diverse claims by stressing the importance of protecting “the traditional Japanese family”, which is made up of a formally married (heterosexual) couple and their (marital) children. Although Japanese courts have sometimes accommodated multicultural claims, and the Supreme Court has in recent years handed down a number of relatively liberal judgments in the area of family law, the “traditional Japanese family” rhetoric not unfrequently pervades case law as well.

References Abiko L (2017) Claims of child support by JFC. Conference presentation at the 30th LAWASIA Conference, Tokyo, 20 September 2017 Amnesty International (2017) Human Rights Law and Discrimination against LGBT people in Japan. https://www.amnesty.org/en/documents/asa22/5955/2017/en/. Accessed 4 May 2021 Asahi Shinbun (2017) Dansei kappuru satooya ni nintei. Asahi Shinbun, 6 April 2017, p 1 Dentsu (2019) LGBT Chousa 2018. http://www.dentsu.co.jp/news/release/pdf-cms/2019002-01102.pdf. Accessed 4 May 2021 Esmeralda, KIRA (2015) Dousei patonashippu shoumei, hajimarimashita. Potto Shuppan, Tokyo Fujisawa M (2018) Youiku satooya: dousei kappuru no jogai wo teppai – Toukyouto houshin. Mainichi Shinbun, 19 May 2018, p 27 Hokkaido Shinbun (2017) ‘Watashitachi wa satooya touroku dekinai to omotteita’ Osaka-shi nintei de, dounai dousei kappuru. Hokkaidou Shinbun, 11 April 2017 Human Rights Watch (2019) A Really High Hurdle – Japan’s Abusive Transgender Legal Recognition Process. https://www.hrw.org/sites/default/files/report_pdf/japan0319_web_0.pdf. Accessed 4 May 2021 Ishijima M (2017) Seidouitusei shougaisha tokureihou niokeru shintaiteki youken no teppai nitsuite no ichikousatsu. Waseda Hougaku 93(1):79–115 Ishikawa M (1991) Shinken to Kodomo no Hogo. Hougaku Kyoushitsu 125:27–32 Itou N (2010) Miseinensha ni taisuru yuketsu kyousei to shinkensha no shokumushikkouteishi. Houritsu Jihou 82(4):84–89 Itou N (2018) Shinken teishi seido no genjou to yuketsu douisho ni kakawaru mondaiten – shinchouna shinri ga nasare muyuketsushujutsu ga seikou shita jitsurei wo tsuujite. Katei No Hou To Saiban 16:141–146 JFBA (1996) Gaikokujin josei to nihonjin dansei to no aidani umareta ko no nihonkokuseki shutoku ni kansuru jinken kyuusai moushitate jiken (keikoku). https://www.nichibenren.or.jp/activity/ document/complaint/year/1996/1996_6.html. Accessed 4 May 2021 JFBA (2003) Alternative Report to the Second Report of the Japanese Government on the Convention on the Rights of the Child. https://www.nichibenren.or.jp/library/en/document/ data/INT03_09_PS.pdf. Accessed 4 May 2021 JFBA (2008) Statement on Supreme Court Ruling the Nationality Law Unconstitutional. https:// www.nichibenren.or.jp/en/document/statements/20080604.html. Accessed 4 May 2021 JFBA (n.d.-a) Jinken kyuusai moushitate jiken ‘keikoku, kankoku, youbou tou’. https://www. nichibenren.or.jp/activity/document/complaint.html. Accessed 4 May 2021

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JFBA (n.d.-b) Protection of Human Rights. https://www.nichibenren.or.jp/en/about/activities/ protection.html. Accessed 4 May 2021 JSTMCT (2008) Guidelines Concerning Refusal of Blood Transfusion on Religious Grounds. http://yuketsu.jstmct.or.jp/wp-content/themes/jstmct/images/medical/file/guidelines/Ref13-1. pdf. Accessed 4 May 2021 Kamano S et al (2016) Seiteki Mainoriti ni tsuite no ishiki – 2015nen zenkoku chousa houkokusho. http://alpha.shudo-u.ac.jp/~kawaguch/chousa2015.pdf. Accessed 4 May 2021 Kamitani Y (2007) Miseinennsha he no iryoukoui to shinkensha niyoru doui no kyohi. Hanrei Taimuzu 1249:58–62 Kikuchi D (2017) Japan’s corporations make strides to foster inclusive LGBT work environment. The Japan Times, 16 June 2017. https://www.japantimes.co.jp/news/2017/06/16/national/ social-issues/japans-corporations-make-strides-foster-inclusive-lgbt-work-environment/. Accessed 4 May 2021 Kobayashi T (2004 and 2005) Koseki niokeru kongaishi sabetsu kisai no kenpou mondai (1) and (2). Aichi Daigaku Hougakubu Houkei Ronshuu 166:1–22 [2004] and 168:27–49 [2005] Kuroda A, Fujisawa M (2017) Satooya Nintei, Tokyo-to, Dousei kappuru ha jogai – 69 jichitai chousa. Mainichi Shinbun, 16 April 2017, p 16 Maeda Y (2015) Commentary on Art. 802. In: Matsukawa T, Kubota A (eds) Shin kihonhou konmentaru – Shinzoku (Bessatsu Hougaku semina No. 240). Nihon Hyouronsha, Tokyo, pp 165–170 Maeda Y (2017) Commentary on Art. 787. In: Ninomiya S (ed) Shin chuushaku minpou (17), Shinzoku (1). Yuhikaku, Tokyo, pp 637–657 Miwa A (2017) Doiseikon ni yoru houritsukon no kanousei. In: Ninomiya S (ed) Sei no arikata no tayousei. Nihon Hyouronsha, Tokyo, pp 29–48 Miyazawa T (1974) Kenpou II (shinpan). Yuhikaku, Tokyo Nagamizu Y (2012) Iryou negurekuto – ishinouryoku no nai miseinennsha ni taisuru iryoukoui he no douiken no konkyo ni tsuite no ichikousatsu. Momoyama Hougaku 20-21:329–369 Nakamura M (2011) Seidouitsuseishougaisha no oyako kankei. Houritsu Jihou 83(12):44–48 Nikaidou Y (2015) Shushou “douseikon, kenpou ha soutei sezu”. Asahi Shinbun, 19 February 2015, p 4 Ninomiya S (1990) Jijitsukon no gendaiteki kadai. Nihon Hyouronsha, Tokyo Ninomiya S (1998) Naien. In: Hironaka T, Hoshino E (eds) Minpouten no Hyakunen 1. Yuhikaku, Tokyo, pp 341–395 Ninomiya S (2006) Ninchi seido ha dare no tameni arunoka. Ritsumeikan Hougaku 310:301–351 Ninomiya S (2013) Kazokuho, 4th edn. Shinsesha, Tokyo Ninomiya S (2015) Seidouituseishougaisha no toriatsukai tokureihou no kitei ni motoduki dansei heno seibetsu no toriatsukai no henkou no shinpan wo uketa mono no tsuma ga koninchu ni jinkoujusei niyori kaitaishi shussei shita ko to chakushutusuitei. Shihou Hanrei Rimaksu 50:62–65 Ninomiya S (2017) Douseipatonashippu no kouteki shounin. In: Ninomiya S (ed) Sei no arikata no tayousei. Nihon Hyouronsha, Tokyo, pp 6–28 Nomura A (2018) Hanzai izoku kyufukin: dousei ga motome teiso. Mainichi Shinbun, 10 July 2018, p 31 Noono C (ed) (2004) Kaisetsu: Seidouitsuseishougaisha seibetsu toriatsukai tokureihou. Nihon Kajo Shuppan, Tokyo Okuda Y (2003) Kosekihou niokeru hichakushutsushi no goukensei. Hokudai Hougaku Ronshuu 54(2):204–130 Oshima R (2017) Patonashippu shoumei hakkou kara kangaeru kyoudou seikatsu to hou. Hougaku Semina 753:46–50 Otsuka M (2017) Shinken teishi sinpanmae no hozenshobun wo ninyou shita jirei (yuketsu kyohi). Minshouhou Zasshi 153(2):338–342

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Rainbow Foster Care (2016) Satooya Opinion. https://rainbowfostercare.jimdo.com/%E8%B3% 87%E6%96%99/%E3%81%95%E3%81%A8%E3%81%8A%E3%82%84%E3%82%AA% E3%83%94%E3%83%8B%E3%82%AA%E3%83%B3/. Accessed 4 May 2021 Shibuya Ward and Nijiiro Diversity (2021) Zenkoku Patonashippu Seido Kyoudouchousa. https:// www.city.shibuya.tokyo.jp/kusei/shisaku/lgbt/kyodochosa.html. Accessed 4 May 2021 Shiomi Y (2006) Yuketsukyohi – toudaiikaken byouin jiken. In: Utsugi S et al (eds) Ijihou Hanrei Hyakusen. Yuhikaku, Tokyo, pp 96–97 Suzuki N (2010) Outlawed children: Japanese Filipino children, legal defiance and ambivalent citizenships. Pac Aff 83(1):31–50 Tanaka M (2008) Shinkensha no shokumushikkouteishi/shokumudaikousha sennin (shujutsu fudoui). Minshouhou Zasshi 138(1):107–114 Tanamura M (2016) LGBT no houteki hogo to patonashippu seido. In: Tanamura M, Nakagawa S (eds) Dousei patonashippu seido. Nihon Kajo Shuppan, Tokyo, pp 2–24 Taniguchi H (2013) Japanʼs 2003 gender identity disorder act: the sex reassignment surgery, no marriage, and no child requirements as perpetuations of gender norms in Japan. Asian-Pac Law Policy J 14(2):108–117 Tobisawa T (2011) Ichimon Ittou Heisei 23nen minpou kaisei – jidougyakutai boushi ni muketa shinkenseido no minaoshi. Shoujihoumu, Tokyo Tokyo Bar Association’s Committee Concerning Sexual Equality, Sexual Minority Project Team (ed) (2016) Sekushuaru Mainoriti no Houritsu Soudan. Gyousei, Tokyo Tsujimura M (2016) Kenpou to Kazoku. Nihon Kajo Shuppan, Tokyo Watanabe Y (2017) Seiteki jikoketteiken to seibetsuhenkou youken no kanwa. In: Ninomiya S (ed) Sei no arikata no tayousei. Nihon Hyouronsha, Tokyo, pp 196–217 Watanabe Y (2019) Seibetsu henkou to seishokufunou youken – kazokuhou no shiten kara. Shin Hanrei Kaisetsu Watch – Civil Law (Family Law), No. 97 (LEX/DB No. 25449940) Yamada Y (2021) Dousei-kappurumo futei shita aiteni isharyou seikyu dekiru – saikousaiga hatsuno houtekihogo kettei. Tokyo Shinbun, 19 March 2021. https://www.tokyo-np.co.jp/ article/92527. Accessed 4 May 2021 Yamashita T et al (2015) Jinken Kyuusai Moushitatesho. http://douseikon.net/lgbt/wp-content/ uploads/2015/07/c1ee8bfb6459dbc5409c0e40262ae949.pdf. Accessed 4 May 2021 Yokoyama M (2017) Mizuho FG: ‘LBGT’ taishou shouhin – dousei mo ‘haigusha’, jutaku ron OK. Mainichi Shinbun, 26 August 2017, p 7 Yoshida A (2008) Iryou negurekuto jian ni okeru shinkensha no shokumushikkouteishi/ shokumudaikoushasennin no hozenshobun ni kansuru saibanrei no bunseki. Kasai Geppou 60 (7):1–42

Maia Roots is an associate professor at the Graduate School of Law, Tohoku University, Japan, where she also obtained her degree of Doctor of Law in 2015. Her research focuses on family law, more specifically on the legal parent-child relationships after the divorce of the parents, and the legal regulation of stepfamilies. She mostly engages in comparative research, comparing Japanese, German and English law. She also dabbles in interdisciplinary research, attempting to introduce and import the newest research findings from family sociology and psychology to legal research in Japan.

South Africa’s Family Laws: A Potpourri of Some Sort? Christa Rautenbach

Abstract The South African legal system is a mixed, pluralistic one, and its family law resembles this potpourri of laws made up of state and non-state laws. State law includes the general law which is a mix of Roman-Dutch and English law, and customary law that include the laws of traditional communities. Certain non-state laws based on religion, especially in family law, have also been receiving protection from the judiciary despite not being officially recognised by the state. There are four types of marriages: common law marriages, civil unions, customary marriages and unrecognised religious marriages. They are regulated in terms of different legislation, common law rules, and judge-made rules which have led to differences and inequalities in many respects. Managing family justice in such a diverse setting has been a struggle, and the time has come for the South African government to reconsider its approach to the plurality of marriage laws, which does not always make a wonderful blend of potpourri.

1 Introduction South Africa, a country notorious for its earlier segregation policies and laws during its apartheid era, is a relatively young democracy at the southernmost tip of the African continent.1 The estimated 56 million people living in South Africa are

I am indebted to the National Research Foundation and the Alexander von Humboldt Foundation for their financial assistance; however, I remain solely responsible for my mistakes and viewpoints. 1

Apartheid policies were already implemented in some areas (e.g. in the prisons) by the British, but it intensified when the National Party came into power in 1948 and lasted until 1994 when Nelson Mandela was elected president in the first democratic elections.

C. Rautenbach (*) North-West University, Faculty of Law, Potchefstroom, South Africa e-mail: [email protected] © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_7

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divided along religious, racial, linguistic, cultural and other lines.2 This division is reflected in the country’s legal system. There are many ports of entry to the knowledge and understanding of the South African legal system, but it is undisputed that the system is both mixed and pluralistic.3 Narrowly interpreted, if one considers only state laws to be officially relevant, two legal systems are recognised in South Africa. If one were to compare it with a layered cake4 or potjiekos (a traditional layered casserole),5 the first layer would be the general law of the country—the common law of South Africa—a Western6 system made up of elements and features of transplanted Roman-Dutch law with its civil-law orientation and English law as the epitome of common law.7 Despite the fact that Roman-Dutch law and English law are incompatible in many ways, the “blending process” in South Africa has been working reasonably well, and sometimes even to the advantage of cultural and other minorities. Of considerable consequence is the fact that common-law adjudicative strategies are used to implement and develop the law. One example is the stare decisis principle, which has been adopted and used by the South African judiciary to adapt and to “make” law. With the advent of constitutional democracy, this has proven to be a valuable tool in developing laws to accommodate difference. The reach of the courts has been strengthened further by a Constitution8 that endows them with a developmental function with regards to the rules of the common law or customary law and

For statistical figures, see http://www.statssa.gov.za/, accessed 20 April 2021. For an overview of the phenomenon of legal pluralism in South Africa, see Rautenbach (2018), chaps. 1–4. 4 Church and Church (2008), p. 1. 5 Rautenbach (2010b), p. 240. 6 It is characterised as “Western law” because it shares a basic intellectual and jurisprudential tradition with other legal systems belonging to the Romano-Germanic and Common law families. See Rautenbach (2018), p. 5, note 2. 7 This mix is the result of the transplantation of seventeenth Century Roman-Dutch law by the Vereenigde Landsche Geoktroijeerde Oostindische Compagnie (“Dutch East India Company” or “VOC”), who established a refreshment station in the Cape in 1652. It is trite that the Dutch ruled the Cape from 1652 to 1795 and then again from 1803 to 1806. The British ruled from 1795 to 1910, except for a brief interlude from 1803 to 1806. In 1910 the four former colonies were unified and formed the Union of South Africa. Although the Union had self-governing powers to a great extent, the British crown remained involved in the affairs of South Africa until it became wholly independent in 1961 with the formation of the Republic of South Africa. For more information on historical developments, see Muller et al. (1966), Zimmermann and Visser (1996), Chanock (2001). The British followed a policy of not replacing the law of the territories they colonised and RomanDutch law remained the law of the land, but over the years certain areas of law became anglicised nevertheless. The influence of English law in family matters has however been minor. This blend of Roman-Dutch law and English law remains a distinctive feature of contemporary South African law. More information can be found in a standard book dealing with the development of South African law, namely Hahlo and Kahn (1968). 8 Constitution of the Republic of South Africa, 1996 (hereafter: the Constitution). 2 3

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legislation, a function which they have used quite generously to protect marginalised individuals and groups of society.9 The second layer of the cake is customary law (the laws of traditional communities), which was generally not recognised during South Africa’s apartheid years though it was applied in certain circumstances. Customary law has limited application in terms of the people to whom it applies and the circumstances when it would apply.10 Of course, two legal systems in one legal order cannot coexist without influencing each other, and contemporary examples exist where the common and customary law have been mixed, although the mix is not always a happy one.11 The narrow interpretation of South African law, taking only state law into account, does not square with social realities, which brings us to a “third” layer of normative ordering in South Africa, referred to as non-state law. The followers of religious laws (Islamic law, Hindu law and Jewish law) commonly adhere to the normative authority of their non-state authorities and their normative or legal/ religious rules, because they feel socially and morally obliged to do so. To date, their legal systems have not been officially recognised, but there are examples where the courts have acknowledged the existence of non-state law, especially in the area of family law.12 Also, Islamic marriages stand to be recognised through legislation if the Muslim Marriages Bill is adopted.13 The development of South African family law into a unique potpourri of official and unofficial laws did not happen overnight but resulted from many years of struggling to govern a diverse society. In the 1990s, the country entered into a new constitutional dispensation based on democracy, equality, fundamental rights, rule of law, transformation and the promotion of national unity.14 Re-unification,15

9

Sects. 8(3)(a) and 39(2) Constitution. It applies only when certain conditions are met—namely: when it is compatible with the Constitution; when it has not been amended by legislation; and when it is applicable (choice of law). For an overview of the circumstances when customary law will be applicable, see Rautenbach (2018), pp. 42–48. 11 One example is the muddling of the common law meaning of “spouse” and “descendant” in the case of customary law of succession. For a discussion of the issues, see Rautenbach and Meyer (2012), pp. 149–160. 12 See Rautenbach (2010a), pp. 163–172. Amien (2010), pp. 361–396, examines the Muslim Marriage Bill and its (possible) effects on issues such as gender equality and minority rights. 13 See Draft Muslim Marriages Bill (X-2011). See discussion in Sect. “Religious Marriages”. 14 On 27 April 1994 the Constitution of the Republic of South Africa Act 200 of 1993 (hereafter: the 1993 Constitution) commenced and with it the first democratic elections were held. The 1993 Constitution remained in operation for an interim period of 2 years before it was replaced by the current Constitution, which commenced on 4 February 1997. 15 During the apartheid years, ten homelands were established in terms of the Promotion of SelfGovernment Act 46 of 1959. They were reintroduced into South Africa in 1991, and the country divided was divided into nine provinces. For a discussion of the position during the homeland era, see Butler et al. (1977). 10

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the abolition of apartheid laws and the existence of a transformative Constitution16 with a Bill of Rights17 have had an opposite effect on diversity than expected. Instead of diverse groups intermingling and insisting on one law for all, it became fashionable to be different, resulting in the government and courts having to deal with the claims of cultural, religious and other minority groups (such as same-sex couples) to recognise and protect their “rights”, including in family law matters. A few examples could be mentioned.18 Firstly, the South African Constitution endorses state law pluralism by recognising customary law19 as a legal system on a par with common law. Secondly, though other legal systems are not (yet) recognised, the Constitution opens the door for other cultural and religious groups to argue their case to recognise normative systems other than state law. Two basic provisions seem to create an entitlement to cultural and religious freedom. The equality clause20 guarantees equal protection and benefit of the law. It prohibits unfair discrimination against anyone on the grounds of, amongst other matters, culture, religion, conscience, belief and sexual orientation. In addition, this provision authorises legislation recognising marriages concluded under other systems of religious or family law.21 Furthermore, the freedom of religion clause22 guarantees that everyone has a “right to freedom of conscience, religion, thought, belief and opinion”. Other provisions in the Constitution amplify, contextualise and qualify these two basic provisions in many ways. They are, amongst others, everyone’s right to “participate in the cultural life” of one’s choice,23 the right to enjoy one’s culture or practise one’s religion with other members of a cultural or religious community24 and human dignity.25 The new constitutional dispensation has had a direct influence on family law. Up to now, the South African government opted for a diversity of laws giving effect to a variety of relationships.26 This approach creates considerable legal uncertainty. The

16

Transformation is a recurring theme in the Constitution. See the discussion by Klare (1998), pp. 146–188. 17 Both Constitutions have a Bill of Rights. See Chapter 3 of the 1993 Constitution and Chapter 2 of the final Constitution. 18 For an overview of the most important rights and freedoms in the area of religious diversity relevant to family law see du Plessis (2009), pp. 11–14. 19 Sect. 211 Constitution. 20 Sect. 9 Constitution. 21 Sect. 15(3)(a) Constitution. 22 Sect. 15 Constitution. 23 Sect. 30 Constitution. 24 Sect. 30 Constitution. 25 Sect. 10 Constitution. 26 It appears though that the government is reconsidering its stance in the area of family law. At the end of 2018, the Deputy Minister of Home Affairs requested the South African Law Reform Commission to commence with an investigation into the adoption of a single marriage statute for South Africa. See South African Law Reform Commission (2019), Issue Paper 35 on a Single Marriage Code: Project 144. The closing date for comments was 31 August 2019. The author has

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management of diversity in family law is at best a painful headache, especially for state organs ill-equipped to deal with the differences. South African legal practitioners do not have the advantage of a single code of family law and they need to look for applicable rules in a variety of statutes, case law, common law rules (the mix of Roman-Dutch and English law), living customary law and custom (including religion).27 Even if they find the law, there is no guarantee that it will survive a constitutional challenge. Against this background, this report deals with the main question of the project, namely: “Do [. . .] diverse ‘ways of life’ present a challenge to family law, and if so how are these challenges managed by the relevant state organs?”

2 Management of Diversity in Family Law The management of diversity in South African family law depends on the marital relationship between persons. Though it might seem like a trivial exercise to determine the type of relationship between persons—which is a private matter after all – it is not. Justice Sachs, in Minister of Home Affairs v Fourie,28 points out that, although marriage is a personal contract between two parties, the words “‘I do’ bring the most intense private and voluntary commitment into the most public, law-governed and state-regulated domain.”29 It is therefore essential to determine the type of relationship that exists between persons in order to decide on their legal rights and responsibilities. As the needs of society have been evolving and traditional ideas on relationships have been changing, South African law has been struggling to keep up, and the end result is a potpourri of laws that do not always blend well. In the section that follows, an overview of these normative orderings is given, based on the helpful schematic overview below (Fig. 1).

2.1

Two (or More)-Person Relationships

According to the schematic representation, there are three main categories of relationships: marriages, life partnerships, and civil union partnerships. Each of these

been appointed as a member of the advisory committee. The viewpoints in this contribution do not reflect the viewpoints of the Commission. 27 The information contained in this section is based on a standard textbook on family law, namely Heaton and Kruger (2015). 28 2006 (1) SA 524 (CC) para 64. 29 Also see Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 30: “Entering into marriage therefore is to enter into a relationship that has public significance as well.”

Civil Union Act 17 of 2006 (marriage)

Same-sex and opposite-sex couples Monogamy only

MARRIAGES UNDER CIVIL UNION ACT

Recognition of Customary Marriages Act 120 of 1998

Civil Union Act 17 of 2006 (civil partnership)

SAME-SEX AND OPPOSITE-SEX PARTNERSHIPS

CIVIL PARTNERSHIPS

Legal consequences in terms of Marriage Act 25 of 1961

Piecemeal recognition provided by courts and legislature.

RELIGIOUS MARRIAGES (non-state law) Monogamy & polygyny

Monogamous and polygynous customary marriages

CUSTOMARY MARRIAGES

LIFE PARTNERS

Fig. 1 Schematic representation of state and non-state marriages in South Africa (based on the scheme provided in Robinson et al. (2016), p. 40). The original scheme was developed by one of the co-authors, Bradley Smith

Marriage Act 25 of 1961

Opposite-sex couples only Monogamy only

CIVIL MARRIAGES (common law marriage)

MARRIAGES

MARRIAGES & OTHER TYPES OF RELATIONSHIPS IN SOUTH AFRICA

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categories has subdivisions, and though there are overlaps, the laws regulating them are different.

2.1.1

Marriages

Depending on one’s outlook, there are four types of marriages in South African family law, namely the common law marriage (or civil marriage), civil union marriage, customary marriage and unrecognised religious marriages. Statistics reveal that 138,627 civil marriages, 3467 customary marriages and 1185 civil unions were registered in 2015.30 Civil Marriage (Also Known as Common Law Marriage)31 A common law marriage is concluded in terms of the common law as amended by the Marriage Act 25 of 1961.32 The Act does not regulate common law marriages in totality, and specific rules of common law origin remain. For example, a common law marriage is a union between one man and one woman, thus between heterosexual monogamous couples.33 The Act permits but does not prescribe solemnisation following specific religious rites, but the argument has been raised that it is historically based on the Calvinist Christian tradition and should therefore be reconsidered in its entirety.34 Justice Sachs took a different view in Minister of Home Affairs v Fourie.35 He points out that the Marriage Act: . . . builds on the foundations laid by the Council of Trent in 1563 and by the States of Holland in 1580. It is solely concerned with marriage as a secular institution. Many may see a religious dimension to marriage, but this is not something that the law is concerned with.

The common law definition of marriage—one man and one woman—endorsed by the Marriage Act came under constitutional attack in the courts because it does not allow for alternative forms of marriages, such as same-sex marriages. For 30

The statistics do not distinguish between civil union marriages and partnerships. See http://www. statssa.gov.za/?page_id¼1856&PPN¼P0307&SCH¼7035, accessed 20 April 2021. 31 In order to prevent any confusion arising from the terminology used to refer to marriages and unions in terms of the Civil Union Act, I will use the term “common law marriage” instead of “civil marriage”. 32 This Act commenced on 1 January 1962. 33 E.g. Seedat’s Executors v The Master (Natal) 1917 AD 302, p. 309. 34 The argument that Calvinism played a central role in Boer (farmer) society has recently been challenged. As explained by Hexham and Poewe (1997), p. 123, there is evidence that the majority of the white farmers who moved to the north of the country lived in religious isolation and established societies similar to those of their African neighbours, even allowing practices such as polygyny. 35 2006 (1) SA 524 (CC) para 24.

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example, in Minister of Home Affairs v Fourie36 a lesbian couple challenged the failure of the common law and the Marriage Act to allow them to register their marriage to afford them the same status as heterosexual couples married in terms of the Act. After a long battle in the courts, the Constitutional Court finally found in their favour and ordered Parliament to pass legislation that would allow same-sex marriages. Parliament responded to the Court’s order by adopting the Civil Union Act 17 of 2006, which commenced 11 months after the judgment had been handed down.37 This Act allows for heterosexual and same-sex marriages/unions to be registered under the Act. In the next section, only “civil marriage” is set out as it is referred to in the Act. The discussion of “civil union partnership” follows later, though the rights and responsibilities of the parties are basically the same.

Civil Marriages Under the Civil Union Act A marriage concluded in terms of the Civil Union Act is not a common law marriage but a creature of statute. The Act describes a “civil union” as a: voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others.

Apart from the fact that a same-sex or heterosexual couple may conclude a civil union marriage, the requirements and consequences are almost identical to a common law marriage.38 The Act was received with mixed emotions. Although the Civil Union Act seems to have satisfied the Court’s order in Minister of Home Affairs v Fourie,39 the constitutionality of the Act is being questioned by some authors.40 The Act is the only means available for same-sex couples who want to obtain full legal recognition of their relationship, whilst heterosexual couples have the option of a common law marriage (Marriage Act) or a civil union marriage (Civil Union Act). Also, the Act allows a marriage officer to refuse a same-sex union in terms of the Act if they have objections against it on the “ground of conscience, religion and belief”.41 Furthermore, the question was asked if the legislature intended to create a separate but equal marriage regime for same-sex couples. It is not clear why the legislature did not merely amend the Marriage Act to include same-sex relationships.42 36

2006 (1) SA 524 (CC). The Act commenced on 30 November 2006. 38 See Sect. 13 Civil Union Act. 39 2006 (1) SA 524 (CC). 40 Heaton and Kruger (2015), p. 213. 41 Sect. 6 Civil Union Act. For criticisms raised against this provision, see Smith and Robinson (2010), pp. 60–61. 42 See, for example, the critique of Heaton and Kruger (2015), p. 205, and the sources they cite in note 6. Also see Smith and Robinson (2010), pp. 29–75. 37

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Customary Marriage The third type of marriage recognised in terms of South African law is a customary marriage.43 Customary marriages fall under a whole different legal system, namely customary law, and they are recognised in terms of the Recognition of Customary Marriages Act 120 of 1998. Before the commencement of this Act,44 customary marriages were recognised for limited purposes45 because their polygynous nature was against the public policy of the time. Also, they were not solemnised in terms of the Marriage Act, which was the only Act before 2000 that regulated marriages. The Customary Marriages Act rectified the position and conferred full legal recognition on monogamous and polygynous customary marriages, regardless of when they were concluded.46 Many of the requirements and consequences of customary marriages are similar to those applicable to common law marriages, but there are substantial differences. In contrast to common law marriages and marriages under the Civil Union Act, there are no prescribed formalities for the marriage celebration; “it must be negotiated and entered into or celebrated in accordance with customary law”.47 To decide if a customary marriage is valid or not, one would have to determine what the customary rules are, a contentious process in the light of the fact that customary law is living law and not always easy to ascertain.48 Like the common law, customary law (living and official)49 is also subject to constitutional scrutiny and may be developed by the courts or amended by legislation. A few examples exist where the courts have used their powers to do just that. For instance, in MM v MN50 the Constitutional Court had to decide whether a Tsonga husband could enter into a second marriage without the consent of his first wife. The majority held that Tsonga law must be developed to require the first wife’s consent, and the second marriage was declared invalid. The judgment has been criticised for developing the customary law where such development was unnecessary. There was no need to determine if the first wife’s

43

For more detailed information on the legal framework for customary marriages, see Bakker (2016a), pp. 231–224, and (2016b), pp. 357–368. 44 This Act commenced on 15 November 2000. 45 For example, Sect. 1(2) of the Births and Deaths Registration Act 51 of 1992, which provided for the inclusion of a customary marriage in the definition of a “marriage” on condition that it was recognised by the relevant minister. This provision was repealed by the Births and Deaths Registration Amendment Act 18 of 2010. 46 Sect. 2 Recognition of Customary Marriages Act. 47 Sect. 3(1) Recognition of Customary Marriages Act. 48 A few examples include: Matsoatso v Roro [2011] 2 All SA 324 (GSJ) paras 10-13; MM v MN 2013 (4) SA 415 (CC) para 39; Moropane v Southon [2014] JOL 32177 (SCA) para 37. 49 The difference between living and official customary law is explained in Rautenbach (2018), pp. 30–33. 50 2013 (4) SA 415 (CC).

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permission was necessary or not because the second marriage was in any case invalid for its lack of compliance with the customary law requirements of a valid marriage.51 Another distinction is the requirement of registration. Whilst non-registration renders a common law marriage or a civil union void, the same does not happen with an unregistered customary marriage. Although the Act requires spouses to register their marriage, non-registration does not affect the validity of the marriage.52 Another difference has to do with polygynous marriages. To accommodate polygyny, the matrimonial consequences of customary law marriages are also different from those of common law marriages and civil union marriages. The Recognition of Customary Marriages Act distinguishes between marriages concluded before and after the commencement of the Act.53 Those concluded before 15 November 2000 continue to be governed by customary law, which means that the husband owns and controls the family property and the wife has no claim to it. The spouses in a marriage concluded after commencement of the Act are in a position similar to that of spouses in common law marriages, namely by default in community of property. In the case of a polygynous marriage concluded after commencement of the Recognition of Customary Marriages Act, the husband has to obtain court approval for a contract regulating the future matrimonial property system.54 Furthermore, a spouse in a common law marriage (Marriage Act) or civil union (Civil Union Act) cannot conclude a polygynous marriage, whilst a spouse in a customary marriage may conclude other customary marriages. However, it is important to note that a husband involved in a customary marriage may not enter into a common law marriage or a civil union without dissolving the customary marriage first.55 Similarly, a spouse in a common law marriage or a civil union may not conclude a customary marriage.56 These glaring inequalities between the two legal systems have not yet been tested in a court of law. The Act has been hailed as: a belated but welcome and ambitious legislative effort to remedy the historical humiliation and exclusion meted out to spouses in marriages which were entered into in accordance with the law and culture of the indigenous African people of this country.57

But some authors argue that the interaction between the common and customary laws created by the provisions of the Act are less harmonious than anticipated.58 The practical implementation of certain of its provisions has proven to be problematic. 51

For a discussion of some of the issues, see Rautenbach (2017), p. 15. Sect. 4 Recognition of Customary Marriages Act. 53 Sect. 7 Recognition of Customary Marriages Act. 54 Sect. 7(6) Recognition of Customary Marriages Act. 55 Sect. 3(2) Recognition of Customary Marriages Act. 56 Sect. 10(4) Recognition of Customary Marriages Act and Sect. 8(2) Civil Union Act. 57 Gumede (Born Shange) v President of the Republic of South Africa (4225/2006) [2008] ZAKZHC 41 (13 June 2008); Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC) para 16. 58 Rautenbach and du Plessis (2012), p. 753. 52

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They have come under scrutiny in a number of cases, resulting in some of the provisions of the Act being declared invalid.59 Section 7(1) and (2) have provoked the most attacks and read: (1) The proprietary consequences of a customary marriage entered into before the commencement of this Act [15 November 2000] continue to be governed by customary law. (2) A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.

In Gumede v President of Republic of South Africa60 the customary marriage was concluded before 15 November 2000 and, since the parties lived in KwaZulu-Natal, Zulu law had to be applied. Zulu law is codified in the Codes of Zulu law.61 In terms of the Codes, a wife has no claim to the family property upon the dissolution of the marriage.62 The Constitutional Court agreed that the relevant provisions discriminated unfairly against women and declared them unconstitutional, but only concerning monogamous customary marriages. This means that all de facto monogamous customary marriages entered into before or after the commencement of the Recognition of Customary Marriages Act are, as from 8 December 2008 (the date of the judgment), in community of property, which is the default matrimonial property system for common law marriages as well. Section 7(1) still applies to polygynous marriages, and customary law is relevant to determine the matrimonial property system of marriages concluded before the commencement of the Act. In the case of polygynous marriages concluded after commencement of the Act, a husband who wants to conclude a further marriage “must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages”.63 In MM v MN,64 the question emerged whether non-compliance with the contract requirement would invalidate the second marriage. The High Court65 found that court approval of the contract was indeed a validity requirement. However, the Supreme Court of

59

Only a few of the most important cases will be discussed. For more information, see Rautenbach and du Plessis (2012), pp. 749–780 and Bakker (2016a), pp. 231–247, and (2016b), pp. 357–368. 60 2009 (3) SA 152 (CC). 61 KwaZulu-Natal is the only province where customary law is codified in two pieces of legislation, namely the KwaZulu Act on Code of Zulu Law 16 of 1985 (hereafter: KwaZulu Act) and the Natal Code of Zulu Law Proc R151 of 1987 (hereafter: Natal Code). 62 Sect. 20 of the KwaZulu Act and Sects. 20 and 22 of the Natal Code. 63 Sect. 7(6) must be read in conjunction with Sect. 7(7), which is applicable to the existing matrimonial property systems and to the future property contract. 64 2010 (4) SA 286 (GNP); 2012 (4) SA 527 (SCA); and 2013 (4) SA 415 (CC). 65 MM v MN 2010 (4) SA 286 (GNP).

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Appeal66—with the Constitutional Court in agreement67—found that it was not; it merely determines the patrimonial consequences of the polygynous marriage and the consequences of non-compliance could adequately be circumvented by treating the subsequent customary marriage as a marriage out of community of property. However, the concept of “out of community of property” is a common law concept and might not be the most fitting property system to apply to a polygynous customary law marriage. On 30 November 2017, the Constitutional Court handed down judgment in Ramuhovhi v President of the Republic of South Africa.68 It confirmed that section 7(1) of the Recognition of Customary Marriages Act is inconsistent with the Constitution regarding polygynous customary marriages. It also found that the provision was discriminatory based on race and/or ethnic and social origin insofar as women in “old” polygamous customary marriages are excluded from the protection afforded to women in monogamous marriages. The Court suspended the declaration of constitutional invalidity for 24 months to allow Parliament to correct the defect that gave rise to such invalidity. If Parliament fails to address the shortcoming, the regime ordered by the Court will continue to apply after the period of suspension. To give effect to the judgment, the Recognition of Customary Marriages Amendment Bill (B12-2019) was approved by the cabinet on 24 July 2019. It is currently under consideration by the National Assembly. If promulgated, it will remove the differences between customary marriages concluded before and after the Act and those between monogamous and polygynous marriages.69

Religious Marriages Although religious marriages are strictly speaking not recognised in South African law,70 the judiciary has been creative in giving legal protection to some of the consequences of these relationships, placing the wives on a somewhat equal footing with their common and customary law counterparts.71 There is no doubt that the Constitution and its human rights provisions have been the main catalysts for this

66

MM v MN 2012 (4) SA 527 (SCA) para 38. MM v MN 2013 (4) SA 415 (CC) para 41. 68 2018 (2) SA 1 (CC). 69 For a discussion of some the practical problems of the customary matrimonial property system, see Bakker (2016a), p. 246. 70 In the early 1900s, a decision of the Appellate Division (Seedat’s Executors v The Master (Natal) 1917 AD 302) confirmed that a Muslim marriage will not be recognised as valid in South Africa even if it was validly concluded abroad. The reason for this viewpoint was because Muslim marriages are potentially or de facto polygynous and thus regarded as contra bonos mores. This position was confirmed in the well-cited case of Ismail v Ismail 1983 (1) SA 1006 (A). For more examples, see Rautenbach (2004), pp. 121–152. 71 For a discussion of some of these examples, see Rautenbach (2010a), pp. 152–172. 67

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change in policy direction. A few examples include Ryland v Edros72 (a Muslim marriage contract is valid, even if the marriage is not recognised in terms of South African law); Amod v Multilateral Motor Vehicle Accidents Fund73 (a Muslim widow has a claim for loss of support when her husband was negligently killed even if her marriage was not recognised); Daniels v Campbell74 (a Muslim widow of a monogamous Muslim marriage is a spouse in terms of the intestate law of succession and also a survivor who has a claim for maintenance even if her marriage was not recognised); Hassam v Jacobs75 (the Constitutional Court extended the finding of the Daniels case to polygynous Muslim marriages); and Khan v Khan76 (a Muslim husband has a legal duty to pay maintenance). Despite these examples and calls from the Muslim community that this is done, there is no general recognition of Muslim marriages in South Africa. Their status in family law matters remains uncertain. In 2003 the South African Law Reform Commission published a report on the recognition of Muslim marriages.77 This was followed by a Draft Muslim Marriages Bill, which was published for public comments in January 2011. In 2009 the Women’s Legal Centre Trust brought an application in the High Court for an order compelling the government to enact legislation to recognise Muslim marriages, but the application failed.78 In 2013, in Faro v Bingham,79 the Court ordered the Department of Justice and Constitutional Development to set out the progress it has made regarding the enactment of the Muslim Marriages Bill no later than 15 July 2014, but this date has also passed. In 2018, the Women’s Legal Centre Trust tried its luck again in Women’s Legal Centre Trust v President of the Republic of South Africa, Faro v Bingham, Esau v Esau,80 and this time it succeeded when the Court held that the state is obliged:

72

1997 (1) BCLR 77 (C). The case was decided when the 1993 Constitution was still in force, but it remains relevant. 73 1999 (4) SA 1319 (SCA). This case was also decided when the 1993 Constitution was still in operation. 74 2004 (7) BCLR 735 (CC). A burning issue for many years was whether a Muslim widow can inherit in terms of the Intestate Succession Act 81 of 1987, and whether she has a claim for maintenance against the estate of a deceased husband in terms of the Maintenance of Surviving Spouses Act 27 of 1990. 75 2009 (5) SA 572 (CC). 76 2005 (2) SA 272 (T). The Court held that “partners in a Muslim marriage, married in accordance with Muslim rites (whether monogamous or not) are entitled to maintenance” in terms of the Maintenance Act 99 of 1998. In two other cases, AM v RM 2010 (2) SA 223 (ECP) and Hoosain v Dangor (Case 18141/09 (WCC)), the decision was that a Muslim wife is also entitled to maintenance pendente lite (interim maintenance) even though her marriage is not recognised. 77 South African Law Reform Commission (2003), Project 106: Report on Islamic Marriages and Related Matters. The Report contained a Draft Bill which was severely criticised and eventually amended. 78 Women’s Legal Centre Trust v President of the Republic of South Africa 2009 (6) SA 94 (CC). 79 (4466/2013) [2013] ZAWCHC 159 (25 October 2013). 80 2018 (6) SA 598 (WCC).

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. . . to respect, protect, promote and fulfil the rights in sections 9, 10, 15, 28, 31 and 34 of the Constitution by preparing, initiating, introducing, enacting and bringing into operation, diligently and without delay as required by section 237 of the Constitution, legislation to recognise marriages solemnised in accordance with the tenets of Sharia law (‘Muslim marriages’) as valid marriages and to regulate the consequences of such recognition.

The state has 24 months from the date the order was given (31 August 2018) to fulfil this obligation. If it does not, all Muslim marriages (monogamous and polygynous) will be regarded as valid marriages that can be dissolved in the Divorce Act 70 of 1979. Although Muslim marriages are in the forefront of scholarly discussions and court actions, similar arguments apply to other types of religious marriages in South Africa. Hindu marriages, for example, are receiving much less attention in the courts than Muslim marriages, and there is also no proposed legislation in the pipeline to give Hindu marriages future recognition. A few examples do exist where family law issues ended up in court. One such case is Govender v Ragavayah,81 where the High Court ruled, as in the decision in Daniels v Campbell,82 that the word “spouse” in the Intestate Succession Act includes a partner in a marriage concluded in terms of Hindu rites. However, the broadening of the scope of the concept “spouse” is restricted to the situation where the Hindu spouse died intestate, and the marriage was a monogamous one. In another decision, Singh v Ramparsad,83 the High Court declined to recognise the validity of a Hindu marriage to allow the wife to obtain a divorce in terms of the Divorce Act. In contrast to many Muslim couples, Hindu couples generally conclude two marriages: one in terms of their religion and a secular one in terms of the Marriage Act. Alternatively, they solemnise their marriages before a Hindu priest who is a qualified marriage officer and thus competent to register the marriage as required in terms of the Act. Jewish couples generally follow the same approach as Hindu couples. They usually comply with the requirements of the Marriage Act, and I am not aware of any cases where they contested the non-recognition of a marriage concluded only in terms of Jewish rites. It must be emphasised that though these types of religious marriages are currently not recognised in South Africa, there are other options available to religious communities to formalise their relationships. The Marriage Act allows Muslims, Hindus and Jews to conclude a common law marriage (before a designated secular marriage officer who will register the marriage as a common law one) and a private religious marriage. A second option is to solemnise one’s marriage before a designated religious marriage officer who will register the marriage as a common law marriage in terms of the Marriage Act. Any marriage registered as a common law marriage 81 2009 (3) SA 178 (D). Amien (2014), p. 33 discusses an unreported example, Prag v Prag (Wynberg Magistrate’s Court, Case Number 31008MAI000680 dated 2 November 2009), where the court extended the claim for maintenance in terms of the Maintenance Act 99 of 1998 to a Hindu wife who had left her husband. 82 2004 (7) BCLR 735 (CC). 83 2007 (3) SA 445 (D).

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will have the same consequences as all other marriages concluded under the Marriage Act. Still, it appears that many South African Muslims are discouraged from registering their marriages as common law marriages because they are regarded as un-Islamic.84

2.1.2

Civil Union Partnerships

As already alluded to, the Civil Union Act also allows for persons involved in a monogamous relationship to enter into a civil union marriage or partnership with each other. The rights and responsibilities of the partners in both forms of relationship are exactly the same, and there is no apparent reason why the Act distinguishes between “marriage” and “partnership”. Certain scholars speculate that some samesex couples might have a moral issue with equating their relationship with a “marriage” and might therefore prefer to name it something else.85 For example, Bilchitz and Judge86 argue that civil union partnerships provide an alternative to marriage, which some individuals regard as: . . . an oppressive institution, marked by rigid gender roles and expectations, and one that has been tied to the preservation of patriarchy and the subjection of women to a lower social status. Others see marriage as linked to notions of possession and property from which they wish to dissociate themselves. Perhaps others wish to create their own meanings for their relationships without the weighty associations of the traditional institution of marriage. For these reasons (and there are probably many more), people may prefer to use the designation ‘civil partnership’ for their relationship.

Subject to a few minor differences, the consequences of a civil union partnership are the same as those of a common law marriage.87

2.1.3

Life Partnerships (Also Cohabitation or Domestic Partnerships)

The last category of relationships refers to life partnerships between either heterosexual or same-sex partners. This category refers to monogamous couples, regardless of their sexual preferences living together without entering into a legally recognised marriage. It is estimated that more than 3 million (8,6%) South Africans are involved in life partnerships.88 Partners involved in these relationships usually are not interested in the usual consequences of a common law

84

See Amien (2014), p. 31. Smith and Robinson (2010), pp. 37–38. 86 Bilchitz and Judge (2007), pp. 466–499. 87 Sect. 13 Civil Union Act. 88 Smith (2016). 85

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marriage or do not regard the common law marriage as the only acceptable form of marriage.89 There is no legislation setting out the requirements and consequences of such relationships. However, partners can protect themselves through ordinary legal measures, such as partnership agreements,90 life partnership contracts91 and the drafting of wills.92 Although their relationships are generally without legal effect,93 piecemeal legislation has included life partners for specific purposes. A few examples include the Insolvency Act 24 of 1936;94 the Compensation for Occupational Injuries and Diseases Act 130 of 1993;95 the Estate Duty Act 45 of 1955;96 and the Domestic Violence Act.97 The courts have not been consistent in their dealings with the different types of life partnerships. It seems as if same-sex couples are in a more favourable position than their heterosexual counterparts.98 The judiciary has been reluctant to extend spousal benefits to heterosexual partners mainly because of the so-called “choice argument”, as pointed out in Volks v Robinson.99 In this case, the deceased was survived by his life partner of almost 16 years. She instituted a claim of maintenance in terms of the Maintenance of Surviving Spouses Act 27 of 1990 against his estate. Her claim was rejected because she was not legally married to the deceased and was 89

Heaton and Kruger (2015), pp. 255–256. It is possible to enter into universal partnership agreements. They are: societas universorum bonorum (sharing of all present and future assets and liabilities) and societas universorum quae ex quaestu veniunt (sharing of present and future assets and liabilities regarding commercial undertakings only). 91 Partners may conclude contracts regarding their rights and responsibilities towards each other, such as the duty of support, the division of property on dissolution of the partnership, etc. 92 A testator has the freedom of testation, and there is no way a partner can hold another one to his or her promise to make a will in favour of the other. This is regarded as an invalid pactum successorium. 93 Butters v Mncora 2012 (4) SA 1 (SCA) para 11. 94 Sect. 21(13) includes a heterosexual life partner in the definition of a spouse. Same-sex partners are not included in the wording of the provision. It refers only to “a woman living with a man as his wife or a man living with a woman as her husband”. 95 Sect. 22(1) read in conjunction with the definition of “dependant of an employee” in Sect. 1 allows for a heterosexual person who was a life partner of an employee to claim compensation in the case where the latter was killed in an accident in the course of his or her employment. This provision also refers only to “a person with whom the employee was at the time of the employee’s death living as husband and wife”. 96 Sect. 4(q) read in conjunction with the definition of spouse in Sect. 1, which includes a person who was at the time of the death of the deceased involved with another person “in a same-sex or heterosexual union which the Commissioner is satisfied is intended to be permanent” exempts from estate duty property accruing to a heterosexual or same-sex life partner from his or her deceased partner’s estate. 97 Sect. 1 provides protection to partners involved in domestic violence by including life partners in its definition of a “domestic relationship”. 98 See Smith (2016) for a more detailed discussion of these inequalities. 99 2005 (5) BCLR 446 (CC). 90

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thus not regarded as a “surviving spouse”. The Constitutional Court explained that there had been no legal impediments to their getting married, yet they had chosen not to do so. Considering that there are substantial differences between common law marriages and life partnerships, it would be inappropriate to impose a duty to support on a deceased estate when such a duty was not in existence when both parties were still alive. Because the partners could get married but chose not do so, they cannot be entitled to spousal benefits when the life partnership is dissolved by death.100 A different direction exists regarding same-sex life partnerships. Before the commencement of the Civil Union Act in 2006, same-sex life partners approached the courts a few times to tackle laws that they deemed discriminatory. The laws prevented them from receiving certain spousal benefits available only to couples married in terms of the Marriage Act. In general, the judgments were all in favour of extending spousal and other benefits to same-sex life partners because, contrary to heterosexual life partners, same-sex partners did not choose to solemnise their marriages in terms of the Marriage Act. Therefore, they had to be protected. A few examples include:101 Langemaat v Minister of Safety and Security102 (a lesbian life partner qualifies for benefits in terms of the medical aid of her partner); National Coalition for Gay and Lesbian Equality v Minister of Justice103 (the benefits conferred on spouses in terms of immigration laws must be extended to partners in same-sex life partnerships); Satchwell v President of the Republic of South104 (a partner in a same-sex life partnership is entitled to the same benefits as a surviving spouse of a deceased); Du Plessis v Road Accident Fund105 (the Court extended the common law action for damages for loss of support to the surviving same-sex life partner of a deceased who supported him during his life); and Du Toit v Minister for Welfare and Population Development106 (the right of same-sex life partners to adopt children). Another well-known example is Gory v Kolver.107 In this case, the deceased died intestate. He was survived by his life partner (Gory) of almost 2 years. In the light of the fact that the partnership was not legally recognised, Gory was not regarded as a spouse in terms of the Intestate Succession Act and could thus not inherit. Gory approached the Court for an order declaring the relevant provision in the Act, which denied him the right to inherit, discriminatory and therefore inconsistent with the

100

Volks v Robinson 2005 (5) BCLR 446 (CC) paras 55-60. See Heaton and Kruger (2015), pp. 263–266 for a discussion of some of these cases. 102 1998 (3) SA 312 (T). 103 2000 (2) SA 1 (CC). 104 2002 (6) SA 1 (CC). In this case the spousal benefits referred to those afforded to a surviving spouse of a deceased judge in terms of the Judges’ Remuneration and Conditions of Employment Act 88 of 1989. 105 2004 (1) SA 359 (SCA). 106 2003 (2) SA 198 (CC). 107 2007 (4) SA 97 (CC). 101

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Constitution.108 The Constitutional Court agreed that excluding same-sex life partners from inheriting intestate from each other did indeed violate the constitutional rights to the equality and dignity of same-sex partners who had undertaken reciprocal duties of support. There was no justification for such discrimination, and the Act had to be amended to provide for the inclusion of life partners in the definition of spouse. The stance of the courts in the case of heterosexual life partners, namely that they made a deliberate choice not to formalise their marriage and thus cannot complain when the law does not protect them, led to the assumption that the same would happen with same-sex life partners after the commencement of the Civil Union Act, i.e. that they too would lose judicial protection when the Civil Union Act came into operation if they chose not to formalise their union. The Act has been in operation for more than a decade. However, against all expectations, the Constitutional Court recently held the opposite in Laubscher v Duplan.109 The facts are similar to those in the Gory case. The question before the Constitutional Court was if a same-sex life partner could inherit from the intestate estate when he and the deceased had undertaken reciprocal duties of support, but had not solemnised their union in terms of the Civil Union Act. The Court confirmed the Gory case and held that it was bound to its reading-in of same-sex life partners into the Intestate Succession Act until it was amended or repealed by an Act of Parliament. Therefore, the rule that same-sex life partners are intestate heirs of each other when a valid will does not exist still stands, even though they now also choose to formalise their unions in terms of the Civil Union Act. We now have the interesting situation that intestate succession has been extended to surviving same-sex life partners (Gory and Duplan); to surviving spouses of monogamous and polygynous customary marriages (Bhe); to surviving spouses of monogamous and polygynous Muslim marriages (Daniels and Hassam); and the spouses of monogamous Hindu marriages (Govender); but not to heterosexual partners (Volks). It is difficult to defend this kind of differentiation in family law. Since there is no legislative intervention on the cards, I agree with the contention that litigation might be the best way forward to scrutinise the constitutionality of this anomaly and reach a just outcome for heterosexual and same-sex life partners.110

2.2

Parents and Children

In contrast to the marriage laws, parental rights and responsibilities are primarily determined by statute and, to a lesser extent, by common law principles. The law of parents and children had a significant overhaul, which culminated in the

108

The relevant provision is Sect. 1(1). 2017 (2) SA 264 (CC). 110 See Smith (2016). 109

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commencement of a comprehensive Children’s Act in 2010,111 read in conjunction with section 28 of the Constitution. The Children’s Act applies in all matters where the rights of children come into play.112 A child is described as a person under the age of 18 years.113 The Act confirms that the child’s best interests are the paramount consideration in “all matters concerning the care, protection and well-being of a child”.114 It sets out parental responsibilities and rights.115 Parental responsibilities and rights include care of the child, maintaining contact with the child, acting as a guardian and contributing to the child’s maintenance.116 The attainment of parental responsibilities and rights is dependent on the marital status of the parents.117 The responsibilities and rights are accorded in terms of the Marriage Act (common law marriages), the Civil Union Act (same-sex or heterosexual marriages or partnerships), customary law (whether monogamous or polygynous) or religious law (whether monogamous or polygynous). Although life partnerships are absent from this definition, specific provisions of the Act describe situations where they will be relevant. One example is section 21(1) of the Children’s Act, which stipulates that an unmarried father acquires full parental responsibilities and rights regarding a child if he was involved in a permanent life partnership with the mother at the time of the child’s birth. Partners in a permanent “domestic lifepartnership” may jointly adopt a child,118 or a child may be adopted by a person who is the life partner of the parent of the child. Section 242(1) also mentions a life partner in cases of adoption. It confirms that an adoption terminates all parental responsibilities and rights a partner in a “domestic life partnership had in respect of the child immediately before the adoption”.119 As the upper guardian of minors, the High Court has common law and statutory powers to interfere with a parent’s parental responsibilities and rights and will not hesitate to do so if it is in the child’s best interests.120 In terms of the common law, the High Court will grant the following orders: guardianship to someone else other than the natural guardian; care of a child to a third party; a declaratory order regarding the status of a child; or an order overriding decisions of parents. Statutory 111

The Act has 315 provisions dealing with a variety of issues in the area of parental responsibilities and rights, guardianship, the maintenance of children, children’s courts, partial care, the protection of children, the care of children, adoption (including inter-country adoption), child abduction, surrogacy, and international child law. 112 Sect. 8 Children’s Act. 113 Sect. 1 Children’s Act at the definition of “child”. 114 Sect. 9 Children’s Act. 115 Sects. 18-41 read in conjunction with Sect. 1 Children’s Act. 116 Sect. 18(2) Children’s Act. 117 Sect. 1 Children’s Act at the definition of “marriage”. 118 Sect. 231(1)(a)(ii) Children’s Act. 119 The word “partner” is also mentioned in the case of surrogacy, but there is no indication of whether it is a partner in terms of the Civil Union Act or a life partner. See Sect. 292(1)(d) for an example. 120 See Heaton and Kruger (2015), pp. 329–349, for a detailed discussion.

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powers are derived from statutes such as the Matrimonial Affairs Act 37 of 1953 (the awarding of sole guardianship to one parent); the Marriage Act 25 of 1961 (consent to a minor’s marriage if parental permission is withheld); the Divorce Act (maintenance and care of a minor in a divorce matter); the Domestic Violence Act (refuse contact with an abusive parent); and the Children’s Act (miscellaneous provisions). Given the diversity of the South African population and its marriage laws, it is virtually impossible to cater for every scenario where children are involved. Even though the legislation regulating the rights and responsibilities of parents and children is uniform, not having a single code of marriage law is confusing. The confusion complicates family justice management, especially where parents’ status is relevant to determining their rights and responsibilities towards children. Nevertheless, the best interests of the child will always triumph in any family dispute.

2.3

Dissolution of Marriage

A marriage can be dissolved in three ways:121 by the annulment of a voidable marriage (court order is needed),122 by the death of one of the spouses or through obtaining a divorce order. This section deals only with the last form of dissolution, namely divorce. The only relationships which can be dissolved using a divorce are those concluded in terms of the Marriage Act (common law marriage), the Civil Union Act (civil marriage or partnership) or the Recognition of Customary Marriages Act (customary marriages). A marriage or any other type of intimate relationship always has inevitable personal and proprietary consequences. Therefore, if the relationship is terminated, there will be consequences. The consequences and the effect the law gives to them will differ according to the type of relationship. Consequently, I will provide an overview of the legal position about unrecognised relationships before I continue with the recognised ones.

121

One other way, which is seldom used, is a court order declaring a marriage as dissolved, where a presumption of death is declared in terms of the Dissolution of Marriages on Presumption of Death Act 23 of 1979. 122 There is no need to obtain a court order for a void marriage because it would not change the status of the parties. It is customary, though, for the parties to obtain one for legal certainty. An exception is a putative marriage, which is strictly speaking void but has some of the consequences of a valid marriage. A court cannot declare the marriage valid or invalid; it declares only that the marriage is a putative one with certain consequences. A voidable marriage remains in force and has the normal consequences of a marriage until set aside by a court order. The grounds for setting aside a voidable marriage are discussed in Heaton and Kruger (2015), pp. 34–37. They include: the marriage of a minor who failed to obtain the permission of his or her parents; a mistake about the identity of either of the parties; a marriage entered into under duress; and the impotency of one of the spouses, which condition already existed before the marriage.

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Unrecognised Relationships

As in the case of common law marriages and civil unions, unrecognised religious marriages are terminated by the death of one of the parties or by the parties’ separation in terms of the norms of the particular religion of the parties, such as a Jewish get or a Muslim talaq. Parties involved in unrecognised religious marriages cannot dissolve their relationships using a divorce order.123 This is illustrated by the judgment in Singh v Ramparsad,124 decided in the Durban High Court. The Court applied the “choice” argument, as in the life partnership cases, and held that parties married in terms of Hindu law have two ways of concluding a valid marriage. They can celebrate their Hindu marriage and, after that, have it registered in terms of the Marriage Act. The second option is to conclude a dual marriage by marrying in terms of Hindu custom before an authorised marriage officer, who could then register the marriage in terms of the Marriage Act. The registration option was available to anyone regardless of the person’s religious preferences, and it was necessary to obtain the “imprimatur of the State”.125 In other words, if one wanted the approval of the state and therefore the consequences of marriage (and divorce), one needed to register the marriage following the Marriage Act. The registration requirement was the same for all religions, and it did not limit anyone’s rights. Consequently, the Court refused to declare the Marriage Act and the Divorce Act unconstitutional or to recognise the validity of the Hindu marriage, thereby denying her a “state” divorce. Even though religious marriages cannot be dissolved through a divorce order issued in terms of the Divorce Act, the courts are keen to protect the parties involved in these types of relationships. For example, in Mahomed v Mahomed126 a husband and wife had been married following Muslim rites. When the husband divorced his wife, she instituted divorce proceedings in the High Court and claimed maintenance pendente lite.127 The Court held that the wife was entitled to maintenance even though the marriage was unrecognised. The entitlement to maintenance pendente lite is derived from a husband’s general duty to support his wife and children and does not depend on the validity of the marriage. Thus, there was no need to consider if the Marriage Act and Divorce Act were unconstitutional because their constitutionality was not relevant to deciding if the wife was entitled to maintenance pendente lite.128

123

The dissolution of a Muslim marriage by means of a divorce and the awarding of post-divorce maintenance to a Muslim wife have always been contentious issues in South African law. See Gabru (2004), pp. 43–56. 124 2007 (3) SA 445 (D). 125 At para 47. 126 [2009] JOL 23733 (ECP). 127 Rule 43 of the Uniform Rules of Court allows for maintenance pendente lite—whilst the divorce proceedings are incomplete. The husband argued that the wife was not entitled to this maintenance because their marriage had not been a valid one and she would not be entitled to obtain a divorce in terms of the Divorce Act. 128 Also see the discussion by Denson and Carnelley (2009), pp. 679–701.

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Life partners cannot obtain a divorce order in terms of the Divorce Act. As in the case of religious marriages, an unrecognised life partnership is terminated by the death of one of the parties or by the parties’ separation.129 No state participation is involved, and each partner is free to end a relationship and enter into a new one. The consequences of separation (e.g. maintenance, property division, parental responsibilities) can be regulated extra-judicially by a partnership or dissolution agreement. In such a case, the contract forms the basis of the relationship between the partners, and the principles of the law of contract apply. If they have not regulated the consequences of their relationship or its dissolution contractually, they will by default be regarded as two separate entities who enjoy no spousal benefits. They will, however, be able to institute the ordinary rules and remedies of the law when their relationships fails, such as those relating to the law of property, the law of contract, unjustified enrichment and estoppel.130 Considering that life partnerships are prevalent in the more impoverished communities, they often involve vulnerable partners (women and children). The option of formalising the relationship might not be available to the partners. It should be evident that taking the judicial route is not always viable.131

2.3.2

Recognised Relationships

Common Law Marriage and Civil Union (Marriage or Partnership) The legal uncertainties on the dissolution of religious marriages and life partnerships, fortunately, do not present themselves in the case of unions validly concluded in terms of the law, namely common law marriages, civil unions (marriage and partnership) and customary marriages. The Divorce Act allows for common law marriages and civil unions to be dissolved by a “decree of divorce”. It provides for three “no-fault” grounds of divorce in the case of marriages concluded in terms of the Marriage Act and the Civil Union Act,132 namely the irretrievable breakdown of the marriage, the mental illness of one of the parties or the continuous unconsciousness of one of the parties. In general, a court does not have a discretion to refuse a divorce if one of the grounds for divorce has been proven.133 One exception is section 5A of the Divorce Act, which provides as follows:

129

For a detailed discussion of the legal position pertaining to life partnerships, see Smith (2014), pp. 389–474. 130 South African Law Reform Commission (2006), Project 118: Report on Domestic Partnerships, p. 110. 131 Smith (2014), p. 394. 132 Sect. 3 read with Sects. 4–5 Divorce Act. For a detailed discussion of the grounds for divorce, see Robinson (2014), pp. 7–32. 133 Heaton and Kruger (2015), p. 124.

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If it appears to a court in divorce proceedings that despite the granting of a decree of divorce by the court the spouses or either one of them will, by reason of the prescripts of their religion or the religion of either one of them, not be free to remarry unless the marriage is also dissolved in accordance with such prescripts or unless a barrier to the remarriage of the spouse concerned is removed, the court may refuse to grant a decree of divorce unless the court is satisfied that the spouse within whose power it is to have the marriage so dissolved or the said barrier so removed, has taken all the necessary steps to have the marriage so dissolved or the barrier to the remarriage of the other spouse removed or the court may make any other order that it finds just.

The purpose of this section is to improve the position of women especially, those who find themselves trapped as a result of their husbands refusing to grant them a religious divorce, despite their secular marriages already being dissolved in terms of the Divorce Act. An example in which the section was utilised to protect the rights of a Jewish wife is Amar v Amar.134 The High Court ordered a Jewish husband to pay a monthly amount of maintenance, to which the wife would not be otherwise entitled, until he gave her a get (Jewish letter of divorce). The purpose of the order was obviously to force the husband to give his wife a religious divorce by hitting him where it hurts the most—in his pocket. The “fault” principle in determining the irretrievable breakdown of the marriage is negated by section 9 of the Divorce Act. In terms of this provision, a party to a divorce proceeding may apply to the court for an order of forfeiture of patrimony against a spouse who was at fault in the breakdown of the marriage. The court has the discretion to grant the order if the spouse against whom the application is made will unduly benefit from the divorce proceedings. In exercising its discretion, the court needs to consider the following: the duration of the marriage; the circumstances giving rise to the breakdown; and any substantial conduct by either party.

Customary Marriage The dissolution of the second type of recognised marriages (customary marriages) must be in terms of section 8 of the Recognition of Customary Marriages Act. Section 8(1) stipulates:135 A customary marriage may only be dissolved by a court by a decree of divorce on the ground of the irretrievable breakdown of the marriage.

Contrary to the Divorce Act, there is only one ground for divorce in the case of customary marriages, namely the irretrievable breakdown of the marriage. The idea of a breakdown is foreign to customary law. The dissolution of marriage was a

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1993 (3) SA 604 (W). Sect. 8(2) of the Recognition of Customary Marriages Act lays down that a court may grant a decree of divorce only if “it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of restoration of a normal marriage relationship between them”.

135

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private affair resolved within the families of the spouses.136 Himonga argues that one should not apply the principles set out in the Divorce Act to determine whether a customary marriage has broken down or not but should develop new principles which are customary-law-specific.137 A feature of customary law which the legislature has recognised is pre-divorce conciliation. Section 8(5) provides as follows: Nothing in this section may be construed as limiting the role, recognised in customary law, of any person, including any traditional leader, in the mediation, in accordance with customary law, of any dispute or matter arising prior to the dissolution of a customary marriage by a court.

Section 8 also incorporates some of the common law statutes to the dissolution of customary marriages by stipulating that section 6 of the Divorce Act and the whole of the Mediation of Certain Divorce Matters Act must be applied to their dissolution. Also, the court has all of the powers contemplated in the Divorce Act138 and the Matrimonial Property Act.139 The fault principle in section 9 of the Divorce Act has thus been brought into the realm of customary divorces. Therefore, the court could order the forfeiture of patrimonial benefits where one party was more to blame for the break-up of the marriage than the other. These examples illustrate the infusion of common law principles into customary law, thus exemplifying the fact that both systems have not been able to escape influence from one another. The extension of certain provisions in common law statutes is intended to protect the rights and interests of customary law spouses. But, as the saying goes, “the road to hell is paved with good intentions”, and a “forced marriage” between rules of the common law and the customary law might not always be a happy one. As pointed out by Herbst and du Plessis:140 From a western and constitutional perspective the improvement of women’s position is lauded, but traditionalists still argue that the Recognition Act interferes with traditional practices and customs. Traditionalists are of the opinion that individuals should choose whether they would like to submit themselves to customary law or not and that Parliament should not interfere in how a customary marriage should be regulated.

One more provision which warrants mention, is section 24(1) of the Matrimonial Property Act, which is also incorporated in the dissolution of customary marriages. This provision deals with the dissolution of spousal property where an adult concluded a marriage with a minor without the consent of his or her parents. The court has a broad discretion to divide the estate as it deems fit. Given the fact that child marriages are a massive problem in the rural areas of South Africa,141 this provision has the potential to curb at least some of the adverse effects of child marriages. Not

136

For a detailed discussion, see Himonga (2014), pp. 231–278. Himonga (2014), pp. 238–240. 138 As in Sects. 7, 8, 9 and 10. 139 As in Sect. 24(1). 140 Herbst and du Plessis (2008), p. 14. 141 See the research done by Mafhala (2016), pp. 118–126. 137

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all child marriages are conducted out of the free will of the girl. The practice of ukuthwala, for example, is an irregular form of marriage where a young girl is literally abducted from her parental house—often forcefully—to marry the man who abducted her.142 The performance of this practice—especially distorted versions of it—has reached epic proportions, necessitating the involvement of the South African Law Reform Commission, which initiated an investigation into it at the request of the Gender Directorate of the Department of Justice and Constitutional Development. The Commission published a Revised Discussion Paper in October 2015 recommending that a criminal statute be enacted that criminalises the “conduct of forcing someone into a marriage without his or her free and full consent” and the conduct of anyone aiding and abetting the contracting of such marriages.143 The investigation is ongoing, and there is no statutory regulation of the practice as yet. However, the current definitions of statutory and common law crimes such as abduction, rape and assault are wide enough to provide for such situations.

2.4

Other Relevant Fields of Family Law

Although domestic violence has always been part and parcel of South African society, the South African government deemed it necessary to distinguish it from other crimes by the enactment of the Domestic Violence Act, which commenced on 15 December 1999. In the preamble to the Act, the legislature recognises that there is a high incidence of domestic violence in South Africa and that the victims are among the most vulnerable in society. Therefore the Act aims to provide for the maximum of protection against domestic abuse and to eliminate it by providing procedures for the obtaining of protection orders. The definition of “domestic violence” is extensive and includes any behaviour which may “cause imminent harm to the safety, health or wellbeing of the complainant”, including physical abuse; sexual abuse; emotional, verbal and psychological abuse; economic abuse; intimidation; harassment; stalking; property damage; and entry into the complainant’s residence without consent, where the parties do not share the same home.144 A second field that warrants special mention is the abuse of children. South African law offers special protections for the protection of children against abuse.145 Child abuse is described in the Children’s Act 38 of 2005 as:

142

See Rautenbach and Matthee (2010), pp. 118–126. South African Law Reform Commission (2015), Revised Discussion Paper 138 on Project 138: The Practice of Ukuthwala, p. 55. 144 Sect. 1 Domestic Violence Act at the definition of “domestic violence”. Economic abuse is also recognised as a form of violence in terms of the Act. 145 For more information, see Boezaart (2009), pp. 600–634. 143

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any form of harm or ill-treatment deliberately inflicted on a child, and includes – (a) (b) (c) (d) (e)

assaulting a child or inflicting any other form of deliberate injury to a child; sexually abusing a child or allowing a child to be sexually abused; bullying by another child; a labour practice that exploits a child; or exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally.

Interestingly, the Children’s Act also provides for a particular category of children who warrant special protection, namely “street children”, a term which means a child who: (a) because of abuse, neglect, poverty, community upheaval or any other reason, has left his or her home, family or community and lives, begs or works on the streets; or (b) because of inadequate care, begs or works on the streets but returns home at night.

The third field in family law which is often neglected is the protection of aged people. The Older Persons Act 13 of 2006, for example, provides that every person who suspects that an older person has been abused or suffers from abuse must immediately report that suspicion to the police. Failure to do so will also constitute an offence and is punishable if the accused is found guilty. The Act distinguishes between a male who is 65 years of age and older and a female who is 60 years and older. There is no apparent reason why this differentiation should continue in terms of the law, especially in the light of the fact that the Constitution disallows discrimination on the ground of age.

3 Conclusion Managing family justice in a multicultural society such as South Africa, with its diversity of normative orders, both state and non-state, is no easy feat, as illustrated in the exposé above. The noun “potpourri” in the title is a fitting metaphor to describe the situation. Potpourri refers typically to a scented mixture of spices and dried flowers kept in a decorative bowl or jar. Generally, it has a pleasing odour and provides a pleasurable feeling to all who smell it. However, not all mixes blend well, and not all smells are good; some are better than others. Interestingly, the term comes from the French phrase pot pourri, which means “rotten pot.” I would not go so far as to compare South African family law with a rotten pot, but there is room for improvement. On the one hand, the South African marriage laws are a mixture of diverse normative orderings—which do not always blend—delivering a lovely fragrance enjoyed by many. On the other hand, there is tension between what the Constitution promises—cultural diversity and equality— and the management of such diversity, especially in marriage laws. In a mixed, pluralistic system, there will always be a certain measure of differentiation. Such differentiation is not necessarily a bad thing. However, when the differentiation no longer conforms to the dictates of a supreme Constitution based on equality and human dignity, it is time to reconsider those differences. It is high time

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to overhaul the marriage laws in South Africa, especially regarding the types of relationships and their consequences. Correspondingly, it would be appropriate to consider a uniform code of family law, one allowing for a certain measure of uniformity but still permitting diversity in matters that fall outside the state’s sphere.

References Amien W (2010) A South African case study for the recognition and regulation of muslim family law in a minority muslim secular context. Int J Law Policy Family 24:361–396 Amien W (2014) The recognition of religious and customary marriages and non-marital domestic partnerships in South Africa. In: Eekelaar J, George R (eds) Routledge Handbook of family law and policy. Routledge, London, pp 26–44 Bakker P (2016a) The validity of a customary marriage under the Recognition of Customary Marriages Act 120 of 1998 with reference to sections 3(1)(b) and 7(6) – Part 1. J Contemp Roman-Dutch Law 79:231–247 Bakker P (2016b) The validity of a customary marriage under the Recognition of Customary Marriages Act 120 of 1998 with reference to sections 3(1)(b) and 7(6) – Part 2. J Contemp Roman-Dutch Law 79:357–368 Bilchitz D, Judge M (2007) For whom does the bell toll? The challenges and possibilities of the Civil Union Act for family law in South Africa. South Afr J Human Rights 23:466–499 Boezaart T (2009) Child law in South Africa. Juta, Kenwyn Butler J, Rotberg RI, Adams J (1977) The Black Homelands of South Africa: the political and economic development of Bophuthatswana and Kwa-Zulu. University of California Press, Berkeley Chanock M (2001) The making of South African legal culture 1902-1936: fear, favour and prejudice. Cambridge University Press, Cambridge Church J, Church J (2008) The constitutional imperative and harmonisation in a multicultural society: a South African perspective on the development of indigenous law. Fundamina J Legal Hist 14:1–13 Denson R, Carnelley M (2009) The awarding of post-divorce maintenance to a muslim ex-wife and children in the South African courts: the interaction between divine and secular law. Obiter 30:679–701 Du Plessis L (2009) Religious freedom and equality as celebration of difference: a significant development in recent South African constitutional case-law. Potchefstroom Electr Law J 12 (4):9–34. http://journals.assaf.org.za/per/article/view/2739. Accessed 20 Apr 2021 Gabru N (2004) Dilemma of muslim women regarding divorce in South Africa. Potchefstroom Electr Law J 7(2):43–56. http://journals.assaf.org.za/per/article/view/2849. Accessed 20 Apr 2021 Hahlo HR, Kahn E (1968) The South African legal system and its background. Juta & Co. Linited, Cape Town Heaton J, Kruger H (2015) South African family law, 4th edn. LexisNexis, Durban Herbst M, du Plessis W (2008) Customary law v common law marriages: a hybrid approach in South Africa. Electr J Comp Law 12(1). https://www.ejcl.org/121/art121-28.pdf. Accessed 20 Apr 2021 Hexham I, Poewe K (1997) The spread of christianity among whites and blacks in Transorangia. In: Elphick R, Davenport R (eds) Christianity in South Africa: a political, social, and cultural history. University of California Press, Berkeley, pp 121–134 Himonga C (2014) The dissolution of a customary marriage by divorce. In: Heaton J (ed) The law of divorce and dissolution in South Africa. Juta, Cape Town, pp 231–278

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Klare KE (1998) Legal culture and transformative constitutionalism. South Afr J Human Rights 14:146–188 Mafhala VR (2016) Child marriage practice: a cultural gross violation of human rights of girls in a free South Africa. Unpublished MPhil Thesis, University of Pretoria Muller CFJ, van Jaarsveld FA, van Wijk T (eds) (1966) A select bibliography of South African history. UNISA, Pretoria Rautenbach C (2004) Islamic marriages in South Africa: Quo Vadimus? Koers 69(1):121–152 Rautenbach C (2010a) Deep legal pluralism in South Africa: judicial accommodation of non-state law. J Leg Pluralism Unofficial Law 42(60):143–177 Rautenbach C (2010b) Mixing South African common law and customary law of intestate succession: ‘Potjiekos’ in the making. In: Örücü E (ed) Mixed legal systems at new frontiers. Wildy, Simmonds & Hill, London, pp 222–240 Rautenbach C (2017) Oral law in litigation in South Africa: an evidential nightmare? Potchefstroom Electr Law J 20:1–26. http://journals.assaf.org.za/per/article/view/3268 on 15 January 2018. Accessed https://www.ejcl.org/121/art121-28.pdf Rautenbach C (ed) (2018) Introduction to legal pluralism in South Africa. LexisNexis, Durban Rautenbach C, du Plessis W (2012) African customary marriages in South Africa and the intricacies of a mixed legal system: judicial (in)novatio or confusio? McGill Law J 57:749–780 Rautenbach C, Matthee J (2010) Common law crimes and indigenous customs: dealing with the issues in South African law. J Legal Pluralism Unofficial Law 61:108–144 Rautenbach C, Meyer M (2012) Lost in translation: is a spouse a spouse or a descendant (or both) in terms of the reform of customary law of succession and regulation of related matters act? J South Afr Law 1:149–160 Robinson JA (2014) The grounds for divorce. In: Heaton J (ed) The law of divorce and dissolution in South Africa. Juta, Cape Town, pp 7–32 Robinson JA, Human S, Smith BS et al (2016) Introduction to South African family law, 6th edn. Printing Things, Potchefstroom Smith B (2014) The dissolution of a life or domestic partnership. In: Heaton J (ed) The law of divorce and dissolution of life partnerships in South Africa. Juta, Cape Town, pp 389–474 Smith B (2016) Unmarried same-sex couples more favourable legal position than heterosexual counterparts. De Rebus 37. http://www.derebus.org.za/unmarried-sex-couples-favourablelegal-position-heterosexual-counterparts/. Accessed 20 Apr 2021 Smith BS, Robinson JAR (2010) An embarrassment of riches or a profusion of confusion? An evaluation of the continued existence of the Civil Union Act of 2006 in the light of prospective domestic partnerships legislation in South Africa. Potchefstroom Electr Law J 13(2):29–75. http://journals.assaf.org.za/per/article/view/2640. Accessed 20 Apr 2021 Zimmermann R, Visser D (1996) Southern cross: civil law and common law in South Africa. Clarendon Press, Oxford

Christa Rautenbach has more than 30 years of experience as a legal scientist. She has the degrees B Iuris (cum laude), LLB (cum laude), LLM and LLD. She was a public prosecutor in the employ of the Department of Justice before she became an academic scholar at the faculty of law, North-West University (Potchefstroom), where she currently holds an appointment as Full Professor. She is the honorary treasurer of the Society of Law Teachers of Southern Africa, secretary of Juris Diversitas and Ambassador Scientist of the Alexander von Humboldt-Foundation, Germany. She also serves on the Advisory Board of the Commission on Legal Pluralism and the African-German Network of Excellence in Science (AGNES). She has published extensively on legal pluralism, customary law, mixed jurisdictions, cultural diversity, judicial comparativism and the law of succession, and presented numerous papers on these subjects globally. She is the editor and co-author of Introduction to Legal Pluralism in South Africa (LexisNexis 2018) and co-editor and co-author of The Law of Succession in South Africa (Oxford University Press 2017), and also the editor-in-chief of the peer-reviewed, open-access Potchefstroom Electronic Law Journal, accessible at https://journals.

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assaf.org.za/index.php/per/index. In 2018, she was appointed as an advisory committee member in the South African Law Reform Commission: Project 144, titled “Single Marriage Statute Including Measures against Sham Marriages” in 2018. Her publications can be viewed at https://orcid.org/ 0000-0001-6641-0123.

Hidden but Significant Problems of Pluralism in the Family Law of the Czech Republic Helena Hofmannová and Karel Řepa

Abstract The national report on multicultural challenges in family law analyses how the multicultural phenomena understood as a plurality of ways of life in society—based, for example, on cultural tradition, ethnic background, custom, religious conviction or sexual orientation—interact with family law in the Czech Republic. It demonstrates that in a relatively homogenous society with a developed and functioning constitutional system based on the principles of democracy and the rule of law, there still exist real problems concerning the management of diversity in the area of family law. The identified problematic areas include, for instance, the conservative approach to two-person relationships and problems concerning parental care, such as the overuse of substitute-care institutions. Special attention is paid to one of the most sensitive problems in the Czech Republic, the vulnerable position of Roma children. Finally, the conclusion takes into account the broader political context of the most recent developments as relating to the perception of diversity. Anti-migration and identitarian political sentiments perceive diversity as a danger. Even though the normative and applicatory sphere of family law has not been directly impacted so far, the article argues that political tensions pose a serious risk for social diversity and its accommodation via family law.

1 Introduction The management of plurality, understood as the existence of differences between individuals as well as social groups and their ways of life, has recently become an important political, social and legal topic in the Czech Republic. After many years of a relatively closed socialist regime during the second half of twentieth century, the

The National Report was created under the research programme of the Charles University, Progress Projects Q04 “Law in the Changing World” and Q05 “Legal and Social Aspects of Migration and Problems of the Position of Minorities”. H. Hofmannová (*) · K. Řepa Charles University, Faculty of Law, Prague, Czech Republic e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_8

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Czech Republic has been integrated into Western political structures, most notably the European Union, and it shares with them many common difficulties. The question of upholding plurality as a constituting value of every democratic legal state takes center stage today.1 The value of plurality is integrated into the constitutional normative framework through the fundamental constitutional characteristics of the Czech Republic. Art. 1 Sec. 1 of the Constitution of the Czech Republic of 16 December 1992 No. 1/1993 Coll. (hereinafter: the Constitution) states: “The Czech Republic is a sovereign, unitary, and democratic state governed by the rule of law, founded on respect for the rights and freedoms of man and of citizens.”2 Plurality understood in a political sense, that is, as wide variety of opinions on the ways the public sphere is to be governed and its expressions in the public realm, is presupposed and protected by the concept of democratic state. It is specified by the constitutionally recognized model of political participation and by the protection of political rights. In this respect, Art. 5 of the Constitution states: The political system is founded on the free and voluntary formation of and free competition among those political parties which respect the fundamental democratic principles and which renounce force as a means of promoting their interests.

Political rights include freedom of expression, the right of petition, the right of assembly, the right of association, the right to form political parties, the right to participate in the administration of public affairs, the right to vote and the right to resist as formulated in the Charter of Fundamental Rights and Freedoms (hereinafter: the Charter).3 Complementarily, plurality understood in a social (private) sense, that is, as the existence of differences between individuals and groups and their ways of life, is also presupposed and protected. The protective constitutional instruments include most notably the provisions protecting human rights. Among these, the traditional liberal rights stand out, for example, the freedom of thought, conscience and The present article uses the terms “plurality“ and “diversity“ synonymously, i.e. both are understood as relating to the existence of a wide variety of ways of life; they are understood as a social fact as well as a protected constitutional value (depending on the context). 2 Art. 1 Sec. 1 of the Constitution. In relation to basic constitutional characteristics of the Czech Republic, the following is also noteworthy: the Czech Republic is a parliamentary democracy based on the traditional model of continental rule of law; the Parliament holds a central constitutional position, represents the legislative branch and is divided into two chambers; the vertical structure of state is based on the principle of a unitary state accompanied by limited territorial self-government; legal duties can be imposed within constitutional limits only by statutory acts and are exclusively passed by the Parliament. For further details see the Constitution. In: Ústavní soud [online]. [2018]. www.usoud.cz/fileadmin/user_upload/ustavni_soud_www/Pravni_uprava/AJ/Ustava_EN_ve_ zneni_zak_c._98-2013.pdf (accessed 24 April 2021). 3 Art. 17-23 of the Charter of Fundamental Rights and Freedoms. Resolution of the Presidium of the Czech National Council of 16 December 1992 on the declaration of the Charter of Fundamental Rights and Freedoms as a part of the constitutional order of the Czech Republic. Constitutional Act No. 2/1993 Coll. In: Ústavní soud [online]. [2018]. www.usoud.cz/fileadmin/user_upload/ustavni_ soud_www/Pravni_uprava/AJ/Listina_English_version.pdf (accessed 24 April 2021). 1

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religious conviction4 as well as the right to freely manifest religion or faith5 and the right to private and family life.6 Furthermore, the principle of equality and the prohibition of discrimination articulate a wide range of existing social differences which cannot serve as grounds for differentiation regarding the enjoyment of fundamental rights.7 Social plurality is also supported by the right to freely choose nationality8 as well as by special supportive rights guaranteed to citizens belonging to national and ethnic minorities.9 These rights are as follows: . . . all-round development, in particular the right to develop, together with other members of the minority, their own culture, the right to disseminate and receive information in their native language, and the right to associate in national associations” as well as “the right to education in their own language, the right to use their own language in their relations with officials, the right to participate in the resolution of affairs that concern national and ethnic minorities.10

Finally, the guarantees of social rights to disadvantaged social groups such as employees, children, adolescent, women and persons with disabilities can also be viewed as supporting the existence of social plurality.11 Looking beyond the purely normative framework described above, the existence of plurality as a social fact can be regarded as rather limited in the Czech Republic when compared with other countries in the European area. The traditional and prevailing delineations between individuals and groups are based on national and religious identities. The prevailing national identity is Czech, as indicated by the census of 2011, with other national minorities, most notably Slovaks, Ukrainians, Poles and Vietnamese, present in limited numbers.12 Religious identity remains predominated by secular and atheist views, while only one-fifth of the inhabitants 4

Art. 15 of the Charter. Art. 16 of the Charter. 6 Art. 10 Sec. 2 of the Charter. 7 Art. 3 Sec. 1 of the Charter. 8 Art. 3 Sec. 2 of the Charter. 9 The legal distinction between ethnic and national minorities reflects the presence of race and nationality as two different phenomena of social reality. The ethnic or racial element is considered to be primarily an objective biological trait of a person, while nationality is considered to have a prevailing subjective criterion, i.e. it combines cultural adherence to a nation with a subjective will to be considered as a part of such nation. However, the statutory implementation of the rights of ethnic and national minorities (the Statute on Rights of Members of National Minorities of 10 July 2001 No. 273/2001 Coll.) does not differentiate between ethnic and national minorities and guarantees individual and collective rights only to national minorities. 10 Art. 25 of the Charter. 11 Chapter 4 of the Charter. 12 The census of 2011 indicates the following distribution of major nationalities of the total of 10,230,060 inhabitants of the Czech Republic: 6,711,624 (64.3%) Czech, 521,801 (5%) Moravian, 147,752 (1.4%) Slovak, 53,253 (0.5%) Ukrainian, 39,096 (0.4%) Polish, 29,660 (0.3%) Vietnamese, 18,658 (0.2%) German, 17,872 (0.2%) Russian, 8920 (0.1%) Hungarian, 5135 (0.0%) Roma and 2642,666 (25.3%) non-specified. Information accessible in Czech: Český statistický úřad. 5

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regard themselves as believers. The majority of the latter fall into the traditional Christian denominations.13 The European migration developments of recent years have broadly contributed to the rise of social plurality in many European societies. However, the Czech Republic has so far remained on the side-lines of such developments as it has applied a highly restrictive political and legal approach. The number of persons with international protection, that is, asylum and subsidiary protection, and the number of admitted economic migrants remain notably low.14 As follows from the data provided above, the diversity stemming from the traditional differentiating criteria, e.g. nationality and religion, is rather limited. However, that does not mean the question of legal management of diversity should stand beyond the interest of legal scholarship. For this reason, the report proceeds to identify the institutions of family law that impact the management of diversity, such as statutory relationships and parent-child relationships, and it elaborates on their normative and applicatory character with special attention to the way they affect diversity. It seeks to overcome the gap in domestic scholarship, as the interaction between family law and societal diversity has not been object of systematic research. The conclusion puts the findings into a broader context of the most recent political developments as characterized by illiberal and nationalistic tendencies that may find their way into the structure and practice of family law in the future. Before moving on to the subject of analysis itself, it is appropriate to provide a few notes on the systematic structure of family law. The constitutional regulation directly connected with family law is included in the Charter. The Charter guarantees the protection of private and family life as traditional liberal freedoms.15 Special protection is provided under the provisions contained in Chapter IV of the Charter that guarantee economic, social and cultural rights. This includes the protection of parenthood, family, children and adolescents under Art. 32. Pregnant women are

Národnostní struktura obyvatel. In: Český statistický úřad [online]. 30.6.2014 [2018]. www.czso. cz/documents/10180/20551765/170223-14.pdf (accessed 24 April 2021). 13 The census of 2011 indicates the following distribution of religious beliefs among the Czech Republic’s 10,230,060 total inhabitants: 2,168,952 (20.8%) identified as believers; 3,604,095 (34.5%) identified as non-believers; 4,662,455 (44.7%) are not specified. Out of believers, only a relatively small percentage identify with a particular church: 1,082,463 (10.4%) Roman Catholic Church, 51,858 (0.5%) Evangelical Church of Czech Brethren, 39,229 (0.4%) Czechoslovak Hussite Church, 20,533 (0.2%) Czech and Slovak Orthodox Church, etc. There are forty-one state-registered churches and religious societies. Information accessible in Czech: Český statistický úřad. Náboženská víra obyvatel podle výsledků sčítání lidu. In: Český statistický úřad [online]. 27.2.2014 [2018]. www.czso.cz/documents/10180/20551795/17022014.pdf/c533e33c-79c4-4a1b8494-e45e41c5da18?version¼1.0 (accessed 23 April 2021). 14 The number of applications for international protection in 2017 was 1450. The competent executive organ decided on 1508 applications in 2017. Asylum was granted in twenty-nine cases and subsidiary protection in 118 cases. Information accessible in Czech: MVČR. Souhrnná zpráva o mezinárodní ochraně za rok 2017. In: Ministerstvo vnitra ČR [online]. 1.3.2018 [2018]. www.mvcr. cz/clanek/souhrnna-zprava-o-mezinarodni-ochrane-za-rok-2017.aspx (accessed 22 April 2021). 15 Art. 10 Sec. 2 of the Charter.

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guaranteed special care, protection in labour relations and suitable labour conditions; additionally, children born out of wedlock are to have equal status.16 Parents are guaranteed the right to care for and bring up their children, and children have the right to parental upbringing and care.17 Any limits on these rights are acceptable only on the ground of a court decision based on law.18 Finally, the state is obliged to provide assistance to parents who are raising children.19 The core statutory regulation of family relationships is integrated into Statute No. 89/2012 Coll., Civil Code (hereinafter: CC).20 Accompanying norms of family law can be found most notably in the Statute on Social and Legal Protection of Children21 and in the Statute on Registered Partnerships.22 The constitutional and statutory framework is complemented by relevant international treaties such as the European Convention for Human Rights and Fundamental Freedoms, the Charter of Fundamental Rights of the European Union, the Convention on the Rights of the Child and the European Convention on the Exercise of Children’s Rights.23

2 Management of Diversity 2.1

Two-Person Relationships (Marriage and Other Forms of Cohabitation)

Marriage represents a legally preferred form of a statutory two-person relationship. The CC provides the definition of marriage, the procedure for creation of marriage, the functioning of statutory and property rights and the procedure for the dissolution of marriage. Marriage is defined as: a permanent union of a man and a woman formed in a manner provided by this Act. The primary purpose of marriage is the foundation of a family, proper upbringing of children and mutual support and assistance.24

16

Art. 32 Sec. 2 and Sec. 3 of the Charter. Art. 32 Sec. 4 of the Charter. 18 Ibid. 19 Art. 32 Sec. 5 of the Charter. 20 Available in English in: Ministerstvo spravedlnosti ČR [online]. 3.2.2012 [2012]. http:// obcanskyzakonik.justice.cz/images/pdf/Civil-Code.pdf (accessed 24 April 2021). 21 Statute on Social and Legal Protection of Children No. 359/1999 Coll. 22 Statute on Civil Partnership No. 115/2006 Coll. 23 International law is constitutionally approached as a part of the national legal regime (monistic principle contained in Art. 10 of the Constitution). Ratified international treaties have applicatory priority over a statute where a treaty provides something other than that which a statute provides. Similarly, European law is applied as stemming out of international treaties. The constitutional order does not provide space for autonomous application of other normative systems, e.g. those stemming from religious discourse. 24 Sec. 655 CC. 17

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The provision presupposes two ex definicione limits. Firstly, marriage is a bilateral relationship. Consequently, the criminal code sanctions anyone who intentionally concludes a second marriage while already being in a legally valid marriage.25 Polygamic relationships, which can be considered statistically rare, are neither legally recognizable nor sanctioned in any way. Secondly, marriage is a union of a man and a woman. The requirement of an opposite sex relationship means that marriage retains a relatively conservative character. For this reason, same-sex couples and their families cannot access marriage as a legal form for their family. Marriage is formed by free and full affirmative expressions of will by a man and a woman who have the legal capacity to enter into marriage, that is, who have reached eighteen years of age or sixteen years of age on condition of judicial consent, and lack legal impediments to marriage such as not having full legal capacity to enter into marriage or being in a currently valid marriage or registered partnership. Furthermore, marriage is excluded where the fiancés have an ancestry relationship, are siblings or have a relationship based on some form of parental care.26 The ways of establishing marriage include a state marriage ceremony or a religious marriage ceremony. A religious marriage ceremony can be provided by registered churches and religious organizations that have gained the “specific rights of churches and religious organizations”.27 The specific rights of churches and religious organizations can be granted only to those churches and religious organizations that have been registered for at least ten years, have published an annual report for at least ten years, have properly fulfilled their obligations towards the state and third parties, and have not been criminally convicted. Of the existing forty-one churches and religious organizations, only twenty-one have such specific rights.28 Fiancés that intend to have a religious marriage ceremony legally recognized as constituting a valid marriage on the basis of the CC must fulfil all legal requirements applied to civil marriage together with specific requirements set forth by the respective individual churches and religious organizations.29 Establishment of a religious marriage without a state marriage is not legally sanctioned. We can conclude that access to marriage is relatively open. There are no limits directly targeting the cultural, racial, religious or national identity of individuals or groups or their ways of life either within individual groups or in their inter-group relationships. The only exceptions that have potential to cause meaningful limitations of diversity can be seen in the conditions regarding age, polygamous relationships and same-sex couples. The first two conditions have not yet been tested by political means or by individual claims, for example in the sphere of human rights

25

Sec. 194 Criminal Code No. 40/2009 Coll. Sec. 671-676 CC. 27 Sec. 11 Statute on the Religious Freedom and the Position of Churches and Religious Organizations No. 3/2002 Coll. 28 For further information see Ministerstvo kultury ČR [online]. [2018]. www.mkcr.cz/cirkve-anabozenske-spolecnosti-12.html (accessed 24 April 2021). 29 Sec. 666 CC. 26

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adjudication. The absence of such ways of life in society can be seen as the primary cause. However, the limit on same-sex relationships has been undergoing a stresstest in recent times. Registered partnership, introduced in 2006, represents the only legal statutory form standing next to marriage. Registered partnership is limited to same-sex persons and thus stands as a direct and supplementary institution alongside marriage. It remains excluded from the CC even after the recodification of civil law.30 In arguing for the adoption of the legislation, the statute’s drafting body (a group of members of the Chamber of Deputies) reasoned that the absence of registered partnership: is a structural expression of homophobia (fear of homosexuality and hatred towards its bearers) and is in direct conflict with the principles of personal freedom and equality, non-discrimination on the basis of another status and the attainment of the law guaranteed by the Constitution.31

Against the background of the significant political controversy induced by the proposal, the statute was initially vetoed by the president, who argued that a registered partnership lacks in essence the aim of family and undermines the overall values of society by threatening the functioning of traditional family relations.32 The statute was promulgated after the presidential veto was overridden. Recently, the political and social discussions have shifted from the question of the existence of registered partnership to the possibility of opening marriage to same-sex couples (with a simultaneous abolishment of registered partnership). A proposal in this direction from a group of members of the Chamber of Deputies has been met with a counter-proposal of constitutional amendment seeking to define marriage as a relationship exclusively between a man and a woman. The proposals have led to significant divisions both across the political spectrum as well as inside of political parties with no final vote up to date.33 While registered partnership can be considered a direct and supplementary institution for same sex-couples, it does not provide the same legal regime as marriage. The range of provided rights and associated duties is limited as compared to marriage. On the one hand the CC establishes the same legal regime for registered partnership as that guaranteed to marriage in the area of general property law, on the other hand it excludes the regime of community property—as part of family law— 30

Statute on Civil Partnership No. 115/2006 Coll. See the explanatory memorandum: Sněmovní tisk 969/0. Návrh zákona o registrovaném partnerství. In: Poslanecká sněmovna Parlamentu České republiky [online]. [2018]. www.psp.cz/ sqw/text/tiskt.sqw?o¼4&ct¼969&ct1¼0 (accessed 19 April 2021). 32 See Klaus (2006). 33 For future developments see the legislative information on both proposals. Sněmovní tisk 201. Návrh zákona, kterým se mění občanský zákoník a další související předpisy. In: Poslanecká sněmovna Parlamentu České republiky [online]. [2018]. www.psp.cz/sqw/historie.sqw?o¼8& t¼201 (accessed 8 March 2020). Sněmovní tisk 211. Návrh zákona, kterým se mění Listina základních práv a svobod. In: Poslanecká sněmovna Parlamentu České republiky [online]. [2018]. www.psp.cz/sqw/text/tiskt.sqw?O¼8&CT¼211&CT1¼0 (accessed 19 April 2021). 31

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which is guaranteed ex lege only to marriage.34 Similarly, the law creates unequal treatment in the area of social security, e.g. registered partners are not entitled to a widow pension and cannot claim other social benefits in the event of a deceased partner.35

2.2 2.2.1

Parents and Children Relationships (and Other Forms of Care) Parental Care and the Best Interests of the Child

Recalling the constitutional protection of children and parents in the context of family law, the Charter provides for the protection of parenthood by the law, special protection for children and adolescents, equality of children born in or out of wedlock, parents’ right to care for and raise their children as well as their right to assistance from the state, and children’s right to parental upbringing and care. Parental rights may be limited and minor children may be removed from their parents’ custody against the latter’s will only by decision of a court based on the law.36 Before addressing particular problems in this area, it is worth noting that the general legal principle for the moderation of relationships between parents and children as well as for all other situations concerning children’s care and upbringing is the principle of the best interests of the child. The principle has applicability in the domestic legal order as a consequence of Art. 3 Sec. 1 of the Convention on the Rights of the Child which states that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Similarly, according to the authoritative interpretation of the Committee on the Rights of the Child of the UN, whenever a decision is to be made that will affect a specific child . . . the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. . . . The justification of a decision must show that the [best interest of the child] has been explicitly taken into account.37

The Constitutional Court has long emphasized the need to take into account the best interests of the child in all actions concerning the child, including judicial 34

Sec. 3020 CC. For details on the regulation of registered partnership under CC, see Frinta (2014), pp. 1314–1321. 35 Sec. 49 et seq. of Statute on Pension Security No. 155/1995 Coll. 36 Art. 32 of the Charter. 37 General comment No. 14 on the right of the child to have his or her best interests taken as the primary consideration, dated 29 May 2013, CRC/C/GC/14, § 6.

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decision-making.38 Its consistent jurisprudence in this regard can be seen as a reaction to a long and deeply entrenched practice of overlooking the best interests of the child. Even though the principle of the best interests of the child is a priori an indeterminate legal term, it is to be explored and established in each particular situation with special regard given to: the child’s attitude, the child’s identity, maintaining the family environment and bonds, caring for the child’s protection and safety, the child’s membership in a vulnerable group, the right of a child to health and the right of a child to education.39 The application of this principle lies at the core of litigated claims concerning parental care in the Czech Republic.40 The problematic areas of judicial adjudication concerning parental care can be identified in two regards. Firstly, the setting of parental care after divorce. During the judicial proceedings concerning the decision over the parameters of parental care after divorce, the children are in some cases perceived more as an object than the subject. There is a general lack of the right of the child to be heard and participate in a proceeding that inherently touches on his or her being. Although the court system has been trying to overcome this shortcoming, decisions can still be found that have applied a restrictive interpretation of the right of a child to be heard. Thus, the best interests of the child are not investigated in the light of the self-determination of the child but are substituted with an indirect investigation of parental interest. This problem has a very common and general character, and occurs irrespective of the social groups involved. Nevertheless, it constitutes a serious problem in the protection of the children rights.41 Secondly, the legal regulation of other forms of family care is based on the principle—derived from the concept of best interests of the child—according to which upbringing in the biological family is of primary importance. Other forms of family care, such as tutorship, guardianship and foster care, as well as adoption, must always take precedence over being raised in institutional care. The latter represents the ultimate extreme measure and must be regarded as a measure of last resort. The case law of the Constitutional Court indicates that these principles of priority have not been put in practice by the institutions entrusted with the social and legal protection of children and have not been firmly adjudicated by general courts.42

Among many, see Judgment file reference Pl. ÚS 23/02 dated 30 June 2004 and Judgment file reference Pl. ÚS 15/09 dated 8 July 2010. 39 General comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration, dated 29 May 2013, CRC/C/GC/14, § 32. 40 Similarly on the content of the principle of best interests of the child Šimáčková (2012), pp. 662–663. 41 For cases adjudicated by the Constitutional Court see e.g. Judgment file reference IV. US 3305/ 13 dated 15 October 2014; Judgment file reference I. US 1506/13 dated 30 May 2014; or Judgment file reference III. US 3363/10 dated 13 July 2011. 42 See for instance Judgment of the Constitutional Court file reference I. US 1764/16 dated 3 November 2016 (N 207/83 SbNU 289). 38

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The above elaborated general remarks concerning the best interests of the child in parent-child relationships relate to the question of diversity only indirectly. However, the concept of the best interests of the child carries several implications in support of diversity. On one side it limits a potentially extensive paternalistic role of the state, with the result that any given state action can be taken only where it is best for the child. On the other side it limits any illegitimate interventions into parentchild relationships that are based on a negative assignment of, for example, ethnicity, nationality, religious identity or sexual orientation, as those can never be per se in favour of the best interests of the child. Therefore, the concept of the best interests of the child restricts these negative political aims by prioritizing the elaborated objective criteria that prevail over other state intentions. In this sense the following three most controversial areas of diversity accommodation in family law of the Czech Republic also illustrate how the concept of the best interests of the child supports diversity.

2.2.2

Adoption by Same-Sex Couples

The first particular area of recent tensions between accommodation of diversity, the best interests of the child and family law can be seen in the legal regulation of adoption. Some of the parameters for adoption have been recently changed by a decision of the Constitutional Court. The constitutional review concerned a provision that prohibited the adoption of a child by a person who had entered into a registered partnership.43 However, the legal framework permitted adoption by an individual who has not entered into a registered partnership. The Constitutional Court, by way of introduction, acknowledged that there have recently been some fundamental changes in the manner of cohabitation and that unlike a more traditional concept of the family, commonly anticipating multiple generations living together, there are ever-increasing numbers of people living on their own, the number of unmarried couples is approaching the number of married couples and divorce is seen as something almost natural. The Constitutional Court’s assessment recognized the unconstitutional character of the provision. It based its reasoning on the principle of human dignity as a fundamental objective value of humanity and as the focal point of other fundamental rights. It further stressed that the restriction excluded a certain group of persons from a certain right solely due to the fact that they had decided to enter into a civil partnership. Such provision thus turns them into de facto “second-rank” individuals and stigmatizes them groundlessly in a distinct manner, which evokes the idea of their inferiority. At the same time, the Court inferred that this consequence was not based on the expectation of these persons engaging in any objectionable, unethical or even unlawful conduct, but simply on the fact that the persons had entered into a civil

43

The former provision of § 13, para. 2 Statute on Civil Partnership No. 115/2006 Coll.

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partnership, whereby they behaved in a manner allowed and assumed by the statute and did so in an absolutely transparent and predictable manner.44 Nevertheless, it is necessary to stress that even after the judgment any parental relationship remains limited to a man and woman. It is not legally possible for a child to be adopted by two persons of the same sex regardless of their status. This regulation has been marginally weakened during a constitutional review of a case that stemmed from a refusal to recognize a foreign birth certificate with two male parents. The case concerned a child who was born under a surrogacy contract, where the surrogate mother carried to term an embryo produced from the artificial fertilization of an anonymously donated egg with the sperm of one of the complainants. The governmental institutions refused to recognize the birth certificate with an argument recalling the limitation of the form of parenthood to one man and one woman. The Constitutional Court concluded that the failure to recognize a foreign decision determining the parenthood of a child of two persons of the same sex in a situation in which family life was de facto and legally constituted between them in the form of surrogacy on the grounds that Czech law does not allow the parenthood of two persons of the same sex is contrary to the best interests of the child as protected by Article 3, para. 1 of the Convention on the Rights of the Child. In a case where family life has already been established between individuals on a foreign legal basis, it is the duty of all public authorities to act in such a manner that this relationship may develop, and it is necessary to respect the legal guarantees protecting the relationship between children and their parents.45

2.2.3

Institutional Care

The second particular area of recent tensions between accommodation of diversity, the best interests of the child and family law concerns the use of institutional care for children. The most notable one includes the general tendency of state institutions to divide a family, that is, to limit the rights of parents to raise their child where the economic circumstances have been assessed as inadequate. The low quality of material and housing conditions is usually given undue weight when assessing the overall conditions of the children’s environment and in extreme cases constitutes the only ground for limiting parental rights. This problem most strongly manifests itself in relation to economically weaker families, and it has an excessive impact on Roma families. Decisions of the ECHR in the cases of Wallova and Wall vs. the Czech Republic and Havelka and others vs. the Czech Republic have had a fundamental influence and partially changed this practice. In both cases the ECHR found a violation of

44 45

Judgment of the Constitutional Court file reference Pl. ÚS 7/15 dated 28 June 2016. Judgment of the Constitutional Court file reference I. ÚS 3226/16 dated 24 July 2017.

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Article 8 of the European Convention.46 The ECHR emphasized the priority of the state’s positive commitment to help improve the family’s social situation before attempting to separate the family. Arguments regarding the family’s imperfect social conditions were not found by the ECHR to be so serious as to justify the division of the family. This conception has also been expressed in the current legal regulations on institutional care in the new CC, according to which the insufficient housing or property conditions of the child’s parents or the persons to whom the child is entrusted cannot per se be the reason for a removal decision.47

2.2.4

The Case of Roma Children and Education

The case of Roma families, referred to above in the context of institutional care, requires special attention also for other reasons. Firstly, there is a problematic practice of collecting racial information about children. Secondly, there is an equally problematic practice of placing children into educational institutions, ultimately leading to an excessive presence of Roma children in special schools. In both cases the emphasis on the ethnicity has significant impacts on the quality of family life of those concerned and leads to a violation of the principle of the best interests of the child. The first mentioned problematic area represents a somewhat hidden controversial practice of governmental bodies determining and recording children’s ethnic origin. It is done in the area of social and legal protection of children—specifically, when arranging substitute family care. The ethnic classification of children is based on an external assessment carried out by social workers. The classification of children as being Roma or “half-Roma” can be considered a dubious method of racial classification based on physical features (colour of skin, hair, etc.). Moreover, the classification that determines the ethnicity of a child provides an opportunity to discriminate against such children in terms of their chances of being placed in substitute family care as the information is disclosed to other participants.48 Furthermore, the question of the constitutionality of such practice arises as it empowers authorities to carry out formal assessments of the ethnic background of children. In a democratic society integrating into its legal realm the principle of non-discrimination, it is clearly impermissible to use information about the ethnic or national origin of someone irrespective of the will of the person whose ethnicity or nationality is in question. Likewise, there are no “objective” criteria that can be applied when classifying people into various ethnic groups and subgroups. The criterion of children’s ethnic origin and its use by the state authorities excludes the children from the possibility of being placed into substitute family care. The practice

46

Wallova and Wall v. the Czech Republic, ECHR Ruling No. 23848/04, from 26 October 2006, and Havelka and others v. the Czech Republic, ECHR Ruling. No 23499/06, from 21 June 2007. 47 Sec. 971 Art. 2 CC. 48 For details see Hofmannová (2017), pp. 269–281.

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therefore reinforces the segregation of children of a different ethnicity and deprives them of the chance of being brought up in family care.49 The second outlined problem concerns the general practice of children’s placement into education institutions so as to ultimately produce an excessive presence of Roma children in special schools. In 2007 in the case of D. H. and others against the Czech Republic, the ECHR ruled on a situation of this nature and found discrimination based on ethnic origin in relation to the right to education.50 In the court’s view, indirect discrimination took place. This involved a situation where an apparently neutral provision (placement of a child into a special school for children with mild mental disabilities) put members of one group, in this case the Roma pupils, at a particular disadvantage even though this impact could not be justified by the otherwise mandatory use of expert testing of children nor by the condition of the parents’ consent. The Grand Chamber also noted that the Roma constitute a disadvantaged and vulnerable group that requires special protection. According to the Grand Chamber, the process of admission to special schools was not accompanied by guarantees ensuring consideration of the specific needs of Roma children as arising from their disadvantaged position.51 It took an excessively long time to modify the systematic structure of the educational system and implement the decision of the ECHR. In September 2016, major amendment to the Schools Act came into effect, introducing legal guarantees to provide support to pupils with special educational needs and to finally reflect the decision of the ECHR.52 The main aim was to reduce the overall number of children in special schools in cases in which such children are capable of being educated in a standard curriculum with supportive measures. Whereas most of the support measures can be provided only following a recommendation of the “Educational Consultancy Centres”, the Centres have very limited personnel and specialist capacities to effectively assess and/or assist the children in need. Moreover, due to their lack of expertise, the Centres hesitate to assist poor and Roma children. As a result, the support mechanisms have been broadly used in favour of children with medical issues; support to children from a “different cultural

The practice follows a recommendation of the Committee on the Rights of the Child “to establish a clear method for identifying the Roma minority in its data collection to facilitate the clarity and effectiveness of policymaking; and also ensure that such a definition is complemented by adequate support and protection mechanisms to prevent the discriminatory abuse of such data” included in the Concluding observations: Consideration of reports submitted by States parties under article 44 of the Convention from the 30 May 2011. In: United Nations Human Rights Office of the High Commissioner [online]. 4.8.2011 [2011]. https://tbinternet.ohchr.org/_layouts/15/ TreatyBodyExternal/Countries.aspx?CountryCode¼CZE&Lang¼EN (accessed 21 April 2021). Even though the recommendation aims for acceptable purpose, its implementation is burdened by the context described above. 50 Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in conjunction with article 2 of Protocol no. 1 of this document. 51 D.H. and Others v. the Czech Republic, ECHR Ruling No. 57325/00, from 13 November 2007. 52 Statute No. 82/2015 Coll., Amending the Schools Act No. 561/2004 Coll. 49

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background” has been offered only in a very limited manner with substantial discrepancies between the various regions of the Czech Republic. At the same time, the amendment led to a sharp dispute over the implementation of inclusive education: many of the ordinary schools disagreed with the new system because they did not want to accept children with special educational needs; the “special” or “practical” schools disagreed, too, because they feared being emptied and closed. Even before the modification of the school system could fully take place, a strong backlash against the model of inclusive education was evident. The backlash comes from the absence of a social consensus on the model of inclusive education.53 Therefore, after the most recent parliamentary elections in 2017, many political actors promised to step back from the model of inclusive education, and these efforts continue to this day. Partial steps have been taken by the Ministry of Education to reverse the system to its original form—if not by statutory amendment, at least by modifying the content of statutory rules by ministerial decrees.54 The above mentioned cumulative effect of social and political distrust towards the model of inclusive education can be viewed as the main cause of failure of the inclusive education to reduce the segregation of Roma pupils. Recent data suggest that the effect has been negligible. While Roma share in the general primary school population is 3.7%, the share of Roma children in the total number of children educated in programs for pupils with mild mental disabilities has declined marginally from 30.6% in the school year of 2015/2016 to 29.1% in the school year of 2018/2019.55 As we can see the problem of racial segregation in education remains essentially unsolved and undoubtedly reduces the accommodation of pluralism in the educational system as well as supports the embedded exclusion of Roma families from the rest of the society.

2.3

Dissolution of Marriage

Legal regulations concerning the dissolution of marriage have not been controversial from the perspective of social diversity, given that the conditions for the dissolution of marriage do not relate to any of the existing diversity delineations in society, that

53

Research of public opinion suggests that almost half of the public generally agrees with the idea of inclusive education. However, it lacks detailed knowledge of the concept and is not aware of the position of the Czech Republic in international comparison. Straková et al. (2019), pp. 79–106. 54 Decree No. 27/2016 Coll., on education of pupils and students with special educational needs and exceptionally gifted pupils and students, as amended. 55 Opinion of the Public Defender of Rights on the Communication from the Czech authorities concerning enforcement of the judgement of the European Court of Human Rights in the Case of D. H. and Others v. the Czech Republic from 14 May 2019. Ref. No.: KVOP-22619/2019. In: Public Defender of Rights [online]. [2019]. https://ochrance.cz/fileadmin/user_upload/ESO/492019-DIS-VB_Opinion__discrimination__under____21b.pdf (accessed 21 April 2021).

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is, they apply equally to all married individuals without regard to diversity delineations.

3 Conclusion When thematizing the condition of the Czech Republic in respect of multicultural challenges in family law, it is necessary to state that the scholarly discourse is not producing a wide variety of research. The same applies to the judicial adjudication of relevant cases. There has been no fundamental decision of the Constitutional Court since the establishment of the Czech Republic that concerns the position of national or racial minorities. Further, the general societal discourse does not consider the question of diversity in family law or its application as fundamentally crucial. To fully understand the reality of family law and plurality, it is necessary to see that family law functions in a society which has traditionally been homogenous. This character is partly a consequence of a homogenous political structure under a socialist regime that limited openness towards other forms of individual identity and that exercised pressure against identities contradicting the overall communist ideology. Such historical developments have strongly influenced the perception and presence of diversity, not only in past generations but also in present ones. Diversity is limited to a small number of traditionally present cultural, national, racial and religious identities. In this sense it is necessary to stress that all the various forms of family life stemming from these alternative forms of identity are subjugated to one legal framework—and they are exercised inside its limits. Even though the constitutional identity can be formally understood as based on the liberal democratic model, society lacks long-term experience with social practices that bring to life the principles and values of a liberal democratic arrangement. Diversity is present as a normative constitutional value and to a certain degree is exercised in social reality. However, the objective absence of multicultural plurality reduces the variety of social practices which the model of liberal society presupposes. Moving beyond the argument of homogeneity, we can summarize several general prevailing trends in recent years. Firstly, as regards individual groups of persons, the most problematic situation concerns Roma people. A not insignificant part of political and public discourse stigmatizes Roma people as having a way of life which is incompatible with the way of life of the majority of the population. They are presented as alien elements incapable of integration into society and stigmatized as abusers of social welfare benefits, and discrimination against them is widely socially tolerated. In this context, we should look for the reasons why the problems manifesting themselves in family law, such as the preferred placement of Roma children in institutional care and special schools, are not adequately answered. As a result, Roma people face social segregation that is supported by the application of family law and related statutory provisions, even though the law from a normative point of view retains its anti-discriminatory character.

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Secondly, a special form of paternalism is present in the state’s attitude towards family relations. This manifests itself strongly in a general tendency of state organs to prefer institutional care as a form of alternative child care over other forms of less infringing nature. A repugnant form of paternalistic approach can be seen in the practice of placing Roma children into special schools. Thirdly, state policies retain a conservative approach to a certain extent, unlike recent developments in other Western countries. This applies mostly to the lack of alternative forms of family status beyond registered partnership. There is also a lack of will to open marriage beyond the limit of opposite-sex relationships and to protect family relations of same-sex couples. Lastly, the jurisprudence of the Constitutional Court has in many cases played an important role in the adoption of a more liberal approach as well as in the rectification of some of the doubtful and frequently unconstitutional practices that have been mentioned. Thus, the conservative, static and rigid character of some of the institutions of family law has been limited to a certain degree. We can conclude by noting that multicultural challenges in family law have in recent years become potentially more complex, as the overall attitude of society and the political discourse on diversity have dramatically changed. Most notably, the migration crisis has provoked strong opposition to alternative forms of national, racial and religious identity. Many political actors do not consider these forms of identities as holding value in an open society, and individuals who are bearers of such identity are instead portrayed as members of alien and hostile social groups. That attitude is not only changing the approach of the Czech Republic towards the solution of the migration crisis on the European level but is also provoking more radical political stances towards internal existing forms of diversity. Therefore, certain forms of racism, homophobia and anti-liberal hatred have successfully penetrated the public and political discourse. These developments can endanger the future retention and further development of social plurality that has been achieved. The problem of identity politics that is now generally based on the long tradition of European nationalism brings a new anti-liberal dynamism to the political space. As mentioned, its upsurge is mainly related to the migration crisis. Attacks on political minorities, LGBT rights, civil society and non-profit organizations as well as sporadic threats of violence have also become a common part of political discourse. These attacks aim to divide the society into “ordinary” citizens and the so-called “Prague café”, a pejorative designation used especially for urban, publicly active intellectuals. This definition has become part of propaganda to divide society into “us” and the “privileged snobbish intellectuals” or “winners” (defined as those who are not strongly against receiving refugees). With these developments in mind, we can conclude that the question of legally facilitating and promoting the existence of diversity in the society—also via family law—may soon be a question of ensuring its further basic existence when faced with direct political attacks. The need for continuous monitoring and research in this field is evident.

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References Frinta O (2014) Komentář k § 3020 občanského zákoníku. In: Občanský zákoník. Komentář, Svazek VI. (§ 2521 až 3081). Wolters Kluwer, Prague, pp 1314–1321 Hofmannová H (2017) Taking into account ethnicity in continuity in upbringing when arranging substitute family care in the Czech Republic in the context of Article 20 (3) of the convention on the rights of the child. Lawyer Q 7(4):269–281. https://tlq.ilaw.cas.cz/index.php/tlq/article/ view/264/249. Accessed 24 Apr 2021 Klaus V (2006) Prezident republiky Václav Klaus vetoval zákon o registrovaném partnerství. 16 February 2006. www.klaus.cz/clanky/47. Accessed 24 Apr 2021 Šimáčková K (2012) Komentář k čl. 32 (Ochrana rodičovství, rodiny, dětí a mladistvých). In: Wagnerová E, Šimíček V, Langášek T, Pospíšil I (eds) Listina základních práv a svobod. Komentář. Wolters Kluwer ČR, Prague, pp 662–663 Straková J, Simonová J, Friedlaenderová H (2019) Postoje odborné a laické veřejnosti k inkluzivnímu vzdělávání v kontextu obecných postojů k vnější diferenciaci. Studia Paedagogica 24(1):79–106. https://digilib.phil.muni.cz/bitstream/handle/11222.digilib/140892/1_ StudiaPaedagogica_24-2019-1_7.pdf?sequence¼1. Accessed 24 Apr 2021

Helena Hofmannová is an associate professor of constitutional law and theory of state at the Charles University Faculty of Law in Prague, Czech Republic and an assistant to a Justice of the Constitutional Court of the Czech Republic. She has been a member of the Advisory Committee on the Framework Convention for the Protection of National Minorities of the Council of Europe (2012–2016) as well as a fellow and visiting professor at the New York University School of Law, Michigan University School of Law and Ateneo de Manilla University. She is currently a member of the European Commission against Racism and Intolerance of the Council of Europe. Her interests include constitutional law, comparative constitutional law, human rights law and constitutional theory. Karel Řepa is an assistant professor at the Constitutional Law Department of the Faculty of Law at Charles University in Prague, Czech Republic. His interests include constitutional law, comparative constitutional law, constitutional theory and human rights law with special focus on religious freedom. He studied at the Buchmann Law School of Tel Aviv University, Israel, and the Law School of Freie Universität Berlin, Germany.

Hungary: The Concept of Family Within the Framework of “Illiberal Democracy” Lídia Balogh, András L. Pap, and Emese Pásztor

Abstract The report on Hungary identifies the current government’s political approach, self-labelled as “illiberal democracy” and manifested in a new Constitution and a Civil Code, as a decisive factor regarding family politics and the legal framework regulating various aspects of family life and private life. The authors find that these family policies/frameworks (directly or indirectly) create an unequal situation for those who do not live according to the government’s preferred family model. This model means, first of all, a family which is based on the marriage of a man and a woman, who raise together their (biological) children, preferably under middle-class socioeconomic conditions. Those who do not fit into this model (cohabiting partners, single parents, same-sex couples, families living in poverty, etc.) may find themselves in a disfavoured “minority situation” despite the fact that these groups of individuals/families constitute a significant part of Hungarian society.

The research has received funding from the People Programme (Marie Curie Actions) European Union’s Seventh Framework Programme under REA grant agreement No. 609427. Research has been further co-funded by the Slovak Academy of Sciences SASPRO-Programme. The research was also supported by the DEMOS—Democratic efficacy and the varieties of populism in Europe H2020 RIA project, as well as the 129018, 129245 and 134962 Hungarian National Research and Innovation Grants. L. Balogh Centre for Social Sciences, Institute for Legal Studies, Budapest, Hungary e-mail: [email protected] A. L. Pap (*) Centre for Social Sciences, Institute for Legal Studies, Budapest, Hungary Eötvös Loránd University (ELTE), Institute for Business Economics, Budapest, Hungary University of Public Service, Budapest, Hungary e-mail: [email protected] E. Pásztor Eötvös Loránd University (ELTE), Faculty of Law, Department of Constitutional Law, Budapest, Hungary e-mail: [email protected] © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_9

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1 Introduction 1.1

Introduction to the Hungarian Legal System and the Socio-Political Framework

Hungary, a country of 93,030 km2 (35,919 sq. miles) and a population of approximately ten million (9,850,845), has been a member of the European Union since 2004 and an OECD member since 1996.1 Hungary’s ethnic composition is as follows: Hungarian 85.6%, Roma 3.2%, German 1.9%, other 2.6%, unspecified 14.1% (2011 est.);2 99.6% of the country speaks the official language, Hungarian, as mother tongue. Based on the 2011 census, the number of minorities living in Hungary is as follows: 3571 Armenians; 6272 Bulgarians; 315,583 Roma; 26,774 Croatians; 185,696 Germans; 4642 Greeks; 7001 Poles; 35,641 Rumanians; 3882 Ruthenians; 10,038 Serbs; 35,208 Slovaks; 2820 Slovenians; 7396 Ukrainians. Roma thus constitute the largest minority group in the country. In the 2011 population census, about 3% of the population identified as Roma,3 but estimates suggest that the number is actually approx. 750,000.4 In Hungary, the Roma are practically the only visible minority and have been present for centuries. Hungarian Roma are citizens. They are documented and linguistically assimilated: they all speak Hungarian, some only Hungarian, others are bilingual, and they also do not differ significantly from the majority in religious affiliation. Roma in Hungary live a sedentary lifestyle.5 In terms of religious affiliation, the following figures are derived from the 2011 census: Roman Catholic 37.2%, Calvinist 11.6%, Lutheran 2.2%, Greek Catholic 1.8%, other 1.9%, none 18.2%, unspecified 27.2%.6 Hungary’s legal system belongs to the continental law family, being part of the Roman law and German-Austrian law tradition, with a particularly strong influence of the Austrian legal system from the era of the Austro-Hungarian Monarchy (1867–1918). No alternative normative systems, such as interreligious or interregional law, exist or operate in Hungary. Since the 1989 political transition from communism, Hungary has been a constitutional democracy.

1

See BBC News (2018). The percentages add up to more than 100% because respondents were able to identify with more than one ethnic group; Romani populations are usually underestimated in official statistics and may represent 5–10% of Hungary’s population, CIA (2020). 3 Hungary, Central Statistical Office (2013), table 1.1.6.1. The official English translation of the census questionnaire is available at www.ksh.hu/nepszamlalas/docs/kerdoivek/szemely_angol.pdf (accessed 20 April 2021). 4 Inkei and Vaspál (2016). 5 Szuhay (2003). 6 Hungary, Central Statistical Office (2014), p. 14, table 1.1. See also U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2015). 2

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In the 2011 census, 6.5% of the population declared that they belong to one of the minority groups. Immigration figures are very low, and the overwhelming majority of immigrants are ethnic Hungarians from a neighbouring state who thus do not constitute a cultural minority. Immigration authorities recorded 85,131 foreigners (0.85%) living legally in Hungary in 2017.7 This report shows that in Hungary there is a tension in the approach to the diversification of family structures, but this tension is located less in ethnic and cultural difference and more in the different perspectives of individuals living different lifestyles. So, for example, diversity regarding family life is more pronounced when one compares the perspective of religious conservatives to the perspective of progressive liberals.

1.2

The 2010 Political Transition

In the 2010 spring elections, a coalition of the Fidesz Party and the Christian Democratic Party, two self-identified right wing, conservative parties led by Fidesz-president Viktor Orbán, were chosen by 41.5% of all the eligible voters and received 53.1% of the actual votes cast, which translated to 68% of the mandates in Parliament. This gave the winners a two-thirds majority that allowed them to amend the Constitution and cardinal laws, i.e. laws defined and enumerated by the Constitution that may also be adopted by a qualified, two-thirds majority of the votes in Parliament. A new Constitution has been adopted, and the constitutional and public law landscape has been rewritten. Between 2010 and 2014, altogether 859 laws were passed. “Illiberalism” as a chosen and self-identified feature of the new regime was coined by Prime minister Orbán at a speech delivered at the Summer Open University of Bálványos in July 2014.8

1.3

Family Law in the Post-2010 Constitutional Regime

As for family law in particular, the highest-level source of law is the Constitution, which is referred to as the Fundamental Law and which is the source of all branches of law, including marital and child law. The protection of families is regulated by Cardinal Act CCXI of 2011. Articles XV to XVI contain essential guiding provisions on the equality of women and men, also stating that the state will protect families, children, women, the elderly, and persons living with disabilities. Act XXXI of 1997 on Child Protection and Guardianship Administration sets out state provisions having the aim of protecting and sustaining children’s rights. In 2013 a

7 8

See Hungary, Central Statistical Office (2020), table 1.7. Hegedűs (2014).

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new Civil Code, Act V of 2013, was adopted, which contains the Book of Family Law, governing marital legal matters and covering all major cohabitation, custody, maintenance, and child access provisions. Family law cases are heard by the ordinary courts. There are 112 local courts before which family-law-related cases are heard at first instance, and there are 20 courts of appeal (county courts) before which appealed matters are heard. Proceedings are held publicly, unless at least one of the parties objects and the court excludes the public from the proceedings. The new Constitution expresses preferences for conservative family values. The preamble, the National Avowal, states: “We hold that the family and the nation constitute the principal framework of our coexistence and that our fundamental cohesive values are fidelity, faith and love” (The Fundamental Law of Hungary, 2013). The National Avowal serves as the “basis of our legal order; it shall be an alliance among Hungarians of the past, present and future. It is a living framework which expresses the nation’s will and the form in which we want to live.” The preamble is more than a festive declaration, under Article R) (3) of the Constitution’s chapter entitled Foundation; rather, it has something of a normative force, as “[t]he provisions of the Fundamental Law shall be interpreted in accordance with their purposes, the National Avowal and the achievements of our historical Constitution.” Also, under article I, paragraph (3), fundamental rights may be restricted in the interest of protecting a constitutional value, and this provision could serve as the basis for a restriction of fundamental rights.9 The term fidelity may, of course be interpreted as applying both to marriage or to patriotic loyalty. Article L nevertheless goes on to say: “(1) Hungary shall protect the institution of marriage as the union of a man and a woman established by voluntary decision, and the family as the basis of the survival of the nation.” It also states that “[f]amily ties shall be based on marriage and/or the relationship between parents and children.” This formulation recognizes parent-child relations that have emerged outside of marriages, but not the civil law partnership of the parents; this is a clear expression of a moral preference.10 In 2016, the United Nations Working Group on the issue of discrimination against women in law and in practice pointed out how Hungarian schoolbooks contain many gender stereotypes, depicting women almost exclusively as mothers and wives and, in some cases, depicting mothers as less intelligent than fathers.11 The government order on a mandatory national curriculum,12 a binding law of the land, sets forth a class on family life in its specifications in chapter 5 on “Gender – male/female identity—sexuality – relationships subchapter.” It sets forth the following when defining the goals and principles of the framework curriculum for teaching family life in grades 9–12: The class syllabus

9

Fekete (2011), pp 33–45. Halmai and Scheppele (2013), p. 15. 11 Office of the High Commissioner for Human Rights, United Nations (2016). 12 Government decree 110/2012 (VI. 4.) article 62. 10

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helps foster sexual identity that reflects biological sex, the fundamental differences among sexes [. . .] brain functions, communication [. . .], a fertility-conscious attitude, where children are gifts. [. . .] it is important that children develop a family-friendly attitude, to prepare for [. . .] an engaged partnership (marriage) that serves as a basis for mature, responsible, balanced, healthy sexuality [. . .] through learning about the beauty of conception and fetal development they should learn that human life is a value from conception to natural13 death.14

On 23 December 2011, Parliament adopted a new cardinal law on the protection of families (Act CCXI of 2011). The Act defines family as follows: “(1) Family is the relationship between natural persons in an economic and emotional community that is based on a marriage between a woman and a man, or lineal descent, or familybased guardianship. (2) Lineal descent is established by way of filiation or adoption” (Article 7). This definition excludes not only same sex-couples but also single parents and their children from the concept of family.15 The Act also includes obligations for media providers to provide services respecting the institution of marriage and the value of the family and parenting (Article 5); parents are obliged, among other things, to cater for the supervision of their children when they stay in a public area or an entertainment facility at night (Article 9(3)g). School-age children are obliged to meet learning requirements to the best of their abilities; further, they are obliged to abstain from unhealthy lifestyles and are obliged to cooperate with their parents during the course of their care-taking and upbringing.16 Arguably, Hungarian citizens’ choices do not correspond to the Constitutionmakers value commitments. An analysis published by pollster and research institute TÁRKI in 2014 provides relevant data in this regard. According to the research, the past 25 years brought fundamental changes in Hungarian fertility rates, with birth rates and total fertility rates dropping radically in the decade following the postcommunist political transition and stagnating since 1999: [T]otal fertility rate measures the average number of children a woman is likely to give birth to if she were to experience the exact current age-specific fertility rates (ASFRs) through her lifetime. In 1989, this rate stood at 1.82, but during the 1990s the value dropped to around 1.3 . . . and has been stagnating at this level since.17

13 Emphasis on ‘natural death’ is supposed to be a hint; specifically, euthanasia should not be seen as an option according to the philosophy of this curricula. 14 Translation by András L. Pap. 15 The above definition was the first general definition of family entered into the Hungarian legal system, and it was annulled by resolution number 43/2012. (XII. 20.) of the Constitutional Court. By that time, the Fundamental Law contained no definition which would have restricted the notion of family ties. Article L(1) in its present form was enshrined in the Fundamental Law as part of the Fourth Amendment in 1 April 2013, with a very similar content to the annulled family definition of Act CCXI of 2011. 16 Hungarian Helsinki Committee, Eötvös Károly Policy Institute, Hungarian Civil Liberties Union (2012). 17 Spéder (2014), p. 64.

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Similarly, significant changes took place in respect of personal relationships, with marriage losing ground and common law marriages emerging as the primary type of relationship: The total marriage rate [. . .], which indicates the probability of someone marrying throughout their lifetime if she were to experience the exact age-specific marriage rate, fell from a level of 0.8 in 1989 to 0.43 in 2012. [. . .] currently [. . .], the chances of someone entering into marriage during their lifetime stand at 40 per cent.18

The increased diversity of family types is thus an obvious trend. The ratio of people living in relationships that qualify as partnerships is clearly declining, dropping from 75% to 65% between 1970 and 2011.19 The ratio of single-parent households increased, from 7% in 1970 to 14% in 2011. In the past 50 years, the proportion of people living in families with a child under 15 has dropped from 52% to 33%.20 Common law marriages have surged: In 1990, 5% of people in a relationship lived in common law marriages; by 2001 this rose to 11%, and by 2011 it reached 18%. The growth was especially rapid among youths: In the age group of 25–29, more people lived in common law marriages than in formal marriage, while among 30–34-year-olds a third, and among 35–39-year-olds a quarter of all persons chose to live with their partner without getting married.21 The popularity of common law marriages is not limited to patchwork families. It is also quite common for relationships where all the children have the same biological parents. While in 1989 only 12.4% of all children were born to unmarried women, by 2013 this ratio had increased to 46.2%.22 Simultaneously, patchwork families are also common: While back in 1990 78 per cent of mothers of newborn children lived with their spouses, by 2001 it was only 65 per cent, and in 2011 the ratio had dropped to 53 per cent. [. . .] In the same period, the share of women living in common law marriages surged from 7 per cent to 15 per cent.23

A growing proportion of children do not live with both of their biological parents. Among children aged 15–18, this applied to close to a third in 2001, and in 2011 this share had risen to 40%.24 Between 1 October and 8 November 2016, the Central Statistical Office of Hungary conducted a microcensus, which is a sample-based population enumeration

18

Spéder (2014), p. 65. Harcsa and Monostori (2014), p. 86. 20 Harcsa and Monostori (2014), p. 93. 21 Harcsa and Monostori (2014), p. 94. 22 Spéder (2014), pp. 69–70. 23 Harcsa and Monostori (2014), pp. 100–101. 24 Harcsa and Monostori (2014), pp. 102–104. 19

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tracking social trends between full-scope censuses. The microcensus covered 10% of all households in Hungary.25 According to the data tables provided by the survey, the composition of families altered accordingly in 2001, 2011, and 2016 (see Table 1): Even though the official government communication26 considers family as the union of a heterosexual, married couple bringing up preferably at least three children, the tables show that the total number of children and the number of married couples has continued to drop, while the popularity of consensual union is still growing, in parallel with the total number of children growing up in such families. In 2016, the proportion of live births outside marriage was 46.7% in Hungary; which was above the European Union average (43%).27 According to census data and research results, the value preferences of the Fundamental Law do not reflect the life-style choices or the actual conditions of a large proportion of the Hungarian society.28 These tendencies are present in Hungarian society despite the strong support of the voters towards the right-wing Fidesz government.29 In 2016 the United Nations Working Group on the issue of discrimination against women in law and in practice, in line with the Committee on the Elimination of Discrimination against Women’s “Concluding Observations on the combined seventh and eighth periodic reports of Hungary adopted by the Committee at its fifty fourth session (11 February – 1 March 2013)”, urged the government to consider that a conservative form of family, whose protection is declared in the Constitution as essential to national survival, should nevertheless not be put in an uneven balance with women’s political, economic, and social rights and empowerment. The Working Group also emphasized that the formulation of family should be interpreted as including the diversity of families, recognized under international human rights law, and that it should never be used to undermine women’s reproductive rights. The provision on the ban on discrimination in the Fundamental Law of Hungary (Article XV.) does not list sexual orientation and gender identity among the grounds of discrimination. The list is, however, not exhaustive, which means that sexual

25

More information on the microcensus is available in English at http://www.ksh.hu/ mikrocenzus2016/?lang¼en (accessed 20 April 2021). English language data tables are available at http://www.ksh.hu/mikrocenzus2016/book_2_characteristics_of_population_and_dwellings (accessed 20 April 2021). For a summary on the relevant findings in Hungarian: Hungary, Central Statistical Office (2018b). 26 “Normal and natural” families are often mentioned in government communications, as is the idea that the traditional family model and marriage are under comprehensive attack. Such statements can be found on the official website of the government, e.g. https://www.kormany.hu/en/ministry-ofhuman-resources/news/the-image-of-family-relayed-by-media-to-young-people-is-not-irrelevant (accessed 20 April 2021). 27 EuroStat (2020). 28 See e.g. Chronowski (2012), pp. 111–142; Chronowski et al. (2012), pp. 41–64. 29 Demonstrated most recently at the 2019 European elections: https://election-results.eu/nationalresults/hungary/2019-2024/ (accessed 20 April 2021).

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Table 1 Families by family composition and number of children Year, number of Married children couple 2001 Number of child(ren) 1 586,505 2 540,679 3 127,590 4– 34,231 Without child 836,147 Total 2,125,152 Number of chil2,205,261 dren living in families Number of chil104 dren per one hundred families Child(ren) 171 2011 Number of child(ren) 1 497,813 2 388,598 3 108,867 4– 32,118 Without child 744,571 Total 1,771,967 Number of chil1,747,967 dren living in families Number of chil99 dren per one hundred families Child(ren) 170 2016 Number of child(ren) 1 450,809 2 374,669 3 109,424 4– 29,071 Without child 792,932 Total 1,756,905 Number of chil1,658,937 dren living in families

Consensual union

Married couples and consensual unions together

Lone parent with child (ren) together

Total

74,413 38,675 14,808 7456 136,289 271,641 230,646

660,918 579,354 142,398 41,687 972,436 2,396,793 2,435,907

323,897 118,640 23,008 6356 – 471,901 658,510

984,815 697,994 165,406 48,043 972,436 2,868,694 3,094,417

85

102

140

108

170

171

140

163

118,002 60,663 22,454 12,611 191,069 404,799 366,489

615,815 449,261 131,321 44,729 935,640 2,176,766 2,114,456

353,096 141,314 31,769 10,435 – 536,614 778,193

968,911 590,575 163,090 55,164 935,640 2,713,380 2,892,649

91

97

145

107

171

170

145

163

136,559 74,360 25,595 12,186 234,787 483,487 419,267

587,368 449,029 135,019 41,257 1,027,719 2,240,392 2,078,204

348,024 120,132 26,180 8610 – 502,946 705,875

935,392 569,161 161,199 49,867 1,027,719 2,743,338 2,784,079

(continued)

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Table 1 (continued) Year, number of children Number of children per one hundred families Child(ren)

Married couple 94

Consensual union 87

Married couples and consensual unions together 93

Lone parent with child (ren) together 140

Total 101

172

169

171

140

162

Source: Hungary, Central Statistical Office (Központi Statisztikai Hivatal—KSH), http://www.ksh. hu/mikrocenzus2016/docs/tables/02/02_00_national_1_4.xls (accessed 20 April 2021)

orientation and gender identity can be protected as “other” situations. The European Parliament considered this to be problematic in its Resolution on the Revised Hungarian Constitution, issued in July 2011.30 A law (Act CLXX of 2010) aiming to improve the situation of women was passed in December 2010, modifying the Act on Social Security Pension Benefits (Act LXXXI of 1997). As from 1 January 2011, women with 40 years or more qualifying service time may retire even if they have not reached the standard retirement age. In this scheme, periods of time spent raising children may be considered as qualifying service time, but years spent in higher education may not, and the total service time is to include—as a rule of thumb—at least 32 years of paid employment. This reform of the pension system also generated public debate. NGOs and MPs criticized the law, which reinforces the social role of women as housewives, mothers, and grandmothers. The fact that men are excluded from the possibility of having parental work acknowledged as qualifying time was also subject to criticism.31

1.4

Multiculturalism in the Post-2010 Constitutional Regime

In the context of the refugee crisis, the prime minister officially rejected the idea of a multicultural society. In an interview with the German daily Frankfurter Allgemeine Zeitung, Mr. Orbán said: “We do not want a multicultural society.”32 At the European Parliament in Strasbourg, prior to a plenary-session debate regarding the government’s stance on immigration and the death penalty, he said: “We regard it to be a value that Hungary is a homogenous country and that it shows a very homogenous face in its culture, way of thinking and customs of civilization.”33 In an interview in the pro-government daily Napi Gazdaság, he explained his position:

30

European Parliament (2011) Resolution on the Revised Hungarian Constitution, 5 July 2011, P7_TA(2011)0315; Kovács (2012). 31 Juhász (2012). 32 Orbán (2015). 33 See Mandiner (2015).

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Hungary has a multi-nationality root system and cultural background, but this is not multiculturalism. Multiculturalism is the cohabitation of people of various civilizations, the coexistence of Islam, Asian religions and Christianity. We will do everything under our power to spare Hungary from this. We gladly see investors, artists and scientists arriving from non-Christian countries, but we do not want to mix with them at the level of large masses of people.34

The new Constitution conceptualized majority-minority relations in the following way: In the constitutional preamble, the National Avowal, “we Hungarians” proclaim that the “nationalities living with us form part of the Hungarian political community and are constituent parts of the State.” (“Nationalities” refer to “national minorities”, groups recognized under a specific piece of legislation: Act CLXXIX of 2011). According to Article XXIX of the chapter on Freedom and Responsibility: (1) Nationalities living in Hungary shall be constituent parts of the State. Every Hungarian citizen belonging to a nationality shall have the right to freely express and preserve his or her identity. Nationalities living in Hungary shall have the right to use their mother tongue, to use names in their own languages individually and collectively, to nurture their own cultures, and to receive education in their mother tongues. (2) Nationalities living in Hungary shall have the right to establish their self-government at both local and national level. (3) . . . A cardinal Act may provide that recognition as a nationality shall be subject to a certain length of time of presence and to the initiative of a certain number of persons declaring to be members of the nationality concerned.

An opinion of the Council of Europe’s advisory body, the Venice Commission,35 held the following concerning the statement that “the nationalities living with us form part of the state”: While this statement may be seen as an effort towards inclusiveness, it is also to be noted that the Preamble has been written in the name of “we the members of the Hungarian nation”, intimating that members of the “nationalities living with us” are not part of the people behind the enactment of the Constitution. The Constitution should be seen as the result of the democratic will-formation of the country’s citizens as a whole, and not only of the dominant ethnic group. Therefore, the language used could/should have been more inclusive (such as, for example “We, citizens of Hungary. . .”).

2 Management of Diversity Based on the statistical data cited in Sect. 1, even if Hungary is not a multicultural society, Hungarian families show a highly diverse picture considering both the number and the nature of relations established within the family. On the one hand, diverse structures are clearly demonstrated by the statistics, while on the other hand, the political agenda pushes a rather simple, one-dimensional approach as has been illustrated above. It follows that the everyday family-related lifestyle choices of 34

The Orange Files (2018). Venice Commission (2011) Opinion on the new Constitution of Hungary, 20 June 2011, 621 / 2011, paras 39–45.

35

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Hungarian people diverge from the restrictive notion of family newly enshrined in the Fundamental Law. It would be reasonable to assume that the gap between the constitutional concept and societal reality results in a tension reflected in judicial practice, but this presumption is only partially valid. Historically, before the Hungarian democratic transition in 1989, the Constitution had a purely declarative nature, meaning that it could not be considered as a normative legal document. Even if the Constitution of 1949 contained a relatively detailed catalogue of fundamental rights, the Communist rule in the Hungarian People’s Republic ensured that the essence of these rights remained impossible to enforce.36 This helps us to understand the context in which the majority of the current top judges of the Hungarian judicial system were socialized: they started their career in a political era which rejected the normativity of the Constitution.37 The socialization of these judges still has a great influence on more junior judges, as the patterns are passed on to the next generation,38 which results in problems concerning the applicability of constitutional principles in everyday legal disputes. Hungarian judges are simply not accustomed to using the abstract provisions of the Fundamental Law to question the validity of laws and regulations of lower levels of the legislative hierarchy. As a consequence of this, the new restrictive family concept has no direct impact on the everyday life of citizens, as the change in the constitutional context of the Fundamental Law has still not infiltrated into case law.39 The impact of the political agenda is, instead, reflected in administrative and legislative practice. The consequences of this are twofold from our perspective: (a) If the “diversity” is reflected by ordinary laws and lower level regulations, the courts enforce these against government action. For example, as stated under Sect. 2.2., separating children from their family for solely financial reasons is clearly against Article 7(1) of Act XXXI of 1997 on the protection of children and the administration of guardianship affairs, and such actions of child protection authorities targeting Roma families may successfully be challenged before ordinary courts. (b) Apart from the cases mentioned under point (a), sometimes the legal framework is clearly against diverse social patterns. In these cases, it is the legal context itself that prevents some family models from being recognized. While in Hungary constitutional jurisdiction fits into the centralized (European) model,40 constitutional adjudication rests on the shoulder of one body, the Constitutional Court of Hungary. Since 2012, significant modifications have been made regarding the competence of the Constitutional Court. By abolishing actio popularis,

36

Somody (2013), p. 19, footnote 14. Somody (2013), p. 19. 38 Bencze (2011), pp. 40–41, 108. 39 Pásztor (2018), p. 38. 40 Stumpf (2017), p. 247. 37

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the formerly existing legal possibility that enabled anyone to turn to the Constitutional Court and contend that a law was contrary to a constitutional provision,41 the chances became significantly slimmer that an ordinary citizen would be able to trigger a review on the constitutionality of legal provisions. As a result of these two factors—the attitude of ordinary courts and the change in the competence of the Constitutional Court—the legal framework in effect remains unchanged. The most common cases are divorce and the adjacent legal disputes (such as the division of property), which are linked to marriage,42 the most traditional pillar of family according to many. Citizens who do not align with the current legislative context tend to solve debates among themselves, using contractual solutions developed autonomously to avoid the involvement of courts, which means that the domestic courts still have not faced the challenge imposed by the diversity illustrated by statistics. Legal disputes between same-sex registered partners, or disputes involving existing, but invisible, family-models like polyamory cannot be found in the case law of domestic courts.43 In the following sections we provide an overview of the legal framework concerning different aspects of family-related issues, complemented with the rare examples of existing case law indicating social tension.

2.1

Two-Person Relationships

The Fundamental Law defines marriage as a conjugal union of a man and a woman. Hungarian law distinguishes between two types of civil partnerships, one particularly reserved for same-sex couples. Simple cohabitation, or as it is called in the English translation of the Hungarian Civil Code: “civil partnership”, is available to both different-sex and same-sex couples, and it does not constitute a civil status.44 The law follows what occurs factually in practice, i.e. cohabitation may come into being without any formalities or registration (but it can also be registered). The other type of civil union is “registered partnership”, which is reserved for and available to 41

Gárdos-Orosz (2012), p. 302. Pásztor (2018), p. 36. 43 Pásztor (2018), p. 36. 44 In resolution no. 14/1995 (III. 13.) the Constitutional Court declared unconstitutional the previous text of Act IV of 1959 on the Civil Code, art. 578/G, which defined the notion of partners in a domestic partnership as a “woman and a man living together in the same household who form an emotional and economic community outside marriage”. According to the reasoning of the resolution “an enduring union of two persons (. . .) might realise such values that it could claim legal recognition on the basis of the equal personal dignity of the persons affected, irrespective of their sex. In respect of financial conditions and the benefits which were derived from this type of economic union, there was no constitutional justification which prevented the rules governing domestic partnerships from applying to an enduring union of persons of the same sex”. The English translation of the resolution is available at https://hunconcourt.hu/uploads/sites/3/2017/11/en_ 0014_1995.pdf (accessed 20 April 2021). 42

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same-sex couples only45 and which grants almost all the rights and obligations that married couples have.

2.1.1

Simple Cohabitation: Civil Partnership

As provided in the Civil Code, the minimum criteria for recognizing a civil partnership are emotional and financial community. If the partnership is recognized, it can involve maintenance responsibilities and the right of the partner to administrate the property of the other party. Cohabitation is regulated in two different books of the (new) Civil Code.46 In the third part of Book Four (Family Law), the “Family Law Consequences” of cohabitation are regulated, these covering the maintenance (alimony) obligations of the cohabitants after the termination of the cohabitation (entitlement to maintenance, undeserving or unworthiness, agreement to provide lump-sum maintenance, the right of tenancy, i.e., the rules on the judicial arrangement of the use of a common dwelling after the termination of the cohabitation). The third part (Types of Contracts) of Book Six (Law of Obligations) contains general rules on cohabitation, which is regarded as a special contract (i.e., a contractual relationship) by and between the cohabitants. Besides the establishment and termination of cohabitation, the partnership contract (i.e., the property contract between the cohabitants), the default property regime and the contractual arrangement regarding the right of tenancy are covered here. The explanation for this is a desire to convey the symbolic message that regulations applicable for same-sex partnerships are not parts of the family section—except for rules pertaining to cohabitants having a common child, since family is based either on marriage or on a parent-child relationship.47

45

In resolution no. 154/2008 (XII. 17.) of the Constitutional Court, the CC declared unconstitutional Act CLXXXIV of 2007 on registered partnership before it could even come into force. The Act reflected the original concept of registered partnership, according to which, registered partnership would have been available to both same- and different-sex couples. The Constitutional Court held that the legislation failed to differentiate between marriage and registered partnership, and established that “there is no constitutional way to adopt legislation on establishing for those who have the right to marry a legal institution that could be mistaken for the constitutionally protected institution of marriage.” As conclusion of this, the act in effect regulating registered partnership provided access to the institution only for same-sex couples, whose right to marry is not recognized. The English translation of the resolution is available here https://hunconcourt.hu/uploads/sites/3/ 2017/11/en_0154_2008.pdf (accessed 20 April 2021). 46 Before adoption of the new Civil Code, cohabitation was regulated in the Civil Code of 1959 in a rather laconic way. See Szeibert Erdős (2005), pp. 313–333. 47 Fuglinszky reconstructs the reasoning behind this, in light of the Fundamental Law, as follows: “since family is based either on marriage or on parent-child relationship, and cohabitants are not married, they qualify as a family i.e. the rules on their relationship fit into the book on family only if they both ‘create’ a parent-child relationship, i.e. they have a common child.” Fuglinszky (2017), p. 286.

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Cohabitation does not have to be officially reported or registered anywhere. Hence, even where there is a valid marriage or registered partnership in concern of one of the partners—but in fact it exists only as a mere and empty legal bond without a true “matrimonial community of life”—then the matrimonial bond or registered partnership as such does not exclude the cohabitation’s coming into being.48 Also, cohabitation can be registered, creating a different legal regime from marriage or registered partnership for same-sex couples. The legal regime is restrictive: simple cohabitation does not result in a presumption of paternity even where the cohabitants are of a different sex (unless the cohabitants take part in a special artificial reproduction procedure); therefore the father has to make a paternity acknowledgment statement. Cohabitants cannot adopt a child jointly so as to both become the legal parents of the child. Simple cohabitants are not statutory heirs of each other; they can inherit from one another only by way of a last will (testamentary succession). The Civil Code introduced a new default property regime for cohabitants which is similar to the regime of “participation in acquisitions.” The cohabitants are the owners of any property acquired during their community of life, and joint ownership is not established by simply being cohabitants. In a case of separation, both cohabitants may claim against one another for the division of the other’s acquired property (personal and other assets, which belong to the separate property of the spouses in the matrimonial community of property regime, do not constitute acquired property). A cohabitant may claim for his or her participation and in proportion to the contribution he or she has made in acquiring such property. Work done in the household, caring for children and working in the business of the other cohabitant is considered to be a contribution to acquiring that property. The Curia (i.e., the Hungarian Supreme Court) has developed a practice whereby cohabitants are expected to support and maintain each other. This duty has remained uncodified, and the Civil Code does not provide any explicit rule on it.49 Cohabitation terminates if the cohabitants marry each other, enter into registered partnership with each other, or if their community of life ends. A former partner can claim maintenance from the other partner immediately after the termination of the cohabitation or if the need emerges within 1 year following the termination (in the latter case only if there are exceptional circumstances). Such a claim requires (i) that the former partner lacks the necessary means to maintain him/herself (and he or she is not at fault for not being able to do so); (ii) that the community of life existed for at least 1 year; (iii) that they have a common child; (iv) that the other party would not seriously jeopardize his or her own maintenance or the maintenance of his or her child by making maintenance payments; and (v) that there is no unworthiness on the claimant’s side. Hence, if the cohabitants have lived

48

See also Boele-Woelki et al. (2015), p. 70. However, the use of the term “emotional and financial community” in the Civil Code, defining cohabitation as a minimum-criteria, indirectly implies this requirement. According to the Commentary on the Civil Code, the emotional and financial community is to be assessed jointly, examining the two requirements on the whole, Vékás and Gárdos (2018).

49

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together for many years but are childless, neither of them has a right to demand maintenance. The right to receive maintenance from the former cohabitant ceases if the claimant gets married, enters into a registered partnership, or establishes another (simple) cohabitation with another person. The Civil Code contains specific provisions on judicial arrangement regarding the use of a common dwelling after the termination of cohabitation, following the model for the use of a matrimonial home after the divorce of the spouses, but not in the event of the death of either of the cohabitants. In sum, for cohabitation, or civil partnership, the default property regime is “participation in acquisitions.” Cohabitation is, thus, a contract regulated in the Sixth Book of the Civil Code, with some “family law consequences” that are set out in the Fourth Book.50 These are the maintenance of the former cohabitant and the possibility to file claim for a judicial arrangement regarding the use of the common dwelling. Family law impact is limited, with legal consequences that are basically possible only if the partners have lived together for at least 1 year and they have a common child.

2.1.2

Same-Sex Partnership: Registered Partnership

Same-sex couples’ partnership is recognized by Act XXIX of 2009 on Registered Civil Partnerships, and the law applies only to same-sex couples.51 The legal consequences of being in a registered civil partnership are largely equal to marriage (in relation to maintenance, marital asset issues, property facilitation, and succession). It constitutes a civil status and has the same legal effects as marriage except the presumption of paternity, the possibilities of joint adoption and taking part in artificial reproduction, and the right to use each other’s name or a joint family name.52 Whereas the registration of a simple cohabitation aims at facilitating proof of the existence of cohabitation (the register having only a declaratory role in establishing a rebuttable presumption for the existence (and starting date) of the cohabitation), in the case of a “registered partnership”, the personal declaration before the registrar and the recording in the registry are of crucial importance and of constitutive

50

See also Vékás (2013), p. 3. This also means that the Hungarian Civil Code does not even mention registered civil partnerships. However, as registered partnerships generally result in the consequences of marriage, the rules of the Civil Code on marriage serve as a background regulatory regime to Act XXIX of 2009, Boele-Woelki et al. (2015), p. 27. According to the academic literature available on the primary stages of the codification of the new Civil Code, this result reflected the intentions of the lawmaker from the outset. Not even the Concept or the regulation Programme of the new Civil Code expressed any willingness for the introduction of a registration method or for the institutionalization of same-sex partnerships, Szeibert-Erdős (2008), p. 215. 52 See also Szeibert (2013), p. 91. 51

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character regarding the registered partnership’s coming into being. While the “Notarial Register on Cohabitation Statements” is kept by the Hungarian Chamber of Civil Law Notaries and the statement on cohabitation itself is to be made before a notary public, as concerns “registered partnerships” the civil status is (just as in the case of marriage) recorded in the registry that is kept by the registrars, i.e., specially qualified public officials of the municipalities.53 A same-sex couple has the free choice of either entering into a simple cohabitation (and to have it registered with a notary public or not) or establishing a registered partnership according to the Registered Partnership Act. “Registered partnership is established if two persons of the same sex who have reached the age of 18 years and are both present in front of the registrar personally declare that they wish to establish registered partnership with one another.” Since the preconditions of a valid marriage apply accordingly, partners have to have legal capacity, neither can have an existing marriage or registered partnership, and they cannot be relatives in direct line or in an adoption relationship. Also, they have to be at least 18 years of age, which is a difference from marriage because a guardian may authorize the marriage of a minor of limited legal capacity who is over 16.54 The rules on marriage are declared to be applicable to registered partnerships analogously unless there is an explicit exemption in the law. “Spouses must be loyal and faithful to each other; they shall cooperate in their common goals and shall support one another.”55 Hence, registered partners have an obligation to support each other, and the default property regime is a “community of property”. Thus, unlike (simple) cohabitation—each and every asset acquired either jointly or separately by either registered partner belongs to the community of property of the registered partners (i.e., it will be part of their joint ownership) with the exception of assets belonging to the category of separate property (for example, all property acquired before entering

53

See also Fuglinszky (2017), pp. 280–283. It is interesting to observe that the reasons for this distinction were not addressed by Resolution no. 154/2008 (XII. 17.) of the Constitutional Court, when the Constitutional Court reviewed the regulation of registered partnership. This lack of critical remarks stands out especially in light of Resolution no. 37/2002 (IX. 4.), in which the Constitutional Court annulled the provision of Act IV of 1978 on the Criminal Code. That particular paragraph prohibited “fornication against nature” based on consent between a person over the age of 18 and a person of the same sex between the ages of 14 and 18; whereas, no criminal offence was committed when the person between the ages of 14 and 18 was of the opposite sex. The Constitutional Court cited its own case law as an argument, according to which “a distinction made arbitrarily, without a reasonable cause, violates the fundamental right to human dignity, ‘because in such a case, the affected persons are certainly not treated as persons of equal dignity and their viewpoints are not considered with equal care and equity’.” [Resolution no. 1/1995 (II. 8.) AB, ABH 1995, 31, 47]. An English translation is available at https://hunconcourt.hu/uploads/sites/3/2017/11/en_0037_2002.pdf (accessed 20 April 2021). Obviously, the reason for the current distinction is that the legislature considers entering into a registered partnership with a same-sex partner a more severe risk to young people than getting married to a different-sex partner—however, neither legal nor factual arguments were provided by the legislature to justify the reasonableness of this assumption. 55 Civil Code 4:24(1). 54

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into the registered partnership, gifts, inheritance, property of personal use).56 Maintenance rules for marriage and registered partnership are as follows: Following the termination of the matrimonial relationship, either spouse is entitled to demand maintenance from his/her spouse, if unable to support him/herself for reasons beyond his/her control. If the spouse or former spouse develops the need for support after a period of 5 years following the termination of the matrimonial relationship, maintenance may be demanded in cases of exceptional circumstances. If the matrimonial relationship of the spouses lasts for less than 1 year, and their marriage did not produce a child, the former spouse will be entitled to maintenance—if in need— for a duration corresponding to the length of their marriage. A spouse or former spouse will be considered unworthy of maintenance: if the irretrievable breakdown of the marriage is attributable to his/her gross misconduct or reprehensible lifestyle; or if he/she after the termination of matrimonial relationship engaged in any conduct intended to do harm to his/her spouse, former spouse, or any resident family member. A person is not obliged to support his/her spouse if this would seriously jeopardize his/her ability to provide for him/herself or for his/her child. The spouses—and therefore registered partners, too—are entitled to an undivided and equal share of the marital (joint) property. Therefore if one of the spouses/registered partners dies, half of the community property will be automatically given to the surviving spouse/registered partner regardless of inheritance, and only the other half is shared among the heirs. Registered partners inherit the same way as surviving spouses do in the event of intestate succession, and they are entitled to a compulsory share (reserved share) as spouses are if testamentary succession applies (i.e. the deceased partner made a last will in favour of someone else). The Registered Partnership Act provides for four exceptions where registered partners do not enjoy and cannot exercise the same rights as married couples. The first pertains to adoption: registered partners cannot adopt jointly as spouses can, and neither of them can adopt the child of his or her registered partner.57 Second and third: the rules on presumption of paternity and the rules on spousal names do not apply to registered partners. Finally, the rules on procedures aimed at human reproduction in relation to spouses do not apply to registered partners. Lesbian women living in a registered partnership (or even in a simple cohabitation) cannot participate in an artificial insemination procedure. The Healthcare Act states that artificial human reproduction procedures are available only to married couples or different-sex cohabiting couples and to infertile single women and single women who are likely to become infertile soon due their age.58 Registered partnership ceases to exist in the event of the death of either of the parties, if dissolved by court order, or if dissolved by public notary. Rules that apply to the termination of marriages apply also to the termination of registered

56 On the relevant characteristics of the particular property regime, see also Fuglinszky (2017), pp. 297–298. 57 O Szeibert in Wellmann (2014), pp. 467–468. 58 See also Szeibert (2013), p. 91.

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partnerships. Marriages cannot be dissolved by public notaries in Hungary, only registered partnerships in those instances where the parties agree on all aspects of the “divorce”.59 In this case, the registered partnership is dissolved within the framework of a non-contentious (or non-litigious) civil proceeding. The notary public has to dissolve the registered partnership if (i) neither of them has a child in relation to which both registered partners have a joint obligation of providing maintenance (i.e., where they do not raise the child of one of the partners in the common household); and (ii) they have agreed upon the maintenance (alimony) owed towards each other, on the use of the common home, and also on the division of any common property (excluding the separation of jointly owned immovables). Registered partners can also initiate a divorce procedure at court, where the same rules apply as to the divorce of a marriage. If there is no agreement between the registered partners, the court will dissolve the registered partnership at the request of either of the registered partners in the event of a breakdown of the registered partnership due to irreconcilable differences (in other words, when the relationship between the partners is irretrievably broken). The registered partnership will be considered to have broken down if the relationship of the registered partners has been ruined and there is no reasonable expectation of reconciliation in the light of the events that led to destruction of their life as a couple, or based on the length of their separation. If this is the case, the court decides on all open questions such as alimony (maintenance), use of the common dwelling, and the division of any common property. Furthermore, a registered partnership constitutes an impediment to a subsequent heterosexual marriage (what is not the case for simple cohabitation of same-sex couples, even if registered in the declaratory “Registry of Cohabitants’ Statements”). A registered partner has a right to a compulsory (reserved) share in the same manner as spouses if the deceased made a last will in favour of somebody else. Same-sex marriage (necessarily entered into abroad under a law other than Hungarian law) is not recognized as marriage in Hungary, since the constitutional notion of marriage is restricted to the conjugal union of a man and a woman. Where one or both of these parties is not a Hungarian citizen, they also cannot even enter into registered partnership in Hungary under Hungarian law because the “spouse” having a citizenship other than that of Hungary cannot provide the required documentary evidence that he or she can enter into a registered partnership under Hungarian law, namely because he or she is considered to be already married under his or her personal law.60

59

Fuglinszky argues that the aim of the legislature was to simplify the dissolution of registered partnership, Fuglinszky (2017), p. 301. However, it again stands without explanation why the legislature has aimed to simplify the dissolution of registered partnerships while there is no such intention in the case of marriage. 60 However, according to the recent decision no. 1.Kf.650.054/2017/4 of the Budapest-Capital Regional Court of 7 February 2018, Hungarian authorities are to recognize same-sex marriages entered into abroad as registered partnerships.

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It may be noted that many types of child-related family allowances in Hungary are, implicitly, also available for same-sex couples (and for single parents or for common law partners). For instance, in 2016, after a dispute with an LGBT+ NGO, the eligibility of same-sex couples was confirmed by the Ministry of Human Resources in relation to the Home-Creation Scheme for Families (CSOK; a special preferential credit and non-repayable grant for families with at least two children).61

2.2

Parents and Children (i.e. Parental Care, Custody, Guardianship, Adoption, Foster Care)

Parents have equal rights and joint-custody prevails, unless one of the spouses is awarded sole custody.62 According to section 4:167 § of the Civil Code, when making a child custody order the court weighs how the physical, mental, and moral development of the child can be best ensured. More specific factors to be considered by the court when awarding custody to one of the parents are contained in Directive No 17 of the Supreme Court. As for guardianship outside the “traditional” family setting, Act XXXI of 1997 on Child Protection and Guardianship ensures children’s rights to “physical, intellectual, emotional and moral development”; further, a child has the right “to be protected from circumstances that hinder his or her development” (and “to be protected from . . . abuse, including physical, sexual and emotional violence”). The Act goes on to state that “children cannot be exposed to torture, physical punishment and other forms of brutal, inhumane and humiliating punishment or treatment”. The child is endangered if his or her “physical, intellectual, emotional and moral development is obstructed or hindered”. In such a case there is counselling for the family, or the child is placed “under protection” if the family cannot voluntarily make the necessary changes. In the event there is no improvement, this can lead to removal from the family. Also, if the child is severely endangered, that is, “he or she is abused or neglected in such a way that his/her life is endangered, or his/her physical, intellectual, emotional and moral development may be significantly and irreparably harmed”, then the child is immediately and temporarily removed from his or her family. It should be noted that the Commissioner for Fundamental Rights (the Ombudsman) released a report in December 2017,63 and he revealed severe dysfunctions in

61

See the press release of Háttér Társaság (2016). Still, the Civil Code strongly promotes joint parental responsibility, except in those cases where one parent is against it, Szeibert (2016), p. 276. 63 See the Ombudsman’s report at http://www.ajbh.hu/documents/10180/2602747/Jelent%C3%A9s +egy+anyagi+okb%C3%B3l+gyermekv%C3%A9delmi+szakell%C3%A1t%C3%A1sba+ker% C3%BCl%C3%A9s+vizsg%C3%A1lat%C3%A1r%C3%B3l+2026_2017/5de6d64a-83bb-ae083d5f-69fb69ea106b?version¼1.0 (accessed 20 April 2021). 62

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the Hungarian child protection system, i.e. a significant proportion of children are taken away from their families and labelled as “children at risk” merely because of economic reasons (poverty), which is contrary to the principles of Hungarian child protection legislation and which runs counter to Hungary’s obligations under the United Nations Convention on the Rights of the Child. The report refers to the condition that many of the poor families affected by the biased measures of the child protection authorities belong to Roma communities. The same problems were mentioned in 2018 by the European Roma Rights Centre in a submission to the UN Human Rights Committee, based on the results of research performed by an NGO coalition: “Although they make up under 20% of the county’s population, Romani children make up over 80% of those in care. The data gathered in the research showed a strong correlation between deep poverty, severe deprivation, and the entry of children into the care system. Even though, in line with the basic principles of Hungary’s Child Protection Act, children cannot be removed from their family solely for material reasons, the poverty of the affected families was clearly a significant reason for most removals. In many cases, removal could have been prevented by providing comprehensive support and appropriate services to impoverished families.”64 The authorities that can order and execute the temporary removal (“temporary placement”) include: notaries, guardianship offices, police, police for foreigners, refugee authorities, the prosecutor’s office, courts, and the head of a prison. The guardianship offices will decide on a long-term solution after the temporary placement, based on a thorough examination of the case: if the danger is no longer present in the family, the child can return to the family; if the endangerment is still present in the family, the child will go to step-parents or a children’s home. According to this Act (and its modifications), every foster care provider has to be trained and assessed before a placement is made. The Looking After Children assessment system was introduced in 1998, and it is still in use in order to support individualized and holistic decision making and uniform documentation. A foster parent has to be at least 24 years old, and the age gap between him/her and the child cannot be more than 45 years. The lack of a criminal history and offering appropriate housing conditions are further requirements.65 The following administrative measures can be made: (i) A notary placing the child on a protection register upon the suggestion of the child welfare services. (ii) Temporary placement (emergency placement) if the child temporarily lacks parental supervision or if he/she is considered to be at risk in the family environment

64

See Written Comments of the European Roma Rights Centre, Concerning Hungary for Consideration by the Human Rights Committee 122nd session (12 March–6 April 2018), http://www.errc. org/reports%2D%2Dsubmissions/errc-submission-to-un-hrc-on-hungary-february-2018 (accessed 20 April 2021).). 65 See Analysis of the care system of children in conflict with the law in Hungary, Project: Alternatives to Custody for Young Offenders—Developing Intensive and Remand Fostering Programmes—JUST/2011-2012/DAP/AG/3054, http://www.csagyi.hu/images/stories/kutatas/ BAAF/fcya_hungary_deskresearch.pdf (accessed 20 April 2021).

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or if he/she poses a risk to him/herself, the child can be placed to kinship care or to alternative care (children’s home, foster parents) temporarily. The Guardianship Office is responsible for supervision, but notaries, police, prosecutorial authorities, courts, and correctional facilities may initiate the placement. (iii) Short-term foster care, whereby the Guardianship Office orders the child’s placement in alternative care because he/she is considered to be at risk in the family environment and her/his development is not being ensured by the parents. Parental rights are suspended in this case. (iv) Long-term foster care when parental rights are suspended by court order and the child should be placed in a children’s home or with foster parents for a longer period of time. (v) Educational supervision is possible in specialized children’s homes at the decision of the home’s director. If the child’s health or psychological state directly threatens others or her/his own safety and if this can be resolved only by separation of the child, her/his freedom can be restricted up to 2 months. Alternative care provides residential care and foster care and ensures development of children who lack parental care or of children whose development cannot be ensured within the family environment with the assistance of child welfare services (child/juvenile offenders often fall to this category). The types of alternative care facilities are children’s homes (up to 40 children) and group homes (up to 12 children). Foster parents can be professional or traditional ones. From 2003 two different types of specific care is available: particular care for children under 3 years of age, children with chronic illness, and disabled children; and special care for children with behavioural problems, children with severe psychological problems, and for young substance users. As for adoption, according to the new Civil Code, only minors can be adopted, and the adoption needs to be authorized by the guardianship authority. The law explicitly sets forth that “in the interest of the minor, in its adoption decision the guardianship authority shall give preference to adoptive parents living in wedlock.” (4:120 (5)). However, according to the Ombudsman’s conclusion regarding a particular complaint case,66 published in November 2017,67 the authorities should base their decisions on the best interests of the child (referring to the judgment of the European Court of Human Rights in EP v. Italy68); further, with regard for the circumstances of an individual case, authorities should not discriminate between prospective/potential adoptive parents because of, for instance, their sexual orientation (referring to the judgment of the European Court of Human Rights in E.B. v. France69).

66

The case involved a lesbian woman who had been living together with her partner and who wanted to adopt a 16-month-old baby girl of Roma origin; however, her application had been rejected by the local child protection authorities, allegedly because of her sexual orientation. See the summary of the case in English at Háttér Society (2017). 67 See the Ombudsman’s report (AJB-485/2017) at http://hatter.hu/sites/default/files/dokumentum/ konyvlap/pecsiorokbefogad-ombuds.pdf accessed 20 April 2021). 68 Application no. 34558/94. 69 Application no. 43546/02.

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The adoptive parent must be at least 25 years of age with legal capacity, must be at least 16 years and at most 45 years the child’s senior, and must be deemed suitable to adopt the child based on his/her personality and other circumstances. In the case of adoption by a relative or spouse, the age difference requirement does not apply. If the adoptees are siblings, the age of the older child is to be taken into consideration. The guardianship authority declares a child placed under foster care eligible for adoption for a period of not more than 2 years if the parent’s right of custody has not been terminated and if the parent: (a) has failed—for reasons within his/her control—to maintain regular contact with his/her child for a period of 1 year, or no contact of any kind has occurred for a period of half a year, and has failed to make any changes in his/her lifestyle and/or other circumstances, on account of which foster care cannot be ended; or (b) changes—for reasons within his/her control—his/ her permanent or habitual residence without providing the address of the new permanent or habitual residence, and efforts for obtaining such address have proved ineffective for at least 6 months. In open adoption, the parent may withdraw his/her statement of consent within a period of 6 weeks following the birth of the child for the purpose of the child being cared for and raised by the parent or by another relative of the child. In confidential adoption (when a biological parent agrees to the adoption of his/her child in a manner maintaining as confidential the identifying information of the adoptive parents, or where the parent’s consent is not required), the statement of consent can be made before the birth of the child as well. If the child is over the age of 6 years or suffers from any mental disorder, the approval of the guardian is required for the statement of consent to be valid. No consent is required for adoption in regards to a parent: (a) whose parental supervision was terminated by final court order; (b) whose child was placed in foster care, and the guardianship authority has declared such child eligible for adoption; (c) who is incompetent for reasons other than minority; (d) who cannot be identified or who cannot be located, and the measures introduced to identify or locate such person have failed; or (e) who abandoned his/her child—with a view to passing on the responsibility of raising the child—at a place designated by a medical institution, without revealing his/her identity, and did not come forward within 6 weeks to reclaim the child. No consent is required for adoption from the adoptive parent’s spouse if the spouse is incompetent or cannot be located; or if the matrimonial relationship of the spouses has been terminated. In addition to the case where a child is adopted by a relative or by the parent’s spouse, a child may be adopted internationally if declared eligible for adoption or if placed under foster care (and declared eligible for adoption) if measures taken for the child’s adoption in Hungary have failed.70 Adoption is not to be authorized if it is likely to result in any financial advantage for the parties, other persons, or 70

In 2014, from the total number of 784 adoptions approved, 129 involved a foreign adoptive parent, with a ratio of 149 out of 829 in 2015, 164 out of 896 in 2016, and 234 out of 1025 in 2017. The statistical data shows that the number of international adoptions is increasing, as well as the total number of successful adoption procedures throughout the country, Hungary, Central Statistical Office (2018a).

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organizations involved in the adoption process, in excess of their justified expenses. Hungary is party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. The adoptee has the right to request information from the guardianship authority as to whether he/she was adopted, about his/her biological parent(s), and about whether he/she has any siblings. Further, an adoptee over the age of 14 years may request access to the natural identification data of his/her biological parent(s) and sibling(s). An adoptee may submit such a request without the permission of his/her legal representative.71 The parties to the adoption process are to be informed of the request and are to be interviewed before the disclosure of any information regarding the biological parent(s) and sibling(s). Data pertaining to a biological parent or sibling is not to be released to the adoptee if: (a) it was not possible to interview the biological parent, the sibling, the adoptive parent, or some other legal representative because they could not be located or because any insurmountable obstacles existed; (b) the biological parent or sibling does not permit the disclosure of his or her natural identification data; or (c) it is not in the minor’s best interest, particularly if the court deprived the biological parent of his/her rights of custody on account of his/her wrongful conduct causing serious injury to, or endangering the interest of, his/her child, including the child’s physical integrity and mental or moral development.72 If the biological parent is not alive at the time, the request for his/her identification data may be disclosed to the adopted child, unless he/she already previously blocked the disclosure of his/her personal data. The guardianship authority must, at the request of: (a) the legal representative of an adopted child under the age of 14 years; (b) the legal representative or an adopted child over the age of 14 years; (c) an adoptee of legal age; disclose information on the biological parent’s medical data which is construed important from the point of view of the adopted person’s health. An adoption is to be dissolved by the court if either the adoptive parent or the adopted person has engaged in conduct such as to make life under adoption unbearable for the other party. If the adopted child is a minor, an adoption may be dissolved on an exceptional and duly justified basis upon the adoptive parent’s request. Upon the death of the adoptive parent, the adoption may be dissolved in

71

The right to self-identification established by the Constitutional Court in resolution no. 57/1991 (XI. 8.) incorporates the right to ascertain one’s parentage, which is the most personal right which falls within the scope of the “general right of personality” derived from the right to human dignity. The English summary of the resolution is available at http://www.codices.coe.int/NXT/gateway.dll/ CODICES/precis/eng/eur/hun/hun-1991-c-001?fn¼document-frameset.htm$f¼templates$3.0 (accessed 20 April 2021). 72 In Hungary, resolution no. 21/1996 (V. 17.) of the Constitutional Court declared that the duty of the State to provide child protection and care necessary for proper physical, mental, and moral development serves as a constitutional basis for the legislature or the courts to restrict the child in exercising his/her fundamental rights. The above limitation of the child’s right to ascertain his or her parentage lies on this constitutional basis. The English translation of the decision is available at https://hunconcourt.hu/uploads/sites/3/2017/11/en_0021_1996.pdf (accessed 20 April 2021).

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the interest of allowing the adoptee to regain his/her family status on the basis of descent.

2.3

Dissolution of Marriage

Jurisdiction in divorce matters is governed by Act CXXX of 2016 on the Civil Proceedings Code. Matrimonial property disputes are heard by the divorce court if the property claim is lodged along with or during the course of the divorce proceedings. If issued separately, the general jurisdiction provisions of the Civil Proceedings Code apply, according to which the proceedings can be issued before the court with jurisdiction over the respondent’s place of residence. Provisions on custody, access, and visitation in a pre-nuptial agreement are subject to amendment by the court. The courts in Hungary will only uphold a nuptial agreement if it is in the best interests of the child. Act XXVIII of 2017 on Private International Law governs divorces and annulment proceedings. Divorce orders issued in a Member State will be recognized in other EU Member States without any further judicial proceedings (Article 21, Brussels II Regulation). However, recognition may be refused on certain grounds (Article 22, Brussels II Regulation). The spouses can choose the law applicable to their divorce, at the latest before the first court hearing (Articles 5 to 7, Regulation (EU) 1259/2010 implementing enhanced co-operation in the area of the law applicable to divorce and legal separation (Rome III Regulation)). The only ground for divorce is the irreversible and final deterioration of the marriage. There is no judicial separation regime in Hungary. All assets that are part of the marital assets are divided equally between the spouses unless a valid nuptial agreement provides otherwise. The court will deviate from this only in special circumstances based on reasonableness and fairness. Unless the parties conclude a nuptial agreement, there is a community of assets regime, as long as the cohabitation of the parties exists. If requested by a party, the court (if legally authorized by a temporary court order) can make a final order to maintain a spousal maintenance obligation. A party can apply for spousal maintenance to be awarded if he/she cannot maintain his/her living through no fault of his/her own. If the claimant makes a claim later than 5 years after the separation, spousal maintenance can be awarded only based on a particular equitable reason. Also, if the cohabitation lasted less than 1 year and no child was born from the marriage, the duration of the spousal maintenance can only be as long as the cohabitation. It is not common for spousal maintenance to be awarded on marital breakdown in Hungary.

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The available financial claims on behalf of children are the same, regardless of whether the child was born in or out of wedlock.73 According to the Civil Code, the general rule is that the parent who physically exercises custody will be responsible for providing maintenance in-kind, whereas the parent living separately must provide maintenance by pecuniary contribution. Depending on the agreement reached between the parents, the child maintenance obligation can be met by transferring assets or a lump sum to the caretaker parent. However, if the court is required to determine the child maintenance, it will be a definite monthly amount. The parent caring for the child will provide maintenance in-kind, whereas the parent living separate and apart from the child must provide maintenance primarily in the form of money (child support). A parent may also be ordered to pay child support if the child lives in his/her home. However, such parent would not provide for the child’s maintenance. The amount of child support and the means of payment are principally governed by the agreement reached between the parents. This agreement will be considered valid if it specifies the time period for which child support is provided and if it is approved by the guardianship authority or the court (as applicable). The court may also award child support irrespective of the agreement if this is deemed to be necessary in the child’s best interests, or to prevent any serious harm to the interest of either of the parties due to unforeseeable and substantial changes in the relevant circumstances. In the absence of an agreement between the parents, the court will adjudicate child support. When determining the amount of child support, the following will be taken into consideration: the child’s justified needs; the income and financial situation of both parents; other children (for example, whether there are other of the parents’ own children or other step- or foster children living in the parents’ home who are to be supported by the parents); the child’s own income; any child and family welfare benefits; and any allowances provided under the social security system or similar system to the child and the parents on the child’s behalf. The child’s justified needs will include (among other things) the regular expenditures covering necessities of life and the costs of his/her health care, education, and development. If there are some extraordinary expenses which arise that are in the child’s interests, and which cannot be covered by child support even under due foresight, the person owing the maintenance will also be required to cover a proportionate part of that expense. The amount of child support awarded is generally between 15% and 25% of the parent’s average income for each child. Average income is usually calculated based on the total income of the parent acquired over a period measured from a date 1 year before the action was brought. Providing child maintenance is an absolute requirement in cases involving minors. The child may still be eligible for maintenance up to the age of 25 years

Szeibert points out that Hungary was among the first countries in Europe to abolish discrimination against children born out of wedlock, Szeibert (2016), p. 275.

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should he/she continue his/her studies. The parent is not obligated to support an adult child pursuing further studies if: the child is unworthy of support; the child fails to fulfil his/her obligation of study and fails to take examinations on a regular basis, for reasons within his/her control; or the expense would seriously jeopardize the parent’s ability to provide for him/herself or for his/her minor child. However, a child of legal age will be considered unworthy of maintenance if he/she, without due cause, fails to maintain contact with the person owing maintenance.74 The parent may be obligated to provide maintenance for his/her child pursuing further studies over the age of 25 years under exceptional circumstances. In determining the amount of maintenance, the following will be taken into consideration: the justified needs of the child pursuing further studies; the child’s own income and financial situation; any available grants and/or other benefits received for his/her studies as provided for under the relevant legislation; and the financial standing of the parents. A child can bring a direct claim against his/her parents. If he/she is a minor, this must be made through an appointed guardian. As there may be a conflict of interest with the obligor parent(s), the guardian must be appointed by the district guardianship authority. Financial orders made in another EU Member State will be recognized and enforced in Hungary according to Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation). In addition, Hungary is a signatory state to the New York Convention on the Recovery of Maintenance Abroad 1956 and the HCCH Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007 (Hague Maintenance Convention). Hungary has reciprocal arrangements with the US on child maintenance matters.

According to decision no. Pfv.II.21.433/2015 of the Curia, “a child of legal age who is pursuing further studies cannot be considered unworthy of maintenance in a case where his/her parent, who has divorced and lives in a different household, has not contacted the child either personally or by telephone and has acted in an indifferent manner towards the child since the child was four. After such a prior history, it cannot be reasonably expected that the child will initiate contact after reaching legal age” (translation by E. Pásztor). Accordingly, unworthiness is to be decided based on a joint evaluation of the actions of the parents and the child.

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2.4 2.4.1

221

Identification of Other Relevant Fields of Law Particular to Hungary Embryonic/Fetal Life

As Fleck et al. point out,75 the Fundamental Law does not state explicitly that an embryo/fetus enjoys a right to life, but it supports this interpretation by incorporating the phrase “embryonic and fetal life shall be subject to protection from the moment of conception” into the same sentence as the statement that “every human being shall have the right to life.” This not only opens the path for a restrictive legislative or judicial interpretation concerning abortion, thus affecting women’s reproductive rights, but it can easily be extended to limiting infertility treatments, especially in-vitro fertilization and implantation.

2.4.2

Surrogacy

In many countries, surrogacy is a service which is pursued and used by, among others, male same-sex couples. In Hungary, none of the forms of surrogacy is legal. As set out by Article 4:115 (1) of the Civil Code on the legal status of mothers, “the child’s mother is the woman who gave birth to her/him”. An interesting case related to surrogacy was the subject of a public debate in 2017. A story was published in the domestic press76 of a Hungarian mother (Monika Török, a well-known journalist, aged 53), who claimed that her children were born from surrogacy. There were two surrogate mothers involved, both of them Georgian nationals, and this resulted in a controversial situation. In Georgia, Ms. Török was entered into the civil register as the mother of the children, while in Hungary, the women who gave birth to them were considered to hold this status. Under Hungarian law, Ms. Török was not recognized as mother, only as a legal guardian of the children. Ms. Török informed the general public about the issue (mentioning that she may not even be allowed to adopt the children because of her age), but she did not engage in any court procedures to resolve the matter before her sudden death in 2018. Presently, no updates are available on the case (i.e. about the legal status or the whereabouts of the children).

2.4.3

Child Marriage

In Hungary, minors between 16 and 18 years of age of both sexes are allowed to marry, with the permission of the Guardianship Authority (Civil Code, Article 4:9 75

Fleck et al. (2011), p. 18 (chapter 6, para 3). https://24.hu/belfold/2017/09/25/gruz-beranyak-szultek-ikreket-a-magyar-nonek/ 20 April 2021).

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(1)-(2)). Married persons under 18 are considered to be adults in the context of the Civil Code (Civil Code, Article 2:10 (1)), but not in the context of the Criminal Code (as victims, offenders, or witnesses, the same rules and age limits would be applied to them as if they were unmarried). Marriages involving a minor under 16, or a minor between 16 and 18 years of age, which were conducted without the permission of the Guardianship Authority are to be considered invalid; however, these marriages gain automatic retroactive validity 6 months after the affected spouse’s 18th birthday, unless the validity of the marriage has been contested by someone before this deadline. Article 4:9 (4); 4:16 (1). According to the joint report of the Hungarian Women’s Lobby (Magyar Női Érdekérvényesítő Szövetség) and the European Roma Rights Centre, submitted to the CEDAW in 2013: In response to the recommendation of the CEDAW Committee about raising the age limit for marriage, the government has argued that it should happen only in the interest of the child that s/he is given permission to marry. Contrary to this claim, there is anecdotal evidence that pimps/traffickers withdraw minors from the framework of the child protection system through marriage.77

This latter phenomenon (trafficking for the purpose of sexual exploitation) may disproportionally affect girls from socially marginalized Roma communities or girls raised in state care (here again, children of Roma ethnicity are overrepresented).

3 Conclusion In sum, the new Constitution’s ideological commitments (Christian family values, notions such as “family”, and the right to life from the moment of conception) create the risk of discrimination against certain groups in society, among others families living in poverty (including many families with a Roma ethnic minority background), sexual minorities, single-parent families, people living in civil partnerships, and women. Arguably, by prescribing explicit value preferences regarding private relationships, the new Constitution violates the autonomy of individuals who do not accept the normative lifestyle models defined on the basis of the Fundamental Law’s ideological values. The paternalistic, patriarchal, and hetero-normative value preferences do not outlaw or prohibit non-traditional lifestyles, but the open endorsement disfavours citizens practicing such lifestyles, and by far not only symbolically. Furthermore, census data and other research does not support the new political regime’s

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Hungarian Women’s Lobby and the European Roma Rights Centre (2013) Alternative report submitted to the UN CEDAW Committee for consideration in relation to the examination of the combined seventh and eighth periodic reports of Hungary, January 2013, p. 3, http://www2.ohchr. org/english/bodies/cedaw/docs/ngos/HWLandERRC_Hungary_ForTheSession_Hungary_ CEDAW54.pdf (accessed 20 April 2021).

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preferences, such as the Constitution’s concept of family, which disadvantages registered (and non-registered) partnerships, single parent families, and nonmarriage-based patchwork families. In fact, it refuses to recognize the lifestyle choices of a significant proportion of individuals and families living in Hungary.

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Lídia Balogh is a Research Fellow at the Centre for Social Sciences, Institute for Legal Studies. As a freelance researcher, she participated in projects of the EU Agency for Fundamental Rights, and she currently acts as Gender Equality Expert within the framework of the European Network of Legal Experts in Gender Equality and Non-discrimination (EELN). She has been active in Hungarian civil society in the field of human rights for over a decade. As an expert on minority women’s issues, she contributes to the advocacy activities of the Hungarian Women’s Lobby. András L. Pap is Research Professor and Head of the Department for the Constitutional Law at the (formerly Hungarian Academy of Sciences) Centre for Social Sciences, Institute for Legal. He is also Professor of Law at the Law Enforcement Faculty of the Ludovika University, and the Faculty for Business Economics at Eötvös Loránd University (ELTE) Budapest, as well as Recurrent Visiting (Adjunct) Professor at Central European University’s Nationalism Studies Program in Vienna. A former Marie Curie Fellow, he has taught over 60 different courses and published 6 books, 6 textbooks, and over 250 articles. His research interests include constitutional law, human rights, minority rights, and law enforcement issues. Emese Pásztor is Assistant Professor at the Constitutional Law Department of the Faculty of Law of Eötvös Loránd University (ELTE) Budapest. Her Ph.D. is on the protection of privacy and the boundaries of state intervention in family life, and the constitutional notion of family. As a practicing lawyer, she spent four years as a legal advisor of the Independent Police Complaints Board (a civil rights advocacy institution of the Office of the Hungarian National Assembly). She also worked as a researcher at the NGO Eötvös Károly Policy Institute, Budapest. Later, she joined the Hungarian Civil Liberties Union, where currently she is the head of the Political Freedoms Project.

The Treatment of Diversity in Family Law in Belgium: Between Acknowledgment and Indifference Jinske Verhellen and Patrick Wautelet

Abstract Dealing with diversity remains a challenging matter for Belgian family law. Claims based on cultural, religious and sexual differences come in different shapes depending on the context in which they arise. They are presented upfront, without any intermediation, when they are linked to a sexual minority. By contrast, demands and claims linked to cross-cultural cases come in through the mediation of other, technical rules. One seems to observe an evolution in opposite directions: on the one hand, claims by sexual minorities are accommodated, even triggering the adoption of statutory law; on the other hand, cross-cultural claims, which are, directly or indirectly linked to religion, are left to courts to deal with. This leads to a varied approach, with some courts adopting a rather ‘technical’ perspective on such cases, while other courts make some room for claims based on cultural or religious differences. This paper will attempt to verify this hypothesis.

1 Setting the Scene The law of family relationships in Belgium has been built as a monolithic system, rooted in Christianity. Its foundations may be found in the Civil Code adopted in 1804, which expressly repudiated all customary rules that had been in force to that point. The regulation of family relationships in the Civil Code was not conceived to accommodate diversity. One set of rules applied to all persons. In this sense, diversity, whether based on religious beliefs, cultural or ethnic background or sexual orientation, was not part of the picture.

J. Verhellen Ghent University, Faculty of Law and Criminology, Ghent, Belgium e-mail: [email protected] P. Wautelet (*) University of Liège, Faculty of Law, Political Science and Criminology, Liège, Belgium e-mail: [email protected] © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_10

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As it stood in 1804, the regulation of family relationships was based on the primacy of the father/husband and the unequal position of the mother/wife and children. This monolithic system evolved subsequent to 1804. As in other continental European countries, the law of family relationships in Belgium slowly transformed to embrace societal changes. This involved the demise of the husband as the head of the family. The spouses were treated on equal footing, and children were afforded the same treatment whether or not their parents were married. At the same time, the law made some allowance for decisions by the individuals, with a greater role for party autonomy.1 In this sense, the remains of Christian morals slowly eroded so as to let a new family law emerge, one which was less directly inspired by religious norms and more by the concern to accommodate individual wishes. All these changes did not modify the fundamental nature of Belgian family law: it remained a one dimensional system, which did not directly make allowance for diversity. On the surface at least, the legal order remained immune to external influences, in particular those emanating from religious communities. When it was asked to rule on same-sex marriage in 2004, the Constitutional Court explained, for example, that the constitutional rule according to which a civil marriage must always take place before a religious marriage did not in any way ‘have as object or effect to place civil marriage in the orbit of one or the other religious conception of marriage’.2 Over the last decades, however, external factors forced a reconsideration of claims by minorities. This evolution was in the first place driven by demographic changes and in particular substantial migration.3 On the other hand, another important evolution took place as claims by sexual minorities were being made more forcefully. We will focus on these two strands of cases, as they are representative of the kind of demands and claims as understood in this report. Before commenting on the reaction of the Belgian legal order to this twin evolution, it is necessary to shed some light on the relationship between diversity issues and cross-border cases. Generally, claims based on diversity may find their way through different routes in the Belgian legal order.4 A first, obvious route is that of cross-border situations. Family relationships involving more than one State may come to the attention of Belgian authorities either directly or indirectly. In the first case, Belgian authorities may be asked to take a decision on a cross-border situation and either apply foreign law or not. In the second case, the situation has already been assessed by a foreign authority—either a court or an administration. The question which arises then is that of the possibility for the persons concerned to rely on the foreign act or decision in the Belgian legal order. Private international law therefore plays an important role in this context.

1

Swennen (2013), pp. 5–9; Swennen (2015), pp. 11–38. Constitutional Court, 20 October 2004, B.5.3., available at www.const-court.be. 3 Caestecker (2006), pp. 13–28; Caestecker (2011), pp. 44–51. 4 Ringelheim (2011), pp. 52–64; Foblets (2011), pp. 882–888. 2

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However, not all private international law claims are based on diversity issues. There are a number of situations in which foreign law or a foreign judgment is relied upon without identification of a demand for recognition of diversity. Or to be more precise: the diversity is only linked to the fact that national laws differ from each other. This is the case, for example, when a divorce claim is made based on a foreign law which prescribes that divorce is subject to the demonstration of a fault, a requirement which has been abandoned in Belgian law. In this situation, the possible application of foreign rules cannot be deemed to be linked with any demand for recognition of diversity as is understood in this report. Further, it may be difficult to identify whether a claim is truly linked to the aspiration that diversity be recognized. In some instances, a claim is made seeking the application of foreign law, which may be very different from Belgian law, but at the heart of the dispute the claim appears to be a mere monetary claim. The same could be said of claims linked to the migration status of the persons concerned. In these situations, if one looks behind the veil of diversity, other matters may appear to have the upper hand. The distance which may exist between a cross-border case and a situation involving a demand for recognition of diversity leads us to refer to the first strand of cases—those involving migrants and their families—as ‘cross-cultural’ cases. Indeed, what is striking for these cases is not so much the cross-border dimension, which could also be apparent in cases involving families who have migrated to Belgium from France or Germany. Rather, what is defining is the fact that the rules which could potentially apply to these cases originate from legal systems where cultural traditions differ, sometimes markedly, from those in Belgium. These traditions may be infused with a strong religious dimension. However, the religious element is not always the most decisive one for the persons concerned. Hence our decision to refer to these cases as ‘cross-cultural’ cases. Cross-border cases are not the exclusive point of entry of diversity claims. Such claims may also arise in various domestic situations devoid of any private international law dimension. Such situations are very diverse. One may refer by way of example to a case in which the Supreme Court was faced with a claim for damages by a woman whose husband had passed away: the courts had to take into account the fact that although the claimant had entered a religious (Jewish) marriage with her late husband in Belgium in 1958, no civil marriage ever took place. This did not prevent the Supreme Court from awarding the woman damages.5 This was not a case of cross-border diversity, as the religious marriage had been celebrated in Belgium.6 Against this background, we may now return to the two strands of cases which have elicited very different answers from the Belgian legislature and courts. As far as claims by sexual minorities are concerned, they have led to a tremendous evolution over the last two decades. Statutory changes were brought to make

Supreme Court (Cassation), 26 June 1967, Arr. Cass. 1967, p 1299; RGAR 1969, n 8158, with comments by JF. 6 It does not appear from the ruling that the two spouses possessed a nationality other than the Belgian nationality. 5

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allowance for claims by sexual minorities. New institutions were created which made it possible for same-sex couples to benefit from the protection of the law. The reaction to the cross-cultural cases has been very different. In the first instance, Belgium reacted on an ad hoc basis, following well-publicized cases which brought attention to the inadequacies of the legal framework. This framework has been characterized since 1804 by the reign of the law of nationality. Personal and family relationships were indeed almost exclusively governed by the law of the nationality of the persons concerned. This followed from Article 3 of the Civil Code, as it stood from 1804 until the 2004 entry into force of the Belgian Private International Law Code (hereinafter Belgian PIL Code).7 Gradually, exceptions were made to the application of the law of nationality. At first this was only a haphazard development, inspired by occasional circumstances. The development of the law of divorce in the 1960s is a good example. During the 1950s many marriages were concluded between Belgian nationals and Italian nationals. When some of these marriages failed, it was discovered that no divorce could be granted, as Italian law expressly prohibited divorce. The legislature intervened and adopted a specific statute which gave priority to Belgian law whenever a divorce claim was made involving at least one Belgian citizen.8 In later years, the realm of the law of nationality shrank gradually. This was in part due to the development of European private international law, which has shunned the application of the law of nationality. At the same time, the Belgian legislature gave much more room to the law of habitual residence in cross-border family matters. This was very apparent in the codification of private international law in 2004, which limited the impact of the law of nationality to a few selected issues, giving a much broader role to the law of habitual residence.9 Nevertheless, the Belgian PIL Code still combines habitual residence and nationality as connecting factors. For example, the substantive validity of marriages and filiation remain in principle governed by the law of nationality. The greater role given to the law of habitual residence made it easier for courts and other authorities to deal with cross-border cases, hereby avoiding the wellknown difficulties and challenges in accessing and understanding foreign law. But, even if the private international law rules lead to a foreign law, Belgian courts sometimes apply the Belgian lex fori. To this end, courts use all kinds of technical escape mechanisms, such as the public policy exception or the exception clause. At the same time, these mechanisms give some leeway to courts, which may use them to take into account the specific features of a situation, including features linked to diversity. Much of the weight of managing these claims falls therefore on judges, as will become apparent in the second section.

7

Act of 16 July 2004, Official Gazette of 27 July 2004. For an English translation of the Code, see Yearbook of Private International Law 2004, p. 319. 8 ‘Rolin’ Act of 27 June 1960, Official Gazette of 9 July 1960. 9 Francq (2017), p. 1909; Erauw and Fallon (2011), pp. 238, 242; Erauw (2002), pp. 155–156.

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If the room left for the application of foreign law may have decreased substantially, the legislative developments transformed the legal framework differently for the two strands of claims we examine: while the legislative developments in relation to claims by sexual minorities clearly aimed to accommodate some of these claims, the changes brought to the legal framework dealing with cross-border cases were not primarily targeted at dealing with situations with a cultural/religious dimension or to accommodate cross-cultural diversity. Rather the changes undergone by the private international law rules attempted to make it easier for courts and practitioners alike to deal with cross-border claims. Finally, it is worth noting that the most recent legislative developments in relation to cross-border family law cases have taken an even different direction: recent changes brought to statutory law have in effect given a larger role to Belgian law. This renewed predominance of Belgian law is justified by the concern of avoiding fraudulent situations, such as marriages of convenience or the sham recognition of children. Overall, the gradual evolution of the legal system has led to a complex picture. Our hypothesis is that claims based on diversity do not always receive the same treatment. It seems indeed that claims made by sexual minorities have received a different treatment than cross-cultural claims. Whereas the first category of cases has led to changes in statutory laws, the picture is much more muddled when it comes to claims arising in cross-cultural situations. Courts take the lead in dealing with these claims. When doing so, courts tend to adopt a rather ‘technical’ perspective,10 which may obscure the diversity argument. This paper will attempt to verify this hypothesis. It is meant as a tentative exploration of the field, using mainly court cases as material. We do not intend to present an exhaustive overview of Belgian court practice. Rather, our inquiry will focus on selected cases which may illuminate the way claims based on diversity are approached in Belgium.

2 Management of Diversity Claims made by sexual minorities and cross-cultural claims do not receive the same treatment. The differences in approach may be explained in part by how such claims are framed: whenever a claim has a cross-border dimension, the answer will necessarily require the intermediation of private international law. This adds another layer to the reasoning. The intermediation of this technical layer may lead to a neutralization of the diversity dimension, as a judgment on the diversity issue is subordinated to the private international law reasoning. In any case, the existence of different answers to different types of claims based on diversity may illustrate a pragmatic attitude which could be typical of the approach adopted by Belgian authorities: pragmatism in lieu of a clearly articulated state policy.

10 We borrow the concept of a ‘technical’ or ‘technological’ approach from Christophe Jamin (2012, pp. 60–61).

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First we will examine two-person relationships before focusing on adult-child relationships. For both relationships we will contrast the answer given for claims by sexual minorities and cross-cultural claims.

2.1

Two-Person Relationships

Looking at two-person relationships, there is a striking contrast between different types of claims based on diversity: while claims made by sexual minorities have given rise to substantial statutory changes, claims linked to a cross-cultural dimension have remained within the province of the courts.

2.1.1

Sexual Minorities

With regard to the claims made by sexual minorities, a genuine recognition with statutory changes can be observed. At first, the change was timid and not exclusively linked to sexual orientation. The first institution created in 1998 was the so-called ‘cohabitation légale/wettelijke samenwoning’.11 It made it possible for two persons living together to be recognized and treated legally as a couple. However, the protection afforded to the partnership was weak. A partnership could be dissolved by the mere declaration of one of the partners. The partners were not entitled to any succession rights. More strikingly, the legislature refused to link the partnership to any sexual orientation. Indeed, the partnership could be used by same-sex and different-sex couples. It could also be used for other relationships, such as a bond between two sisters or a niece and her uncle. This peculiar feature of the law denotes an attempt to hide the real purpose of the statutory intervention, with the sexual dimension of the relationships being as it were hidden behind a seemingly neutral mechanism. In 2003, a new evolution took place. This time the legislature was less timid: it opened marriage to same-sex couples.12 With regard to the cross-border dimension, the Belgian legislature decided in favour of both maintaining nationality as the connecting factor as a general rule and establishing an exception for same-sex marriages. As a consequence, Belgian public policy includes the right to a samesex marriage in Belgium, ‘même si ledit droit n’est pas reconnu ou est mal considéré dans le pays d’origine de l’un des deux (ou des deux) conjoints’.13 The change was directly and expressly aimed at sexual minorities.

11

Act of 23 November 1998. Act of 13 February 2003, Official Gazette of 28 February 2003. 13 Parliamentary Record of the Belgian Chamber of Representatives, 23 June 2004, DOC 51 1078/ 005, p 10. 12

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Taking stock of the evolution over the last 20 years, one is forced to acknowledge that claims by sexual minorities have been taken into account to a large extent through changes in the statutory framework. This has, however, not alleviated all prejudices, nor has the legislature solved all issues. Cross-border issues remain in particular difficult to tackle. Belgium cannot, for example, guarantee that a marriage celebrated in Belgium will be recognized abroad.14

2.1.2

Cross-Cultural Minorities

The picture is more difficult to draw when looking at cross-cultural situations. In order to describe how such situations are addressed, we have chosen to focus on three specific marriages challenging established Belgian family (law) policies: polygamous marriages, religious marriages and child marriages. In all these cases, the cross-cultural issue cannot be understood without taking into account the cross-border dimension of the situation. In that respect, it is useful to underline that, in order to determine whether a marriage has been validly created, the Belgian PIL Code unsurprisingly refers, with regard to the formal requirements, to the law of the State on the territory of which the marriage is celebrated (Article 47). The substantive requirements of the marriage, on the other hand, are governed, for each spouse by the law of the State of the spouse’s nationality at the time the marriage is celebrated (Article 46). In order to be recognized as such in Belgium, a marriage validly celebrated abroad must comply with these two rules.15 In addition, Belgian authorities may refuse to recognize the marriage on various grounds. The public policy exception allows Belgian authorities to refuse the recognition of such marriages if this would result in a violation of fundamental values. Polygamous Marriages It is generally accepted that polygamous marriages are, as such, not compatible with fundamental principles of the Belgian legal order. Hence, polygamous marriages cannot be celebrated in Belgium.16 Belgian authorities will not assist in the realization of a polygamous marriage in Belgium, not even when the national laws concerned allow polygamy.17 This was demonstrated in a case of two Moroccans who could not call upon Moroccan law to enter into a polygamous marriage in Belgium. In this respect the exception of public policy has an absolute effect.18

14

The case law of the ECHR may, however, provide some reassurance in this respect, see ECHR, 14 December 2017, Orlandi v. Italy. 15 Article 27 Belgian PIL Code. 16 Dirix (2007), pp. 23–24, n 16. 17 See Circular Letter of the Minister of Justice of 23 September 2004 betreffende de aspecten van de wet van 16 juli 2004 houdende het Wetboek van internationaal privaatrecht die betrekking hebben op het personeel statuut. 18 CFI Brussels, 17 November 1992, as discussed in Tijdschrift voor Privaatrecht 4 (1998), p. 1393.

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The position is different when it comes to the recognition of a polygamous union validly celebrated abroad. As in many other European states, court practice has made it possible to grant some recognition to selected consequences of polygamous unions. In a ground-breaking case decided in 1970, a Court of Appeal held that the two spouses of a man who had been killed in a car accident could validly claim compensation for the damage they suffered as a consequence of his death. The Court held specifically that ‘the effect which may be derived from Moroccan law in the present case, i.e. the possibility for a widow to claim compensation according to Article 1382 of the Civil Code [the fundamental provision on which the law of tort is based], is not as such destructive of our social order and hence of our public policy; on the contrary, protecting the legitimate interests of a spouse is in conformity with the requirements of public policy’.19 The allowance that was made for an institution deeply foreign to the Belgian legal tradition has been confined by using a local, neutral norm, in this case the fundamental provision of the law of tort, as a vehicle to give effect to the foreign institution. It is now accepted that polygamous marriages may also produce effects in other fields. The main domain in which such marriages are relied upon is that of pension rights. There is a substantial body of case law on this issue. The discussion has focussed on the factors which may trigger the public policy exception and, hence, block recognition of the effects of such a marriage in a situation where a person was married twice and the two widows make a concurrent claim to the survivor’s pension rights. Courts have struggled to define whether the public policy exception should intervene when one of the spouses possesses the Belgian nationality. According to the Constitutional Court, the fact that the pension rights should be divided among two surviving spouses is as such not contrary to the principle of equal treatment. The Court held that this is so even though one of the surviving spouses possesses Belgian nationality.20 Other courts have been divided on the weight to be given to the fact that one of the surviving spouses was a Belgian citizen. According to lower labour courts, as soon as one of the surviving spouses possesses the Belgian nationality, splitting the pension rights would be contrary to fundamental principles. The Supreme Court, however, has held that Belgian nationality is only relevant if the first spouse possessed it when the second marriage was concluded.21 This has not convinced all lower courts, which have resisted the application of the strict test laid out by the Supreme Court.22 The law is therefore not yet fully settled on the question whether a second, polygamous marriage may be given effect. What is striking, however, is that the discussion in the various court opinions stays away from diversity issues. The matter is approached exclusively from the angle of financial relief for the surviving spouses. 19

CA Liège, 23 April 1970, RCJB 1971, p. 5. Constitutional Court, Ahlalia El Haddouchi, 4 June 2009, case no. 96/2009. 21 Court of Cassation, 18 March 2013, Pas. 2013, I, p 699. 22 See e.g. CT Brussels, 8 January 2014, Revue trimestrielle de droit familial 2014, p. 350. 20

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At no point in the arguments exchanged is there a claim directly linked to the recognition of diversity per se.23 This may be explained by the fact that the discussion has moved beyond the issue of principle, i.e. whether or not to recognize any effect in respect of polygamous unions, to concentrate on the circumstances in which such effect may be granted. It remains, however, that courts approach the issue from a very technical angle. If the end result of the reasoning is in effect that a claim linked to a different cultural background is taken into account, this is done without any actual discussion of the diversity issue, by focussing on technical aspects of the private international law reasoning. Religious Marriages When it comes to religious or informal marriages, the picture is at first sight straightforward: religious marriages are regarded as foreign to the Belgian legal system, and the only room conceded to such marriages relates to unions celebrated in countries where religious authorities are granted the power to celebrate such unions. Indeed, if people want to marry in Belgium, the rule is that a religious marriage can take place only after the marriage has been validly concluded before state authorities. This principle is enshrined in the Constitution (Article 21) and in the Criminal Code (Article 267). Looking at marriages celebrated abroad, courts have given effect to marriages celebrated by religious authorities, provided such religious celebration is valid under the law of the country where the marriage took place, in accordance with the principle of the application of local law to the celebration This is made possible through the use of the conflict-of-law rule subjecting the celebration of marriage to local rules. The religious dimension is therefore imported in Belgium through the mediation of a local rule. Looking in more details at the (scarce) case law, one notices, however, that the picture is slightly blurred. While the principles which have just been sketched are applied, courts have made some adjustments and brought some nuances to the principles. These adjustments are, however, not directly linked to the religious dimension of the marriage. Rather they are premised on local Belgian rules embodying various technical devices. It is as if Belgian authorities need the veil of authority of a rule existing in Belgian law to grant effect to a religious marriage. The religious dimension is therefore at best implicit, its presence being hidden behind local rules. A first example may be found in situations in which courts have noticed that the religious marriage was celebrated before the civil wedding. It is striking that courts denounce this situation, sometimes vehemently, but without refusing to take into account the civil marriage. This was, for example, the case in a dispute settled by the Court of First Instance of Brussels in 2015. The court had to review the decision whereby the civil registrar had refused to register a partnership between an Austrian woman and a citizen of Chechnya. Upon reviewing the evidence, the court found that the partners had already concluded a religious marriage some years earlier in Austria, shortly after having met. On this issue the Court noted that it ‘would like to recall with force that the fact that a religious marriage was organized before the civil

23

Christians and Overbeeke (2016), p. 95.

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marriage was celebrated contradicts the content of Article 21, paragraph 2 of the Constitution, according to which the civil marriage should always precede the religious blessing. Plaintiffs have in this respect shown a particular contempt for a fundamental principle of our legal order’.24 This solemn condemnation of the religious marriage did not prevent the court from examining the matter further, without drawing much adverse inference from the fact that parties had neglected to respect the priority of the civil union. In substance, the court acted as if there was a clear separation between the two marriages, and the court should only be concerned with the civil union, leaving the religious union aside. One can detect the same attitude in situations in which courts have chosen to give effect to religious marriages celebrated in Belgium. It is indeed striking that courts have used a technical, civil law device to take into account the religious union. This union is, as it were, stripped from its religious dimension. In order to be integrated in the Belgian legal order, courts have used the device of the ‘putative marriage’ to accommodate a claim arising out of a marriage celebrated religiously. In a ruling issued in 1953, a Court of Appeal held that even though two Italian spouses had been married only by a catholic priest in Belgium, the claim made by the widow against her late husband’s employer following the death of the former as a consequence of a work injury should be allowed. The Court noted that the spouses had informed the Italian consulate and the Italian religious authorities of their marriage. Taken with other circumstances, this led the court to accept that the spouses had in good faith believed that they were validly married.25 In other cases, courts have taken into account the existence of the religious marriage as an indication that the spouses intended to create a family, thereby satisfying the test required to obtain compensation in cases where a spouse passes away as a consequence of a labour injury. In the case of the Jewish marriage which has already been referred to, the Supreme Court decided in 1967 that the widow of a Jewish man, with whom she had been married only according to Jewish rites, could claim compensation following the death of her husband. The Court noted that ‘the fact that a religious marriage is devoid of any legal effect in Belgium does not mean that any advantage one of the spouses intends to receive from the marital life becomes unlawful’.26 Drawing on this, the Court concluded that the relationship between claimant and her late husband had been stable enough so as to justify taking it into account as a basis for compensation. It is striking that the Court underlined that it was not necessary to pass a judgment on the recognition of the marriage in order to decide on the claim. Again, the court’s decision consciously ignores the religious dimension of the marriage, preferring to take refuge in a rule whereby marital life as such opens a right to compensation if it is legitimate and does not violate public policy. Typical of this type of ruling is that the court accommodated

24

CFI Brussels, 22 April 2015. See also CFI Brussels, 25 February 2014, RDE 2014, pp. 266, 267. CA Liège, 19 February 1953, RCJB 1953, p. 253. 26 Supreme Court (Cassation), 26 June 1967, Arr. Cass. 1967, p. 1299. 25

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the claim by encapsulating it in a larger, neutral framework. Under the law of negligence, a plaintiff can only claim compensation for harm suffered provided that the interest at stake which has been harmed is legitimate. This ruling is a clear example of the approach adopted by courts in Belgium: when faced with situations involving claims linked to other cultural traditions, courts adopt a technical legal approach. The same attitude can be observed in another ruling of the Supreme Court involving two spouses, who after separating had obtained a divorce from Jewish religious authorities. Notwithstanding this divorce, they remained married according to Belgian law. The husband had been found guilty of adultery and ordered to pay compensation to his wife. Before the Court of Appeal, the husband challenged his wife’s claim by pointing to the fact that she had accepted the religious divorce. The Court of Appeal held that it was not called upon to rule on the religious divorce and its status, but only on the claim for damages.27 Likewise, the Supreme Court was in no way concerned with the religious divorce, which it did not mention in its ruling, concentrating its attention on the application of the law of tort. Even when faced directly with a religious dimension they cannot ignore, courts tend to approach religious unions using civil law devices. In a case where the public prosecutor was seeking a declaration that the marriage concluded between two citizens of Pakistan before an imam at a mosque in Brussels was null and void, the court easily granted the request, noting that the imam did not under Belgian law have any competence to celebrate a marriage.28 In the same ruling, however, the court concluded that the spouses could benefit from the mechanism of ‘putative’ marriage as they had erred in good faith when considering that their marriage was valid. This was in no way premised on the validity of the marriage under religious norms or on a desire to accommodate religious sentiments. Rather, the court encapsulated the factual circumstances in the civil law device of putative marriage, noting that the marriage had been celebrated in great haste, as the man was under the threat of being deported. The court further noted that the two spouses had assumed that given their common nationality, they could validly enter a marriage celebrated by an imam as allowed by their national law.29 These decisions show that courts strive to stay away from the religious dimension. Without developing a clear and articulated policy, which would apply each

According to the Court of Appeal, ‘the court does not pass a judgment on the scope of the alleged religious nature of the marriage, but only on the damage which was eventually suffered by the party as a consequence of the fact that the plaintiff ignores the fact that the civil marriage continues to exist,’ quoted by the Supreme Court, 15 June 1982, Pas. 1982, I, p. 1191. 28 CFI Dendermonde, 29 June 1989, Pas. 1990, III, p. 15. 29 See also CFI Brussels, 26 November 1965, JT 1966, p. 230: In that case, two Russian citizens had lived together in Russia. Upon moving to Germany in 1947, their marriage had been celebrated by a religious authority. The Court held that this marriage could not be recognized as it was contrary to ‘Belgian public policy’, as religious marriages had no value in Germany given that it had not been registered with the local authorities. The court concluded, however, that the two parties had acted in good faith and granted them the benefit of the ‘putative’ marriage. 27

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time a claim based on a different cultural tradition is made, courts rather attempt to accommodate these exceptional situations by fitting them as much as they can into existing civil legal rules. As regards marriages celebrated abroad, courts have remained faithful to the principle locus regit actum: such a marriage is recognized as valid provided it has been celebrated in a country where religious authorities have been delegated the power to celebrate unions.30 The fact that one of the spouses is a Belgian national does not modify the reasoning. In one case where the two spouses were Belgian nationals, the CFI Brussels accepted that the marriage celebrated by a catholic priest in San Marino should be recognized as valid, since according to the rules of San Marino, religious authorities had the power to celebrate marriages.31 According to the court, ‘even if in the present case, the marriage has been celebrated by a priest, it has the same value as if it had been celebrated in any other country by a civil registrar, taking into account that fact that in the Republic of San Marino, civil effects are granted to a religious marriage celebrated in accordance with the local formal requirements, the priest exercising in that country the competences of a civil registrar’. The striking feature of this case law is that the religious element of the marriage is almost obliterated. To be fair, courts do not ignore the fact that the marriage has been celebrated by a religious authority. However, the reasoning used by courts is one completely based on a non-religious norm. The religious aspect is ‘neutralized’. The marriage may only be granted effect in Belgium because a rule adopted by the Belgian legislature refers to the law of the country where the marriage was celebrated. All in all, court practice is willing to give effect to a religious marriage under certain circumstances. However, when doing so, very little room, if any, is left to the actual religious dimension of a marriage celebrated by a religious authority. Rather, courts anchor their reasoning firmly in civil law provisions, downplaying, if not obliterating the religious dimension. As Christians has noted in another context, ‘[a]t the best, religious agreements are considered as a factual matter, and might be taken into account among other contextual characteristics of the case, at least if the law admits such a subjective approach.’32 Child Marriages with underage spouses are not a new issue. Until the 1960s, couples fled to Gretna Green to celebrate a marriage when one of the underage spouses did not succeed in obtaining his or her parents’ consent to the union. From a conflict-of-law perspective, the issue seems quite straightforward: the minimum age to marry is deemed to be a substantive requirement. As such it is governed by the national law of the spouses. However, the public policy exception may be used to refuse application of foreign law allowing a marriage between persons who are, from the Belgian perspective, minors.

30

See e.g. Civ Brussels, 10 October 1956, Ann. Not. Enr. 1956, p. 319. CFI Brussels, 16 December 1967, JT 1970, p. 68. 32 Christians and Overbeeke (2016), p. 105. 31

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Case law on this issue is sparse. One may refer to a case decided in 1996 by a Court of Appeal: a marriage had been celebrated in Morocco between two Moroccan citizens. At the time of the marriage, the wife was only 17 years old. Although the marriage was valid under Moroccan law, the Court refused to recognize it. The Court specifically noted that the wife possessed both Belgian and Moroccan nationalities. In accordance with traditional rules on dual nationality, the Court held that the wife should be treated as if she possessed only the Belgian nationality. Accordingly the marriage was held to be null and void.33 What is interesting is that the Court, through the rules aimed at dual nationals, stripped the situation of its foreignness, and hence of a potential source of diversity. The situation was, as it were, nationalized, obliterating the foreignness. Due to the current refugee flows into Europa, the problem of marriages involving minors has become much more visible. As with several other EU Member States, Belgium has to deal with foreign minors who have already married before arriving in Belgium.34 As with polygamous marriages, one may question whether all child marriages may rightly be considered situations based on religious or cultural difference. It is indeed well known that Syrian child marriages may be a ‘coping mechanism’ for refugees in dire circumstances.35 In principle, it is easy to predict how Belgian authorities will react to such marriages. As a general rule, the minimum age for marriage is determined for each spouse according to his or her national law. However, Belgian authorities may call upon the public policy exception to refuse the application of foreign law or the recognition of a marriage celebrated abroad if one the spouses was so young that recognition of the marriage would violate the prohibition of child marriage. The answer to the question whether all child marriages are contrary to Belgian public policy is, however, not clear cut. Recently, some opening seems to have been made which would make it possible to recognize some child marriages. The first inroad follows from a statement made by the (former) Belgian Minister of Justice when answering a Parliamentary question. The question was raised after it was found that in April 2016, twenty-four children were registered in asylum centres as being under-aged and married.36 In most cases, it appeared that the underage

33

CA Liège, 19 March 1996, Revue trimestrielle de droit familial 1997, p. 323. Corneloup et al. (2017b), pp. 14–18; Corneloup et al. (2017a), p. 37 et seq. 35 Early marriage—a coping mechanism for Syrian refugees?, http://www.irinnews.org/news/2012/ 07/19/early-marriage-coping-mechanism-syrian-refugees. See, for instance, the Communication from the Commission to the European Parliament and the Council (12 April 2017): ‘Girls are particularly at risk of forced marriages as families struggle in straitened circumstances or wish to protect them from further sexual violence.’ (Communication from the Commission to the European Parliament and the Council, The protection of children in migration, 12 April 2017, COM(2017) 211 final, p. 2). 36 Parliamentary Question N 1021 of 3 May 2016 to the Minister of Justice, Parliamentary Record of the Belgian Chambre of Representatives, 2015–2016, QRVA 54 077, pp. 336–337; Integraal Verslag, Kamer, 2015-2016, CRIV 54 COM 480, 6-9 en Schriftelijke vragen en antwoorden, 2015–2016, QRVA 54 089 – 227–228. 34

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spouse was separated from his or her partner/spouse, with the two spouses being referred to separate asylum centres. Only in exceptional cases—namely if the age of majority is soon to be attained, the age difference with the partner is limited and a socio-affective bond exists—will the partners be allowed to reside in the same asylum facility. According to the Minister, the use of the public policy exception in the case of a child marriage requires balancing all interests at stake while taking into account the specific circumstances.37 The Minister underlined that the balancing exercise could lead to different results depending on the circumstances at hand and that even if the marriage was not recognized, this would not prevent taking into account some of the consequences of a marriage, such as the consequences for the children born out of the union. Finally, the Minister referred to the fact that under Belgian law, it is also possible to enter into marriage without having attained the age of majority—through a procedure before the family court.38 The second inroad comes from the courts. In a recent decision, a lower court had to rule on a marriage concluded in Somalia. At the time the marriage was concluded, the bride was only 14 years old, while her husband had reached the age of 18. Prima facie, this was clearly a prime case for the application of the public policy exception, as one of the spouses was well below the marriage age. The court nonetheless decided to grant effect to the marriage, taking into account the fact that 10 years had passed since the spouses got married. It is interesting to note that the court adopted a rather technical approach to the matter: the decision did not discuss upfront the question whether such a marriage would violate fundamental principles. Rather, the court turned its attention to the various elements which may be used to fine tune the assessment. When assessing whether a given situation violates public policy, courts are indeed required to take into account the strength of the connection between the situation and the Belgian legal order and the consequences a recognition would entail. On these two counts, the court noted that the marriage had been celebrated some 8 years ago in a foreign country, between two foreign spouses. Further, as both spouses had since then reached the age of majority, the recognition today of the marriage would not entail any unacceptable consequences. While this ruling needs to be confirmed by other courts, it demonstrates that a foreign child marriage will not automatically and in all circumstances be denied recognition. It also demonstrates that while the public policy exception is used as a policy instrument, courts clearly refrain from adopting overt policy positions, preferring to advance a position under the guise of technical elements.

Parliamentary Question N 1021 of 3 May 2016, Parliamentary Record of the Belgian Chambre of Representatives, 2015–2016, QRVA 54 077, pp. 336–337. 38 Art. 145 Belgian Civil Code. 37

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Finally, a last development may be found in a bill introduced in June 2018 in the Federal Parliament.39 The bill aims to prevent marriages involving minors. Instead of adopting a blanket prohibition of all marriages involving minors, the bill suggests a more nuanced approach: if it is adopted, court approval will be required before any such marriage is concluded or recognized in Belgium. In practice, the bill provides that if two persons wish to marry in Belgium, the intervention of a court is required when it appears that one of the would-be spouses is still a minor. The same applies when recognition is sought for a marriage celebrated abroad. In the two situations, the court is required to weigh all circumstances and pay particular attention to the marriage age set under Belgian law. At this stage, it cannot be predicted whether this bill will be adopted. Hence, the question whether or not to grant recognition to a child marriage remains in the hands of various authorities, such as courts, asylum and migration authorities or civil servants working at the municipal level. When the question is put to administrative authorities, each of these authorities examines foreign child marriages independently—and in the absence of any general guidelines for authorities confronted with foreign marriage certificates (involving a minor). It cannot therefore be guaranteed that these authorities will apply the same standards when looking at foreign child marriages. If the bill is adopted, courts will be in charge of deciding whether or not to grant effect to child marriages. This is a good development, as judges are indeed better placed to proceed on a case-by-case balancing of interests, taking all relevant circumstances into account in order to issue a judgment in the best interests of the child. It remains to be seen whether the courts will fully tackle the diversity issue or rather attempt to circumvent it by using one or the other technical device.

2.2

Adult-Child Relationships

Looking at the relationships between parents and children, the same dichotomy appears between claims based on sexual orientation and cross-cultural claims. While the first ones have to a certain extent been taken into account by the legislature, the others are left to courts to deal with. The results are a dissimilar approach to diversity.

Bill 54-3160/001 introduced on 12 June 2018 by MP Nahima Lanjri—the bill is entitled ‘Bill to modify the Code of Private International Law in relation to the recognition of foreign marriages involving minors, as part of the fight against child marriages’. 39

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Sexual Minorities

Claims by sexual minorities in relation to the establishment of a legal bond with children have given rise to developments in two directions: in the first place, the legislature has intervened in order to bring important changes to the statutory framework. Courts have also had (or might have) a role to play for issues not (yet) tackled by the legislature. In a first stage, in 2006 the legislature made it possible for same-sex couples to adopt children.40 This was a first step, which followed rapidly after same-sex marriage had been allowed. In practice, this legislative change did not have a tremendous impact for same-sex couples seeking to adopt a child abroad, as only a limited number of countries were willing to allow adoption by same-sex couples of children born on their territory. Further, the overall number of cross-border adoptions declined substantially over the last decade. Nonetheless, the legislative change was a powerful signal that a claim by a sexual minority should be addressed at the legislative level. In 2014, the legislature also made it possible for two married women or two women living together to establish their ‘maternity’ and ‘co-maternity’ in respect of the child of the spouse or the partner, without having to go through a costly and timeconsuming adoption procedure.41 The Act, which entered into force on 1 January 2015, regulates the establishment of co-motherhood by operation of the law for a woman who either is married to the birthmother at the time of the birth or who was married to her less than 300 days before birth.42 The Act has created a legal presumption which applies provided the paternity of the child is not established. The Act also regulates the establishment of co-motherhood for a woman who voluntarily acknowledges the child, or whose co-motherhood is determined in court proceedings. While the legislature went some way to accommodate a claim by same-sex couples, the statutory change did not sufficiently take into account the potential cross-border dimension of such a parent-child relationship. The legislature amended the Belgian conflict-of-law rule relating to parenthood in order to make it gender neutral.43 Article 62 of the Belgian PIL Code, which points to the law applicable in matters of parenthood, sticks however to the law of the State of a person’s nationality in order to determine whether parenthood may be established or challenged As a consequence, the question whether a woman can become a co-mother remains governed by her national law, in accordance with Article 62. Women whose national law does not know or does not allow the establishment of co-motherhood are therefore prima facie unable to establish their parentage vis-à-vis

40

Act of 18 May 2006 (Loi modifiant certaines dispositions du Code civil en vue de permettre l’adoption par des personnes de même sexe), Official Gazette of 20 June 2006. 41 Act of 5 May 2014 (Loi du 5 mai 2014 portant établissement de la filiation de la coparente), Official Gazette of 7 July 2014. 42 Art. 325/2 Belgian Civil Code. 43 Act of 18 December 2014, Official Gazette of 23 December 2014.

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the child, except through the lengthy procedure of adoption.44 It is striking that Parliament did not adopt a provision allowing or requiring that a foreign rule prohibiting the establishment of a parental link between the child and the woman who is married to the birthmother be excluded, as it did for same-sex marriages in 2004.45 This is an area in which courts could play a role in the years ahead. Two correction mechanisms could potentially be used to escape the limitations imposed by the national law of the woman who wants her parentage to be established. Neither of the devices will, however, automatically lead to the result sought as each leaves a wide margin of appreciation to the authorities. The first mechanism which may be used in relation to a claim by a person wishing to be recognized as mother of a child is the exception clause found in Article 19 of the Belgian PIL Code, which allows for the application of the law of the more closely connected State. When there is only a very slight connection with the State whose law was designated, but the combined circumstances of the case demonstrate a stronger connection with another State, the law of the latter State may be applied. The prospective co-mother who wants to avoid the application of her national law through the exception clause will have to initiate proceedings before a court.46 She could do so by requesting a correction of the birth certificate before the Family Court or by letting a court establish her motherhood. In order for the application of Article 19 to be successful, the prospective mother will have to show that she has a strong connection with Belgium while having only an accidental link with her country of origin. Needless to say, this device will only make it possible to exclude the application of foreign law in exceptional cases. The same may be said of the second device, i.e. the public policy exception to be found in Article 21 of the Belgian PIL Code. The exception will have to be applied on a case-by-case basis taking into account all circumstances of the situation and in light of the best interests of the 44

Provided the national law of the woman makes it possible to adopt, since the nationality of the adopter is also the connecting factor (Art. 67 Belgian PIL Code). Art. 67 determines, however, that the judge applies Belgian law if he considers the application of the foreign law clearly harmful to the ‘higher interest’ of the adoptee and if the adoptee or the adopters have clear close links with Belgium. 45 Article 46, point 2 of the Belgian PIL Code excludes the application of a foreign law that does not make it possible for same-sex spouses to marry, provided one of the future spouses has the nationality of a State whose law allows for such marriage or has his or her habitual residence on the territory of such State. During the parliamentary debate leading up to the Act on the parenthood of the co-mother, it was asked whether the lack of such a provision for the establishment of a link between a co-mother and a child would not lead to a discrimination. No further action was taken, however, as it was felt that adopting a positive public policy provision required further debates that should be discussed in the light of the renewal of the Belgian parenthood legislation: Proposition de loi modifiant le Code civil, le Code consulaire, la loi du 5 mai 2014 portant établissement de la filiation de la coparente et la loi du 8 mai 2014 modifiant le Code civil en vue d’instaurer l’égalité de l’homme et de la femme dans le mode de transmission du nom à l’enfant et à l’adopté, Doc. Parl., Chambre, 2014–2015, 54-538/5, p. 8. 46 Indeed, it is accepted that Article 19 can be applied only by a judge, and not by a civil registrar: Circular letter of 23 September 2004, Official Gazette of 28 September 2004, p. 69598.

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child. The applicant will have to demonstrate that the application of the foreign law prohibiting the establishment of the parental link runs contrary to fundamental principles. It remains to be seen whether and how Belgian courts will use the abovementioned correction mechanisms. One question which will arise in this context is whether the courts will take into account the diversity dimension or, as in other contexts, hide this dimension behind a purely technical reasoning. One situation in which courts have already played an active role is regarding the recognition of children born abroad in the context of surrogacy agreements. Courts have indeed been faced with a substantial number of cases where a child was birthed abroad by a surrogate mother with whom two same-sex partners had contracted. The question which arose was whether the parenthood of the same-sex partners as established in the country where the child was born should be recognized. In the first decisions, courts were rather reluctant to recognize the parental link with the two men who had contracted with a surrogate mother. In most cases, when such a link was recognized,47 it was only accepted vis-à-vis the man who was the biological father of the child.48 In more recent decisions, however, courts have adopted a more liberal attitude, accepting the dual paternity in situations where two men have contracted with a surrogate mother.49 A recent decision by the Ghent Court of Appeal illustrates this attitude. Two men, one with the Dutch nationality and the other with Belgian nationality, both residing in Switzerland, engaged in a surrogacy agreement in California. The surrogacy agreement was concluded with an American surrogate and her husband. The couple obtained a pre-birth judgment of parentage which recognized both men as legal parents having ‘physical and legal custody’. Immediately upon birth of the children, the names of the two men were recorded in the birth certificates. After their return to Belgium, the couple asked that the Californian birth certificates be registered in the Belgian civil registry. As this was refused, the men brought proceedings before court. The Ghent Court of Appeal held that the parentage of the two men should be recognized in Belgium.50 The Court struggled somewhat because it acknowledged that the prospective parents had gone to California primarily to establish a legal parent-child relationship which would have been possible in Belgium only through adoption. Ultimately, however, the Court adopted a mild approach, taking the view that recognition was necessary in order to uphold the best interests of the children. The Court clearly expressed its hesitation when it held that the recognition by the court ‘takes place after the birth of 47

Sometimes recognition was denied altogether, see CFI Huy, 22 March 2010, JT 2010, p. 420, comment N Gallus. 48 E.g. CA Liège, 6 September 2010, JT 2010, p. 634. 49 This was the case in a first instance decision issued in 2013: referring to the interests of the children, the Court of First Instance of Liège refused to distinguish between the situation of the biological father and his husband, holding that the two men should be recognized as parents of the children: CFI Liège, 15 March 2013, Revue trimestrielle de droit familial 2013, p. 714. 50 CA Ghent, 20 April 2017, [email protected] 3 (2017), pp 71-86 (available at https://www.ipr. be/nl/archief).

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the children as a fait accompli (clearly in execution of the surrogacy agreement), due to this fact the court is on the horns of a true dilemma concerning the impact of a recognition or non-recognition [. . .] on the best interests of the children concerned’. With regard to surrogacy cases, courts have adopted a very open approach, accepting claims by sexual minorities based on an institution not regulated so far by the Belgian legislature. When doing so, they have been primarily influenced by the interests of the child.

2.2.2

Cross-Cultural Minorities

The picture is quite different when one considers the situation of children in crosscultural situations. Very few legislative changes have been made to accommodate their situations. Courts are therefore in the front row in deciding how to react to claims made in this context. Their reaction has also been guided primarily by the concern to uphold the interests of the child. This plays out differently, however, depending on the context in which the question arises. We have selected two specific adults-child relationships to illustrate the matter: one within the context of polygamy and one within the context of kafala. Children of Polygamous Unions We have already discussed the reaction of the Belgian legal order with regard to polygamous marriages. Turning to the children born out of polygamous marriages, the Constitutional Court issued an important decision in 2008.51 In September 2006, the legislature had adopted a law which made it impossible for children living abroad to request a family reunification visa if they were born out of a polygamous union.52 More precisely, the law provided that if a foreigner resided in Belgium with one spouse, no family reunification visa could be granted to the children of another spouse of the foreigner, who lived outside Belgium. The Constitutional Court quashed the provision. The Court did so with exclusive reference to the principle of equal treatment of children, whether born in a polygamous union or not. No reference was made to any traditional or religious motive. The only decisive factor was the treatment of children, the court holding that the justification for this different treatment, i.e. the fact that the parents were bound by a polygamous union, was irrelevant. According to the Court, [t]he possibility of family reunification between a child and his parents is solely linked to the existence of a filiation relationship. The specific circumstances surrounding the birth of the child and the matrimonial situation of the parents are criteria which do not show any relevance when linked to the content of the provision, nor with the objective to defend international public order, be it Belgian or European, since the children at stake are in no way

51

Constitutional Court, 26 June 2008, No. 95/2008, available at www.const-court.be. This provision had been adopted to implement Article 4, para 4 of the Family Reunification Directive 2003/86/EC of 22 September 2003. The Belgian legislature had chosen to also exclude the children of a polygamous marriage (as with polygamous spouses) from the right to family reunification.

52

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responsible for the matrimonial situation of their parents and the family reunification, as far as they are concerned, is not an effect of the marriage of their parents, but rather a consequence of the parentage which binds them with the parent who is settled or authorized to reside in Belgium.

Another issue where Belgian authorities are faced with children born from polygamous unions concerns the establishment of parentage. Although case law on this subject is scarce, it seems accepted that a man may claim paternity over a child born of a second spouse. In a case decided in 2013, the Court of First Instance of Liège decided that even though a second marriage concluded by a man who possessed both the Belgian and Moroccan nationality was null and void from a Belgian perspective, this did not prevent ascertaining whether a child born out of that marriage was indeed the child of the father. When the answer proved to be positive, the child was entitled to Belgian citizenship.53 In another case, a first instance court was also willing to distinguish between the marriage as such, which was not recognized on account of the fact that the husband was already married to another woman, and the relationship between the father and the child. The court found that the latter question should be examined independently from the marriage.54 In these two instances, the courts placed heavy emphasis on the situation of the child, which was deemed to be a matter separate from the polygamous union. It is as if courts tend to make the situation of the child immune from the marriage of his parents by rejecting the latter and focussing solely on the former. Kafala As in other European States, Belgium has struggled with the institution of the kafala. In most instances, Belgian authorities have been faced with a child placed under kafala in Morocco. Many questions have arisen in relation to the effects to be granted to such an arrangement, ranging from the residence title required under migration law to social security entitlements which may be granted to children.55 Belgium adopted two provisions to deal specifically with foreign kafalas. When the rules on adoption were revised in 2003 to accompany the entry into force of the 1993 Hague Adoption Convention, a provision was adopted which aimed to safeguard existing kafalas. Under this rule, kafalas which took effect before 1 September 2005 could benefit from the old regime. This made it possible under certain conditions for the kafils to adopt the child.56 Alongside this temporary arrangement for older kafalas, the legislature also adopted a special provision in 2006 to make it possible for a child to be adopted when the law of his country of origin does not provide for adoption.57 It is striking that this provision aims precisely at setting aside

53

CFI Liège, 18 October 2013, Revue du droit des étrangers 2014, p. 265. See also CFI Brussels, 8 June 2010, Tijdschrift voor Vreemdelingenrecht 2011, p. 17, comment J Kusters. 54 CFI Charleroi, 11 December 2008, Revue du droit des étrangers 2009, p. 730, comment P Wautelet. 55 See e.g. in relation to child allowances, Constitutional Court, 19 June 2013, ruling N 92/2013. 56 Article 24sexies, 1 Act of 24 April 2003, as adopted by the Act of 6 December 2005. 57 Article 361-5 Civil Code, as adopted by the Act of 6 December 2005.

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the specific nature of the kafala by making it possible for adoptive parents to adopt a child although the law of the country where the child resides allows only the kafala. This legislation in other words purposefully ignores the prohibition of adoption in countries where kafalas exist and instead prescribes recourse to a legal figure unknown to those countries. If one leaves aside these two provisions, the position adopted by Belgian authorities in respect of the kafala is deceptively simple: the kafala is approached as it exists. Hence, the kafala is not deemed to create a full parentage bond between the child and the kafils. Rather, courts and other authorities start from the idea that the kafala creates a different, weaker bond between the kafils and the child (makful), which cannot be equated to an adoption. What consequences may be drawn from this weaker bond is then examined separately in each field where the question arises. When doing so, the starting point of courts and authorities alike is that the kafala cannot be treated as an adoption. As a consequence, the relationship existing between the kafils and the makful cannot trigger the application of the rules which are premised on the existence of a parent-child relationship. This approach is most visible in the many instances in which the kafils attempt to obtain a residence permit for the makful. As the kafala does not create a bond similar to that existing between parents and children, the child may not apply for a family reunification visa.58 It remains possible to apply for a residence permit under Article 9 of the Belgian Immigration Act of 15 December 1980. Under this provision, Belgian authorities may grant a residence permit to foreigners who do not qualify under other migration schemes. Experience has, however, shown that no guarantee may be given that such a permit will be granted.59 The executive authorities enjoy broad discretion in deciding whether or not to grant the permit under this provision. The existing guidelines are vague and do not specifically address the situation of the kafala.60 A recent judgment of the European Court of Justice imposes a more concrete and balanced approach. The Court was asked whether a child under kafala who is in the permanent legal guardianship of a Union citizen is a ‘direct descendant’ within the meaning of the Citizens Directive 2004/38.61 The Court ruled that Article 2(2)(c) of Directive 2004/38 must be interpreted as not including a child who has been placed in the permanent legal guardianship of a citizen of the Union under the Algerian kafala system because that placement does not create any parent-child

For the position under Belgian migration law, see Carlier and Saroléa (2016), p. 150, § 108 and p. 368, § 393. 59 See for example several decisions of the Administrative Court on Foreigners (Conseil du contentieux des étrangers, CCE) on kafala: CCE, 30 April 2009, n 26.847; CCE, 28 May 2009, n 28.068; CCE, 29 May 2009, n 28167; CCE, 1 December 2009, n 35.718; CCE, 18 December 2014, n 135.420; CCE, 18 December 2014, n 135.426; CCE, 24 February 2011, n 56.659; CCE, 28 February 2013, n 98.272; CCE, 31 October 2013, n 113.174; CCE, 18 May 2015, n 145.497, available at www.rvv-ccce.be. 60 Carlier and Saroléa (2016), pp. 152–158. 61 SM v. Entry Clearance Officer, UK Visa Section, 26 March 2019, C-129/18. 58

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relationship between them. However, it is for the competent national authorities to facilitate the entry and residence of such a child as one of the other family members of a citizen of the Union pursuant to Article 3(2)(a) of that directive by carrying out a balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned. In the event that it is established, following that assessment, that the child and its guardian, who is a citizen of the Union, are called to lead a genuine family life and that that child is dependent on its guardian, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State.

Whether this ruling will prevent kafils from attempting to convert the kafala into an adoption, so as to create a more stable legal bond with the child and entitle the child to a valid residence title in Belgium, remains to be seen.62 In the past, requests by kafils to transform the kafala into an adoption invariably met with scepticism from courts.63 The rules regulating adoption are indeed as such incompatible with many aspects of the kafala. Under Belgian law, for example, prospective adoptive parents are required, in a case of cross-border adoption, not to have any contact with the adopted child before the adoption is completed.64 When the kafala is initiated in Morocco by the kafils, it is very difficult to respect this rule, as it would mean that the child must remain in Morocco until the adoption process is completed, whereas the kafala is already completed from a Moroccan perspective. Further, rules relating to the biological parents’ consent to the adoption may also be difficult to reconcile with situations of kafala. A ruling of the Court of Appeal of Ghent is illustrative of this approach: a child born in Morocco had been entrusted to two kafils living in Belgium.65 The kafils filed an application in court to seek the adoption of the child. The Court of Appeal refused the adoption after noting that on several counts, the kafala did not conform with the requirements of Belgian law. This was obvious in terms of consent of the biological parent, which was required under Belgian law and which had not been given. The Court also noted that no report had been written on the child’s situation by the Moroccan authorities, as required by Belgian law. The Court concluded that it could not ‘rule otherwise than to apply the law’. This shows that the Court may have been uneasy about its decision, but it felt that deciding otherwise would only have been possible by bending the rules, something the court was not prepared to do. This is very symptomatic of the attitude adopted by Belgian courts: by focussing on the differences existing between the kafala and the adoption, they confine the kafala to 62

E.g. Children’s Court Charleroi, 5 November 2013, Revue trimestrielle de droit familial 2014, p. 572. 63 Save for situations which may fall under the special arrangements for older kafalas, see e.g. CA Brussels, 10 January 2012, Revue trimestrielle de droit familial 2012, p. 399. 64 Art. 363-1 Civil Code. 65 CA Ghent, 13 March 2013, RABG 2013, p. 915.

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something foreign, which cannot be imported in the Belgian legal order, save when the legislature has adopted a specific legal provision making allowance for the kafala as it did in 2006. The approach of sticking to a close reading of the law is also apparent in the Chbihi Loudoudi case, in which the Court of Appeal was asked to apply the special provision dealing with older kafalas. The court noted that under the transitional arrangement, the child should have been handed over by the competent authorities of the State of origin to the prospective adoptive parents. Additionally, in the case at issue, the kafala was not a court-approved kafala, but a kafala witnessed and registered by two adouls, i.e. religious officials whose mission is to establish documents for important family acts. Accordingly, the Court of Appeal held that the transitional provision could not be applied.66 While this position may be understood if one looks exclusively at the requirements of the transitional arrangement, it remains that this approach may leave the child in a very uncertain situation. In the Chbihi Loudoudi case, which was later referred to the European Court for Human Rights, the Court of Appeal noted, after refusing to authorize the adoption of the child, that the latter was protected in Belgium as Article 22bis of the Constitution directs authorities to always pay attention to the child’s interests when taking a decision impacting him or her.67 This is a meagre consolation for a child who had to live in Belgium with temporary residence titles for almost 10 years and even without such a title for seven months.68 When one observes court practice, it seems that the courts insist on the differences between the kafala and the adoption, which make it impossible to trigger the various rules tailored for adoption (in relation to residence title, child allowance, etc.). This ‘technical’ attitude ignores the fact that, in essence, a claim linked to a kafala will not neatly fit in the categories of Belgian law.69 Moreover, this approach ignores the fact that, beyond the differences between the two institutions, they both produce equivalent results from the child’s perspective.70

66

CA Brussels, 19 May 2010, Revue trimestrielle de droit familial 2012, p. 387. CA Brussels, 19 May 2010, Revue trimestrielle de droit familial 2012, p. 389. 68 On this aspect, see ECHR, 16 December 2014, Chbihi Loudoudi and Others v. Belgium (case N 52265/10), §§ 126 ff. The ECHR found that there was no violation of Article 8, as the girl had never been threatened with deportation. 69 For an example, see the dissenting opinion of Karakas, Vucinic and Keller JJ, in Chbihi Loudoudi and Others v Belgium, Application no 52265/10: ECHR (Second Section), 16 December 2014, § 5. 70 In the decision concerning the special allowance granted in cases of adoption (see footnote 116), the Constitutional Court focussed on the nature and effects of the kafala, so as to magnify the differences existing with the adoption. This is striking since from the child’s perspective there was not much difference between the two situations. The Constitutional Court itself noted that the adoption allowance aimed to ‘finance part of the additional expenses supported by those who welcome an adopted child in their household’ (Constitutional Court, ruling N 92/2013 of 19 June 2013, § B.4.2—original in French: ‘[. . .] une prime d’adoption qui [. . .] a pour but de financer une partie des dépenses supplémentaires exposées par ceux-ci lors de l’accueil d’un enfant adopté dans leur ménage.’). From a functional perspective, one may wonder whether this could not be applied ne varietur to the expenses undertaken by the kafils when welcoming the makful. 67

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In other words, emphasizing the uniqueness of the kafala seems to make it impossible to build a bridge between the kafala and the protection built into the existing rules dealing with adoption This contrasts markedly with the developments already described in relation to same-sex parents, where, such as in cases of crossborder surrogacy, the interests of the child are taken into consideration to recognize dual paternity created abroad, even in situations where the establishment of a parentchild relationship through adoption could have been possible in Belgium. Given the uncertainty affecting young children who live in Belgium after having been entrusted to kafils, it is striking that it took so long to adopt measures implementing Article 33 of the 1996 Hague Child Protection Convention in Belgium. As is well known, this Convention includes the kafala as a measure related to the protection of children.71 Under the 1996 Hague Convention, a kafala can be recognized as a kafala without the need to convert the kafala into an adoption. States Parties must recognize a kafala ordered by a competent authority, for instance in Morocco, as an institution sui generis.72 Given that the kafala touches on matters falling under the jurisdiction of both the federal and the regional government, the recognition of the kafala in Belgium under Article 33 could only be made possible if a cooperation agreement were concluded at both levels. Indeed, the Central Authority designated by Belgium when ratifying the Convention could not properly deal with all aspects of the kafala.73 The 1996 Convention only entered into force in Belgium in 2014. When this was done, it took another 3 years for a cooperation agreement to be concluded among the competent authorities.74 As a consequence, Article 33 remained unavailable for a long period, as was noted by a Court in a case where a couple with Belgian and Moroccan nationality, who were the kafils of a Moroccan girl that had been declared abandoned, requested the recognition of the Moroccan kafala decision in Belgium.75 The court of appeal painfully found that the plaintiffs ‘rightly argue that the Hague Child Protection Convention is not applicable in this case because Article 33 is not yet implemented in Belgian law, more specifically the Belgian legislature has not designated a Central Authority as required by the Convention.’ It is difficult to understand why there is such a dearth of efforts to make any allowance for the kafala.76 This lack of effort contrasts in any event with the intense

71

Article 3e Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of parental responsibility and measures for the protection of children. 72 In the case of placement of the child in another State Party, one of the conditions for recognition is the prior consultation with the authorities of that State Party (article 33 of the Convention). 73 Report Commission on Foreign Affairs, Senate, Doc. Parl., Senat, 5-2321/2, p 9. 74 See the Act of 26 November 2018, Official Gazette of 24 December 2018. 75 CA Antwerp, 16 May 2017, [email protected] 3 (2017), p 15 (available at https://www.ipr.be/ nl/archief). 76 This lack of efforts may be linked to the migration policy. When discussing the (late) entry into force of the 1996 Hague Child Protection Convention in Belgium, the Minister of Foreign Affairs made a link between the kafala and migration as follows: ‘Cela fait déjà plusieurs années que notre

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legislative activity around adoption, even though the number of cross-border adoptions is systematically decreasing. What is even more striking is the refusal to comply with international obligations. There is indeed a treaty obligation to recognize kafalas. Belgium cannot ignore that the kafala, although unknown in its own legal system, creates a legal relationship between adults and children and therefore certain rights for children.

3 Conclusion Claims based on diversity have been challenging the Belgian legal order. These claims come in different shapes. They are presented upfront, without any intermediation, when they are linked to a sexual minority. In contrast, in cross-cultural cases, claims based on diversity are addressed through the mediation of other, technical rules. Starting from a selection of two different fields where claims based on diversity are made, this paper has illustrated the evolution in opposite directions, resulting in a divergent approach to diversity: on the one hand, claims by sexual minorities are by and large accommodated, even triggering the adoption of statutory law; on the other hand, cross-cultural claims are left to courts to deal with. On the basis of a selected number of court cases, one can observe that the cross-cultural dimension is (often) hidden behind the veil of a technical (civil law or private international law) rule or reasoning. However, this observation cannot as such confirm the hypothesis that courts adopt a purely technical perspective when considering cross-cultural claims. This needs to be confirmed by further research. Ideally, future research should attempt to go beyond the textual analysis of court opinions. In order to produce a finer account of how claims based on diversity are treated, observation and interviews of judges are needed. Research should also be extended to other claims based on cultural, religious or sexual differences.

References Caestecker F (2006) Histoire de la migration en Belgique aux XIXème et XXème siècles (18302004). In: Khader B, Martiniello M, Rea A, Timmerman C (eds) Penser l’immigration et l’intégration autrement. Bruylant, Brussels, pp 13–28 Caestecker F (2011) Migration from and into Belgium and Luxemburg (17th-20th century). In: Bade KJ, Emmer PC, Lucassen L, Oltmer J (eds) The Encyclopedia of European migration and minorities: from the seventeenth century to the present. Cambridge University Press, Cambridge, pp 44–51 pays n’accepte plus la figure juridique de la kafala, qui est une figure juridique atypique et non reconnue en droit belge et qui était devenue un moyen d’immigration. Le refus au Maroc de la kafala (procédure d’adoption) donnait lieu à un transfert vers notre pays.’ (Report Commission on Foreign Affairs, Senate, Doc. Parl., Senat, 5-2321/2, p 5).

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Carlier J-Y, Saroléa S (2016) Droit des étrangers. Larcier, Brussels Christians L-L, Overbeeke A (2016) Religious rules and principles in Belgian law. In: Bottoni R Cristofori R, Ferrari S (eds) Religious rules, state law, and normative pluralism – a comparative overview. Ius Comparatum – global studies in comparative law, vol 18. Springer, pp 91–115 Corneloup S, Heiderhoff B, Honorati C, Jault-Seseke F, Kruger T, Rupp C, van Loon H, Verhellen J (2017a) Children on the move: a private international law perspective. Study for the JURI committee. http://www.europarl.europa.eu/RegData/etudes/STUD/2017/583158/IPOL_STU (2017)583158_EN.pdf. Accessed 20 Apr 2021 Corneloup S, Heiderhoff B, Honorati C, Jault-Seseke F, Kruger T, Rupp C, van Loon H, Verhellen J (2017b) Private international law in a context of increasing international mobility: challenges and potential. Study for the JURI committee. http://www.europarl.europa.eu/RegData/etudes/ STUD/2017/583157/IPOL_STU(2017)583157_EN.pdf. Accessed 20 Apr 2021 Dirix E (2007) Privaatrecht en multiculturaliteit. Intersentia, Antwerp Erauw J (2002) Brief description of the draft Belgian code of private international law. Yearb Priv Int Law 4:145–161 Erauw J, Fallon M (2011) Flexibility and conflict justice in the Belgian Code of private international law. In: Dirix E, Leleu Y-H (eds) Rapports belges au Congrès de l’Académie internationale de droit comparé à Washington. Bruylant, Brussels, pp 227–278 Foblets M-C (2011) Le droit face à la multiplication des revendications identitaires: Pluriculturalité et pluralisme juridique au départ de l’expérience belge. In: Ringelheim J (ed) Le droit et la diversité culturelle. Bruylant, Brussels, pp 877–906 Francq S (2017) Belgium. In: Basedow J, Rühl G, Ferrari F, de Miguel AP (eds) Encyclopedia of private international law, vol 3. Edward Elgar, Cheltenham, pp 1906–1919 Jamin C (2012) La cuisine du droit – L’École de droit de Sciences Po: une expérimentation française. Lextenso, Paris Ringelheim J (ed) (2011) Le droit et la diversité culturelle. Bruylant, Brussels Swennen F (2013) Contractualisation of family law in continental Europe. Familie & Recht. https:// doi.org/10.5553/FenR/.000008 Swennen F (2015) Private ordering in family law: a global perspective. In: Swennen F (ed) Contractualisation of family law – global perspectives. Ius Comparatum – global studies in comparative law, vol 4. Springer, Cham, pp 1–59

Jinske Verhellen studied law and anthropology. She has always combined these two disciplines in her work, both in academia and in practice. In 2006, she had the unique opportunity to help establish the Private International Law Centre in Brussels (now part of the Agentschap Integratie en Inburgering), which gives advice and does policy work in the field of private international law in family matters. In January 2009, she returned to Ghent University, where in 2012 she obtained her doctoral degree on The Belgian Code of Private International Law in Family Matters (financed by the Research Foundation—Flanders). Since 2014, she is Professor of Law at Ghent University, lecturing private international law and international family law. She is also a member of the Ghent University interfaculty research group CESSMIR (Centre for the Social Study of Migration and Refugees) and president of the Diversity Commission of the Ghent Faculty of Law and Criminology. Jinske Verhellen has published on various aspects of private international law, international family law, migration law and nationality law. She is currently chief editor of the Belgian Private International Law Journal ([email protected]/[email protected]). Patrick Wautelet is a Professor at the Law School of Université de Liège, Belgium, where his teaching and scholarship focuses on legal aspects of cross-border situations with a strong emphasis on cross-border family relationships (including issues of assets) and nationality law. In recent years, his scholarship has focused mainly on family issues (including family assets) arising out of the increasing cross-border mobility of citizens. After having obtained a JD (1996) and a PhD (2002) at the University of Leuven, he was a visiting researcher at the University of Illinois and at Harvard

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Law School (1999–2000) and has been an attorney with a large firm in Brussels for 7 years (2002– 2009). He worked at the Hague Conference for Private International Law as a stagiaire and recording secretary and was a visiting professor in Russia (MGIMO), Burundi and France (EDHEC Business School). He is the author or (co-)editor of many publications on cross-border relationships, with a strong emphasis on post-migration situations analyzed from the angle of family relationships and (acquisition and loss of) citizenship. He is currently vice-dean of the ULiège law school and chairman of the board of an NGO (Eclosio).

Between Openness and Restriction: German Family Law and Multicultural Challenges Anatol Dutta

Abstract The following report—which was prepared in 2018 for the 20th International Congress of Comparative Law in Fukuoka—shows that German law does not follow a consistent strategy in tackling multicultural conflicts. In substance, German law has no clear view on whether multicultural conflicts are to be addressed with tolerance or restriction. Moreover, the mechanisms for implementing a tolerant or restrictive approach are rather random: in some parts diversity is addressed by private international law, while in other parts substantive law steps in.

1 Introduction The conflict between culture and family law has some tradition in Germany. The process leading to the first uniform codification of German family law at the end of the nineteenth century was dominated by the state’s desire to impede the cultural influence of one of its most powerful competitors at that time: the church, whose courts still had family law jurisdiction in some German territories, especially in matrimonial matters.1 The family law jurisdiction of the church was completely abolished in Germany only in 1877 with the Gerichtsverfassungsgesetz, the Act on the Constitution of the Ordinary Courts, a kind of German version of the Judicature Act. In the original version2 of its § 15, the Act states that all courts are ‘state courts’

The following paper was also published in the German National Reports on the 20th International Congress of Comparative Law, ed. by Martin Schmidt-Kessel, 2018. 1 2

See as to the development of the matrimonial jurisdiction of the state Schwab (2017b), p. 13. Of 27 January 1877, RGBl. 1877, p. 41.

A. Dutta (*) Ludwig Maximilians University, Chair of Private Law, Private International Law and Comparative Law, Munich, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_11

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(‘Staatsgerichte’) and that any exercise of clerical jurisdiction in secular matters has no legal effects in civil matters (‘Die Ausübung einer geistlichen Gerichtsbarkeit in weltlichen Angelegenheiten ist ohne bürgerliche Wirkung’). Moreover, the provision also stresses that any private law consequences of clerical jurisdiction have been lifted, mentioning explicitly matters of marriage and betrothal (‘insbesondere bei Ehe- und Verlöbnißsachen’). Moreover, the documentation of citizens’ most important life events—birth, marriage and death—and their status consequences was taken from the churches in 1875 by the Gesetz über die Beurkundung des Personenstands und die Eheschließung, the Act on the Registration of Civil Status and Marriages,3 which clarified that the registration of births, marriages and deaths is exclusively in the hands of the civil status officers authorized by the state (‘Die Beurkundung der Geburten, Heirathen und Sterbefälle erfolgt ausschließlich durch die vom Staate bestellten Standesbeamten mittels Eintragung in die dazu bestimmten Register’). Hence, from the beginning the uniform German family law—which is now mainly regulated by the fourth book of the Bürgerliches Gesetzbuch (BGB), the German Civil Code—breathed the spirit of the Kulturkampf, the 1870s conflict between the newly founded German state and the Roman Catholic Church, and was informed by the notion that family law had to be under the control of the state and not of other actors in society that set deviating cultural norms. Today, of course, the conflicts between culture and family law are different. In particular, unlike during the Kulturkampf, there is no competing institution influencing family life and potentially conflicting with the family law of the state. Rather, society in Germany, as in most Western countries, has become culturally diverse. It is not without reason that this article speaks of ‘multicultural’ challenges. Nevertheless, family law can still clash with claims based on cultural traditions if cultural groups affect their members’ way of family life. There is also another difference to past conflicts between culture and family law: At least in Germany, multicultural challenges today are mainly triggered by international migration due to social, political and economic causes. As a consequence, cultural diversity is a topic not only for substantive family law but also for private international law. The rules for cross-border family matters can, of course, manage the cultural diversity caused by migration in different ways. On the one hand, they can respect cultural diversity in family matters, especially by seeking to determine the applicable law with an eye towards identifying a legal system representing the cultural identity of the persons concerned,4 if such a cultural identity in the area of family law exists at all. As we know that there is no single connecting factor in international family law designating the law to which persons are (culturally) most

3

Of 26 February 1875, RGBl. 1875, p. 23. Jayme (2003), pp. 215, 226, where Jayme claims that private international law must seek to coordinate the involved cultures in order to reach a certain balance (‘Das Kollisionsrecht muß versuchen, die Kulturen zu koordinieren, um einen gewissen Ausgleich [zu] erreichen’).

4

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closely connected, such an open approach also has to rely on party autonomy.5 A multicultural society resulting from migration hence also becomes a multi-legal society with, of course, the application of foreign law always limited by the mechanism of public policy. Leaving aside the question of whether even public policy might be limited in the area of family law in order to respect multiculturality in an open society,6 the German courts have traditionally been quite restrictive in invoking public policy against the application of foreign family law, as shown by decisions on the recognition of parenthood in cases of surrogacy,7 co-motherhood8 and polygamous9 and proxy10 marriages—to mention only some examples where foreign law has been accepted despite manifestly deviating from German family law. Such a liberal approach towards other (cultural) traditions in family law has, however, increasingly been supplanted by a new scepticism of German and European Union legislatures towards the application of foreign law in family matters (cf. below Section “Defence of Civil Marriage”; Section “Defence of Liberal Access to Marriage – from the ‘Spaniards’ Decision to Same-Sex Marriage”; Section “The Fight against Child Marriages”; Section “Protecting Access and Equal Access to Divorce – the Special Public Policy Clauses in the Rome III Regulation” and Sect. 2.3). This increasing trend towards a lex fori approach as a model for the management of diversity always entails the danger of parochialism.11 Moreover, the management of cultural diversity is left to substantive law. So far, the German legislature has only rather selectively addressed multicultural challenges in substantive family law (cf. below Section “Defence of Civil Marriage”; Section “Special Case: The Circumcision of a Male Child” and Section “Religious Education of the Child in Multi-Religious Families”). German family law mainly follows a ‘one size fits all’ approach, which in individual cases, owing to its functional nature and cultural

5

See e.g. Basedow (2015), p. 230 et seq., exploring new domains for party autonomy in family matters. 6 See, for example, the resolutions of the Institut de droit international, Neuvième Commission, Différences culturelles et ordre public en droit international privé de la famille (session de Cracovie – 2005, Rapporteur: Paul Lagarde), reprinted e.g. in IPRax 2005, p. 559; see also Jayme (2006), p. 42. 7 See the decision of the Bundesgerichtshof, the Federal Court of Justice, in BGH 20 December 2014, BGHZ 203, p. 350 ¼ FamRZ 2015, p. 240. 8 BGH 20 April 2016, FamRZ 2016, p. 1251. 9 Cf. LG Frankfurt/M 12 January 1976, FamRZ 1976, p. 217; BVerwG 30 April 1985, BVerwGE 71, p. 228 ¼ FamRZ 1985, pp. 923, 925; § 34(2) of the Sozialgesetzbuch I, the first book of the social law code, even contains a provision on polygamous marriages and widow’s pensions (‘Ansprüche mehrerer Ehegatten auf Witwenrente oder Witwerrente werden anteilig und endgültig aufgeteilt’). 10 Cf. BayObLG 28 November 2000, BayObLGZ 2000, pp. 335, 339 ¼ StAZ 2001, p. 66; see, however, also AG Gießen 30 January 2000, StAZ 2001, p. 39, where the future spouses did not know each other, and the function of the proxy was not only a representation at the ceremony in order to transmit the declaration of the absent spouses (Botenschaft) but also a representation of the spouse’s choice (Stellvertretung im Willen). 11 See, however, for a different view, below note 54.

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tolerance, might accidentally be able to accommodate the consequences of culturally defined family norms that deviate from the mainstream (cf. below Section “Defence of Civil Marriage”). It is, therefore, often up to the family courts to solve clashes within German family law in a multicultural society (cf. e.g. below Section “General Limits on the Exercise of Parental Care”).

2 Management of Diversity Against this background, mechanisms for managing diversity in German family law have to be examined on the level of private international law as well as substantive law. The following collage does not claim to be complete in any respect. Rather, it seeks to collect some instances in which German family law has reacted to multicultural challenges by deviating from the default rules in cases involving persons whose family life is potentially influenced by culturally based norms.

2.1 2.1.1

Horizontal Perspective: Couple Relationships The Legal Background

Since 2001, German family law has provided for two partnership regimes for couples: marriage (Ehe) and registered partnership (Eingetragene Lebenspartnerschaft). Marriage, on the one side, was traditionally restricted to opposite-sex couples, although this requirement was not explicitly mentioned in the statutory provisions on marriage.12 Registered partnership, on the other side, served as a substitute for marriage for same-sex couples and featured almost marriage-like legal consequences. In October 2017, this distinction was abolished, at least for the future. Marriage was opened to same-sex couples (see in particular the new § 1353(1)1 BGB). Therefore, new registered partnerships can no longer be concluded. Registered partners can transform their partnership concluded prior to the opening of marriage into a marriage (see the new § 20a of the Lebenspartnerschaftsgesetz, the Act on Registered Partnerships). Hence, registered partnerships are now mainly an institution from the past. Apart from marriage, German law does not provide for other couple regimes like the pacte civil de solidarité in French law or the cohabitation légale in Belgian law,

12

However, the German Constitutional Court consistently held (e.g. in BVerfG 17 July 2002, BVerfGE 105, pp. 313, 345) that the institution of marriage was reserved for relationships between a man and a woman.

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both of which offer an optional regime as an alternative to marriage with different— and potentially weaker—legal consequences; there is currently no ‘marriage light’ in Germany. Neither does German law provide for a comprehensive default regime for cohabitants or de facto partners who live together as a couple without being married. The German courts have, however, developed some special rules for factual cohabitation based on general concepts of private law, which at least guarantee a minimum level of protection at the end of the relationship regarding extraordinary investments in the relationship by one of the cohabitants in the expectation of participating in that investment during the relationship.13 On balance, the rules on marriage in German family law are roughly within the comparative mainstream of European family law as to the preconditions for concluding and dissolving marriage, in particular by divorce. In 1976 a comprehensive family law reform14 replaced the traditional fault-based divorce system with a system which allows no-fault divorce if there is an irretrievable breakdown of the relationship.15 Furthermore, the legal consequences of marriage and divorce are not particularly innovative from a comparative perspective, at least not in substance: The spouses are obliged to maintain each other financially;16 of course, this duty is modified and limited after separation and divorce.17 The default matrimonial property regime is the Zugewinngemeinschaft: The regime is based on a separation of property18 combined with equal participation in the future economic gains of the couple. The increase of the value of the assets of both spouses during the marriage is regarded as being earned by both spouses equally. This participation is, however, not implemented through community of property (initial or deferred), unlike in most other legal systems. Only when the matrimonial property regime is dissolved—for example, by death or divorce—do the spouses mutually participate in the gain obtained during marriage through a compensation claim in cash: The spouse who has acquired the higher gain in value during marriage has to pay a sum which equals half of the difference between the gains of both spouses.19 A German particularity is the adjustment of pension rights in the case of a divorce, which is not dealt with by matrimonial property law: The Versorgungsausgleich safeguards the just division of the pension rights of the spouses—often the spouses’ most valuable asset.20 The

BGH 9 July 2008, BGHZ 177, p. 193 ¼ FamRZ 2008, p. 1822; BGH 9 July 2008, FamRZ 2008, p. 1828; BGH 25 November 2009, BGHZ 183, p. 242 ¼ FamRZ 2010, p. 277; BGH 6 July 2011, FamRZ 2011, p. 1563. 14 See the Erstes Gesetz zur Reform des Ehe- und Familienrechts of 14 June 1976, BGBl. 1976 I, p. 1421. 15 See §§ 1565, 1566 BGB. 16 See §§ 1360 et seq. BGB. 17 See § 1361 BGB (after separation) and §§ 1569 et seq. BGB (after divorce). 18 § 1363(2)1 BGB. 19 §§ 1372 et seq. BGB. 20 § 1587 BGB refers to the Versorgungsausgleichsgesetz, the Act on the Adjustment of Pension Rights. 13

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death of a spouse triggers rights of the surviving spouse in succession and matrimonial property law, granting participation in the estate of the predeceased spouse.21

2.1.2

Multicultural Challenges

What potential challenges does a multicultural society hold for the regulation of couple regimes in German family law? German family law is rather tolerant in the area of marriage; it now tries not to push the spouses into adapting certain (whether ‘traditional’ or ‘modern’) models. Rather, at least in general, it leaves the decision of how spouses live out their relationship up to the mutual consent of the couple.22 This rather liberal approach—focusing mainly on a just distribution of relationshiprelated advantages and disadvantages at the end of the relationship—is also reflected in the private autonomy granted to the spouses. Thus they can modify the default rules on the financial consequences of marriage and divorce by marital agreement,23 albeit subject to the system of judicial review that the German courts have developed for such agreements.24 They can opt for a common name, keep their original names or combine their original name with the common name.25 It is up to the spouses to determine how they will balance their family and work life.26 The only personal obligation spouses have towards each other is the general duty to live together as a couple and to take responsibility for each other—a very general provision contained in § 1353(1)2 of BGB (‘Die Ehegatten sind einander zur ehelichen Lebensgemeinschaft verpflichtet; sie tragen füreinander Verantwortung’). Therefore, if married couples follow culturally defined norms of family life, there is no need for family law to react, at least not in principle. The legal framework of marriage appears to be flexible enough to encompass cultural diversity.

Integration of Foreign Culturally Defined Norms Into German Substantive Law: The Case of the Mahr The cultural flexibility of German marriage law becomes visible, for example, in the integration of the Islamic dower, the mahr. This feature of Islamic family law systems, which is referred to in German discourse mainly as the Brautgabe, obliges See notably §§ 1931 et seq. BGB, which especially grant a share in the estate which is supplemented by matrimonial property law, cf. § 1371 BGB. 22 Therefore, some even advocate the further withdrawal of family law from the personal relations of the spouses, see especially Röthel (2012), pp. 26 et seq. 23 See § 1408(1), § 1414 BGB (matrimonial property); § 1585c BGB (post-divorce maintenance); §§ 6 et seq. Versorgungsausgleichsgesetz (adjustment of pension rights); § 2346 BGB (succession upon death). 24 See, in particular, BGH 11 February 2004, BGHZ 158, p. 81 ¼ FamRZ 2004, p. 601. 25 § 1355 BGB. 26 § 1356 BGB. 21

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the husband to a transfer of assets to the wife primarily to secure her participation in the economic status of the husband, particularly after dissolution of the marriage by divorce or death.27 The transfer of the mahr can be effected immediately at the celebration of the marriage, but often the transfer is deferred to a later point in time, especially the dissolution of the marriage. In Germany, the correct characterization of the mahr in private international law has been the topic of a lengthy dispute.28 The Bundesgerichtshof, the Federal Court of Justice (the highest court for, inter alia, family matters), has held that the mahr cannot be characterized as a matrimonial property issue but is rather governed by the law applicable to the general effects of marriage.29 It is likely, however, that this characterization can no longer be upheld under the European Matrimonial Property Regulation,30 which is applicable from the end of January 2019 onwards and determines in its Articles 20 et seq. the law applicable to matters of matrimonial property. The notion of ‘matrimonial property regimes’ in the Regulation has to be interpreted autonomously. The Regulation follows, as indicated by the definition in Article 3(1)(a) (‘a set of rules concerning the property relationships between the spouses [. . .], as a result of marriage or its dissolution’), a rather broad concept that arguably covers the mahr as well.31 Leaving aside the private international law characterisation of the mahr, there can be situations where, under the pertinent conflict rules (in Articles 22 or 26 of the Matrimonial Property Regulation), the mahr is subject to German family law, and the question subsequently arises as to how such a transfer from husband to wife is dealt with under German law. The Bundesgerichtshof has indicated that, on the level of substantive law, the mahr has to be treated as an ordinary marital agreement between the spouses.32 This qualification of the mahr, of course, produces intricate questions under German substantive law: Do the formal requirements for marital agreements or for promises of a gift—notarial form—apply? How is the mahr to be coordinated with, or adjusted to, the default regime for the financial consequences of a marriage’s dissolution, which does not foresee such a transfer from husband to wife and provides for other mechanisms of participation, such as the aforementioned Zugewinnausgleich? Are the foreign law rules on the mahr, especially the provisions for a reduction of the mahr, implicitly incorporated by the spouses into the marital agreement on the mahr under German law as a kind of implied terms and conditions?

27

See for details Yassari (2014), p. 34 et seq. See e.g. Heldrich (1983), p. 64; Yassari (2009), p. 366; Henrich (2004), p. 389; Wurmnest (2007), p. 527; Dutta and Yassari (2014), p. 289. 29 BGH 9 December 2009, BGHZ 183, p. 287 ¼ FamRZ 2010, pp. 533, 534 et seq. 30 Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes [2016] OJ L 183/1. 31 See, for example, Henrich (2016), p. 174; Weber (2016), p. 665; Dutta (2016), p. 1974. 32 BGH 9 December 2009, BGHZ 183, p. 287 ¼ FamRZ 2010, pp. 533, 536 et seq. 28

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These questions might be complex; nevertheless, German family law appears to be flexible enough to accommodate the mahr, as shown by distinguished scholars.33

Defence of Civil Marriage However, the cultural tolerance of German family law reaches its limits regarding marriages where couples follow different cultural norms when it comes to the form of the marriage’s conclusion. Under German family law, a marriage can only be validly concluded before a German civil status officer (§ 1310 BGB); this formal requirement applies to all marriages concluded on German soil, as provided by Article 13(4)1 of the Einführungsgesetz zum Bürgerlichen Gesetzbuche (EGBGB), the Introductory Act to the Civil Code. Religious or other forms of marriages are null and void unless they are covered by the exception of Article 13(4)2 EGBGB. This clause allows a marriage between spouses who are both not German citizens to be concluded in Germany by a person duly authorized by the government of a state whose nationality one of the future spouses holds upon fulfilment of the formal requirements of the law of that state. Only marriages concluded abroad are subject to the law of the place where the marriage was concluded (cf. Article 11(1) EGBGB). Hence, couples who do not abide by the formal requirements for marriage are excluded from the couple regime of civil marriage although they might live in a marriage-like relationship. As there is no statutory regime for de facto cohabitants, such couples are mainly ignored by family law. The high cultural hurdles the concept of civil marriage might create are shown by a recent study which concluded that possibly up to 50% of the marriages between Muslims in Berlin are not concluded before a civil status officer34 and are, hence, null and void from the perspective of German law. These consequences were deliberately chosen by past lawmakers in order to keep access to marriage exclusively in the domain of the state and to preserve its character as civil marriage. Until 2009, German law even prohibited the so-called kirchliche Voraustrauung, the clerical celebration of marriage before the conclusion of a civil marriage (§ 67 of the Personenstandsgesetz in its old version), a further relict from the Kulturkampf and the battle between church and state. As we will see momentarily, in the meantime there has been a renaissance of banning certain religious marriage ceremonies in Germany, at least as far as minors are concerned (see below Section “The Fight against Child Marriages”).

33 34

Wurmnest (2005), p. 1878; Yassari (2014), p. 333 et seq. Rohe and Jaraba (2015), p. 112 et seq.

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Defence of Liberal Access to Marriage: From the ‘Spaniards’ Decision to Same-Sex Marriage Legislatures of German private international law also recognize that, regarding access to marriage, German society might be confronted with couples who come from legal systems that have a different cultural background. Under German private international law, which is laid down—as far as not superseded by the law of the European Union or international conventions—in the Einführungsgesetz zum Bürgerlichen Gesetzbuche, the aforementioned Introductory Act to the Civil Code, the preconditions of marriage are governed by the law of the nationality of the future spouses, see Article 13(1) EGBGB. The nationality principle stresses stability interests concerning the home state. Hence, German law assumes that any cultural values of the home state, as far as they influence the preconditions of marriage, are still shared by the persons concerned although they might live in Germany. In contrast to the residence principle, which subjects persons to the law of their habitual residence, assuming that they have a predominant interest in integration, the nationality principle is rather open to cultural diversity.35 This openness has, however, been considerably mitigated regarding access to marriage over the last decades: An early example of a restriction on the nationality principle in the area of marriage is the famous ‘Spaniards’ decision of the German Bundesverfassungsgericht, the Federal Constitutional Court. In that decision36 the Court held that the nationality principle might violate fundamental rights if it prevented a Spanish national from marrying a German national in a case where, although the prior marriage of the German national had been terminated by divorce, the divorce was not recognized by the Spanish (private international) law of that time. The legislature reacted to this decision with a special public policy clause in Article 13(2) EGBGB. Under this provision, the nationality principle was abandoned in favour of the application of German law if one of the spouses habitually resides in Germany or is of German nationality (no. 1), if the future spouses have taken all reasonable steps to fulfil the conditions for marriage under foreign law (no. 2) and if it is not reconcilable with the freedom of marriage to withhold marriage (no. 3), mentioning explicitly the scenario that a prior marriage of one of the spouses was ended by divorce in Germany. Hence, the approach of German law to marriage and re-marriage after divorce is protected by a special public policy clause operating against a restrictive foreign law that is potentially influenced by different culturally defined norms of family life.

35 36

See, in particular, Mansel (2003), pp. 134 et seq. BVerfG 4 May 1971, BVerfGE 31, p. 58 ¼ FamRZ 1971, p. 414.

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There are also other instances where the lawmakers have safeguarded in private international law the spouses’ ability to opt for German law because German family law takes a potentially more liberal view regarding access to marriage than other legal systems. A recent example is the opening of marriage to same-sex couples. If German law had also kept the nationality principle for this type of marriage, a samesex marriage could only be concluded in Germany by nationals of countries whose laws allow such marriage—still a minority of jurisdictions. Therefore, for purposes of private international law the German legislation treats same-sex marriages as registered partnerships, which are under German private international law subject to the law of the state where the relationship was registered, see Article 17b(1)1 & (4) EGBGB.37 Hence, if spouses of the same sex conclude their marriage in Germany, this private international law privilege for same-sex marriages safeguards the applicability of German law, and the nationality principle is superseded. At least doctrinally, it is, of course, rather peculiar that there is still a distinction between same-sex and opposite-sex marriages on the level of private international law.38

The Fight Against Child Marriages German law has, however, also recognized that foreign law that is potentially influenced by culturally defined norms for family life might be too generous in granting access to marriage. During the last refugee crisis, German politicians feared that the number of marriages with minor spouses concluded in Islamic countries could increase. Hence, a decision was made to fight child marriages by means of private international law and family law. First, German substantive law was reformed: marriage now requires both future spouses to have attained the age of majority.39 Second, the application of foreign law was also restricted. Article 13 (3) EGBGB lays down that a marriage is invalid if one of the spouses was below the age of 16 at the time of marriage and that a marriage concluded by a spouse below the age of 18 is voidable. In order not to interfere with marriages which were concluded abroad in the past, Article 229 § 44(4) no. 2 EGBGB preserves marriages which were conducted before the age of majority of the minor spouse if neither of the spouses had his or her habitual residence in Germany between the conclusion of the marriage and the date at which the minor spouse reached the age of majority.

37

Before the opening of marriage to same-sex couples, the German courts had characterized samesex marriages concluded abroad as registered partnerships for the purposes of the conflict of laws, see especially BGH 20 April 2016, FamRZ 2016, pp. 1251, 1254. 38 See the criticism voiced by Röthel (2015), p. 1242; Kaiser (2017), p. 1891 et seq., even expresses constitutional concerns. 39 See the new version of § 1303 BGB; see Schwab (2017a), pp. 1373 et seq., who criticizes the authoritarian character of the new approach (‘lässt einen obrigkeitsstaatlichen Zug erkennen’).

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This new approach towards fighting child marriages—in the past child marriages were of course tested against the general public policy exception by the courts40— has been criticized by most commentators; the harsh consequences of a void marriage have been regarded as especially excessive.41 Furthermore, the idea that German legislatures can fight the problem of child marriages by means of private international law and family law is rather peculiar. It is not the protection of spouses through marriage as a legal regime which is critical, but rather the fact that children are forced into an adult relationship—an evil which cannot be eliminated by restricting access to marriage under German law. A second measure which was taken by German legislatures to fight child marriage appears to be more effective: the re-introduction of the ban against marriage ceremonies that do not include the participation of a civil status officer (cf. Section “Defence of Civil Marriage” above). § 11(2)1 of the Personenstandsgesetz in its new version provides that a religious or traditional act which aims to create a permanent relationship between two persons, one of whom is a minor, is prohibited. Pursuant to § 11(2)2, the same prohibition applies to the conclusion of an agreement which, in the traditional or religious perception of the spouses, serves as a substitute for the marriage ceremony. Furthermore, § 11(2)3 provides that both prohibitions can only be violated by clerical persons who perform or participate in the proscribed acts (no. 1), a holder of parental responsibility who causes the proscribed acts (no. 2), a person of majority or a representative who concurs with an agreement which creates a marriage-like permanent relationship (no. 3) or any person present who certifies the proscribed acts to the extent that the participation of that person is required for the validity of the proscribed acts according to religious rules, traditional perceptions or the law of nationality of one of the ‘spouses’ (no. 4). Committing the proscribed acts qualifies as an administrative (not criminal) offense which can be punished with a fine of up to 5,000 Euros, as clarified by § 70(1) and (3) of the Personenstandsgesetz. This new prohibition of religious or traditional acts has also been criticized as being excessive and problematic in the context of freedom of religion.42

Protecting Access and Equal Access to Divorce: The Special Public Policy Clauses in the Rome III Regulation It should not be overlooked that German law can no longer decide alone on the management of diversity. Rather, the European Union holds comprehensive

40

See e.g. KG 21 November 2011, FamRZ 2012, p. 1495; OLG Bamberg 12 May 2016, FamRZ 2016, p. 1270. 41 See e.g. Antomo (2017), p. 82; Coester (2017), p. 79; Coester-Waltjen (2017), p. 436; Hüßtege (2017), p. 1380. See also the concerns voiced by Frank (2012), p. 129, regarding the decision of the KG (previous note). 42 Schwab (2017a), p. 1374.

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legislative competence in the domain of private international law—powers which the EU legislature has used in the area of international family law. A rather interesting and, at least for Germany, innovative special public policy clause directed against foreign law and potentially deviating cultural norms can be found regarding divorce. The law applicable to divorce is defined by the Rome III Regulation.43 Article 10 of this Regulation stipulates that the lex fori applies if the law governing the divorce under Rome III ‘makes no provision for divorce or does not grant one of the spouses equal access to divorce [. . .] on grounds of their sex’. The provision was initiated by the Spanish delegation in the negotiations on the Regulation. It more or less reproduces the former Article 107(2) lit. c of the Spanish Codigo civil, but with the rather important difference that the Spanish special public policy clause applied only if one of the spouses is of Spanish nationality or has his or her habitual residence in Spain. Article 10 of the Rome III Regulation, on the other hand, does not require any substantial connection to the European Union or to the forum. Rather, the jurisdiction of a Member State court suffices, which is granted generously by Article 3 et seq. of the Brussels II bis Regulation44 and which opens divorce jurisdiction within the EU based on rather tenuous links to a Member State on the part of one or both spouses. Article 10 of the Rome III Regulation was not only a novelty for most other Member States but also for the private international law of the European Union. Article 10 appears to stress the friendliness of Rome III towards divorce. The motto of the Regulation apparently is in dubio pro divortio. Article 10 of the Rome III Regulation covers situations in which the law stipulated by Article 5 (in cases of a choice of law by the spouses) or by Article 8 does not allow a divorce at all or does not grant husbands and wives equal access to divorce. The first case—in which the law governing the divorce does not provide for divorce at all—is rather rare. Article 10 of the Rome III Regulation only covers absolute prohibitions of divorce, not cases in which divorce merely is not possible for the marriage in question. The number of jurisdictions which prohibit divorce in general is decreasing. The first alternative of Article 10 could, however, also cover cases in which the marriage of the couple that is to be divorced is not recognised by the lex causae and therefore a divorce is not provided for by that law. The lex fori could also be applicable in such a case based on Article 10. However, Article 13 of the Rome III Regulation and its distinction between systems without divorce and systems in which the marriage of the couple who are to be divorced is already considered invalid, militate against such a wide interpretation of Article 10. The second case mentioned in Article 10 is much more frequent: the case in which the applicable divorce law does not grant equal access to divorce. Obviously,

43

Council Regulation (EU) No. 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation [2010] OJ L 343/10. 44 Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000 [2003] OJ L 338/1.

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Article 10 is primarily aimed at the talaq divorce known to legal systems influenced by Islamic law. At first sight, in most of those legal systems the husband can dissolve the marriage by unilateral act—by declaring talaq—without stating any reason, whereas the wife has to apply for divorce by a decree of court that is only obtainable on basis of a number of limited reasons. Hence, a husband appears to have more ready access to divorce than his wife. As to talaq, of course, the more general question arises as to whether a divorce without the involvement of a court—what German lawyers describe as a Privatscheidung—is covered by Rome III at all. The Court of Justice of the European Union rejected the application of the Regulation to such ‘out of court’ divorces in the Sahyouni case, which concerned a talaq divorce under Syrian law.45 The Oberlandesgericht Munich, one of the German regional courts of appeal, had referred this question twice46 to the Court of Justice.47 Hence, Article 10 does not apply to the recognition of a talaq divorce declared out of court by the husband, but only to divorce proceedings pending before a Member State court. In case a system with a classic talaq divorce is applicable under the Regulation, the wording of Article 10 would not allow the court to divorce the spouses on the basis of such a law even in court,48 as the Advocate General indicated in his opinion;49 the Court of Justice did not have to decide this question, as the Regulation was not applicable in the case at hand. However, it should be noted that family law in the Islamic world is changing. As Lena-Maria Möller has impressively shown, it will not be easy for a European judge to come to the conclusion that every system influenced by Islamic law fails to grant equal access to divorce.50 Article 10 requires the court to thoroughly check the lex causae influenced by Islamic law. However, talaq divorce might not be the only situation in which Article 10 comes into play. The wording of Article 10 likely also applies to the get divorce under Jewish law.51 Here as well, only the husband can dissolve the marriage by private act—by issuing the divorce letter, the get—whereas the wife requires the assistance of a court for divorce; furthermore, the court cannot dissolve the marriage as such but can only order the husband to issue the get. It can be argued that the wording of Article 10 of the Rome III Regulation goes too far and requires teleological reduction in order not to carry the purpose of the provision to excess—a question which was also referred to the Court of Justice by 45

CJEU 20 December 2017—Case C-372/16—Soha Sahyouni./. Raja Mamisch. An earlier reference was dismissed for procedural reasons, see CJEU 12 May 2016—Case C-281/15—Soha Sahyouni./. Raja Mamisch, FamRZ 2016, p. 1137; see for more details Helms (2016), p. 1134, and Pika and Weller (2017), p. 65. 47 OLG München 29 June 2016, FamRZ 2016, p. 1363. 48 Under German private international law, on German soil divorces require the involvement of a court, see Article 17(3) EGBGB and—in substantive law—§ 1564 BGB. 49 Opinion of AG Saugmandsgaard Øe of 14 September 2017 in Case C-372/16—Soha Sahyouni./. Raja Mamisch, para 70 et seq. 50 Möller (2014), p. 461. 51 Differently e.g. Winkler von Mohrenfels (2015), para 11. 46

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the Oberlandesgericht Munich; again, the Court of Justice did not provide an answer in the Sahyouni case because it rejected the application of the Regulation to the ‘out of court’ divorce in the case at hand. The wording of Article 10 reads as an abstract public policy exception. If foreign law as such has certain content which is potentially sensitive in terms of public policy (because it does not grant divorce or equal access to divorce), the lex fori applies. Insofar Article 10 deviates from traditional public policy clauses (see, for example, Article 12 of the Rome III Regulation), which ask whether the application of foreign law to a given case violates the ordre public of the forum, not the lex causae as such. Hence, the traditional approach concentrates on the outcome of the case and not the rules to be applied, whereas the wording of Article 10 requires an abstract judicial review of foreign law. German courts were rather reluctant before Rome III to assume a violation of public policy in general in the case of talaq divorces. An application of the public policy exception was declined if the wife had consented to the divorce or the preconditions for a divorce under the lex fori were fulfilled.52 Hopefully, the Court of Justice will soon have the opportunity to decide whether the abstract wording of Article 10 should be narrowed if the discriminatory content of foreign law does not materialize in the case at hand—the Advocate General in the Sahyouni case declined to restrict the wording of Article 10.53 From a legal policy perspective, the abstract judicial review of foreign law is rather problematic.54 Such a review has a strong parochial and moralizing quality, and it can even be regarded as rather paternalistic if, for example, the wife and the husband have freely chosen a divorce law which allows for talaq under Article 5 of the Rome III Regulation. Private international law should focus on results—as it traditionally has done within the context of public policy (cf. Sect. 1 above)—and should not too easily disregard the determination of the pertinent conflict rule because of the abstract content of foreign law.55

2.2 2.2.1

Vertical Perspective: Parent-Child Relationships The Legal Background

German family law has also become rather culturally tolerant regarding the parentchild relationship. In the last comprehensive child law reform in 1998,56 the German legislature aimed to abolish the distinction between children born within and outside See, for example, BGH 16 October 2004, BGHZ 160, p. 332 ¼ FamRZ 2004, pp. 1952, 1955. Opinion of AG Saugmandsgaard Øe of 14 September 2017 in Case C-372/16 – Soha Sahyouni./. Raja Mamisch, para 70 et seq. 54 See, however, Weller et al. (2017), p. 1080, who, based on considerations of German constitutional law and primary EU law, and at least as to gender equality, argue for an abstract review of foreign law and a potential application of the lex fori. 55 Critically also, for example, Basedow (2012), pp. 148 et seq, and Gruber (2012), p. 391. 56 Gesetz zur Reform des Kindschaftsrechts of 16 December 1997, BGBl. 1997 I, p. 2942. 52 53

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wedlock, emancipating the parent-child relationship from the parents’ couple regime. Marriage only plays a role as an indicator of a certain social situation of the parents. Child law no longer uses marriage as connecting factor, but rather as a condition which was rightly described by Reinhard Hepting57 as the ‘harmonious nuclear family’ (‘harmonische Kernfamilie’). What is decisive for the attribution of common parenthood is the parents’ intention to share the role as common parents of the child, as expressed by the father’s formal recognition of fatherhood with the consent of the mother58 as a basis for common parentage (gemeinsame Elternschaft)59 and by both parents’ formal care declarations as a basis for common parental care (gemeinsame elterliche Sorge).60 Apart from the parents’ expressed intentions, marriage still serves as a key indicator of a ‘harmonious nuclear family’ in which parentage can and shall be shared by both spouses for their common children.61 Of course, German child law also provides for common parentage outside the ‘harmonious nuclear family’. The German Bundesverfassungsgericht has ruled that the biological father must have the possibility of challenging the legal fatherhood of another man62 in order to realize common parentage even against the wishes of the mother.63 Furthermore, the German legislature, forced to do so by decisions of the European Court of Human Rights64 and the Bundesverfassungsgericht,65 has introduced the possibility of common care for the child even against the will of the mother.66

2.2.2

Multicultural Challenges, in Particular, as to the Exercise of Parental Care

This modernisation of German child law has, at least regarding the attribution of common parenthood, also increased flexibility towards cultural diversity. In particular, the possibility of common parentage and common parental care by parents who are not married to each other does not restrict the privilege of common parenthood to couples who are legally married in the German sense. Parents with cultural backgrounds which prevent them from concluding a civil marriage (cf. above

57

Hepting (1998), p. 144. Defined as the woman who has given birth to the child, see § 1591 BGB. 59 § 1592 no. 2 BGB. 60 § 1626a(1) no. 1 BGB. 61 § 1592 no. 1, §§ 1626, 1626a BGB. 62 Based on the marriage with the mother (§ 1592 no. 1 BGB) or an earlier formal recognition of fatherhood with consent of the mother (§ 1592 no. 2 BGB). 63 BVerfG 9 April 2003, FamRZ 2003, p. 816; see the reformed § 1600(1) no. 2 & (2) BGB. 64 ECHR 3 December 2009 – No. 22028/04 – Zaunegger./. Deutschland, FamRZ 2010, p. 103. 65 BVerfG 21 July 2010, BVerfGE 127, p. 132 ¼ FamRZ 2010, p. 1403. 66 See § 1626a(1) no. 3 & (2) BGB. 58

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Section “Defence of Civil Marriage”) are nevertheless able to share parenthood of their common children.

General Limits on the Exercise of Parental Care German family law is less tolerant as to the exercise of parental care. The parents are, in general, free to care for and bring up their children—a freedom which is guaranteed by the German Constitution, the Grundgesetz (GG), which speaks in Article 6(1)1 of a natural right of the parents (‘Pflege und Erziehung der Kinder sind das natürliche Recht der Eltern und die zuvörderst ihnen obliegende Pflicht’). However, the parents are, of course, not absolutely free to exercise parental care but are instead rather restricted by general guidelines. The Grundgesetz stresses in Article 6(1)2 GG that the state watches over parents’ exercise of parental care (‘Über ihre Betätigung wacht die staatliche Gemeinschaft’). These limits set by the Wächteramt des Staates, the ‘watchdog’ function of the state, might conflict with the parents’ cultural values. What are the directives that German child law requires the parents to stick to? The parents have to safeguard, of course, the best interest of the child.67 They have, in particular, always to consider the child’s increasing independence68 and its individual aptitude and inclination.69 Furthermore, the child should have regular contact to both parents and to other persons with whom the child has close relations.70 Finally, the upbringing of the child has to be conducted non-violently.71 Corporal punishment, psychological injury and other degrading measures (‘körperliche Bestrafungen, seelische Verletzungen und andere entwürdigende Maßnahmen’) are prohibited.72 These directives are to be followed and there is no ‘cultural’ exception for parents who act on the basis of their cultural beliefs;73 rather, the general provisions apply, with one exception to be addressed momentarily (see Section “Special Case: The Circumcision of a Male Child”). In cases in which the best interests of the child are endangered, the competent family court can restrict and, in the worst case scenario, withdraw parental care from the parents74—a power

Cf. §§ 1626(3), 1666(1), 1697a BGB. § 1626(2) BGB. 69 Cf. § 1631a BGB. 70 § 1626(3) BGB. 71 § 1631(2)1 BGB. 72 § 1631(2)2 BGB. 73 See, for example, Coester (2016), para 160 et seq. 74 §§ 1666, 1666a BGB. 67 68

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which family law courts have also used in the past as regards immigrant families whose exercise of parental care violated the statutory guidelines.75

Special Case: The Circumcision of a Male Child Upon closer inspection there is, however, one exception reflecting a manifested intention of the legislature to manage cultural diversity in child law regarding the exercise of parental care: § 1631d BGB. This provision explicitly allows the parents to agree to a circumcision of a male child (‘Beschneidung des männlichen Kindes’) even if this circumcision is not medically indicated—a clear exception to the aforementioned guideline that the parents are not allowed to harm the child physically.76 The genesis of the provision, which was introduced in 2012, was a decision of a criminal court, which found a doctor who had circumcised a child without medical reason to be criminally liable for personal injury. This conviction triggered a wider debate about whether circumcision based on religious or cultural traditions should be possible in the future—and the legislature came to the conclusion that cultural values should prevail. With § 1631d BGB, the lawmaker adopted a family law approach to the problem: The parents are entitled, as an element of their parental care, to consent to the circumcision of a male child even if this intervention is not medically necessary. § 1631d(1)1 BGB presupposes that a child is not competent to decide or to consent on his own, which is the case for infants. Furthermore, the parents can only consent to a male circumcision; genital mutilation of girls is prohibited, and this also applies to other non-medically indicated interference with the integrity of the child’s body such as tattoos and piercings. Interestingly, the legislature refrained from requiring the parents to have a religious motivation as a basis for their consent to circumcision. This reluctance comes as no surprise. It would have been rather difficult to prove whether the parents have such a motivation. Furthermore, in many cultural groups, circumcision is not primarily religiously motivated; for example, the underlying motivations are not identical in Islam and Judaism. However, § 1631d(1)1 BGB can only be applied if the consenting parents have been duly informed about the risks that circumcision poses to the child.77 Moreover, § 1631d(1)1 BGB presupposes that the procedure is done according to medical standards (‘nach den Regeln der ärztlichen Kunst’); this specifically entails that a medical doctor must conduct the circumcision with an effective anaesthetic. It should, however, be noted that § 1631d (2) BGB also allows circumcision within the first six months after the boy’s birth to be performed not only by a doctor but also by a person designated by a religious

75

See for an overview Menne (2016), p. 1227; see also Götz (2017), p. 255. The legislature was criticized for introducing § 1631d BGB, see e.g. Peschel-Gutzeit (2013), p. 3617, and Herzberg (2016), p. 350; see also, however, the mainly positive evaluation by Rixen (2013), p. 257. 77 OLG Hamm 30 August 2013, FamRZ 2013, p. 1818, 1820. 76

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community. This exception mainly addresses the mohel, the person competent to circumcise boys in the Jewish tradition. Finally, circumcision is excluded by § 1631d (1)2 BGB if it violates the best interests of the child, which is the case if the procedure endangers the child’s medical health. So far, there have not been many court decisions concerning § 1631d BGB, but the courts appear to take the best interests of the child quite seriously.78

Religious Education of the Child in Multi-Religious Families Multicultural challenges in child law can arise in multi-religious families when the question arises—especially where the parents are separated—as to which of their religions will be decisive for the education of the child.79 As early as 1921, the German legislature addressed this question in the Gesetz über die religiöse Kindererziehung, the Act on the Religious Education of Children.80 The statutory meaning of ‘religion’ in this context is quite broad; pursuant to its § 6, the Act also encompasses the upbringing of a child based on a certain ideology or worldview (‘einer nicht bekenntnismäßigen Weltanschauung’). The Act—which is still applicable today—provides in its § 1 that the religious upbringing of the child is freely decided by the agreement of the parents, insofar as they have the right to parental care. The agreement can be revoked at any time and is not binding beyond the death of one of the spouses (the Act still assumes that only spouses can share the parental care of a child), see also § 4 of the Act. Once the child has reached the age of 14, he or she can decide individually on his or her religious denomination, see § 5 of the Act. In the event that the parents cannot agree on the religious upbringing of their child, the Act refers in § 2(1) to the mechanisms of the Bürgerliches Gesetzbuch, which provide that the family court can transfer the decision-making authority to one of the parents if they do not agree.81 There is not much published case law of family courts in this area. Nevertheless, it appears that the courts are quite reluctant to transfer decision-making authority to one of the parents, and rather prefer to follow a ‘wait and see’ approach, which allows the child to decide once it is competent to do so under § 5 of the Act. In particular, there is a concern among the courts that if the parents are rooted in different cultures and religions, the state would, by transferring decision-making authority to one of them, endanger its religious neutrality.82 78

See e.g. OLG Hamm 30 August 2013, FamRZ 2013, p. 1818, invoking the best interest of the child clause of § 1631d(1)2 BGB in a case where the parents did not agree on the circumcision of the boy. 79 See, in general, Henrich (1987), p. 197; Schwab (2014), p. 1. 80 Of 15 July 1921, RGBl. 1921 I, p. 939. 81 § 1628 BGB. 82 See OLG Schleswig 8 May 2003, FamRZ 2003, p. 1948; OLG Düsseldorf 7 December 2009, FamRZ 2010, p. 1255; OLG Hamm 24 June 2014, FamRZ 2014, p. 1712; OLG Karlsruhe 3 May 2016, FamRZ 2016, pp. 1376, 1377; see, however, also OLG Stuttgart 4 March 2016, FamRZ 2016, p. 1378.

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273

The Status Perspective: The Person and Its Law

The management of cultural diversity can also be necessary in the area of personal status, which lies at the boundaries of family law and therefore will be touched upon only briefly. In this area as well, one can find examples of the German legislature’s awareness of multicultural challenges, especially those caused by migration.

2.3.1

Safeguarding Access to the Legal Recognition of a Preferred Gender

One field where this awareness becomes visible is the legal status of transsexual or transgender persons. Under the Transsexuellengesetz, the Act on Transsexual Persons, German law allows the legal recognition of a preferred gender. The Transsexuellengesetz defines its own international scope. § 8(1) no. 1, in connection with § 1(1) no. 3 of the Act, requires applicants to have a connection to Germany, especially by being a German national, see § 1(1) no. 3 lit. a of the Act. Hence, the Act follows the nationality principle, as German private international law does in general for status questions. As not all legal systems allow the legal recognition of a preferred gender, for reasons that include cultural reasons, sticking to the nationality principle alone would exclude foreigners from the Act. In addition, therefore, other foreign nationals can make applications under the Transsexuellengesetz if the law of their country of nationality does not contain provisions comparable to the German Transsexuellengesetz and the foreign national has legal status under German immigration law, see § 1(1) no. 3 lit. d of the Act. Hence, the Transsexuellengesetz grants foreigners a kind of forum necessitatis in Germany. This forum necessitatis, like many of the most important developments in this area, was not introduced by the German legislature but rather by the Bundesverfassungsgericht: The Constitutional Court came to the conclusion that Germany has to recognise the preferred gender of foreigners who legally, and not merely temporarily, reside in Germany and whose home-country laws do not provide for the legal recognition of their gender.83 German law hence, quite similarly to its liberal access to marriage (cf. above Section “Defence of Liberal Access to Marriage – from the ‘Spaniards’ Decision to Same-Sex Marriage”), allows foreigners to avail themselves of German law even though German law would not be applicable under the principal private international law approach.

2.3.2

Integration by Adjusting Personal Names

A second example of German law addressing cultural diversity regarding the status of persons concerns the law of names. German private international law, in general, 83

BVerfG 18 July 2006, BVerfGE 116, p. 243.

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subjects a person’s name to the law of nationality, as provided for in Article 10 (1) EGBGB. The determination of names is, of course, deeply rooted in a country’s culture and customs; in most systems, as well as in Germany, it became a legal topic only at a relatively late point in time.84 German law recognises the influence of culture on names, in particular when a person acquires German nationality and his or her personal name is subject to German law. In this situation, Article 47 EGBGB provides for a mechanism by which a name already acquired under foreign law can be adjusted to the name structures under German law (which is now applicable to the person after his or her naturalisation). Article 47(1) EGBGB allows the person to stipulate a first and a family name from the elements of the original name (Article 47(1)1 no. 1 EGBGB), to choose a first or a family name if such an element is missing from the original name (Article 47(1)1 no. 2 EGBGB), to abandon elements of the original name which are not provided for by German law (Article 47(1)1 no. 3 EGBGB), to adopt the original version of the name which has been modified based on the gender or family relationship (Article 47(1)1 no. 4 EGBGB) and, finally, to adopt a German version of his or her first or family name (Article 47(1)1 no. 5 EGBGB); if such a German version of the first name does not exist, a new first name can be adopted. Hence, Article 47 allows immigrants to adjust their foreign names to the German culture of names.

3 Conclusions The conclusion of this rather anecdotal report is quite frustrating from a doctrinal perspective: German law does not follow a consistent strategy in tackling multicultural conflicts. In substance, German law has no clear view on whether multicultural conflicts are to be addressed with tolerance or restriction, as shown, for example, by the different approaches to child marriages and circumcision of male children. On the one hand, the state fiercely fights the recognition of religious and cultural traditions of couple relationships involving minors; on the other hand, the state respects cultural traditions which allow violations to the physical integrity of the child’s body (cf. Section “The Fight against Child Marriages” and Sect. “Special Case: The Circumcision of a Male Child” above). Moreover, the mechanisms for implementing a tolerant or restrictive approach are rather random: in some cases, diversity is addressed through private international law, while in other cases, substantive law steps in. The topic definitely merits further consideration by judges, policymakers and scholars.

84

Schwab (2015), p. 354.

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References Antomo J (2017) Verbot von Kinderehen? ZRP:79–82 Basedow J (2012) European divorce law – comments on the Rome III regulation. In: Verbeke A-L, Scherpe JM, Declerck C, Senaeve P (eds) Confronting the frontiers of family and succession law – Liber Amicorum Walter Pintens, vol I. Intersentia, Cambridge, pp 135–150 Basedow J (2015) The law of open societies – private ordering and public regulation in the conflict of laws. Brill Nijhoff, n.p Coester M (2016) § 1666 Gerichtliche Maßnahmen bei Gefährdung des Kindeswohls. In: J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, book 4: Familienrecht – §§ 1638-1683, revised edn. Sellier – de Gruyter, Berlin, pp 107–271 Coester M (2017) Kinderehen in Deutschland. FamRZ:77–80 Coester-Waltjen D (2017) Kinderehen – Neue Sonderanknüpfungen im EGBGB. IPRax:429–436 Dutta A (2016) Das neue internationale Güterrecht der Europäischen Union – ein Abriss der europäischen Güterrechtsverordnungen. FamRZ:1973–1985 Dutta A, Yassari N (2014) Islamische Brautgabe als Eheschließungsvoraussetzung? StAZ:289–293 Frank R (2012) Die Anerkennung von Minderjährigenehen. StAZ:129–133 Götz I (2017) Kindeswohl bei Auslandsbezug. In: Götz I, Schnitzler K (eds) 40 Jahre Familienrechtsreform. C.H. Beck, Munich, pp 255–268 Gruber UP (2012) Scheidung auf Europäisch – die Rom III-Verordnung. IPRax:381–392 Heldrich A (1983) Das juristische Kuckucksei aus dem Morgenland. IPRax:64–65 Helms T (2016) Anwendbarkeit der Rom III-VO auf Privatscheidungen? FamRZ:1134–1135 Henrich D (1987) Religiöse Kindererziehung in Fällen mit Auslandsberührung. In: Musielak H-J, Schurig K (eds) Festschrift für Gerhard Kegel zum 75. Geburtstag. Verlag W. Kohlhammer, Stuttgart, pp 197–213 Henrich D (2004) Die Morgengabe und das Internationale Privatrecht. In: Coester M, Martiny D, Prinz von Sachsen Gessaphe KA (eds) Privatrecht in Europa: Vielfalt, Kollision, Kooperation – Festschrift für Hans Jürgen Sonnenberger zum 70. Geburtstag. Verlag C.H. Beck, Munich, pp 389–400 Henrich D (2016) Zur EU-Güterrechtsverordnung: Handlungsbedarf für die nationalen Gesetzgeber. ZfRV:171–174 Hepting R (1998) Das IPR des Kindesnamens nach der Kindschaftsrechtsreform. StAZ:133–146 Herzberg RD (2016) Ist die Beschneidungserlaubnis (§ 1631d BGB) mit dem Grundgesetz vereinbar? JZ 71(7):350–355 Hüßtege R (2017) Das Verbot der Kinderehe nach neuem Recht aus kollisionsrechtlicher Sicht. FamRZ:1374–1380 Jayme E (2003) Die kulturelle Dimension des Rechts – ihre Bedeutung für das Internationale Privatrecht und die Rechtsvergleichung. RabelsZ 67:211–230 Jayme E (2006) Gibt es eine kulturelle Relativität des ordre public im Internationalen Privatrecht? Jahresheft der Internationalen Juristenvereinigung Osnabrück 2003/05(12):42–56 Kaiser D (2017) Gleichgeschlechtliche Ehe – nicht ganz gleich und nicht für alle. FamRZ:1889–1899 Mansel H-P (2003) Das Staatsangehörigkeitsprinzip im deutschen und gemeinschaftsrechtlichen Internationalen Privatrecht: Schutz der kulturellen Identität oder Diskriminierung der Person? In: Jayme E (ed) Kulturelle Identität und Internationales Privatrecht. C.F. Müller Verlag, Heidelberg, pp 119–154 Menne M (2016) Herausforderungen für die Familiengerichtsbarkeit aufgrund von Migration und Flüchtlingsbewegungen insbesondere in Kindschaftssachen. FamRZ:1223–1230 Möller L-M (2014) No fear of ṭalāq: a reconsideration of Muslim divorce laws in light of the Rome III regulation. J Priv Int Law 10:461–487 Peschel-Gutzeit LM (2013) Die neue Regelung zur Beschneidung des männlichen Kindes – Kritischer Überblick und erste Reaktionen der Rechtsprechung. NJW:3617–3620

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Pika M, Weller M-P (2017) Privatscheidungen zwischen Europäischem Kollisions- und Zivilprozessrecht. IPRax:65–72 Rixen S (2013) Das Gesetz über den Umfang der Personensorge bei einer Beschneidung des männlichen Kindes. NJW:257–262 Rohe M, Jaraba M (2015) Paralleljustiz – Eine Studie im Auftrag des Landes Berlin, vertreten durch die Senatsverwaltung für Justiz und Verbraucherschutz. https://www.berlin.de/sen/justiz/ service/broschueren-und-info-materialien/. Accessed 29 May 2019 Röthel A (2012) Regelungsaufgabe Paarbeziehung und die Instrumente des Rechts. In: Röthel A, Heiderhoff B (eds) Regelungsaufgabe Paarbeziehung: Was kann, was darf, was will der Staat? Wolfgang Metzner Verlag, Frankfurt am Main, pp 17–34 Röthel A (2015) Öffnung der Ehe – wenn ja: wie? FamRZ:1241–1242 Schwab D (2014) Elterliche Sorge und Religion. FamRZ:1–11 Schwab D (2015) Personenname und Recht. StAZ:354–362 Schwab D (2017a) Die verbotene Kinderehe. FamRZ:1369–1374 Schwab D (2017b) Wie kommt die Ehe zum Gericht? In: Dutta A, Schwab D, Henrich D, Gottwald P, Löhnig M (eds) Scheidung ohne Gericht? Neue Entwicklungen im europäischen Scheidungsrecht. Verlag Ernst und Werner Gieseking, Bielefeld, pp 13–29 Weber J (2016) Die Europäischen Güterrechtsverordnungen: Eine erste Annäherung. DNotZ:659–697 Weller M-P, Thomale C, Zimmermann AS (2017) Massenmigration und Geschlechtergleichstellung im IPR: Die “cupierte Verweisung”. JZ 72(22):1080–1088 Winkler von Mohrenfels P (2015) Art. 10 Rom III-VO Anwendung des Rechts des Staates des angerufenen Gerichts. In: Säcker FJ, Rixecker R, Oetker H (eds) Münchener Kommentar zum Bürgerlichen Gesetzbuch, vol 10: Internationales Privatrecht I, Europäisches Kollisionsrecht, Einführungsgesetz zum Bürgerlichen Gesetzbuche (Art. 1-24), 6th edn. Verlag C.H. Beck, Munich, pp 1245–1249 Wurmnest W (2005) Die Brautgabe im Bürgerlichen Recht. FamRZ:1878–1885 Wurmnest W (2007) Die Mär von der mahr – Zur Qualifikation von Ansprüchen aus Brautgabevereinbarungen. RabelsZ 71:527–558 Yassari N (2009) Zwei Bemerkungen zur islamischen Brautgabe vor deutschen Gerichten. StAZ:366–371 Yassari N (2014) Die Brautgabe im Familienvermögensrecht – Innerislamischer Rechtsvergleich und Integration in das deutsche Recht. Mohr Siebeck, Tübingen

Anatol Dutta holds a Chair of Private Law, Private International Law and Comparative Law at the Ludwig Maximilians University Munich. Previously, he was a Fellow at the Max Planck Institute for Comparative and Private International Law in Hamburg (2003–2014) and a Professor at the University of Regensburg (2014–2017). Anatol Dutta is a member of the editorial board of the Zeitschrift für das gesamte Familienrecht (FamRZ), the leading family law journal for practitioners and academics in Germany, a corresponding member of the Cambridge Family Law Centre at the University of Cambridge, a member of the reform commission of the German Family Court Association and a member of the German Council of Private International Law (Federal Ministry of Justice). He has a special interest in family and succession law, from a private international law as well as a comparative and interdisciplinary perspective.

Love, Law, Limits and Loopholes: How Diversity Challenges Austrian Family Law Agnes Balthasar-Wach and Maximilian Engel

Abstract This paper aims to provide insight into how Austrian family law has been affected by the issue of diversity in the last few years. For this purpose, we will use specific cases to examine recent diversity debates, legal claims and legislative amendments in family law. First, we will identify the most striking contemporary claims related to social diversity that have been raised recently in Austria by individuals as well as interest groups, including political parties. In a second step, we will analyse the manner in which the state has dealt with these demands— specifically, whether they have resulted in decisions, legislative proposals or legal amendments. Finally, we will assess whether the underlying needs have been satisfied by the state’s actions and whether tensions remain. In Austria, the most visible actions of recent years are related to same-sex couples, and culminated in a landmark judgment in December 2017 granting same-sex couples access to marriage. As family law is in constant motion, it remains to be seen what other topics will arise to stir up Austrian family law in the future.

1 Introduction: Background Information Austria is a democratic republic (Sect. 1) and a federal state (Sect. 2) according to constitutional law. The legal principle which formally represents the rule of law is enshrined in Sec 18 Constitutional Law. Austrian law is characterised by statutory law. Therefore, customary law is rather insignificant, and case law is not recognized in terms of legal precedents. Although judge-made law does not formally represent a source of law, the jurisprudence of the Austrian Supreme Courts is of great practical significance. Judgments of the Supreme Courts provide essential principles for the application of law. Lower courts generally respect these principles. According to the

A. Balthasar-Wach · M. Engel (*) University of Vienna, Institute of European Law, International Law and Comparative Law, Vienna, Austria e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_12

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hierarchy of norms organizing Austrian law, Austria’s Constitution is at the top, followed by ordinary law. Austria has been a member state of the EU since 1995. Hence, EU legislation providing supranational law is binding on Austria. Although constitutional law determines the scope of ordinary legislation, simple law that contradicts higher national norms remains provisionally applicable until it is nullified by the Constitutional Court. Therefore, the Constitutional Court safeguards the constitutionality of legislation as well as the legality of administrative acts. Individuals also have the possibility of applying for laws or administrative acts to be reviewed in the event that those regulations infringe upon their personal rights.1 In Austria, human rights or rather fundamental rights are provided by constitutional law. These provisions are not stipulated in one specific document, but rather listed in various different sources such as the constitutional document, the Constitutional Law, itself, the Basic Law on the General Rights of Nationals in the Kingdoms and Länder represented in the Council of the Realm of 1867, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the Charter of Fundamental Rights of the EU. Of course, these rights are not granted in an absolute manner; limitations of these fundamental rights are admissible under certain conditions.2 In recent times, social diversity regarding family law has been discussed legally mostly in regard to fundamental rights, especially in view of the principle of equality. Relevant social developments have become a concern for constitutional review in connection with this trend.3 Additionally, norms of family law, as part of national civil law, are constantly the subject matter of interpretation by the courts. The Austrian regulation on arbitrability, Sec 582 (2) Code of Civil Procedure, explicitly excludes family law matters due to the fact that the monopoly on decisionmaking on legal assets particularly worthy of protection is to be reserved to the state.4 Hence, it can be assumed that neither religious arbitral jurisdiction nor aspirations to implement such institutions have been registered in Austria.5 Nevertheless, the potential existence of informal, unofficial religious arbitral jurisdiction, without any recognition or control by state authorities, cannot reliably be estimated.6 Following a case-specific approach, we will provide insight into the framework of Austrian family law with respect to potential impacts of diversity. The main focus will be on law suits, discussions, decisions and amendments with a view to sexual orientation, as there have been significant developments in this area in the last few years.

1

Hausmaninger (2011), p. 20ff; Aichberger-Beig (2010), p. 63f. Hausmaninger (2011), p. 155ff. 3 Aichberger-Beig (2010), p. 75f. 4 See also Hausmaninger (2016), para 2. 5 For Germany Wittreck (2014), p. 97. 6 This evaluation was presented at a symposium of the Austrian Ministry of Justice in 2013, Wittreck (2014), p. 99. 2

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According to the EU LGBT survey conducted by the EU Agency for Fundamental Rights, 33% of respondents in Austria felt discriminated against or harassed on the grounds of sexual orientation in areas other than employment.7 In this vein, in order to outlaw discrimination based on sexual orientation in general, the organization Homosexuelle Initiative Wien (HOSI) demands that “sexual orientation” be added as a category protected by Sec 7 Constitutional Law (principle of equality).8

2 Management of Diversity 2.1 2.1.1

Two-Persons Relationships Marriage and Registered Partnership

Legal Sources Substantive provisions in this field are to be found in the Marriage Act (MA), the Civil Code (CC) and the Registered Partnership Act (RPA). In the following, we will focus on the family law provisions that have been relevant to the question of diversity and will explore in detail the reactions and responses in case law and legislation and among the broader public. Marriage and Sexual Orientation In its original version, Sec 44 CC stipulated that the term “marriage” only relates to opposite-sex couples. To serve a similar purpose, registered partnership was introduced for same-sex couples on 1 January 2010. In its original version, this legal instrument regulated by the RPA was only open to same-sex couples. This categorisation was ended by a decision of the Constitutional Court of 2017 (see below) with effect from the beginning of 2019. Both legal instruments are now open to both opposite-sex couples and same-sex couples. International Marriage Law Whether or not a marriage concluded abroad is considered valid from an Austrian point of view is a question that, in general, every authority has to answer independently where this is a preliminary question that needs to be addressed before deciding on a particular application.9 7

European Union Agency for Fundamental Rights (2014). HOSI (2018); see also Results of the Austrian Convent, Art. 34 (2) of the Fiedler draft for a federal constitution in 2005, http://www.konvent.gv.at/K/DE/ENDB-K/ENDB-K_00001/imfname_ 036118.pdf (accessed 27 April 2021). 9 Klicka et al. (2014), p. 80ff. 8

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Pursuant to Sec 17 (1) International Private Law Act (IPLA), the requirements relating to the validity of a marriage are evaluated for each of the fiancés according to their own personal statute. Also, minimum age is included in the scope of Sec 17 IPLA.10 However, Sec 6 IPLA stipulates that a provision of foreign law is not applicable if its application leads to a result that is incompatible with the basic values of the Austrian legal system (ordre public clause). Among these basic values of the Austrian legal system which need to be complied with is the prohibition of child marriage.11 When dealing with ordre public issues, the solution according to Austrian law provides the following standard: The personal requirements relating to marriage are governed by the MA. According to Sec 1 (1) MA, persons who have reached the age of 18 are of marriageable age. However, pursuant to Sec 1 (2) MA, the court may upon request declare a person to be of marriageable age at the age of 16 if the other spouse has already attained the age of majority (which is 18) and if he/she appears to be sufficiently mature to marry. Only since its amendment in 2001 has this rule been formulated in a gender-neutral way. Before this, there were different age limits depending on gender.

Reactions and Responses Marriage and Sexual Orientation The question of opening marriage to same-sex couples has been the subject of both heated political discussion and academic interest12 for many years. In 2014 a survey by a market opinion research institute concluded that 73% of Austrians supported marriage equality for same-sex couples.13 One initial milestone was the introduction of the RPA in 2010. Originally, registered partnership differed from traditional marriage in a number of ways (e.g. concerning the competent authority, the ceremony, adoption, artificial reproduction, termination and private international law). Since 2010—mainly following court rulings—many reforms have been enacted. Hence, from a legal point of view, within only a few years the legal institution of registered partnership has been largely albeit not fully equated to the legal institution of marriage, including regarding parenting. In October 2017, the Constitutional Court14 expressed its concern that the remaining differentiation constituted inadmissible discrimination with regard to sexual orientation and initiated an ex-officio examination of those legal provisions 10

Verschraegen (2004), para 2. Austrian Supreme Court, RIS-Justiz RS0076998. 12 Benke (2010), p. 260; Cornides (2008), p. 285; Haider (2016), p. 158; Vašek (2011), p. 4; Czech (2016), p. 181. 13 Brickner (2015). 14 In 2012 the Constitutional Court had stated that it lay within the scope of discretion of the Austrian legislature to grant access to marriage (09.10.2012, B 121/11 ua). 11

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stipulating that marriage is for opposite-sex couples and registered partnership for same-sex couples. The case was based on the complaint of two women in a registered partnership who had applied to marry. This motion was rejected by the municipal authority of Vienna and subsequently by the Administrative Court of Vienna. In its ruling, the Constitutional Court explained that when legislating the RPA, the legislature took the view that different legal institutions (with different legal consequences) should exist for opposite-sex couples and same-sex couples, because marriage is geared towards parenting, which at the time was not envisaged for samesex couples. Recent legislative amendments have, however, led to the fact that samesex couples now also have access to parenting. The Constitutional Court therefore raised the question of whether maintaining two different legal institutions granting in essence the same legal status would result in a discriminatory effect (prohibited by Sec 7 of the Constitution). Concluding that the legal separation of opposite-sex relationships and same-sex relationships through two different legal institutions violated the principle of equality, the Constitutional Court15 decided to repeal as unconstitutional the phrasing “of opposite sex” in Sec 44 CC as well as the phrasing “same-sex couples” in Sec 1 RPA and “same sex” in Sec 2 and Sec 5 (1) RPA. The Constitutional Court emphasized that the discriminatory effect caused by two separate legal institutions is reflected in the fact that the differing designation of the status (“married” versus “living in a registered partnership”) also requires persons in a same-sex partnership to disclose their sexual orientation in contexts in which sexual orientation has no role to play. It ruled that the repeal should come into effect at the end of 2018. With this amendment, Austria—again—has gone beyond the minimum standard granted by the ECtHR, as according to the ECtHR, the ECHR enshrines no right for same-sex couples to marry.16 The attorney initiating the main proceedings before the Constitutional Court announced that the Constitutional Court in Austria was the first one in Europe to suspend the marriage ban for same-sex couples and Austria was the first European country to recognize and realize equality as a human right, as in other European countries marriage equality had (only) taken place politically. Interestingly, marriage equality for same-sex couples was not met exclusively with criticism in Christian circles.17 Also, following the decision, the Evangelical Church of the Augsburg Confession in Austria took a step towards same-sex couples and will enable same-sex couples who have married to receive a blessing in a public worship service.18

15

Constitutional Court 04.12.2017, G 258-259/2017-9. ECtHR 09.09.2016, 40183/07, Chapin and Charpentier/France; ECtHR 24.06.2010, 30141/04, Schalk and Kopf/Austria. 17 APA (2017c). 18 Kleine Zeitung (2019). 16

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Clearly, this decision immediately generated media coverage focused on the future of marriage and registered partnership. This coverage especially discussed what impact the decision would have on the future of the registered partnership as it was unclear whether it would be repealed, whether same-sex couples would have the opportunity to choose, or whether the registered partnership needed to be reformed and opened up to opposite sex-couples like a marriage-light.19 The attorney initiating the main proceedings in front of the Constitutional Court was in favour of maintaining the registered partnership, as in his opinion a second option besides marriage—like the civil pact in France—which is also open for opposite-sex couples fits into the twenty-first century.20 Also, according to some family law experts and LGBTQI rights activists, the registered partnership is the more modern form of securing a connection between two persons.21 Following this decision, the Secretary-General of the queer rights initiative HOSI expressed his concern that the legislature could abolish the registered partnership without reforming the current law on marriage. According to him, marriage in its present form is a “trap”, into which same-sex couples could now also fall. Hence, HOSI called for either a comprehensive reform of the “reactionary” Austrian marriage law or the retention of registered partnership as a modern alternative, also available to opposite-sex couples.22 In judicial circles, a general reform of the marriage law was discussed. Retaining the registered partnership in its present form was seen to be of little use as the differences to marriage were too marginal.23 There was also a discussion about “labelling”: A citizens’ initiative called upon the government to make every effort in legislation and administration to have the term “marriage” used only for the lasting union of a man and a woman, aimed at procreation.24 Meanwhile the government discussed ways to reserve marriage for opposite-sex couples and to either repeal registered partnership or open it to opposite-sex couples.25 In the end, the legislature did not pass a law and thus same-sex couples may marry in Austria and opposite-sex couples may establish a registered partnership. A few months before the decision of the Constitutional Court was to be implemented, several unanswered questions regarding the implementation of the concept of “marriage for all” remained.26 In the absence of implementing regulations

19

Aichinger (2015). APA (2017c). 21 Brickner (2017). 22 Burgstaller and von Usslar (2017), APA (2017b). 23 APA (2017c). 24 Bürgerinitiative, https://www.parlament.gv.at/PAKT/VHG/XXVI/BI/BI_00055/fname_726617. pdf (accessed 27 April 2021). 25 Red (2018a). 26 Brickner (2018). 20

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by the Parliament or the Ministry of the Interior, some state organs such as the City of Vienna developed their own guidelines.27 In December 2018, the Ministry of the Interior clarified that registered or married couples did not need to dissolve their unions prior to entering into the other legal instrument.28 In January 2019, the regional governments and the City of Vienna were informed by the Ministries of the Interior and Justice that same-sex couples in which one partner is not an Austrian citizen are only allowed to marry if the concept of same-sex marriage is also permitted in the home country of that partner. In addition, same-sex couples who were already married before 2019 in another country had to re-marry in Austria in order to be regarded as married. The government was heavily criticised for this as same-sex couples are often discriminated against in a binational context.29 Criticism especially came from activist groups such as Rechtskomitee Lambda, who felt betrayed as this outcome does not comply with promises made by the City of Vienna. The liberal, pro-business political party NEOS spoke of “bureaucratic viciousness”.30 Subsequently, at the end of January, members of the National Assembly of the Austrian Parliament called on the Minister of the Interior to immediately adopt an implementing regulation. This regulation should transpose the decision of the Constitutional Court in its entirety, should add no additional administrative burden, should stipulate that marriages of same-sex couples that have been concluded abroad are recognized, and should stipulate that persons whose home countries do not permit same-sex marriage may still marry.31 According to the equal treatment spokeswoman of the green left-wing populist political party JETZT, mishaps exist due to the lack of regulations, especially if registered partners wish to “switch” into marriage. In particular, she mentioned that registry offices assumed that a registered partnership had to be dissolved beforehand. In addition, due to the lack of legal adjustments following the decision of the Constitutional Court, it remains unclear according to which provisions the maintenance payments are to be calculated in the event of a separation. The same applies to all legal provisions relating to the duration of a marriage. The equal treatment spokeswoman’s enquiries to the ministries were answered only very briefly, with the respondents pointing out that the conversion of a registered partnership into a marriage was dealt with in the information already given and that with the help of “constitutional law interpretation” it is possible to find “satisfactory solutions” with regard to all possible legal situations. Following this answer, the equal treatment

27

Red (2018b), Graupner (2018). Berger et al. (2018), ORF (2018). 29 Unzensuriert (2019). 30 Red (2019), Brickner (2019), APA (2019). 31 See Jarolim et al. (2019) Entschließungsantrag, 573/A(E)XXVI.GP, https://www.parlament.gv. at/PAKT/VHG/XXVI/A/A_00573/fname_734900.pdf (accessed 27 April 2021). 28

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spokeswoman criticised the fact that all detailed questions have been outsourced to the Constitutional Court.32 It seems here that the opportunity to modernize Austrian marriage law by designing registered partnership as a liberal alternative to marriage has been missed.33 The question of whether and how marriage should be reformed is still being debated years later. There are considerations to either structure marriage and registered partnership differently or to repeal the registered partnership after modernising the rules on marriage.34 International Marriage Law Mass immigration and the asylum crisis of recent years have aroused media attention regarding phenomena such as child marriages. According to statistics, four sixteen-year-olds and 29 seventeen-year-olds married legally in Austria in 2016. However, it is believed that a high number of unreported married minors live in Austria, who have concluded a marriage abroad that is not (yet) recognized in Austria.35 In August 2017, experts of the Orient Express, a Vienna-based coordination office opposed to forced marriage, estimated that up to 5000 Austrian female minors36 who are second- or third-generation immigrants have been threatened with or already affected by forced marriage or are at risk of being married under pressure from their parents in their families’ countries of origin. Against the backdrop of recent media coverage of allegedly hundreds of cases of child marriages in Germany, members of the National Assembly of the Austrian Parliament sent several written enquiries to ministers (including the Minister of Justice, the Minister of Family and Youth and the Minister of the Interior) asking about the situation in Austria. In particular, the ministers were asked to state the number of child marriages in Austria, explain how this phenomenon was dealt with and report whether amendments of the legal framework were envisaged. Unfortunately, the responses issued in August 2016 were kept rather general. It was pointed out that at that time there were no figures available regarding child marriage. In his response, the Minister of Justice37 took the view that the ordre public clause can adequately respond to “real child marriages” (meaning marriages of minors who are not allowed to marry under Austrian law) as—if there is a strong 32

Brickner (2019). Thornton (2019). 34 Klatzer (2020). 35 Goldenberg (2017), FPÖ Landtagsklub Oberösterreich (2019). 36 Theiretzbacher and Körber (2017). 37 Responses of the Minister of Justice of 19 August 2016 concerning “the prevention of child marriages and their recognition”, No 9244/AB, https://www.parlament.gv.at/PAKT/VHG/XXV/ AB/AB_09244/imfname_555147.pdf, and of 24 January 2017 concerning “forced marriages and child marriages”, No 10565/AB, https://www.parlament.gv.at/PAKT/VHG/XXV/AB/AB_10565/ imfname_609822.pdf (both accessed 27 April 2021). 33

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connection to Austria (e.g. habitual residence of one or both spouses in Austria)—a marriage can be regarded as invalid on the basis of the law substituting for Austrian law if the applicable law sets the minimum age of marriage significantly lower than Austrian law. By stating that real child marriages with a clear connection to Austria would not meet the hurdle of Sec 6 IPLA, however, he failed to mention a standard for an age limit. According to media coverage, a marriage involving a spouse under the age of 14 will infringe upon the Austrian ordre public clause.38 In cases of child marriage, in consideration of the jurisdictional provisions in Sec 49 and 76 Law on Jurisdiction, each spouse may bring an action for a declaration that the marriage does or does not exist before an Austrian court. However, as the Minister of Justice pointed out, an afflicted minor will hardly ever be able to exercise this right.39 In 2017 the Family and Youth Minister attempted to change the current legal framework.40 According to her, the easiest way to avoid minor marriages would be to allow marriage only from the age of 18 and to annul or not recognize every marriage concluded at a younger age. The Vienna Ombudswoman for Children and Youth agrees insofar as according to her there should be an aim to globally implement the minimum marriageable age of 18. For human rights reasons, however, she opposed the idea of generally annulling all marriages of underage spouses without a case-by-case assessment, emphasising that the background of a child marriage must be assessed.41 The Family and Youth Minister’s proposal stimulated a political debate with the emerging prevalent view that so far there is no need to amend the current legal framework (substantive law or international private law) and that reliable statistical data on the extent of the phenomenon should be awaited.42 In 2020, also the Minister of Justice announced that she will examine whether the age of marriage should generally be raised to age 18.43 Child marriage also remains an issue for asylum law. As media reports have suggested a dramatic increase in forced and underage marriages since the beginning of major migration movements to Europe in 2014, members of the National Assembly asked whether family reunification can also be exercised in the case of a child marriage and whether any legislative amendments are envisaged in this area of law. In his responses, the Minister of the Interior44 explained that the Federal Office for Immigration and Asylum only issues a positive notice pursuant to Sec 35 Asylum 38

APA (2017a). Responses of the Minister of Justice of 19 August 2016 and of 24 January 2017 (see note 36). 40 Theiretzbacher and Körber (2017), APA (2017a), Nimmervoll (2017a, b), HOSI (2017). 41 Nimmervoll (2017a, b), Rabinowich (2016). 42 E.g. Minister of Justice (Aichinger 2017b) or several spokes persons of political parties in Austria (Nimmervoll 2017a) or the (constitutional law) Professor Mayer (Nimmervoll 2017b). 43 APA (2020). 44 Responses of the Minister of the Interior of 4 August 2016 concerning “child brides and forced marriage”, No 9026/AB, https://www.parlament.gv.at/PAKT/VHG/XXV/AB/AB_09026/ imfname_552164.pdf, and of 25 August 2016 concerning “forced marriages and child marriages”, No 9259/AB, https://www.parlament.gv.at/PAKT/VHG/XXV/AB/AB_09259/imfname_555767. pdf (both accessed 27 April 2021). 39

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Act to the Austrian consular representation office abroad if a marriage concluded abroad does not contradict the ordre public clause. Also, according to Sec 2 (1) No 9 Settlement and Residence Act, family reunification is only possible if the spouses or registered partners have reached the age of 21 at the time of the application. Interestingly, until 200945 this had been possible at the age of 18. According to the explanatory memorandum on the amending law,46 this increase of the minimum age was seen to serve, among other things, as an enhanced protective measure for those affected by child marriages. The Viennese local government,47 however, criticized the fact that this amendment did not provide effective protection and could not prevent child marriages, as the partners in a child marriage could apply for the “family member” residence permit as soon as they reached the age of 21. Child marriage also has implications in criminal law, in particular as regards the protection of minors against sexual abuse.48 We would like to mention only one case: a 26-year-old Syrian man had married a 13-year-old Syrian girl in Syria under Islamic law. Together they fled to Austria, where he was charged for rape.49 There was discussion regarding whether he was subject to a “legal error” according to Sec 9 Criminal Law Act (i.e. that he was entitled to assume that sexual intercourse with his underage wife was permitted in Austria as is the case in Syria). Cases like this illustrate the challenges faced when different family law cultures clash.

Conclusion The developments leading to the opening of marriage to same-sex couples show that family law is characterized by incremental change and that one amendment within one legal instrument often creates a domino effect, which eventually breaks established family law traditions. Since the introduction of the registered partnership—which at the time significantly differed from marriage in a number of ways— slight amendments have incrementally aligned the legal framework of registered partnership to marriage and have led to the fact that the Constitutional Court could not justify perpetuating two different (exclusive) legal instruments. Moreover, one can draw from this insight the conclusion that case law (Constitutional Court,

45

Amended through Law Gazette I 122/2009; Muzak (2012), p. 53. Explanatory memorandum to the amending law, Law Gazette I 122/2009. 47 Viennese local government, Statement of 21 July 2009 regarding the law of 2009 amending the Austrian aliens’ law, https://www.parlament.gv.at/PAKT/VHG/XXIV/SNME/SNME_01499/ fnameorig_167775.html (accessed 27 April 2021). 48 Response of the Minister of Justice of 28 June 2016 (see note 36). 49 Response of the Minister of Justice of 19 February 2016 to the written enquiry of Members of the Federal Council concerning “rape of a 13-year-old Syrian by her 26-year-old husband”, No 2881/ AB-BR/2016, https://www.parlament.gv.at/PAKT/VHG/BR/AB-BR/AB-BR_02881/imfname_ 506895.pdf (accessed 27 April 2021). There is no public information available on how this criminal case ended. 46

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ECtHR) often stands at the beginning of the liberalisation of family law.50 In this sense, Austrian family law is subject to a continuous development mainly driven by constitutional law, particularly by fundamental rights. This is also underlined by the fact that following the decision of the Constitutional Court the legislature has not enacted any implementing provisions regarding same-sex marriage or registered partnership for opposite-sex couples. Consequently, it is very likely that these instruments will be further shaped by the courts. The discussions on child marriage are an illustrative example of how sensitive family law issues are perceived. Although there is a general consensus that marriages of minors should be prevented, there are numerous opinions on how to achieve this common objective and how to treat the persons affected. Secondly, it is evident that issues affecting persons in their private life are not solely governed by core provisions of family law itself but rather are subject to other areas of law, such as asylum law. Thirdly, the discussion on child marriage also shows that family law is closely linked to cultural understanding. When a society’s cultural composition changes through the addition of new worldviews, this means that issues, legal questions and discussions can arise that were previously of no significance.

2.1.2

Dissolution of Marriage

The primary source of law regarding the dissolution of marriage, obligations after divorce and the division of matrimonial property is the MA of 1938. It was introduced under National Socialist rule and replaced religious (more precisely, Catholic) legal principles. It made divorce possible; today, divorce law is based on a system characterized by the fault principle on the one hand and the principle of irretrievable breakdown on the other hand. Consequently, divorce may generally be based on mutual consent, which represents the principle of irretrievable breakdown. By contrast, the legal admissibility of divorce on the grounds of fault requires grave matrimonial offenses such as violence. The MA also regulates the division of marital property in accordance with the principles of equity and fairness.51 The Austrian legal system is not fundamentally hostile to extrajudicial resolutions. Alternative forms of dispute settlement such as mediation or arbitration are permissible.52 However, family law matters and thus also dissolution of marriages are expressly excluded from arbitration. Here the Austrian state reserves the monopoly of jurisdiction.53 In the context of mediation, an out-of-court settlement between the conflicting parties can be concluded with the help of a state-approved mediator. However, in order for the consensual divorce to become legally effective, a court act

50

Haider (2016), p. 158; Schoditsch (2015), p. 258; Grabenwarter and Störck (2016), p. 118. Hausmaninger (2011), p. 237f. 52 Vašek (2018), p. 272ff. 53 Klauser and Kodek (2018). 51

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is also required. In other words, the settlement must be submitted to the court.54 The Austrian state is thus solely responsible for dissolving the legal construct of marriage. Property dispositions, on the other hand, can be concluded extrajudicially.

2.1.3

Non-Marital Relationships and PACS

Legal Sources Non-Marital Relationships In Austria, non-marital relationships could be classified as de facto cohabiting unions which are selectively recognized by the law. The Austrian legal system recognizes them under specific circumstances, but not in a comprehensive way. Non-marital relationships are explicitly mentioned or regulated in areas such as tenancy law,55 custody of the partner’s children56 or inheritance law.57 As the legal system does not provide a comprehensive legal construct, there is no universal definition. The essential characteristics have been elaborated by Austrian jurisprudence.58 As a result, non-marital relationships are characterized by co-habitation, sexual partnership and a certain form of economic alliance based on and representative of an inner emotional bond between two persons. These characteristics are classified as typical but not precisely defined preconditions that have to be cumulatively fulfilled. The classification of a non-marital relationship therefore depends on the particular circumstances of each case. A legal requirement for a certain duration of non-marital relationships does not exist but the cohabiting union has to be established on a lasting basis.59 PACS The Austrian legal system does not provide a contractual form of cohabiting union between two adults in the form of a civil solidarity pact, commonly known as PACS (pacte civil de solidarité). Two persons can only choose between the legal constructs of marriage or registered partnership60 on the one hand and non-marital relationships on the other hand. As non-marital relationships are particularly recognized by the legislature and jurisprudence, they could be classified as an intermediate stage of a weakly designed legally recognized form of relationship. Yet persons who live in

54

Familienrechtsinfo.at (n.d.). Critically discussed by Schoditsch (2007), p. 347. 56 Fischer-Czermak (2017). 57 Verweijen (2016), p. 853. 58 Fischer-Czermak and Beclin (2012), p. 188. 59 Smutny (2017), para 44–47. 60 Critically commented by Tritremmel (2016), p. 71. 55

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such relationships additionally have the possibility of actively organizing their relationships by means of civil contracts in certain areas such as property relations, maintenance, or decision-making authority for medical emergencies.61 This is the result of the principle of freedom of contract.62 Such additional legal arrangements do not represent a specific legal framework for family law per se. Couples may choose between a formal recognition of their relationship and a partially recognized status which lacks concrete general institutionalization. Alternative legal constructs in this regard, such as PACS, do not exist.63 Thus, the Austrian legislature dispenses with an explicitly graded approach to types of relationships that can be labelled as “marriage light”.64,65 The idea of PACS remains largely unnoticed in the shadow of the development of the registered partnership. The pertinent Constitutional Court decision66 has not led to a legislative change concerning the types of relationships. As a result, there is no major difference between the two existing legal constructs. Therefore it remains to be seen whether and, if so, how the legislature is going to act in the future. One possibility could be to modify the registered partnership in the direction of PACS.67

Reactions and Responses Non-Marital Relationships Non-marital relationships are being discussed from a sociological as well as legal academic point of view. They are recognized as an independent way of life that raises numerous legal questions, especially in the case of separation68 and regarding the lawful protection of the weaker cohabitant.69 In many cases the key issue is how people can actively organize their cohabiting unions through civil contracts. In this regard, the application by analogy of certain legal standards of the Austrian MA, such as the division of matrimonial property, is rejected. The numerus clausus of

61

Oesterreich.gv.at (2019). Oswald and Schmallegger (2013), p. 13. 63 Nevertheless, Austrian legal scholarship occasionally brings forward proposals such as the idea of a new legal construct in form of a friendship treaty. According to this idea, such a friendship treaty would be integrated and recognized in a comprehensive way by the Austrian legal system. It is supposed to represent an approach to recognizing diverse partnerships as contemporary forms of life, see Tritremmel (2016), p. 68. 64 Although the registered partnership is now occasionally labelled marriage light, see Leb (2018), p. 25; Aichinger (2017a); Rieger (2017). 65 Cach (2014), p. 418. 66 Constitutional Court 04.12.2017, G 258-259/2017-9. 67 Pesendorfer (2017), p. 366; Höllwerth (2018), p. 72. 68 Zartler (2012), p. 202. 69 Fischer-Czermak and Beclin (2012), p. 188; Deixler-Hübner (2008), p. 205; Neumayr and Neumayr (2012), p. 201. 62

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legal constructs of the Austrian MA prohibits such an analogy since the precondition of marriage does not exist. Furthermore, consideration is generally given to the question of the necessity of the legal regulation of non-marital relationships, as cohabiting unions are particularly characterized by their legally non-binding nature. Nevertheless, due to the lack of relevant studies, it is not possible to confirm that people who live in non-marital relationships are desirous of this legally non-binding character.70 In 2007 the Austrian Supreme Court of Justice71 had to deal with the question of whether wedding gifts received at a church/traditional wedding had to be taken into account in the course of the division of matrimonial property in cases where the religious marriage had taken place before the civil marriage. The litigant claimed that the wedding gifts offered at the religious marriage should have been taken into account in the divorce proceedings, as the two marriages were intrinsically interconnected. The litigant argued that the application of the corresponding legal norms should be extended to couples who had already performed a traditional wedding. These life circumstances should be recognized in terms of reasons of equity as well as of procedural economy, according to the litigant.72 The Austrian Supreme Court of Justice rejected the claim. It argued that such a differing classification of non-marital relationships based on religious or traditional circumstances must be rejected. The court of first instance had affirmed the litigant’s claim by arguing that the connection between the two marriages affected the classification of matrimonial property. The court of appeal annulled the decision of the first instance. In addition, it declared that an appeal on a point of law to the Austrian Supreme Court of Justice was permitted, as there was no existing court practice with regard to this legal issue. In its verdict, the Austrian Supreme Court of Justice held that legal certainty had to be ensured. This was especially the case because of the Austrian Supreme Court’s opinion that the Austrian legislature had provided clear legal wording. The Austrian marriage law stipulates that the only relevant date, in terms of starting time for the legal assessment of matrimonial property, is the date of the civil marriage.73 Even interrelated rites could not affect this strict time limitation. Traditional or religious rites, taken alone, do not change the marital status of the parties. The Court finally emphasized that due to the lack of a loophole in the law, analogous application is not conceivable. Moreover, it recapitulated that the extension of the application of marriage law per se to non-marital relationships is predominantly refused. The recognition of any fact other than civil

70

Zartler (2012), p. 201ff; Oswald and Schmallegger (2013), p. 13; Cornides (2008), p. 293. The Austrian Supreme Court is the highest instance in civil and criminal matters in Austria. 72 Austrian Supreme Court 16.11.2007, 7 Ob 239/07h. 73 Wedding gifts that were received before a civil marriage ceremony are consequently brought into marriage and therefore without further ado not part of the property to be divided, see also Glitschthaler (2008), p. 59. 71

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marriage regarding matrimonial property would endanger legal certainty and potentially lead to evidential difficulties in general.74 Consequently, the Austrian Supreme Court of Justice reacted to the background of the litigant’s claim with a precise statement and clearly rejected the claim. The court of appeal stressed the admissibility of the appeal on a point of law due to the lack of relevant court practice. Thus, the conclusion may be drawn that courts seek to provide legal clarity within the scope of jurisdiction despite clear legal wording. PACS In 2004, the Greens, an Austrian political party, pursued an initiative to implement a construct comparable to PACS, called Zivilpakt, that later became a draft law. However, the National Assembly rejected it in December 2009.75 The Greens had meant to introduce a legal construct alongside marriage to provide legal security for those couples who were not willing or able to institutionalize their relationships through marriage. As registered partnership was not yet part of the legal system, the Zivilpakt was geared towards providing a legal form of relationship for same-sex couples as well as an alternative legal construct for heterosexual couples. Therefore, the Zivilpakt had two aims: ending the discriminatory state of the non-recognition of homosexual relationships and giving non-married couples an option to legally safeguard their relationships.76 Before the first reading in the National Assembly, it became clear that the leading political parties, namely the Social Democratic Party of Austria (SPÖ) and the conservative Austrian People’s Party (ÖVP), took a negative attitude towards the implementation of the Zivilpakt. Thus, some members of the Greens rather expected marriage to be eventually extended to same-sex couples. Those expectations were based on the widespread concern that a Zivilpakt in the sense of marriage-light could undermine the institution of marriage.77 However, the representatives of the ÖVP argued that the Zivilpakt lacked a fair balance between rights and duties, and the SPÖ declared their intention to implement the registered partnership instead of a general marriage-light.78 One can thus argue that this proposal was used by the Greens to put pressure on the other political actors to finally legally institutionalize same-sex relationships.

74

Austrian Supreme Court 16.11.2007, 7 Ob 239/07h. Parlament, Selbständige Anträge – Bundesgesetz über den Zivilpakt (ZIP-G), Fremdenrechtspaket 2005, https://www.parlament.gv.at/PAKT/VHG/XXIV/A/A_00019/index. shtml (accessed 27 April 2021); Neumayr and Neumayr (2012), p. 200. 76 Parlament, Bericht des Justizausschusses über den Antrag 19/A vom 03.12.2009, 562 der Beilagen zu den Stenographischen Protokollen des Nationalrates XXIV.GP, https://www. parlament.gv.at/PAKT/VHG/XXIV/I/I_00562/fname_174191.pdf (accessed 27 April 2021). 77 Peherstorfer (2009). 78 Parlament, Parlamentskorrespondenz Nr. 31 vom 22.01.2009, https://www.parlament.gv.at/ PAKT/PR/JAHR_2009/PK0031/index.shtml (accessed 27 April 2021). 75

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The Zivilpakt had three main features worth mentioning. First, the proposal provided that the Zivilpakt was characterized by the opportunity for an uncomplicated, quick dissolution in the case of failure compared to marriage. Dissolutions were supposed to be concluded within a maximum of 6 months in the event that the agreement between the partners failed. Second, it did not enact a catalogue of legal duties such as fidelity or spatial cohabitation. Third, maintenance obligations only persisted during a valid Zivilpakt, and therefore not after its dissolution.79 Scholarly writings contended particularly that the Zivilpakt was imbalanced as regards the rights and duties of the partners. Some also saw its implementation as opening a door to abuse of rights, such as selective tax avoidance. Mainly, the extension of the legal privileges of marriage without the related duties was seen critically and classified as disproportionate. Scholars expressed concern that such a legal construct could infringe upon the constitutional principle of equality, as legal marriage had been consistently characterized by an interaction of rights and duties.80 Furthermore, it was pointed out that it should have been determined in the first place whether society had a general desire for an alternative legal form of cohabitation. Because no statistical investigation was conducted, no information existed about whether the legislative effort would be socially acceptable. This evaluation was also supported by the general lack of awareness in the population about the legal consequences of non-marital relationships in Austrian society.81 Still, in 2011 a heterosexual couple unsuccessfully tried to enter into a registered partnership on the grounds that the registered partnership would be more modern and informal compared to marriage. This could be interpreted as an indication of a certain level of desire for alternative types of relationships (among heterosexual couples) in Austrian society.82

Conclusion The Austrian state of affairs of recent years concerning non-marital relationships and the legal construct of PACS indicates two main rationales, the numerus clausus of legal constructs and the principle of private autonomy. It may be assumed that the Austrian legislature actively decided not to intervene extensively in relationships below the threshold of marriage and registered partnership apart from specific exceptions, such as the legal right of subrogation in tenancy law in the event of the death of a life partner.83 The Austrian legislature therefore generally leaves the legal arrangement to the individuals within the scope of freedom of contract. This posture is a clear expression of the state’s restraint in favour of private autonomy and

79

Parlament, Bericht des Justizausschusses über den Antrag 19/A vom 03.12.2009 (see note 74). Cornides (2008), p. 287ff. 81 Neumayr and Neumayr (2012), p. 200; Zartler (2012), p. 202. 82 IEF (2017), ARTE (2017). 83 Prader (2019). 80

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also, almost inevitably, of diversity. Non-regulation enables individual freedom of design within the statutory limits and subsequently an alternative to the “preformed” legal institutions for interpersonal relationships. This decision satisfies the various needs that arise from different attitudes towards life in a simple way. However, individuals who choose this path of non-regulation are excluded from the provisions of marriage and registered partnership. Austrian family law is marked by the numerus clausus of legal constructs, which also implies the dismissal of application by analogy of legal standards of the MA. Rights and obligations are consequently reserved for those who fulfil the legal formal requirements, that is, those who get married or conclude a registered partnership. Bridge-building between the regulatory and non-regulatory constructs is rejected, presumably also to maintain incentives for people to opt for marriage in the interest of the state’s traditional core support for marriage,84 and now also for registered partnership, as well as to promote legal certainty. This subarea of Austrian family law is also strongly marked by its dependence on changes in the legal institutions of marriage and registered partnership. Changes concerning these legal constructs provide the impetus for discussions about the need to introduce PACS. Sometimes arguments for the introduction of PACS are also geared towards the modernization of Austrian marriage law. As the Austrian legislature reacts in a rather restrained manner, particularly to the active role of the Constitutional Court,85 the result is incremental change with an uncertain outcome in the long term. The Austrian legislature acts on specific occasions to eliminate unconstitutional conditions. A systematic approach in this field is not, however, discernible. The Minister of Justice has simply pointed out that the current government programme does not provide for comprehensive reform of marriage and partnership law.86 The Constitutional Court’s decision and the subsequent restraint of the legislature have ultimately created a situation in which the two legal constructs have become very similar. This state of affairs leads to occasional discussions about changing registered partnership into a civil pact or introducing PACS as an entirely new legal alternative. However, the public debate has also focused in part on the modernization of marriage law in general. In addition and in contrast to legal scholars, the interest group HOSI already sees registered partnership as a modern approach that needs to be expanded in the future.87 All in all, it can be concluded that the future of PACS in Austria strongly depends on the further development of registered partnership.

84

Steppan (2018), p. 81. Aichinger (2018). 86 APA (2018). 87 APA (2017d). 85

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Parent-Child Relationship

The legal provisions addressing the parent-child relationship are primarily found in the Austrian CC. The relationship between parents and their children is governed by the principle that the child’s welfare is paramount, Sec 138, 139 CC. Sec 138 CC enumerates non-exhaustively the most important aspects of the child’s well-being. In recent years there have been innovations, particularly regarding same-sex partners with respect to adoption and artificial reproduction.

2.2.1

Adoption

Legal Sources Adoption is governed by Sec 191-203 CC. According to Sec 197 CC, a legal relationship corresponding to filiation is created between the adopting person and his/her descendants and the adoptive child and his/her descendants who are minors at the time when the adoption becomes effective.

Reactions and Responses (Eligibility to Adopt) Originally, according to Sec 8 RPA, registered partners were not allowed to jointly adopt a child or adopt the children of the other partner. The ECtHR created impetus to change this situation (in part) in 2013.88 It condemned Austria for violating Sec 8 in conjunction with Sec 14 ECHR because registered partners were not allowed to adopt the child of their partner (“stepchild adoption”). It was found that the unequal treatment of same-sex couples in relation to unmarried opposite-sex couples represented a differentiation on the basis of sexual orientation. Thus, through Law Gazette I 2013/179, the legislature adjusted the legal situation. As a consequence of the aforementioned ECtHR case,89 in 2014 the Constitutional Court90 repealed as unconstitutional the provisions (Sec 8 [4] RPA in conjunction with Sec 191 [2] CC) preventing same-sex couples from (jointly) adopting children (children of third persons who are not considered stepchildren) as they violated Sec 8 ECHR in conjunction with Sec 14 ECHR. Previously, it was only possible for one partner in a same-sex couple to adopt a child on his/her own. In practice, however, an adoption of a minor child, especially an infant, by only one person is rarely approved. Importantly, the Constitutional Court came to the conclusion that same-sex couples are as suitable as parents as opposite-sex couples, thus

88

ECtHR 19.02.2013, 19.010/07, X and others/Austria. Bernat (2015). 90 Constitutional Court 11.12.2014, G 119-120/2014-12. 89

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rejecting the argument that the prohibition of adoption could be justified by the child’s welfare. In a decision of 3 October 2018, the Constitutional Court91 made further clarifications: it held that same-sex couples and their children should not be discriminated against after separation. Consequently, even after a separation, adoption by the former partner must be possible. The fact that same-sex couples are separated, the Court continued, would not justify the general exclusion of adoption in such cases. The adoption law also ensures that adoption is granted only in those cases in which, despite separation, a stable environment and the preservation of the child’s wellbeing can be guaranteed. This assessment could be made by means of a constitutional interpretation of Sec 197 (3) CC. It was not necessary to repeal any statutory provisions. These developments are in line with the views of the majority of Austrians. A survey in 2013 showed that 53% of Austrians are in favour of adoption rights for same-sex couples.92 However, this amendment is not expected to have much impact, as the number of children available for adoption is very small and the selection process challenging and long.93

2.2.2

Artificial Reproduction

Legal Sources Originally, the Reproductive Medicine Act (RMA) stipulated that artificial reproduction is only allowed for opposite-sex couples who are married or live in a non-marital relationship, and only after all other possible and reasonable means of procreation have been unsuccessful. In 2013, the Constitutional Court examined provisions of the RMA limiting the method of medically assisted reproduction in which donor semen is introduced directly into the body of a married woman or a (heterosexual) cohabiting woman. The Constitutional Court found Sec 2 and Sec 3 RMA unconstitutional.94 With regard to the desire of women living in a same-sex relationship to have children, the infringement in the scope of Sec 14 in conjunction with 8 ECHR is not justified by reasons of sufficient weight and thus it is disproportionate. For the Constitutional Court the risk of abuse in the form of surrogacy—which is the stated motive for these provisions in the legislative materials—does not apply to artificial heterologous insemination of women in same-sex couples. As this form of artificial insemination

91

Constitutional Court 24.10.2018, G 69/2018. Seidl (2013). 93 APA (2016). The first same-sex couple adoption took place in 2016. Overall, the process was a positive experience. However, there were some struggles as, for example, the forms were not yet adapted to the new situation (ORF 2016). 94 Constitutional Court 10.12.2013, G 16/2013, G 44/2013. 92

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largely enables a natural process of pregnancy and birth, no particular ethical or moral questions were raised. Also, in this context, the legislature adjusted the legal situation.

Reactions and Responses Due to the prohibition of surrogacy in Austria, only female same sex-couples can use the possibilities of reproductive medicine. Male same-sex couples are denied the medically assisted path to parenthood.95 According to the President of the Constitutional Court, it is very likely that the Constitutional Court will decide in the near future on whether men who live in a same-sex partnership must be given the option of surrogacy. However, on the topic of surrogacy, there is a very critical feministdriven discourse: The organization HOSI96 is against surrogacy and explains that the desire of male same-sex couples to have children and the need to protect women from being exploited are at odds. In view of the economic inequalities between the rich and the poor, as well as between industrialized nations and emerging and developing economies, the organization sees a risk that women’s economic situation could be exploited and that they might even be forced into surrogacy in some regions of the world. There has also been criticism based on the fact that it is not possible for a female same-sex couple to have both women receiving childcare allowance at the same time if both women give birth to children shortly after one another.97 However, the Ministry of Family Affairs has stated that childcare allowance can be obtained only for the youngest child of a family, that there is a supplement for multiple births and that not only biological but also adoptive and foster children are included.

2.2.3

Conclusion

Like the recent developments regarding marriage equality for same-sex couples, the developments related to adoption and artificial reproduction are driven primarily by case law of the Constitutional Court, rather than legislation. It is striking that in comparison to the topic of marriage equality, there has been less media coverage in the run-up to the decisions regarding adoption and artificial reproduction. Especially the discussions on artificial procreation have shown that there is a strong lobby for women’s rights in connection with discrimination based on sexual orientation. Finally, important family law-related issues are not solely governed by core family law provisions (rules on childcare allowance are considered to be part of

95

Schoditsch (2015), Wendehorst (2015). HOSI (2018). 97 Mayer and Smetschka (2018), APA (2017d). 96

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social law). When traditional concepts are revisited, it is often very difficult to foresee in what other areas of law legal follow-up questions might occur.

3 Conclusion In recent years, the Constitutional Court has been a driving force of liberalization of family law. Developments in other EU member states have also triggered debates and created space to advocate for marriage equality. Changes regarding the different forms of partnership have been highly dependent on public debate and shifting public perceptions. This review has shown that in the core area of family law, Austria has not pursued a united legislative strategy for coping with multicultural conflicts. The legislature has started discussions on possible amendments only when a specific topic has come up that attracted media attention (as was the case with child marriage) rather than conceiving and implementing a long-term strategy.98 Moreover, the legislature seems to intervene only when it is forced to do so by court decisions, as in the case of adoption and artificial reproduction. As far as opening marriage to same-sex couples is concerned, however, the legislature did not even react via implementing regulations. It can be concluded that the Austrian legislature generally holds strongly conservative views and adheres to the principle of the numerus clauses with regard to forms of partnership. This is to ensure legal certainty and to promote marriage as the basic unit of society. The discussion about PACS and the mishaps regarding the implementation of marriage equality illustrate the interdependence and interplay between public/social demands, the judiciary and the legislature. The principle of private autonomy enables rather free development and thus leads to the recognition of diversity. However, the state sets clear limits to this freedom where certain legal acts are required, such as in the case of divorce, which must be done by a court. To sum up, Austrian family law is driven by the active role of the courts and, upstream, by the initiative of individuals or interest groups who assert their demands in legal claims in court. In order to initiate a step-by-step development, it seems that those demands need to be manifested within a social and political environment first before legal procedures are initiated. Where this is not the case, it is difficult to estimate how possible (unrecognized) social tensions might evolve and subsequently affect Austrian family law. Consequently, it can be concluded that in Austria, legal provisions are constantly confronted with the zeitgeist, as such factual societal

98

This statement is supported by the fact that the current government programme does not contain any multicultural approaches to family law in any direction.

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circumstances99 as well as legal systematic reviews affect or initiate such developments of family law.

References Aichberger-Beig D (2010) Registered partnership for same-sex couples. In: Verschraegen B (ed) Austrian law – an international perspective. Jan Sramek Verlag, Vienna, pp 63–79 Aichinger P (2015) Homo-Ehe: Wer darf sich trauen? Die Presse, 26 May 2015. https://diepresse. com/home/innenpolitik/4739966/HomoEhe_Wer-darf-sich-trauen. Accessed 27 Apr 2021 Aichinger P (2017a) Ehe und Ehe light für alle. Die Presse, 5 December 2017. https://diepresse. com/home/innenpolitik/5333713/Ehe-und-Ehe-light-fuer-alle. Accessed 27 Apr 2021 Aichinger P (2017b) Heiraten als Minderjähriger: Wer in Österreich früh die Ehe schließt. Die Presse, 7 April 2017. http://diepresse.com/home/recht/rechtallgemein/5196994/Heiraten-alsMinderjaehriger_Wer-in-Oesterreich-frueh-die-Ehe. Accessed 27 Apr 2021 Aichinger P (2018) Türkis-Blau akzeptiert Ehe für alle. Die Presse, 11 October 2018. https:// diepresse.com/home/innenpolitik/5511664/TuerkisBlau-akzeptiert-Ehe-fuer-alle. Accessed 27 Apr 2021 APA (2016) Adoption durch homosexuelle Paare: Nur ein einziger Antrag. Die Presse, 23 February 2016. https://diepresse.com/home/panorama/oesterreich/4931458/Adoption-durchhomosexuelle-Paare_Nur-ein-einziger-Antrag. Accessed 27 Apr 2021 APA (2017a) Karmasin will Eheschließung erst ab 18. Der Standard, 1 August 2017. http:// derstandard.at/2000062103261/Karmasin-will-Eheschliessung-erst-ab-18. Accessed 27 Apr 2021 APA (2017b) Nach VfGH-Erkenntnis: HOSI Wien fordert modernes Eherecht oder Fortbestand der eingetragenen Partnerschaft. APA-OTS, 5 December 2017. https://www.ots.at/ presseaussendung/OTS_20171205_OTS0109/nach-vfgh-erkenntnis-hosi-wien-fordertmodernes-eherecht-oder-fortbestand-der-eingetragenen-partnerschaft. Accessed 27 Apr 2021 APA (2017c) SPÖ drängt auf Öffnung der Ehe für alle schon im Jänner 2018 – Auch positive kirchliche Reaktionen. Der Standard, 6 December 2017. https://derstandard.at/2000069726108/ Ehe-fuer-alle-SPOe-draengt-auf-rasche-Oeffnung-im-Jaenner. Accessed 27 Apr 2021 APA (2017d) Verpartnerte Frauen können nicht gleichzeitig Kindergeld beziehen. Der Standard, 8 August 2017. https://derstandard.at/2000062388796/Verpartnerte-Frauen-koennen-nichtgleichzeitig-Kindergeld-beziehen. Accessed 27 Apr 2021 APA (2018) Regierung will Frist für “Ehe für alle” verstreichen lassen. Der Standard, 13 June 2018. https://derstandard.at/2000081475211/Regierung-will-Frist-fuer-Ehe-fuer-alle-verstreichenlassen. Accessed 27 Apr 2021 APA (2019) NEOS: Innenminister soll bürokratische Bösartigkeiten bei Ehe für Alle sofort beenden. APA-OTS, 24 January 2019. https://www.ots.at/presseaussendung/OTS_20190124_ OTS0075/neos-innenminister-soll-buerokratische-boesartigkeiten-bei-ehe-fuer-alle-sofortbeenden. Accessed 27 Apr 2021

One such general noteworthy circumstance, viewed in isolation, might be the finding of the European Commission that more than 50% of Austrian society shares the opinion that discrimination based on ethnic origin, sexual orientation, gender identity and religion or beliefs is widespread in Austria. Nevertheless, 70% of Austrian society shares the opinion that the efforts made in Austria to fight all forms of discrimination are at least moderately effective (European Commission (2015) Discrimination in the EU in 2015—Factsheet Austria, Special Eurobarometer 437, http://ec.europa. eu/COMMFrontOffice/publicopinion/index.cfm/Survey/getSurveyDetail/instruments/SPECIAL/ surveyKy/2077 (accessed 27 April 2021)).

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APA (2020) Justizministerium prüft Anhebung des Ehealters auf 18 Jahre. DiePresse, 01 October 2020. https://www.diepresse.com/5875820/justizministerium-pruft-anhebung-des-ehealtersauf-18-jahre. Accessed 27 Apr 2021 ARTE (2017) Re: Ehe “light” – Die etwas andere Art zu heiraten. ARTE/ARD, 9 November 2017. https://programm.ard.de/TV/arte/re%2D%2Dehe%2D%2Dlight-/eid_28724383513798. Accessed 27 Apr 2021 Benke N (2010) Keine Ehe, aber ein Stück Familie – Bemerkungen zu EGMR 24.6.2010, Appl Nr 30141/04, Schalk und Kopf/Austria. Interdisziplinäre Zeitschrift für Familienrecht (iFamZ) 244–255 Berger J, Brickner I, Ruep S, Scherndl G (2018) Bund empfiehlt: Verpartnerung muss vor Ehe nicht gelöst werden. Der Standard, 21 December 2018. https://derstandard.at/2000094515887/Ehefuer-alle-Verpartnerung-muss-vor-Ehe-nicht-geloest-werden. Accessed 27 Apr 2021 Bernat E (2015) Gleichgeschlechtliche Eltern. Zeitschrift für Familien- und Erbrecht (EF-Z):60–62 Brickner I (2015) Im Grunde müsste auch in Österreich das Volk direkt entscheiden. Der Standard, 1 June 2015. http://derstandard.at/2000016697352/Homo-Ehe-Im-Grunde-muesste-auch-inOesterreich-das-Volk. Accessed 27 Apr 2021 Brickner I (2017) Was die FPÖ an eingetragenen Partnerschaften stört. Der Standard, 7 December 2017. https://www.derstandard.at/story/2000069750192/was-die-fpoe-an-eingetragenenpartnerschaften-fuer-alle-stoert. Accessed 27 Apr 2021 Brickner I (2018) Warum die Ehe für alle wieder vor Gericht landen könnte. Der Standard, 13 December 2018. https://derstandard.at/2000093792003/Warum-die-Ehe-fuer-alle-wiedervor-Gericht-landen-koennte. Accessed 27 Apr 2021 Brickner I (2019) Minister schweigen zu offenen Fragen bei der Ehe für alle. Der Standard, 20 March 2019. https://derstandard.at/2000099835324/Minister-schweigen-zu-offenenFragen-bei-der-Ehe-fuer-alle. Accessed 27 Apr 2021 Burgstaller K, von Usslar M (2017) “Ehe als Falle”: Hosi will Reform des Eherechts. Der Standard, 6 December 2017. https://www.derstandard.at/story/2000069700882/ehe-als-falle-hosi-fordertreform-des-eherechts. Accessed 27 Apr 2021 Cach C (2014) Ein Erbrecht für Lebensgefährten? Rechtsordnungen ausgewählter EU-Mitgliedstaaten im Vergleich. Spektrum der Rechtswissenschaft (SPRW) 415–429 Constitutional Court (2017) Distinction between marriage and registered partnership violates ban on discrimination. Press release of 5 December 2017, G 258/2017 ua. https://www.vfgh.gv.at/ medien/Ehe_fuer_gleichgeschlechtliche_Paare.en.php. Accessed 27 Apr 2021 Cornides J (2008) Alles gleich? – Gesetzesinitiativen zur Schaffung eines “Zivilpakts” und einer “Eingetragenen Partnerschaft”. Juristische Blätter (JBl) 130(5):285–294 Czech P (2016) Das Recht homosexueller Paare auf Anerkennung und Schutz ihrer Beziehung. Zeitschrift für Familien- und Erbrecht (EF-Z):181–187 Deixler-Hübner A (2008) Die Regelung gleich- und verschiedengeschlechtlicher Lebenspartnerschaften – Unterschiede im europäischen Rechtsvergleich. Interdisziplinäre Zeitschrift für Familienrecht (iFamZ):199–205 European Union Agency for Fundamental Rights (2014) EU LGBT survey – European Union lesbian, gay, bisexual and transgender survey. https://fra.europa.eu/sites/default/files/fra-eulgbt-survey-main-results_tk3113640enc_1.pdf. Accessed 27 Apr 2021 Familienrechtsinfo.at (n.d.) Mediation bei Scheidung – Wie hilft ein Mediator bei der Scheidung? https://www.familienrechtsinfo.at/mediation-bei-scheidung/. Accessed 27 Apr 2021 Fischer-Czermak C (2017) § 139 ABGB. In: Kletečka A, Schauer M (eds) ABGB-ON, 1.04th edn. Manz Verlag. Available via RDB. https://rdb.manz.at/document/1102_abgb_104_p0139. Accessed 27 Apr 2021 Fischer-Czermak C, Beclin B (2012) Reformvorschläge für nichteheliche Lebensgemeinschaften – Legaldefinition – wechselseitige Rechte und Pflichten – Erbrecht – Mietrecht – Trennung – Unterhalt. Interdisziplinäre Zeitschrift für Familienrecht (iFamZ):188–193

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FPÖ Landtagsklub Oberösterreich (2019) Klubobmann Mahr zu aktuellem Fall von Zwangsheirat: Versteckte Kinder- und Mehrehen sind Integrationsproblem. https://www.fpoe-ltklub-ooe.at/ tag/kinderehe/. Accessed 27 Apr 2021 Glitschthaler E (2008) Hochzeitsgeschenke und nacheheliche Aufteilung – Austrian Supreme Court 7 Ob 239/07h. Zeitschrift für Familien- und Erbrecht (EF-Z):59–61 Goldenberg A (2017) Haben wir ein Problem mit Kinderehen, Frau Pinterits? Falter.at, 9 August 2017. https://www.falter.at/archiv/FALTER_201708097BC257A4AE/haben-wir-ein-problemmit-kinderehen-frau-pinterits. Accessed 27 Apr 2021 Grabenwarter C, Störck M-T (2016) Family forms and parenthood in Austria. In: Büchler A, Keller H (eds) Family forms and parenthood – theory and practice of Article 8 ECHR in Europe. Intersentia, Cambridge, pp 63–124 Graupner H (2018) Ehe für alle in Wien – Hintergrundinformation. https://www.rklambda.at/ images/20181220_EheF%C3%BCrAlleInWien_Pressepapier_final_2.pdf. Accessed 27 Apr 2021 Haider D (2016) Institutionalisierung gleichgeschlechtlicher Lebensgemeinschaften – Eine Analyse der aktuellen Rechtsprechung des Europäischen Gerichtshofes für Menschenrechte. Juridikum 2:158–167 Hausmaninger C (2016) § 582/2 ZPO. In: Fasching HW, Konecny A (eds) Zivilprozessgesetze, 3rd edn. Manz Verlag. Available via RDB. https://rdb.manz.at/document/1158_4_zpg_zpo_p0582. Accessed 27 Apr 2021 Hausmaninger H (2011) The Austrian legal system. Manz Verlag, Vienna Höllwerth J (2018) Ehe für alle – VfGH 4.12.2017, G 258/2017. Zeitschrift für Familien- und Erbrecht (EF-Z) 69–72 HOSI (2017) HOSI Wien unterstützt Bekämpfung von Kinderehen. http://www.hosiwien.at/ newsletter/hosi-wien-unterstuetzt-bekaempfung-von-kinderehen/?frame¼0. Accessed 27 Apr 2021 HOSI (2018) Forderungsprogramm in der von der Generalversammlung am 5. Mai 2018 beschlossenen Fassung. https://www.hosiwien.at/forderungsprogramm/. Accessed 27 Apr 2021 IEF (2017) Europa_Ö / Ehe: Kein Recht auf Eingetragene Partnerschaft für heterosexuelles Paar. Institut für Ehe und Familie, 8 November 2017. https://www.ief.at/kein-recht-auf-eingetragenepartnerschaft-fuer-heterosexuelles-paar/. Accessed 27 Apr 2021 Klatzer J (2020), Scheidung ohne Schuld. https://orf.at/stories/3151610/. Accessed 27 Apr 2021 Klauser A, Kodek G (2018) § 582 ZPO. In: Klauser A, Kodek G (eds) JN – ZPO, 18th edn. Manz Verlag. Available via RDB. https://rdb.manz.at/document/1132_1_jn-zpo_zpo_p0582? execution¼e1s2&highlight¼klauser+kodek+582+zpo. Accessed 27 Apr 2021 Kleine Zeitung (2019) Ehe für alle – Evangelische Kirche öffnete Ehe für gleichgeschlechtliche Paare. Kleine Zeitung, 10 March 2019. https://www.kleinezeitung.at/politik/innenpolitik/ 5593282/Ehe-fuer-alle_Evangelische-Kirche-oeffnete-Ehe-fuer. Accessed 27 Apr 2021 Klicka T, Oberhammer P, Domej T (2014) Außerstreitverfahren. Manz Verlag, Vienna Leb B (2018) Ist die traditionelle Ehe vorbei? Ehe und Ehe light (EPG) für alle? Wird die nunmehrige Wahlfreiheit vom Gesetzgeber beendet? Interdisziplinäre Zeitschrift für Familienrecht (iFamZ):25–28 Mayer K, Smetschka B (2018) Artikel 16 CEDAW – Gleichstellung in ehelichen und familiären Angelegenheiten. In: Rechte hat sie – Frauenrechtskonvention. UN-Konvention zur Beseitigung jeder Form von Diskriminierung der Frau (CEDAW) – NGO-Schattenbericht in Ergänzung des 9. Staatenberichts der österreichischen Regierung an das CEDAW-Komitee. Klagsverband, Vienna, pp 18–19. http://www.klagsverband.at/dev/wp-content/uploads/2018/06/ Schattenbericht_deutsch-1.pdf. Accessed 27 Apr 2021 Muzak G (2012) Beschränkung des Nachzugs von Ehegatten auf Personen unter 21 Jahren zur Erreichung des Ziels der Vermeidung von Zwangsehen gerechtfertigt. Zeitschrift für Fremdenund Minderheitenrecht (migraLex) 53–55

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Neumayr K, Neumayr M (2012) PACS und “Ehe light” – Modelle für Österreich? – Gesetzliche Regelung “ehenaher” Lebensgemeinschaften. Interdisziplinäre Zeitschrift für Familienrecht (iFamZ):198–201 Nimmervoll L (2017a) Bis dass der Staat euch sehr jung scheidet. Der Standard, 3 August 2017. http://derstandard.at/2000062172622/Bis-dass-der-Staat-euch-sehr-jung-scheidet. Accessed 27 Apr 2021 Nimmervoll L (2017b) Kinderanwältin fordert “individuelle Lösungen für Kinderehen”. Der Standard, 4 August 2017. https://www.derstandard.at/story/2000062222114/kinderanwaeltinfordert-individuelle-loesungen-fuer-kinderehen. Accessed 27 Apr 2021 Oesterreich.gv.at (2019) Partnerschaftsverträge. Oesterreich.gv.at (as of 1 January 2019). https:// www.oesterreich.gv.at/themen/familie_und_partnerschaft/lebensgemeinschaften/Seite.580008. html. Accessed 27 Apr 2021 ORF (2016) Erste Adoption durch homesexuelles Paar. ORF, 5 November 2016. https://wien.orf.at/ news/stories/2806811/. Accessed 27 Apr 2021 ORF (2018) “Ehe für alle”: Anleitung für Standesämter. ORF, 20 December 2018. https://wien.orf. at/news/stories/2954555/. Accessed 27 Apr 2021 Oswald N, Schmallegger A (2013) Partnerschaftsvertrag zwischen nichtehelichen Lebensgefährten. Zeitschrift für Familien- und Erbrecht (EF-Z):13–17 Peherstorfer M (2009) Lunacek: “Wir wollen Gesetze, die für alle gelten”. Der Standard, 18 January 2009. https://www.derstandard.at/story/1231152155643/lunacek-wir-wollen-gesetze-die-fueralle-gelten. Accessed 27 Apr 2021 Pesendorfer U (2017) Öffnung der Ehe und eingetragenen Partnerschaft. Interdisziplinäre Zeitschrift für Familienrecht (iFamZ):364–366 Prader C (2019) § 14 MRG. In: Prader C (ed) MRG, 5.09th edn. Manz Verlag. Available via RDB. https://rdb.manz.at/document/1001_1904_mrg_p0014?execution¼e3s2. Accessed 27 Apr 2021 Rabinowich J (2016) Teufelskreis Kinderehe. Der Standard, 6 November 2016. http://derstandard. at/2000047041974/Teufelskreis-Kinderehe. Accessed 27 Apr 2021 Red (2018a) Regierung gibt sich geschlagen. ORF, 11 October 2018. https://orf.at/stories/3059201/ . Accessed 27 Apr 2021 Red (2018b) So setzt Wien die Ehe für alle um. Der Standard, 20 December 2018. https:// derstandard.at/2000094417588/So-setzt-Wien-die-Ehe-fuer-alle-um. Accessed 27 Apr 2021 Red (2019) Die “Ehe für alle” gilt offenbar doch nicht für alle – Ehe für alle? Nur mit der “richtigen” Staatsbürgerschaft. Wienerin, 24 January 2019. https://wienerin.at/die-ehe-fur-alle-giltoffenbar-doch-nicht-fur-alle. Accessed 27 Apr 2021 Rieger L (2017) Auch “Ehe light” wird möglich. Kurier, 6 December 2017. https://kurier.at/ chronik/oesterreich/auch-ehe-light-wird-moeglich/301.012.923. Accessed 27 Apr 2021 Schoditsch T (2007) Zum Eintrittsrecht des (homosexuellen) Lebensgefährten gem §14 Abs 3 MRG. Österreichische Juristen-Zeitung (ÖJZ):347–354 Schoditsch T (2015) 5 Jahre EPG – Ein Grund zum Feiern? Zeitschrift für Familien- und Erbrecht (EF-Z):254–258 Seidl C (2013) Umfrage: Mehrheit will Ehe und Adoptionsrecht für Homosexuelle. Der Standard, 3 November 2013. https://derstandard.at/1381370702708/Mehrheit-will-Ehe-und-Adoptionfuer-Homosexuelle. Accessed 27 Apr 2021 Smutny P (2017) § 44 ABGB. In: Kletečka A, Schauer M (eds) ABGB-ON, 1.04th edn. Manz Verlag. Available via RDB. https://rdb.manz.at/document/1102_abgb_104_p0044? execution¼e2s1. Accessed 27 Apr 2021 Steppan M (2018) Konfessionelles Familienrecht in der österreichischen Rechtsgeschichte. In: Hinghofer-Szalkay S, Kalb H (eds) Islam, Recht und Diversität. Verlag Österreich, Vienna, pp 63–81 Theiretzbacher U, Körber C (2017) Vorstoß nach deutschem Vorbild. ORF, 1 August 2017. https:// orf.at/v2/stories/2400746/2400763/. Accessed 27 Apr 2021 Thornton C (2019) Ehe für alle in Österreich? Leider doch noch nicht für alle. Woman, 19 March 2019. https://www.woman.at/a/ehe-fuer-alle-oesterreich. Accessed 27 Apr 2021

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Tritremmel D (2016) Freunde sind die neue Familie – Gedanken zur rechtlichen Anerkennung von Freundschaften. Interdisziplinäre Zeitschrift für Familienrecht (iFamZ):68–72 Unzensuriert (2019) Rot-grünes Wien empört: Homo-Ehe nur für Schwule aus Ländern mit gleicher Rechtslage. Unzensuriert, 26 January 2019. https://www.unzensuriert.at/content/0028799-rotgruenes-wien-empoert-homo-ehe-nur-fuer-schwule-aus-laendern-wo-die-homo-ehe/. Accessed 27 Apr 2021 Vašek M (2011) Gleichgeschlechtliche Ehe: Straßburg locuta, causa finita? Interdisziplinäre Zeitschrift für Familienrecht (iFamZ):4–5 Vašek M (2018) Rechtliche Rahmenbedingungen informeller Streitschlichtung unter Muslimen. In: Hinghofer-Szalkay S, Kalb H (eds) Islam, Recht und Diversität. Verlag Österreich, Vienna, pp 267–284 Verschraegen B (2004) § 17 IPRG. In: Rummel P (ed) ABGB, 3rd edn. Manz Verlag. Available via RDB. https://rdb.manz.at/document/1101_iprg_p17?execution¼e2s2. Accessed 27 Apr 2021 Verweijen S (2016) ErbRÄG 2015 – zu den Rechten des Lebensgefährten. Österreichische JuristenZeitung (ÖJZ):853–856 Wendehorst C (2015) Neuerungen im österreichischen Fortpflanzungsmedizinrecht durch das FMedRÄG. Interdisziplinäre Zeitschrift für Familienrecht (iFamZ):4–8 Wittreck F (2014) Paralleljustiz in ethnischen Minderheiten? – Die bundesdeutsche Perspektive. In: Deixler-Hübner A, Schauer M (eds) Migration, Familie und Vermögen – Vom Europäischen Erbrecht bis zu binationalen Ehen. LexisNexis Verlag, Vienna, pp 91–119 Zartler U (2012) Regelungsbedarf für nichteheliche Lebensgemeinschaften? Überlegungen aus soziologischer Perspektive. Interdisziplinäre Zeitschrift für Familienrecht (iFamZ):201–204 Agnes Balthasar-Wach has been working at international law firms in Vienna and Brussels since 2017 specialising in European Law and Public Commercial Law. Previously, she worked as a Research Assistant and as a Teaching Assistant at the Faculty of Law at the University of Vienna focusing on European Law and Private International Law. She also interned at national, Austrian Courts as well as at the Court of Justice of the EU. After finishing her dissertation about child abduction cases in the EU and receiving her PhD in 2017, she continues to be associated with the University of Vienna as she teaches a course about European Family Law. Maximilian Engel works at the Austrian Supreme Administrative Court as research associate with focus on asylum law. Previously, he worked as a Teaching Assistant at the Faculty of Law at the University of Vienna specialising in European Law and Private Comparative Law. After completing his master’s degree with a focus on European Law and Fundamental Rights, he conducted his judicial clerkship in the field of criminal and civil law in the district of the Higher Regional Court Vienna (OLG Wien). He also holds a degree in media economics and worked at the cultural and educational radio station Ö1 at the Austrian public-service broadcasting company (ORF).

Balancing Cultural Claims and Universal Rights in Finnish Family Law Sanna Mustasaari

Abstract This chapter addresses cultural and religious diversity in Finnish family law. It reviews legislation, case law and existing research on the institution of marriage, divorce and some specific issues related to how the rights of the child and the best interests of child are understood in Finnish law. It is observed that although culture and religion are important factors in the organization of family life within cultural and religious communities and also hold relevance for relations between the state and communities, ‘cultural claims’ have not been common in the field of family law. It is argued that cases involving identity-based demands related to children may reach courts more easily than those that relate only to adults. The chapter draws on emerging research which has focused mainly on family practices of Muslims in Finland. All in all, Finnish courts seem to be rather skilful in striking a balance between cultural claims and universal rights.

1 Introduction This chapter examines how ‘claims’ based on cultural tradition, ethnic background, custom or religious conviction are raised and dealt with in the field of family law in Finnish legislation and case law. Although culture and religion are important factors in the organization of family life within cultural and religious communities and also hold relevance for relations between the state and communities, ‘cultural claims’ have not been common in the field of family law, nor have family practices governed by other norms than state law been widely studied in Finland.1 The emerging research has, for the most part, focused on family practices of Muslims in Finland, shedding light on how they navigate cultural, religious and legal norms as they

1

However, see Taina Cooke’s work on culture and litigation, e.g. Cooke (2019).

S. Mustasaari (*) University of Helsinki, Faculty of Law, Helsinki, Finland e-mail: sanna.mustasaari@uef.fi © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_13

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organize their family life and relationships.2 In many respects, this chapter draws on this research.3 According to the Finnish Constitution (731/1999), the Sámi, as an indigenous people, as well as the Roma and other groups, have the right to maintain and develop their own language and culture (17 §). The indigenous people of the Sámi are a small group of approximately 6000 persons, and the Finnish Roma consist of approximately 10,000 persons. There is no specific institution of Sámi law, and as Cooke points out, historically the status of being legally recognized as Sámi has not guaranteed any specific legal rights, although there is an ongoing struggle for distinct legal rights for the Sámi.4 The conservative Christian religious movement of Laestadianism has had a profound impact on the Sámi culture, which has contributed to the state’s efforts to govern the Sámi by means of creating a patriarchal and colonial paradigm in Sámi communities.5 Valkonen and Wallenius-Korkalo demonstrate the complexity of colonial relations and Laestadianism as an integral factor intertwined with Sámi cultural norms, which may partly explain the invisibility of indigenous Sámi family norms and practices.6 Despite the formal neutrality of state law, culture and ethnicity have had an impact on the governance of families. For example, great numbers of Roma children were placed out of home in institutional care between the 1950s and the late 1970s. The majority of Finns belong to the Evangelical Lutheran Church of Finland (4,040,787 members in 2014), and the Church has traditionally been a strong social actor in Finnish society.7 In 2014 there were 12,554 Catholics, 61,574 Orthodox Christians, 1145 Jews, and 18,467 Jehovah’s Witnesses living in Finland. The total number of Muslims in Finland is estimated at around 110,000–120,000 and a little over 2% of the total population (Konttori and Pauha 2021), which amounts to about 20% of the immigrant population and 1.2–1.5% of the country’s total population of 5.5 million. The Finnish Muslim population consists of an ethnically diverse range

2

This chapter draws on studies conducted within the research project Transnational Muslim Marriages: Wellbeing, Law and Gender (2013–2018), which was led by Marja Tiilikainen and funded by the Academy of Finland. The project investigated how Muslims in Finland organize marriage and divorce in transnational space and how the different actors representing the Finnish state understand and facilitate their well-being. The research conducted within this research project was closely connected to Mulki Al-Sharmani’s research project entitled ‘Islamic Feminism: Tradition, Authority and Hermeneutics’, which was also funded by the Academy of Finland. 3 Al-Sharmani (2015), Al-Sharmani and Ismail (2017), Al-Sharmani et al. (2017). 4 Cooke (2019). 5 Kuokkanen (2015). 6 Valkonen and Wallenius-Korkalo (2016). 7 The Evangelical Lutheran Church of Finland and the Orthodox Church of Finland have a special position in relation to the state. Both of these privileged churches are public entities, whereas other religious communities are private entities. According to the Constitution (§ 76), the provisions on the organisation and administration of the Evangelical Lutheran Church of Finland are laid down in the Church Act (Kirkkolaki, 1054/1993). Similar provisions are found in the Orthodox Church Act (Laki ortodoksisesta kirkosta, 985/2006). The status of other religious communities is regulated in the 2003 Freedom of Religion Act (Uskonnonvapauslaki, 453/2003).

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of communities. The Somalis, a predominantly refugee diaspora, constitute the largest Muslim immigrant group.8 Contemporary public debates over family law and religious or cultural claims have largely been triggered by concerns raised in public about Islamic family law.9 The Finnish legal system is commonly considered to belong to the family of Nordic legal systems.10 According to Länsineva, the Finnish Constitution represents a younger generation in this family, but still shares some of the common features of Nordic constitutionalism, which are the priority of parliamentary acts as legal sources, the relatively weak role of constitutional rights in legal reasoning, the role of courts as interpreting the will of the legislature and not as creatively interpreting the constitution, and reluctance towards judicial activism.11 As a legal source, the practice of the courts is considered secondary to legislation, and sometimes even weaker than the travaux préparatoires of parliamentary acts. In the Finnish system, family law is considered a part of private law. Instead of being codified under one general act on family law or family relationships, the different issues are governed by separate acts. The strong public interest involved in the legal issues within the family law sphere means, however, that the legal issues in family law are often found in the grey zone between public and private law; areas of law not ordinarily thought of as ‘family law’ thus have a major impact on how families are governed.12 For example, definitions of family in migration law as well as the differentiated rights to family of different residence status groups emphasize the strong links in practice between the analytically separate fields of family and migration law.13 This interconnectedness is particularly important to questions of cultural diversity in the Finnish context, as cultural and religious minorities with distinct family norms often also have immigrant backgrounds and transnational family ties.14 Marriage and divorce are governed by the 1929 Marriage Act (Avioliittolaki, 234/1929).15 Although cohabitation is a legally recognized relationship form, its

As such, the Muslim presence in Finland dates back to the nineteenth century, when the first Muslims arrived in Finland as soldiers of the Russian army. The first Muslims, Kazakhs and Tatars who settled in Finland, gained citizenship after the country’s independence from Russia in 1917. Today, the number of Tatars is approximately 600, while the majority of Muslims are immigrants or second-generation children. Prior to the 1990s the number of Muslim immigrants remained low, but it has grown due to the arrival of refugees and asylum seekers. See Pauha and Martikainen (2014). 9 For discussion, see Al-Sharmani and Mustasaari (2020), Mustasaari and Al-Sharmani (2018). 10 Husa (2012). 11 Länsineva (2012). 12 Glendon (1977). 13 Mustasaari (2017). 14 Mustasaari and Vora (2019), Mustasaari and Al-Sharmani (2018). 15 The Act is available in Finnish online at http://finlex.fi/fi/laki/ajantasa/1929/19290234?search[ type]¼pika&search[pika]¼avioliittolaki (last accessed 20 April 2021). An English translation of Marriage Act 1929/234 is available online at http://www.finlex.fi/fi/laki/kaannokset/1929/ en19290234.pdf (last accessed 20 April 2021). 8

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legal implications are significantly less than those of marriage, which makes marriage still the most important legally recognized relationship form. As of 1 March 2017, the institution of marriage has become gender neutral. While LGBT rights remain a focal filed of contestation and struggle for inclusion, sexual minorities are left outside the scope of this chapter. The status of individuals belonging to sexual minorities has gradually improved in Finland and, apart from the ongoing struggle for fully equal status in all fields of family law, sexual orientation or identity has not featured as a basis of ‘claims’ in the area of family law.16 Nevertheless, the rights of individuals belonging to sexual minorities remain at a weaker level than those of cisgender heterosexuals, particularly with respect to parenthood; both lesbian and gay couples are legally allowed to adopt children, but in practice adoptions happen almost exclusively only within the family (one spouse adopts a child of the other spouse). Finland is the only Nordic country that forces trans people to be sterilised in order to have their new gender legally recognised, for which Finland has rightly been criticized by, for example, the UN Human Rights Council. This will soon change, as the new government is in the process of enacting a new act on the legal recognition of gender that respects people’s right to selfdetermination. The requirement of infertility will be removed from the act, and there is broad support to the initiative that medical treatments will be separated from the change of legal gender.17 The overarching research question concerning the challenges that diverse ‘ways of life’ present to the legal regulation of families and how these challenges are managed by the Finnish state will be examined especially in relation to marriage, divorce and rights of the child. The chapter will first study religious marriages, mainly Islamic ones, in the light of recent research findings as well as recent debates on marriages of minors and recognition of marriages concluded abroad. The second main section, on divorce, portrays divorce practices amongst Muslims in Finland and religious dispute resolution taking place in mosques. The final section will address contemporary areas where the religious and cultural identity of the child have occupied a central place in the argumentation of courts in the fields of child welfare, health care, physical integrity and certain care decisions made abroad. The chapter will conclude with reflections on how diversity is currently being managed by the Finnish state.

See, however, the cutting-edge research project “Contrasting and Re-Imagining the Margins of Kinship”, which addresses, amongst other issues, rainbow families and queer care relations in Finland in order to investigate how intimacy works and how kinship norms shape non-conventional care relations. See www.corekin.fi. 17 Finnish Government (2019). 16

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2 Marriage, Religion and Culture: Practicing Joint Governance and Drawing Moral Boundaries Increasing cultural and religious diversity in European societies has brought about questions of whether and under what conditions a marriage concluded in a religious ceremony can be legally recognized.18 Drawing on two previously published studies, the first subsection examines religious marriages, particularly Islamic marriages, and their legal recognition in the Finnish context.19 In addition to this issue of how to organize and share authority between the state and religious communities, religious and cultural marriage practices have given rise to concerns over the moral boundaries of an acceptable marriage. Such concerns arise particularly regarding underage marriage and the recognition of marriage in certain cross-border situations, which will be examined in the second subsection.

2.1

Religious Marriages and the Law: A Case of Joint Governance

The conclusion of a marriage has been called a case of joint governance, as religious communities are recognized by the state as having an important and legally significant role in the process.20 On the one hand, a marriage can be concluded in a religious ceremony in a way that has an immediate legal effect. This is the case if the marriage was concluded before a person holding a license to that end. On the other hand, a marriage may remain without legal effect, as contrary to several other European states,21 Finnish law includes no provisions that would somehow penalize marriages that remain only religious and without any formal state involvement. There is, for example, no requirement that a civil marriage be concluded prior to a religious one. The basic requirements and constitutive factors of marriage, as well as the process of divorce and financial implications of marriage and divorce, are laid down in the Marriage Act (234/1929).22 The formal validity of the marriage depends on the fulfilment of the requirements of the place where it is concluded; the particular content or quality of the relationship or the reason for which it was concluded bears

18

See e.g. Probert (2013), Akhtar (2015), O’Sullivan and Jackson (2017), Vora (2017). See Mustasaari and Al-Sharmani (2018), Mustasaari and Vora (2019). 20 Mustasaari and Vora (2019), Mustasaari and Al-Sharmani (2018). 21 Grillo (2015), Moors and Vroon-Najem (2019). 22 The 1929 Marriage Act replaced the 1734 law on marriage and thus modernized Finnish relationship regulation, introducing, for example, legal equality between husband and wife. The Act has been reformed on several occasions. For example, no-fault divorce was introduced in 1988 and same-sex marriage in 2017. 19

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no legal significance.23 Only a failure to comply with provisions considered constitutive of marriage will render it legally non-existent. In contrast, the conclusion of a marriage despite the existence of statutory impediments will not render the marriage non-existent; rather, the marriage will have to be terminated through divorce proceedings. However, if a marriage was concluded in a religious ceremony by a person who did not hold the relevant license, the marriage will have no legal effect. As there is no institution of a void marriage in Finnish law, such a marriage would have no legal implications. In 2008, a specific law was passed on the Performance of Marriage Ceremonies (Laki vihkimisoikeudesta, 2008/571).24 According to the 2008 Act, each mandate or licence to conclude marriages is now issued to a specific individual and attached to that person’s membership in a religious community, which needs to be registered according to the 2003 Freedom of Religion Act (Uskonnonvapauslaki 453/2003). The local register office is the state authority responsible for granting, upon request, a licence to conclude marriages, as well as for supervising that this mandate is used in accordance with the law. In 2017, there were 53 registered religious communities in which one or more members were licensed to conclude marriages (the total number of licenses was 838).25 Cases concerning disputes about the legal validity of a religious or unregistered marriage concluded under domestic law have not been reported in the courts. In the literature, however, some concerns have been expressed concerning the validity of marriages concluded in marriage ceremonies in which the bride and groom are in different rooms at the moment of the conclusion of the marriage.26 Such ceremonies are performed by some Muslim communities27 as, according to custom, the bride is generally represented by her wali, i.e., marriage guardian.28 This may bring about situations where the legal requirements considered constitutive of marriage are not

23

It is thus legally irrelevant, for example, whether the marriage was consummated or whether the spouses share a home together, or whether there is intimacy or factual family life between them. Accordingly, the individuals may pursue whatever goals they like by concluding a marriage, such as securing the desired immigration status. This principle was confirmed in 2005 by the Finnish Supreme Court (26 May 2005, KKO, 2005:84). 24 Historically, only Christian churches were in a position to solemnize marriages; the mandate was given to the state and other religious communities only in the early twentieth century. The 1929 Marriage Act gave all religious communities the right to solemnize marriages, provided that they had been granted a permit for this from the government. 25 Of these 53 registered religious communities with marriage licenses, 14 were Muslim communities, which in total hold 27 licenses, Maistraatti (2017). In 2014, overall 33 new licenses to conclude legal marriages were issued. The license was revoked in seven cases, but the reason for this was not a sanction for an offence in any of the cases (personal communication). 26 Jänterä-Jareborg (2014), Mustasaari and Al-Sharmani (2018), Mustasaari and Vora (2019). 27 According to the majority schools of Islamic jurisprudence, the marriage contract is concluded through the following constitutive elements: the consent of both parties actualized through the act of the bride’s offer (ijāb) to enter into the marriage and the groom’s acceptance (qubūl), the presence of the bride’s guardian (father), the two witnesses, and the agreed-upon dower. 28 Mustasaari and Al-Sharmani (2018), Mustasaari and Vora (2019).

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met. Without precedents it is difficult to say whether a marriage concluded without the simultaneous presence of both spouses would be deemed non-existent, for example if one of the spouses later claimed that the marriage was never intended to be legally valid but that the ceremony was performed for religious reasons only. In addition to this issue, our previous study found two other potential problems related to marriages of Muslims who had transnational family ties or immigrant backgrounds. Often the transnational element contributed to the marriages becoming legally contested or “limping” because of different legal implications in different contexts, such as financial relations between partners, immigration law, or the legal relations between parents and children. In a legally plural situation, a marriage could be recognized and have legal implications in one context but be refused any such implications in another. Furthermore, people themselves were not necessarily entirely aware of the contested status of these relationships.29 Establishing the paternity of a child was one example where transnational aspects added complexity. In such a context, it seemed that the individuals were not always aware of the legal status of their marriage (i.e. whether or not their marriage was recognized by Finnish law). In our data of these court cases, families with immigrant backgrounds were highly overrepresented, and roughly 30% of the cases concerned families with a Somali background. Typically, in these cases, the woman residing in Finland had been previously married abroad, but her husband either never joined her in Finland or had left Finland years earlier. According to the documents, the woman had divorced and remarried in a religious ceremony, but there was no official record of the divorce—or of the new marriage. When the new couple had a child, her former husband who was still recorded in the Finnish register as her husband was automatically registered as the father of the child. At this point the couple usually would turn to the court to have the paternity of the former husband annulled and the paternity of the new partner established.30 Yet another reason why some individuals, for example asylum seekers, conclude religious marriages in Finland is their restricted access to legal documents from their countries of origin. As they cannot provide documentary evidence of their identity and/or marital status, they cannot marry legally according to Finnish law. In the previous study, several of our interlocutors both in mosques and local register offices spoke of asylum seekers who are often unable to marry legally due to problems with obtaining the required legalized documents which prove that the person fulfils all marriage conditions. Religious marriage is thus the only possible form of marriage they can conclude.

29 30

Mustasaari and Al-Sharmani (2018). Mustasaari and Al-Sharmani (2018), Mustasaari and Vora (2019).

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Drawing Moral Boundaries of Marriage: Minors, Proxies and Polygamy

Marriages of minors have in recent years emerged as an issue of concern in public debates in all Nordic countries.31 This new concern over child marriages has emerged simultaneously with worries about the cultural or religious “other”, and the perceived moral order of minority families, which is assumed to be at odds with the Western concept of the family.32 In Sweden, the heated public debates over child marriages have resulted in exceptionally strict restrictions concerning the recognition of marriages concluded abroad. According to the new Swedish rules, effective as of 1 January 2019, the non-recognition of marriages conducted abroad at a time when one of the spouses was a minor is the main rule even in situations where, at the time of the marriage, the spouses had no connection to Sweden. Calls for a similar kind of restrictions have been voiced in Finland as well, and the government is currently reviewing the need to reform the rules of private international law that govern the recognition of foreign marriages. According to Finnish law, minor status (age less than eighteen) is a statutory impediment to marriage. Up until May 2019, however, a special dispensation from the Ministry of Justice could be granted to a minor who wanted to marry. The number of applications had for years been decreasing annually and in the vast majority of cases the applicants were 16- or 17-year-olds.33 Nevertheless, many stakeholders, such as the Ombudsman for Children, considered the dispensation system contrary to the rights of the child.34 The provision providing for the dispensation procedure was revoked in 2019, and as of 1 June 2019 the age requirement of 18 years is without exemptions. While most expert opinions supported the revocation of the dispensation system for minors who wish to marry, some experts saw the existing system as a means to accommodate, on one hand, the changing marriage patterns amongst the majority, and, on the other hand, a cultural and religious need to establish formal relationships at an early age. In these expert opinions, the possibility of granting the dispensation to marry in individual cases was considered a means of striking a fair balance between the general need to regulate the marriage age and the individual needs and personal reasons that some people might have for concluding a marriage before they had reached the age of maturity. The proponents of the reform argued that as most applicants were minor girls, gender equality required that the age requirement be absolute. The opponents of the reform argued that substantive equality required due consideration of the individual circumstances and personal reasons of the young people wishing to conclude a marriage, such as pregnancy.

31

Jänterä-Jareborg (2016), Bredal (2018). Grillo (2015). 33 Ministry of Justice (2018), Mustasaari (2015), Karppinen (2011). 34 See e.g. Finland Times (25 July 2015). 32

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Sometimes Finnish residents conclude underage marriages abroad. In 2005, the Finnish Supreme Administrative Court held that a marriage concluded in Syria at a time when the bride, who was a Finnish resident, was only 15 years old could not be recognized as establishing a family tie between the spouses in the context of family reunification.35 The lower instance of Rovaniemi Administrative Court (RAC) had declared that the marriage should be accepted as forming a legitimate family tie between the spouses. RAC reasoned that the marriage could not be rejected on ordre public grounds with reference to the United Nations Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (the 1962 New York Convention). Furthermore, according to RAC, taking into account the ethnic and cultural background of the applicant, the marriage could be considered to be in her best interests in her own culture. The Supreme Administrative Court, however, overruled the decision, emphasizing that migrant girls were entitled to free choice and full consent regardless of their cultural or religious background. The fact that the applicant had been taken abroad by her parents, as a child, to a country to which she had no attachments and where she was married off to man who she had previously met years before in her early childhood, could not be justified with reference to her cultural background. Despite the general principle of a favourable attitude towards marriages concluded abroad ( favor matrimonii),36 child marriages are currently rejected on ordre public grounds. In practice, the couples are advised to re-apply for the registration of the marriage after the minor spouse has reached the age of 18.37 These marriages remain limping as they are considered valid in the countries where they were concluded. Furthermore, non-recognition means that a child marriage forms no impediment to subsequent marriages. The principled decision not to recognise under-age marriages may, for example, thus factually facilitate polygamous unions in some cases.38 Further, the above-mentioned practice of some Muslim communities to have the bride represented in the ceremony by her guardian creates problems in cross-border contexts. According to the Marriage Act, a marriage concluded abroad without the personal presence of both spouses-to-be is valid in Finland only if the marriage is valid in that state and where there are special reasons to recognize the marriage. In the assessment regarding special reasons, weight is given especially to the links of the couple to the state where the marriage was concluded and to the duration of their cohabitation. An investigation into the practices of the local registration offices

35

Supreme Administrative Court, 5 December 2005, KHO:2005:87. Available in Finnish online at https://www.finlex.fi/fi/oikeus/kho/vuosikirjat/2005/200503219 (last accessed 20 April 2021). 36 The general rule in Finnish private international law is that a marriage concluded in a foreign state before an authority of that state shall be valid in Finland if it is valid in the state where it was concluded or in a state whose citizen either spouse was or where either spouse was habitually resident at the time the marriage. 37 Mustasaari (2017). 38 Mustasaari and Al-Sharmani (2018).

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indicated that marriages by proxy are usually not accepted as valid when one of the spouses is a Finnish citizen or permanent resident.39 Following the general rule of recognition of foreign marriages, polygamous marriages solemnized abroad may be recognized. In practice, however, polygamous marriages are rejected and a public prosecutor may file for divorce in these cases, provided that both spouses are domiciled in Finland. Local registry authorities are guided to report polygamous marriages to the prosecution offices, and although no statistics are available as to the frequency of such proceedings, an inquiry to the prosecution offices (2018) revealed some cases where such proceedings had been initiated.

3 Dissolution of Marriage The state judiciary has the sole authority in granting a divorce; religious divorce is not legally recognized under any circumstances. In the Finnish system, divorce is fairly simple to obtain; divorce proceedings can be initiated by either spouse alone or both of them together without having to give an account of any reasons for the divorce.40 Individuals may, however, feel that they want or need to secure a religious divorce, and may thus turn to a religious authority for divorce. Again, the existing research on cultural and religious claims to divorce has so far focused on Islamic divorce norms and practices, and this section draws on the existing research.41 First, Islamic divorce practices amongst Finnish Muslims as well as the interconnected issue of family dispute resolution and mediation will be examined. As there have so far been no cases in Finnish courts in which a claim to the Islamic dower, the mahr, has been made, this issue will not be addressed.42 Since many members of religious and cultural minorities have a migrant background or belong to transnational family configurations, issues relevant to management of cultural or religious diversity can also be found in the rules regarding choice of law and recognition norms applicable to divorce. Foreign divorces will thus briefly be addressed in the second subsection.

39

Mustasaari (2017), Mikkola (2013). The divorce rules of the Marriage Act were reformed in 1987 in the Act of 16 April 1987/411, in which no-fault divorce was introduced. Savolainen (2002). 41 Al-Sharmani (2017, 2019), Mustasaari (2019). Kyllönen (2012) has studied the role of religion in the resolution of immigrants’ conflicts. 42 The institution of mahr has nevertheless received attention from Finnish legal scholars: Mikkola (2017), Helin (2013). Depending on the individual circumstances of the case, a Finnish court might recognize mahr as belonging to the statute governing the financial consequences of marriage, or the statute of personal consequences of marriage, or the statute of contractual obligations. 40

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313

Divorce and Mediation in Finnish Mosques

Religious family mediation currently remains an under-studied area, although there is some emerging research on the issue. Sometimes a religious divorce is sought instead of a civil divorce, but in many cases both systems are used in a coordinated manner and the religious divorce is just another layer in addition to obtaining a civil divorce. It is important to remember that as access to a legal marriage is not an option for some, marriages are often only concluded in a religious ceremony. As the marriage is considered non-existent legally, spouses may only have recourse to a religious divorce if they want to dissolve their religious marriage.43 Individuals may seek help from mosques and religious norms for a variety of reasons. They may, for example, feel that they need a socially recognizable divorce, or they might feel that there is a religious duty to seek reconciliation before divorce. Furthermore, the dissolution of their religious marriage can be important for travel purposes in countries that do not recognise civil divorces.44 In a previous study we set out to study how mediation and dispute resolution are carried out in five Helsinki-based mosques.45 Together with my colleagues Al-Sharmani and Ismail, I examined the norms and goals guiding mediation and ADR (alternative dispute resolution) work in the mosques; the ways in which these processes as well as their benefits and limits were gendered; the obstacles to this work; and how ADR and mediation work function in the larger context of the Finnish legal system and institutions.46 The general legal framework of family mediation is found in the Marriage Act. Accordingly, disputes and legal matters arising in a family should primarily be settled in negotiations between the family members and decided by agreement. Family mediators may give assistance and support, upon request, when disputes arise in a family. They may also do so where disputes arise as to compliance with a court order or an agreement on child custody and rights of access. Furthermore, a mediator is to aim for a confidential and open discussion between the family members and for consensus on how to resolve the disputes in the family in the best possible way for all concerned. In doing so, the mediator is to pay special

43

In some jurisdictions, such as England and Wales, unofficial marriages have caused increasing problems in divorce proceedings, as the issue of whether a marriage is void, voidable or a non-marriage is central to what kind of financial remedies are available for the parties. For a comparison between the English and the Finnish context, see Mustasaari and Vora (2019). 44 Sayed (2010). 45 This study was published as a chapter in an edited volume, which focuses on gender and religious mediation and arbitration. The editor of the volume, Samia Bano, is one of the leading scholars in the field of critical feminist and socio-legal studies on religion, law and the family. See Al-Sharmani et al. (2017). 46 The five mosques serve diverse Muslim populations. Two of the mosques are frequented by Somali immigrants. The third mosque is frequented by immigrants from a South Asian country, whereas the remaining two mosques are multi-ethnic and serve different Muslim communities, including Finnish converts. Al-Sharmani et al. (2017), p. 270.

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attention to securing the position of the minor children in the family and assisting the parties in concluding agreements and in other measures necessary for the settlement of disputes. In principle, the provision of family mediation services requires an authorization, which may be granted, upon application, to a society, association or foundation considered capable of delivering them competently.47 An authorization may also be granted, upon application, to an individual who is familiar with child welfare or family guidance work or with family law, and who, by virtue of his or her previous experience and personal characteristics, is adequately competent to work as a mediator. Amongst religious communities, for example the Evangelical Lutheran Church of Finland is authorised to offer family mediation services and runs a considerable centre for family services. Islamic congregations have not applied for authorisation to provide official mediation services, so they provide these services outside the framework of professional mediation.48 In our study, we found a variety of reasons why people relied on mosques. Some sought a fatwa on a specific issue relating to their family conflict, while others wanted counselling or mediation. Sometimes the religious leader of a mosque was explicitly asked to pronounce an Islamic divorce, particularly in cases in which husbands were unwilling to agree to the divorce or were absent.49 However, not all Muslims wanted their disputes to be handled in mosques. Some of our interlocutors told us that they wanted to protect their privacy and did not want their community to know they had problems, so they either ceased to seek help from a mosque or turned to a different mosque than the one they usually attended. Furthermore, some types of cases were more common amongst people from certain groups. For example, the marital disputes of Somalis often had to do with polygamous marriages, whereas ethnically mixed couples often struggled with different conceptions of gender norms.50 The process of mediation or dispute resolution was similar in all five mosques, including one or more meetings with the spouses individually and together. In order to prompt the couple to take the settlement seriously, the agreement was made in writing and signed by the spouses.51 Notwithstanding this procedure, these agreements were not—and were not intended to be—legally binding. Our study showed that religious, secular and cultural norms were applied in mixed ways in the mediation process. The form of Islamic law applied in mediation work was complex and had mixed consequences for men and women, for example in the form of negotiating different divorce forms. In some cases cultural knowledge

47

Currently family mediation practices are under development. Facilitative family mediation practices are being developed based on research done within the FASPER project (2009–2014) by the Finnish Forum for Mediation and the University of Helsinki. Haavisto (2018). 48 It is possible that in the future the provision of family mediation services will require licensing or authorisation, Haavisto (2018), p. 53. 49 Al-Sharmani et al. (2017), p. 277. 50 Al-Sharmani et al. (2017), p. 277. 51 Al-Sharmani et al. (2017), p. 278.

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and norms were also drawn on, such as in Somali couples’ disputes over polygamy.52 Simultaneously, there was a clear preference and tendency towards aligning the procedures of state divorce and religious divorce. It was common that the marriage had to be first dissolved in the civil court before the religious divorce would be issued.53

3.2

Cultural Diversity and Foreign Divorces in Finnish Courts

Cultural and religious divorce practices often emerge as legal issues in the context of foreign law. In the Finnish legal system, foreign divorce is regulated through recognition norms rather than choice of law norms. A divorce decision issued by a foreign authority is usually recognized in Finland without further validation. However, it is not entirely clear what the concept of ‘decision’ in the context of foreign decisions on divorce should be taken to entail. In the literature it has been speculated whether, for example, a merely declarative decision recording an extra-judicial divorce would be considered a ‘decision’. Historically, the starting point in Finnish private international law has been that concepts assume a rather broad interpretation.54 Literature cites a case from 1971, in which a unilateral Islamic divorce pronounced by the husband, a talaq divorce, which had been declared by a notary in Tehran, was recognized by the Helsinki Court of Appeal.55 Finland is a party to the 1970 Hague Convention on the Recognition of Divorces and Legal Separations. According to Article 1 of the Convention, divorces and legal separations obtained in another Contracting State which follow judicial or other proceedings officially recognised in that State and which are legally effective there will be recognized in the other Contracting State. This definition also covers unilateral declarations of divorce, as long as they are legally effective in the other Contracting State.56 Issues relating to the talaq divorce have been scrutinized in European research.57 In this context it is important to note that Finland does not participate in the enhanced

52

Al-Sharmani et al. (2017), p. 281. Al-Sharmani et al. (2017), p. 280. 54 This indicates that under the rules of Finnish private international law, the concept of divorce declared by a foreign authority will assume a much broader substance than, for example, under EU law, where it is taken to refer solely to divorces pronounced either by a national court or by or under the supervision of a public authority. See CJEU in the case of Sahyouni v. Mamisch, 20 December 2017, C-372/16, para 48. 55 Helin (2013), pp. 211–212. 56 Helin (2013), p. 214. Of the so-called Islamic states, Egypt is a party to this Convention. 57 Möller (2014), Kruiniger (2015). 53

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cooperation in the area of the law applicable to divorce and legal separation implemented by Council Regulation (EU) No 1259/2010 (the Rome III Regulation), which means that Finnish choice of law rules applicable in divorce cases differ from those applied according to the Rome III Regulation. For example, under Finnish law, the law of the forum is not prioritized in cases where the foreign divorce law would treat the spouses asymmetrically by refusing to grant one of them equal access to divorce or legal separation on grounds of their sex.58 An examination of decisions concerning the recognition and enforcement of foreign divorces indicates that recognition of a foreign divorce is only seldom rejected. In most cases in which the court has refused to recognize foreign divorce decisions, the reason has been that it could not be shown that both spouses had been heard in the divorce proceedings.

4 Best Interests of the Child and Cultural Diversity This final section turns to the rights of the child in the context of cultural and religious diversity. The rights of the child require that due consideration is given to the identity rights of the child, including religion, culture and language, when decisions are made concerning the child. The child’s identity and belonging are, furthermore, an integral element of the best interests consideration. In the Finnish context, tensions related to rights, identity and the religious or cultural belonging of the child have mainly emerged in the areas of child welfare, health care and the physical integrity of the child. In addition, the exequatur procedure concerning adoptions established abroad has raised the issue of how foreign concepts and customs concerning adoption should be classified and recognized in Finland. The section will start by examining issues of religious and cultural identity and belonging in child welfare. The rights of the child in health care will be addressed next, followed by a review of the legal problems and case law concerning circumcision of boys for non-medical reasons. The section will conclude with some reflections on the recognition of foreign adoption decisions.

4.1

Child Welfare

Children belonging to minorities are over-represented in the statistics on child welfare clients.59 Child welfare services are thus one of the central sites where the tensions and challenges of a multicultural and diverse society are managed on a daily

58 59

Article 10 of the Rome III Regulation. Niekka (2010).

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basis. The Child Welfare Act (Lastensuojelulaki, 2007/417)60 explicitly states that the need to take account of the child’s linguistic, cultural and religious background is an elemental part of the best interests evaluation and one of the main principles of child welfare (§ 4). Furthermore, in choosing a foster care place, the child's linguistic, cultural and religious background must be taken into account as far as possible (§ 50). In a decision from 2014, the Deputy Ombudsman emphasized the importance of preserving the child’s religious identity in foster care. A child placed in foster care must not be indoctrinated according to the convictions or religious views of the substitute home. When choosing a place for foster care, the authorities must ensure that the upbringing, including the religious upbringing, which the child will receive will not violate her or her parent’s rights and that the placement is not contrary to her best interests.61 In order to provide for more diversity in child welfare institutions and to ensure that there are culturally, religiously and linguistically suitable families available for out-of-home placements of Muslim children, a special programme was launched, which sought to educate and recruit Muslim families as foster families for Muslim children who are in need of out-of-home placement. The greatest challenge in this respect, however, is a general lack of Muslim families willing and able to act as foster families. The rights of the child to have her cultural and religious identity taken into account when the decision concerning her placement is being made are thus often trumped by the unfortunate reality of utterly insufficient resources. Research indicates, furthermore, that the right of the child to have her identity respected and her opinion heard when care orders are being made or when the authorities decide between different alternative protective measures are often bypassed, or culture is interpreted in biological terms or in an overtly essentialized manner.62 One can see that cultural arguments sometimes feature court decisions in a very problematic way, for example when the cultural background of the family is seen as something that explains or justifies corporeal punishment or neglect.63

60

The Act is available in Finnish online at http://finlex.fi/fi/laki/ajantasa/2007/20070417?search[ type]¼pika&search[pika]¼lastensuojelulaki (last accessed 20 April 2021). An English translation of the Child Welfare Act is available online at http://finlex.fi/en/laki/kaannokset/2007/en20070417 (last accessed 20 April 2021). 61 The Decision of the Deputy Ombudsman, 20 October 2014, Dnro 3050/4/14 and 3119/4/14. The decision is available in Finnish online at http://www.eduskunta.fi/triphome/bin/thw.cgi/trip/? ${APPL}¼ereoapaa&${BASE}¼ereoapaa&${THWIDS}¼0.49/1468845949_8914& ${TRIPPIFE}¼PDF.pdf (last accessed 20 April 2021). 62 Hofman and Sandberg (2016). 63 For example, according to one of the members of the court of the lower instance, the Iraqi background of a family was to be considered a reason why the out-of-home placement of the child would not be in the child’s best interests. Dissenting opinion cited in KHO:2016:21.

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Health Care and Religious Convictions

Religion and the rights of the child in health care have been mainly discussed in the context of possible conflicts between the parent’s religious convictions and the child’s right to adequate health care. According to the Act on the Status and Rights of Medical Patients (Laki potilaan asemasta ja oikeuksista, 785/1992, § 9),64 the guardian or other legal representative of a minor patient shall not have the right to forbid any care which may be required to avert a threat to the patient’s life or health. Furthermore, if the parent or the child itself refuses to authorise the treatment or medical operation considered necessary to safeguard the health of the child, the child may be urgently taken into care. This principle was confirmed by the Supreme Administrative Court in 1999 in a case that concerned a child diagnosed with lymphoma. The child’s parents were Jehovah’s Witnesses and refused on religious grounds the blood transfusion that the child needed. The court held that under these circumstances, taking the child into care was justified.65 The Court stated that the treatment of the child was not simply a matter of one decision made in healthcare, but rather the child required treatment for at least 2 years. During that time the child would be placed at home but needed to be taken to hospital on a daily basis. The parent’s convictions and refusal to have the child treated constituted a lack of care which posed a serious risk to the health of the child, as there was no certainty that the parents would take the child to hospital for the required blood transfusions. According to the court, the supportive child welfare services were insufficient in the circumstances of the case, and the child needed to be placed out of home, where care and appropriate medical treatment for the disease could be secured.

4.3

Cultural Diversity and the Physical Integrity of the Child: The Case of Circumcision

A national Action Plan for the Prevention of Circumcision of Girls and Women 2012–2016 (FGM) was adopted in 2012.66 Female genital mutilation, i.e. circumcision for girls, is considered assault and is prosecuted under the general provisions of the Criminal Code (Chapter 21, §§ 5 and 6).67 Currently there is no

64

The Act is available in Finnish online at http://finlex.fi/fi/laki/ajantasa/1992/19920785?search[ type]¼pika&search[pika]¼potilas (last accessed 20 April 2021). An English translation of the Act is available online at http://www.finlex.fi/en/laki/kaannokset/1992/en19920785.pdf (last accessed 20 April 2021). 65 The Supreme Administrative Court, 10 March 2000, 2000/530. 66 Ministry of Social and Health Affairs (2012). 67 The Criminal Code (Chapter 21, § 5) defines assault as an act in which physical violence is employed by the perpetrator on another person or, without such violence, the perpetrator injures the

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specific legislation on male circumcision for non-medical reasons. The Ministry of Social and Health Affairs has examined the possible need for legislation, but so far the issue has been left to general regulations. In 2015, the Ministry issued guidelines concerning the circumcision of boys for non-medical reasons, which the Ministry saw as a focal part of both the Jewish and the Muslim religions, as an estimated 400 circumcisions per year are performed on boys in Finland for religious reasons.68 According to the guidelines, circumcision may be conducted for non-medical reasons if the following requirements are met: the operation is conducted by an authorized professional doctor; the guardians of the child have received sufficient information concerning the operation and, after having received such information, have given their consent to it; and the child has been heard and given sufficient information on the operation if the child’s age and level of development allow for this. The operation must be conducted in a sterile environment and the child must be given sufficient pain relief. Circumcision for non-medical reasons is not part of public health care. Furthermore, the guidelines explicitly state that the state considers circumcision of boys for non-medical reasons a harmful practice and that ways to reduce its incidence are being sought through a dialogue with religious and cultural minorities.69 Circumcision of boys for non-medical reasons has been contested in courts on several occasions; the most significant precedent is the decision of the Supreme Court in 2008 in which the court had to consider whether the practice amounted to physical assault of the child in question.70 The case concerned a Muslim boy, who was four and a half years old at the time of the operation. The Court found the defendant, who was the parent and single guardian of the child, not guilty of assault as prescribed by the Criminal Code, as no harm had been done to the child and the motives for the act were religious, the operation had been carried out professionally, and both parents had given their consent. Under these circumstances, the circumcision was not considered to be contrary to the interests of the child. The focal point of the precedent had to do with the significance of a holistic evaluation of the best interests of the child; the non-medical circumcision of a boy requires an evaluation of the child's interests as a whole. This requires an assessment of the reasons for the operation from the child’s perspective. In this case the operation had been performed for reasons which were found by the court to be acceptable from the child’s perspective and related to his and his guardian’s religion.

health of the other person, causes pain or renders the other unconscious or in a comparable condition. 68 Ministry of Social and Health Affairs (2015). 69 Ministry of Social and Health Affairs (2015). 70 The Supreme Court, 23 September 2008, KKO:2008:93. For discussion, see Jänterä-Jareborg (2016), Askola (2011).

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Furthermore, the operation had been performed in a medically appropriate manner without causing any unnecessary pain to the child.71 The issue of whether the circumcision of a boy for non-medical reasons may amount to assault was again debated in two cases in which the Supreme Court issued decisions in 2016. The first of these cases concerned a Muslim family whose sons were circumcised at the ages of 7 and 12 by a person who was not a licensed doctor.72 The court had to consider, firstly, whether the provisions of the Convention on Human Rights and Biomedicine (the Oviedo Convention),73 which Finland ratified in 2010, required a reassessment of the opinion adopted by the court in its 2008 decision. The court concluded that the Convention does not apply to circumcision performed for religious or cultural reasons. Secondly, the court held that in this particular case, for the operation to be performed in a medically appropriate manner, it was not absolutely mandatory that the person performing the operation be a licensed doctor, as no official guidelines defining the required standard had yet been issued at the time of the circumcisions (in 2009 and 2010). Thirdly, the case prompted discussion concerning the right of the child to participate and have its own opinion heard in the decision-making. The court stated that the opinion of the children ought to have been solicited and recorded, as at the time of the operation they were capable of forming and expressing their opinion. During the proceedings in the Supreme Court, the elder boy (then 15 years) announced that he had neither any objections to the operation nor any claims against his parents. In the second case, the court had to consider how the issue of circumcision ought to be evaluated if parents who both had custody of the child disagreed on the matter.74 In this case a father who was of Nigerian origin had a circumcision performed on his four-month-old son, while the mother objected to the operation. According to the court, in a situation where the child was too young to express its own opinion, the fact that the guardians disagreed meant that the circumcision could not be objectively considered to be in the best interests of the child. The father was thus convicted of assault. The doctor performing the operation was prosecuted for a

71

Supreme Court, 23 September 2008, KKO:2008:93. The case is available in Finnish online at http://finlex.fi/fi/oikeus/kko/kko/2008/20080093 (last accessed 20 April 2021). An unofficial English translation of the case is available on the website of the Court at http://korkeinoikeus.fi/ fi/index/ennakkopaatokset/pohjoismaiseteu-jaihmisoikeusliitynnaisetratkaisut/2008/ kko200893inenglish.html (last accessed 20 April 2021). 72 Supreme Court, 31 March 2016, KKO:2016:24. The case is available in Finnish online at http:// finlex.fi/fi/oikeus/kko/kko/2016/20160024 (last accessed 20 April 2021). 73 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, available online at https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent? documentId¼090000168007cf98 (last accessed 20 April 2021). 74 Supreme Court, 31 March 2016, KKO:2016:25. The case is available in Finnish online at http:// finlex.fi/fi/oikeus/kko/kko/2016/20160025#idm1612256 (last accessed 20 April 2021).

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failure to ensure that both guardians had consented to the operation, but was eventually left unpunished.75 The decisions of the Supreme Court in the circumcision cases met with fierce criticism from positions emphasizing the uncompromised corporal integrity of children. However, the case law of the court could be read as one in which a careful balance is struck between cultural claims and physical integrity. The way in which the court constructed the religious and cultural identity of the child as being focal to the best interests consideration is rather skilful. The seriousness of the physical harm was weighed against the reasons and justification for the operation, the child’s religious and cultural belonging and the positive elements of identity entailed in such belonging. In the second case of 2016, the court’s argumentation confirmed that it was not the issue of parental authority over how the child was to manifest and practice its religion that was significant to the capacity to decide about the operation, but rather the question of whether such a decision could be justified by reasons relating to cultural or religious identity. The fact that the father had gone beyond his powers as a guardian by acting against the mother’s wishes was not what triggered the criminal responsibility. Instead, the lack of consent from the mother was significant because it meant it could not be objectively observed that the operation was in the best interests of the child. The role of the parents was perceived by the court as one of mediators of cultural belonging, rather than one described in terms of parental authority.

4.4

The Impact of Culture and Religion in the Recognition of Foreign Adoption Decisions

In decisions over adoption, again the best interests of the child are the paramount consideration, not merely the primary one, and the religious and cultural identity of the child are among the factors that must be respected in adoption proceedings. Courts are regularly asked to confirm various kinds of relationship between a child and a foster parent established abroad. These cases are centred in one court, the Helsinki Court of Appeal. Since the institution of adoption and procedures followed in relation to it vary across the world, it is not always entirely clear whether the relationship between the child and the adult can be classified as adoption. In some countries, full adoption does not exist as an institution establishing a parental relationship between the child and new parents.76 Adoption or care arrangements based on cultural or religious institutions, such as the Islamic guardianship institution known as kafala, are not always recognized as legally binding adoption

75

The issues have also been debated in lower courts, see for instance the decision of the Helsinki Court of Appeal, 30 March 2011, 2011/940. 76 Mohsen and Puro (2013).

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relationships but may gain legal relevance as a form of guardianship.77 This approach is based on the assessment that under kafala, the child is placed in the permanent legal guardianship of the foster parent, but that no full-fledged parentchild relationship is established between the child and the new parents. This position is also adopted in the 1996 Hague Child Protection Convention, which lists kafala as a protective measure covered by the convention (Art 3e) but leaves the adoption arrangement outside its scope of application (Art 4),78 as well as the EU Court of Justice in a recent case (26 March 2019, C-129/18). According to Mohsen and Puro, who in their study went through exequatur decisions of the Helsinki Court of Appeal, in kafala cases the Helsinki Court of Appeal compares the substance of the kafala decision to the legal effects of guardianship and custody, and if they correspond the kafala arrangement is confirmed as a form of custody and legal guardianship. In practice, the applicants are advised by the court to file a secondary application concerning custody and guardianship.79 For example, in one case (H 07/1974) the applicants wanted the court to confirm an adoption made under Iraqi law. The term “adoption” had been used in the translation of the document, but the Finnish adoption board was of the opinion that adoption was not possible under Iraqi law.80 The court qualified the foreign decision as a form of guardianship. Conversely, the court recognised a Buddhist adoption as full adoption, as it considered it to be similar enough to the institution of Finnish adoption (H12/1364). In a similar vein, an adoption conducted according to Hindu customs was considered a full adoption (H 10/2112), as all the rights and responsibilities in the biological family were determined according to the contract of adoption between the adoptive family and the birth family, and the child had been awarded a status equivalent to that of any biological child born into the family.81 Yet another example is from Mali, where two forms of adoption exist. These forms, adoption protection and adoption filiation, have different legal consequences. A contract of adoption protection has weaker legal implications and thus may, according to Mohsen and Puro, only be confirmed as a form of guardianship.

77

Helin (2013), pp. 334–335. Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. 79 Mohsen and Puro (2013). 80 Cf Yassari (2015). 81 Mohsen and Puro (2013). 78

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5 Conclusion In reviewing how ‘claims’ based on cultural tradition, ethnic background, custom or religious conviction are raised and dealt with in the field of family law in Finnish law, this chapter has looked at the institution of marriage, divorce and some specific issues related to how the rights of the child and the best interests of child are understood in Finnish law. There are not many court cases, and it seems that those cases that involve children reach courts more easily than those that involve only adults. This reflects partly the fact that cultural diversity is still a novel issue in Finnish law and society and partly the liberal stance of Finnish law towards adult relationships. With respect to marriage, it would seem that the Finnish legal system supports religious rights and identities rather well through a system of joint governance. Research suggests that the relationship between the state and religious communities is mutually constitutive in the sense that both religious communities and state authorities gain in authority and legitimacy in the system of joint governance, where the state mandates religious communities to conclude marriages. For example, Finnish mosques tend to prioritize official registered marriages as opposed to merely religious marriages.82 They also often require that the marriage is first dissolved in the civil court before they issue the religious divorce.83 On-going research also highlights that the diversity of marriage practices is also visible on the state institutional side and that there is incoherence as to how family relationships and practices are defined as “legal”.84 With respect to divorce, research indicates that there is much variety as to what kind of services individuals feel they need. While some have an urgent need for religious divorce, and thus depend on the availability of mediation and religious dispute resolution services, there are others who think only a secular divorce is needed. In any case, research strongly indicates that approaching cultural or religious diversity and law from positions of binaries such as ‘secular’ versus ‘religious’ fails to provide an adequate picture of the processes of marriage, divorce and conflict resolution among Muslims in Finland.85 With respect to children, it seems that the religious and cultural rights of children are taken seriously by the judiciary, at least in the fields of family law and criminal law. I have argued elsewhere that in the field of immigration control, identities constructed for the child are easily used in an exclusionary manner, to signal the non-belonging and alienness of the child.86 In other fields of law, however, courts seem to undertake careful considerations about the identity rights of children. The circumcision case of 2016 especially demonstrates a subtle change towards a new, 82

Mustasaari and Al-Sharmani (2018). Al-Sharmani et al. (2017), p. 280. 84 Mustasaari and Al-Sharmani (2018). 85 Al-Sharmani et al. (2017), Bano (2017). 86 Mustasaari (2016). 83

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child-centred approach, in which the identity of the child is viewed as thoroughly relational and, yet, not dictated by the rights of the parents based on their authority as guardians. All in all, at the moment a fair balance seems to prevail between particulars of identities and general goals of law. This might, however, take a quick turn to much narrower concepts of rights and more critical approaches towards cultural and religious diversity. Such signals have been heard in political debates and in continuous calls for “one law for all” and strict separation of law and religion.87

References Akhtar R (2015) Unregistered Muslim marriages: an emerging culture of celebrating rites and conceding rights. In: Miles J, Mody P, Probert R (eds) Marriage rites and rights. Hart, Oxford, pp 167–192 Al-Sharmani M (2015) Striving against the ‘Nafs’: revisiting Somali Muslim spousal roles and rights in Finland. J Religion Europe 8(1):101–120 Al-Sharmani M (2017) Divorce among transnational Finnish Somalis: gender, religion, and agency. Religion Gender 7(1):70–87 Al-Sharmani M (2019) A mosque program for the wellbeing of Muslim families. In: Tiilikainen M, Al-Sharmani M, Mustasaari S (eds) Wellbeing of transnational Muslim families: marriage, law and gender. Routledge, Abingdon, pp 59–77 Al-Sharmani M, Ismail A (2017) Marriage and transnational family life among Somali migrants in Finland. Migrat Lett 14(1):38–49 Al-Sharmani M, Mustasaari S (2020) Governing divorce practices of Somali Finnish Muslims: does religious literacy matter? In: Sakaranaho T, Konttori J, Aarreaho T (eds) The challenges of religious literacy: the case of Finland. Springer, Cham, pp 55–66 Al-Sharmani M, Mustasaari S, Ismail A (2017) Faith-based family dispute resolution in finnish mosques: unfolding roles and evolving practices. In: Bano S (ed) Gender and justice in family law disputes: women, mediation, and religious arbitration. Brandeis University Press, Waltham, pp 270–291 Askola H (2011) Cut-off point? Regulating male circumcision in Finland. Int J Law Policy Family 25:100–119 Bano S (2017) Introduction. In: Bano S (ed) Gender and justice in family law disputes: women, mediation, and religious arbitration. Brandeis University Press, Waltham, pp 1–21 Bredal A (2018) Contesting the boundaries between civil and religious marriage: state and mosque discourse in pluralistic Norway. Sociol Islam 6:297–315 Cooke T (2019) From invisible to visible: locating “cultural expertise” in the law courts of two Finnish cities. In: Holden L (ed) Cultural expertise and socio-legal studies. Studies in law, politics and society, vol 78. Emerald Publishing Limited, Bingley, pp 13–33 Finland Times (25 July 2015) Ombudsman for law amendment to check child marriages. http:// www.finlandtimes.fi/national/2015/07/25/18785/Ombudsman-for-law-amendment-to-checkchild-marriage. Accessed 20 Apr 2021 Finnish Government (2019) Programme of Prime Minister Antti Rinne’s Government 6 June 2019 Inclusive and Competent Finland – a socially, economically and ecologically sustainable society. http://julkaisut.valtioneuvosto.fi/handle/10024/161664. Accessed 20 Apr 2021

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Glendon M (1977) State, law and family: family law in transition in the United States and Western Europe. NHC, Amsterdam Grillo R (2015) Muslim families, politics and the law: a legal industry in multicultural Britain. Routledge, London Haavisto V (2018) Developing family mediation in Finland: change process and practical outcomes. In: Nylund A, Ervasti K, Adrian L (eds) Nordic mediation research. Springer, Cham, pp 41–66. https://link.springer.com/chapter/10.1007/978-3-319-73019-6_4. Accessed 20 Apr 2021 Helin M (2013) Suomen kansainvälinen perhe- ja perintöoikeus. Helsinki, Talentum Hofman S, Sandberg K (2016) Care placements of children outside their parental home – concerns of culture. In: Jänterä-Jareborg M (ed) The child’s interests in conflict: the intersections between society, family, faith and culture. Intersentia, Cambridge, pp 73–84 Husa J (2012) Panorama of world’s legal systems – focusing on Finland. In: Nuotio K, Melander S, Huomo-Kettunen M (eds) Introduction to Finnish law and legal culture. Helsinki, Forum Iuris, pp 5–17 Jänterä-Jareborg M (2014) On the cooperation between religious and state institutions in family matters: Nordic experiences. In: Shah P, Foblets M, Rohe M (eds) Family, religion and law: cultural encounters in Europe. Ashgate, Farnham, pp 79–101 Jänterä-Jareborg M (2016) The child in the intersections between society, family, faith and culture. In: Jänterä-Jareborg M (ed) The child’s interests in conflict: the intersections between society, family, faith and culture. Intersentia, Cambridge, pp 1–30 Karppinen L (2011) Pakkoavioliitto, lapsiavioliitto ja Suomi. Unpublished Master’s Thesis, University of Helsinki Konttori J, Pauha T (2021) Finland. In: Račius E et al (eds) Yearbook of Muslims in Europe, vol 12. Brill, Leiden, pp 229–246 Kruiniger P (2015) Islamic divorces in Europe: bridging the gap between European and Islamic legal orders. Eleven International Publishing, The Hague Kuokkanen R (2015) Gendered violence and politics in indigenous communities: the cases of aboriginal people in Canada and the Sámi in Scandinavia. Int Feminist J Polit 17(2):271–288 Kyllönen K (2012) Uskonnon rooli maahanmuuttajien konfliktien sovittelussa. Sovittelijoiden, maahanmuuttajien ja kirkon maahanmuuttajatyöntekijöiden näkökulma. Dissertation, University of Helsinki Länsineva P (2012) Fundamental principles of the constitution of Finland. In: Nuotio K, Melander S, Huomo-Kettunen M (eds) Introduction to Finnish law and legal culture. Helsinki, Forum Iuris, pp 111–126 Maistraatti (2017) Data and statistics 2017 Mikkola T (2013) Ulkomaisten avioliittojen tunnustaminen Suomessa: kansainvälisen yksityisoikeuden ja oikeusvertailun näkökulmia. Lakimies 111(5):844–861 Mikkola T (2017) Islamin oikeuden mahr-ehto ja sen rajat ylittävä tehokkuus – oikeusvertailun merkityksestä vieraan oikeusinstituution tunnistamisessa. Lakimies 115(7-8):1103–1120 Ministry of Justice (2018) Alaikäisavioliittojen sääntelytarve. Arviomuistio. Oikeusministeriön julkaisuja 21/2018. Ministry of Justice, Helsinki Ministry of Social and Health Affairs (2012) Tyttöjen ja naisten ympärileikkauksen estämisen toimintaohjelma 2012-2016 (FGM), Sosiaali- ja terveysministeriön julkaisuja 2012:8 Ministry of Social and Health Affairs (2015) On the non-medical circumcision of boys, 20 January 2015, STM:n ohje poikien ei lääketieteelisestä ympärileikkauksesta, STM/242/2015. http://stm. fi/documents/1271139/1762118/Ohje+poikien+ei-l%C3%A4%C3%A4ketieteellisest%C3% A4+ymp%C3%A4rileikkauksesta.pdf/1a4a5314-591e-487e-bfd1-23fba0445b63. Accessed 20 Apr 2021 Mohsen M, Puro K (2013) Helsingin hovioikeuden eksekvatuurimenettelyn erityiskysymyksiä kansainvälisissä perheoikeusasioissa. In: Mikkola T, Konttinen E (eds) Lapsen asema kansainvälistyvässä maailmassa. Helsinki, Helsingin hovioikeus, pp 155–198 Möller L (2014) No fear of Talāq: a reconsideration of Muslim divorce laws in light of the Rome III regulation. J Priv Int Law 10:461–487

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Moors A, Vroon-Najem V (2019) Converts, marriage and the Dutch nation-state: contestations about Muslim women’s wellbeing. In: Tiilikainen M, Al-Sharmani M, Mustasaari S (eds) Wellbeing of transnational Muslim families: marriage, law and gender. Routledge, Abingdon, pp 22–38 Mustasaari S (2015) Law, agency and the intimate relationships of young people: from rights to duties and back? In: Gozdecka D, Kmak M (eds) Europe at the edge of pluralism. Intersentia, Cambridge, pp 133–146 Mustasaari S (2016) Best interests of the child in family reunification – a citizenship test disguised? In: Griffiths A, Mustasaari S, Mäki-Petäjä-Leinonen A (eds) Subjectivity, citizenship and belonging in law: identities and intersections. Routledge, Abingdon, pp 123–145 Mustasaari S (2017) Rethinking recognition: transnational families and belonging in law. Dissertation, University of Helsinki Mustasaari S (2019) Extra-judicial Muslim divorces and family mediation in the Nordic countries: what role is there for the welfare state? In: Boele-Woelki K (ed) Plurality and diversity of family relations in Europe. European family law series. Intersentia, pp 285–312 Mustasaari S, Al-Sharmani M (2018) Between ‘official’ and ‘unofficial’: discourses and practices of Muslim marriage conclusion in Finland. Oxf J Law Relig 7(3):455–478 Mustasaari S, Vora V (2019) Wellbeing, law and marriage: recognition of Nikāh in multicultural Britain and the Finnish welfare state. In: Tiilikainen M, Al-Sharmani M, Mustasaari S (eds) Wellbeing of transnational Muslim families: marriage, law and gender. Routledge, Abingdon, pp 39–58 Niekka I (2010) Maahanmuuttajataustaiset lapset ja monikulttuurisuus lastensuojelun perhehoidossa. Pesäpuu ry, Helsinki O’Sullivan K, Jackson L (2017) Muslim marriage (non) recognition: implications and possible solutions. J Soc Welfare Family Law 39(1):22–41 Pauha T, Martikainen T (2014) Finland. Yearb Muslims Europe 6:218–228 Probert R (2013) The evolving concept of non-marriage. Child Family Law Q 25(3):314–335 Savolainen M (2002) Grounds for divorce and maintenance between former spouses: Finland. Land report for the Commission on European Family Law. http://ceflonline.net/wp-content/uploads/ Finland-Divorce.pdf. Accessed 20 Apr 2021 Sayed M (2010) Svensk och islamisk familjerätt – en jämförelse. Juridisk Publikation 2:201–234 Valkonen S, Wallenius-Korkalo S (2016) Practising postcolonial intersectionality: gender, religion and indigeneity in Sámi social work. Int Soc Work 59(5):614–626 Vora V (2017) English marriage law discriminates against minorities – celebrants could change that. The Conversation, 28 July 2017. https://theconversation.com/english-marriage-lawdiscriminates-against-minorities-celebrants-could-change-that-73943. Accessed 20 Apr 2021 Yassari N (2015) Adding by choice: adoption and functional equivalents in Islamic and middle eastern law. Am J Comp Law 63:927–962

Sanna Mustasaari is Academy of Finland postdoctoral researcher in the University of Eastern Finland Law School, Finland. She has conducted research on the legality and recognition of family ties in different normative systems. Her main research interests include religion and family law, human rights law, feminist legal theory, private international law, migration law, and transnational family life. Her recent publications include “Best interests of the child in family reunification – a citizenship test disguised?” (in: Griffiths A, Mustasaari S, Mäki-Petäjä-Leinonen A (eds) Subjectivity, Citizenship and Belonging in Law: Identities and Intersections, 2016), “Between ‘Official’ and ‘Unofficial’: Discourses and Practices of Muslim Marriage Conclusion in Finland” (with Al-Sharmani M, Oxford Journal of Law and Religion, 2018) and “Wellbeing, Law and Marriage: Recognition of Nikāh in Multicultural Britain and the Finnish Welfare State” (with Vora V, in: Tiilikainen M, Al-Sharmani M, Mustasaari S (eds) Wellbeing of Transnational Muslim Families: Marriage, Law and Gender, 2019).

Managing Religious Law in a Secular State: The Case of the Muslims of Western Thrace Vassiliki Koumpli

Abstract Diversity of both nationality and religion is currently a reality in Greece. This reality has no impact on the Greek legal system, which in principle applies without distinction to all Greek citizens and all persons residing in Greece. However, the exceptional recognition of the direct application of religious law and jurisdiction—that is, application without reference to the existing general set of conflict of law rules—to personal status matters of the Muslim minority of Western Thrace has given rise to important concerns regarding the applicable legislation and its impact on the Greek legal order in the context of the current international environment, which provides enhanced protection of human rights. This paper provides a succinct illustration of the management of religious law by a secular state, Greece, as shown in the particular case of this Muslim minority, also with reference to the ad hoc ECtHR judgment in Molla Sali v Greece.

1 Introduction Diversity of both nationality and religion is currently a reality in Greece.1 The increasing influx of immigrants in recent decades has gradually resulted in the establishment of a multicultural society. Without doubt, this phenomenon has 1

According to information available on the website of the Hellenic Statistical Authority (www. statistics.gr) based on the results of the latest census (2011), the resident population of Greece is 10,816,286, of whom 9,904,286 have Greek citizenship. 199,121 residents are citizens of other EU countries, 708,054 are citizens of non-EU countries and 4825 are without citizenship or have no specified citizenship. As regards religion, Greece is a Christian state. An estimated 96% of the population belongs to the Eastern Greek Orthodox Church. There is a small community of Roman Catholics (0.5%), and an even smaller one of Protestants (0.2%). There is also a small number (2325) of Uniates (Greek (Byzantine) Catholics). In the northeastern part of the country (Thrace), there is a small minority population of Muslims (1.24%, about 140,000 people); the Muslims of

V. Koumpli (*) Hellenic Institute of International and Foreign Law, Athens, Greece e-mail: vkoumpli@hiifl.gr © Springer Nature Switzerland AG 2022 N. Yassari, M.-C. Foblets (eds.), Normativity and Diversity in Family Law, Ius Comparatum – Global Studies in Comparative Law 57, https://doi.org/10.1007/978-3-030-83106-6_14

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given rise to serious socio-economic challenges; in principle, nonetheless, it has had no impact on the Greek legal system, which applies without distinction to all citizens and residents of Greece. A blatant exception to this rule consists in the recognition of the direct application of religious law and jurisdiction—that is, application without reference to conflict of law rules—to personal status matters in two particular cases: in the case of Jews and in the case of the Muslims of Western Thrace (an area in northeastern Greece). And while the first case has only had limited application in practice and has raised no particular legal and cultural concerns,2 the second case has given rise to important concerns about the applicable legislation and its impact on the Greek legal order in the context of the contemporary international environment. One may in fact note that legal scholars have shown strong interest in the matter3 and case law has also dealt with it extensively.

Western Thrace are homogenous neither ethnically (50% are of Turkish origin, 35% are Pomaks and 15% are Roma) nor religiously (nearly 90% are Sunnis, whereas the rest are Sufi, and more particularly Bektashi). There also exists a small Jewish population (0.05%). Smaller groups of almost every kind of religion and sect live around the country: Jehovah’s Witnesses, Scientologists etc. See Pollis (1992), pp. 171–195; U.S. Department of State (2006); Tsaoussi and Zervogianni (2008), p. 215; Assimakopoulou (2014), p. 731. 2 Jewish communities in Greece are characterized as legal entities of public law and are governed by the provisions of Law 2456/1920 [On Jewish communities. Government Gazette A 173] granting them a kind of self-administration in many matters. Law 147/1914 [On the applicable legislation to the annexed countries and their judicial organization. Government Gazette A 25] had already provided that the substantive law regulating the formation and the dissolution of marriages of Jews was Jewish religious law, whereas state courts had jurisdiction over the relevant disputes. Article 4 of Law 2456/1920 transferred jurisdiction over all Jews in Greece to the Beth Din, the rabbinical court of Thessaloniki. After the Holocaust, which decreased the Jewish population drastically, and the enactment of the New Greek Civil Code in 1946, this provision was abolished through Article 6 of the Introductory Law to the Civil Code [Mandatory Law 2783/1941]. Subsequent Law 1029/1946 [Regulation of marital relationships of Jews. Government Gazette A 79] made an effort to preserve this regime, providing for the application of Jewish religious law to issues concerning engagements, the conditions for marriage, the dissolution of marriage and the ceremony of halitsa. The application of this law, however, entailed interpretation implications that ought to be resolved by a decision of Areios Pagos (the Supreme Civil Court of Greece). Jews chose not to bring the issue to Areios Pagos, tacitly agreeing, thus, to be governed by the Civil Code and be subjected to Greek state courts in disputes regarding marriage formation and dissolution. Nevertheless, the jurisdiction of the Beth Din still applies to Jews who are citizens of other states with legislation recognizing the validity of Jewish religious law as well as to Greek Jews, who, after having their divorce issued by a state court, may apply to the Beth Din for the spiritual dissolution of their marriage. To date, there is no reported case law or other information on relevant matters, as this is of limited practical application. See in this respect Papastathis (1998), p. 48; Assimakopoulou (2014), pp. 738–739. 3 See, for instance, in English, Papastathis (1998), Tsaoussi and Zervogianni (2008), Tsitselikis (2012–2013), Assimakopoulou (2014), Tsavousoglou (2015), and in French, Roucounas (1981), Tsourkas (1981–1982). The most important publications in Greek include the following: Bedermacher-Gerousis (1977), Tsoukalas (1988), Minaides (1990), Georgoulis (1993), Kotzambasi (2001), Papassiopi-Passia (2001), Tsitselikis (2001), Tsoukalas (2002), Kotzambasi (2003),

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The purpose of this paper is to provide a succinct illustration of the management of religious law by a secular state, Greece, as shown in the case of the Muslim minority of Western Thrace, also with reference to the relatively recent—and much anticipated—judgment of the European Court of Human Rights (ECtHR) in Molla Sali v Greece.4 The paper adopts a holistic approach towards the issue, briefly mentioning its national and international law aspects as well as its implications for different fields of law, such as human rights law and conflict of laws. This approach cannot avoid being comparative to some extent, given that it also highlights the distinctiveness and uniqueness of the Greek regime in comparison with other jurisdictions. Such a regime, in fact, embodies a unique interreligious law technique in the sense that, first, the law is not uniform for all Greek citizens or all persons residing in Greece and, second, it designates special conflict of law rules to solve the relevant conflict.5 The analysis of the applicable religious law per se clearly falls outside the scope of this report and is referred to only to the extent that is necessary for a better understanding of the subject and is mentioned in the bibliography on the matter. Of course, all the issues mentioned above cannot be analyzed in depth in a paper like this, which, as a National Report, necessarily provides information in a descriptive way and within a limited framework; they are, however, adequately highlighted and provide food for thought for those interested in gaining familiarity with the matter. In this context, following this short introduction (Sect. 1), the paper provides a critical overview of the background (Sect. 2) and the impact (Sect. 3) of the direct application of Islamic law and jurisdiction to the Muslims of Western Thrace. After this analysis, the report ends with some concluding remarks by the author (Sect. 4).

2 The Background of the Direct Application of Islamic Law and Jurisdiction The Muslim minority of Western Thrace historically emerged from the Ottoman Empire’s demise and the creation of a new Turkish nation. The background of the direct application of Islamic law and jurisdiction to the personal status matters of Muslims in Western Thrace is associated with the participation of two categories of agents, whose role has been crucial in structuring and developing this special regime: the legislature and the courts. The following subchapters deal, thus, first, with the

Ktistakis (2006, 2007), Papadopoulou (2012), Pantelidou (2013), Kotzambasi (2014), Sakaloglou (2015). 4 ECtHR, Molla Sali v Greece (application no. 20452/14) Grand Chamber (19 December 2018) HUDOC. The Chamber of the European Court of Human Rights to which the case was assigned announced on 8 June 2017 that it has relinquished jurisdiction in favor of the Grand Chamber. The hearing at the Grand Chamber took place on 6 December 2017. 5 See Gallala-Arndt (2017), pp. 1020, 1023.

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legislative background (Sect. 2.1) and, second, with the judicial background (Sect. 2.2).

2.1

The Legislative Background

The special Islamic regime was established as a consequence of a series of international and national legal instruments which have been enacted since 1881, and which retained the Ottoman millet system (which submitted non-Muslim citizens to their own religious laws and sometimes to their religious tribunals in their personal status matters).6 This legislation is set out below in chronological order.

2.1.1

Convention of Constantinople (1881)

The Convention of Constantinople was signed between the Kingdom of Greece and the Ottoman Empire on 2 July 1881,7 and resulted in the cession of the region of Thessaly and a part of southern Epirus (the Arta Prefecture) to Greece. The Convention included the first provision on Muslim religious courts: the Muslim population of the new territories of the Greek state would enjoy freedom of religion and religious courts would have competence to decide on religious issues, which comprised those relating to their personal status, that is, family and succession matters. The law enforcing the Convention8 recognized existing muftis, the Muslim religious leaders, but granted them only consultation, but not judicial, competences.

2.1.2

Treaty of Athens (1913)

The Treaty of Athens between the Kingdom of Greece and the Ottoman Empire was signed on 14 November 1913.9 It formally ended hostilities between them after the two Balkan Wars and ceded Macedonia, including the major city of Thessaloniki, most of Epirus and many Aegean islands to Greece. The Treaty contained provisions concerning the protection of the Muslims living in the areas conquered by Greece, mainly in Macedonia and Epirus. In particular, it provided for the mufti to have competence over certain family and succession cases of those populations, which were regulated by the Sacred Islamic Law.

6

As to the millet status, see Gallala-Arndt (2017), p. 1022. Ratified by Law ΠΛΖ’/1882. 8 Law ΑΛΗ’ of 22 June 1882 [On spiritual leaders and Muslim communities]. 9 Ratified by Law ΔΣIΓ’/1913. 7

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Law 147/1914

In order to enforce the Treaty of Athens, the Greek government enacted Law 147/1914,10 which is still in force. According to Article 4 of such law, which introduces a substantive law provision, with regard to Greek Muslims, issues pertaining to the formation and dissolution of marriage and the personal relationships between spouses, as well as kinship, are governed by their religious law.

2.1.4

Law 2345/1920

Law 2345/192011 was also enacted so as to fulfill the obligations set out in the Treaty of Athens and provided that muftis have jurisdiction over matters concerning marriages, maintenance, custody, guardianship, emancipation of minors, Islamic wills and intestate succession, as long as such matters are governed by the Sacred Islamic Law. It remained in force until 1991, when it was repealed by Law 1920/ 1991.12

2.1.5

Treaty of Lausanne (1923)

The Treaty of Lausanne, signed on 24 July 1923,13 officially settled the conflict that had existed between the Ottoman Empire and the Allied French Republic, British Empire, Kingdom of Italy, Empire of Japan, Kingdom of Greece, and Kingdom of Romania since the onset of World War I. It established an obligatory population exchange between the Christian Greek populations who were situated within the borders of the new Turkish nation and the Muslim Turkish populations who lived in Greece, excluding the Greek minority in Constantinople and the Muslim minority in Thrace from the scope of its application. Section III of the Treaty (Articles 37–45) contains provisions on the protection of such minorities. Turkish nationals belonging to non-Muslim minorities are to enjoy the same civil and political rights as Muslims and the same treatment and security in law and in fact as other Turkish nationals (Articles 39–40). According to Articles 42 and 45 of the Treaty, Turkey and Greece undertook to adopt measures to ensure that all matters pertaining to the personal status of minorities would be resolved in accordance with their religious customs. There is no provision for the establishment of religious courts or the jurisdiction of the mufti. Moreover, there is no provision restricting the possibility of a future

10

See note 2. Law 2345/1920 [On the temporary chief mufti and muftis of the Muslims of the State and on the management of the property of Muslim communities. Government Gazette A 148]. 12 Law 1920/1991 [Ratification of the Legislative Order of 24 December 1990 “On Muslim Religious Officers”. Government Gazette A 182]. 13 Ratified by Legislative Decree of 25 August 1923 [Government Gazette A 238]. 11

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different regulation of those issues, provided that such decisions would be made by special commissions in which the minority would be represented. In the event that no consensus could be reached, the issue would be decided by a European arbitrator.14

2.1.6

Law 1920/1991

Law 1920/1991 governs the institution of muftis, the Muslim religious leaders. There are currently three Mufti Offices in Greece, which are located in Western Thrace: in Komotini, in Xanthi and in Didymoteicho. Muftis are appointed by virtue of a presidential decree issued following a proposal by the Greek Minister of National Education and Religious Affairs. Muftis are to be Muslim Greek citizens who either hold an Islamic theological school degree or have been imams, that is, Muslim religious leaders, for at least 10 years, and have been distinguished for their moral and theological education. They are granted religious and administrative as well as judicial authority: (a) they solemnize or ratify religious marriages between Muslims and issue expert religious opinions ( fetwas) on matters related to the Sacred Islamic Law, (b) they appoint, supervise and retire Muslim religious servants, and (c) under the procedural law provision of Article 5 of said Law 1920/1991, they have jurisdiction over exclusively enumerated issues: marriage, divorce, maintenance, custody and guardianship matters, the emancipation of minors, as well as Islamic wills and the intestate succession of Greek Muslim citizens who reside within their district, provided that Islamic law is applicable, as will be analyzed below.15

2.1.7

Law 4511/2018 and Presidential Decree 52/2019

Law 4511/2018,16 which was enacted on 15 January 2018 and adds a new paragraph to the abovementioned Article 5 of Law 1920/1991, states that matters concerning the formation and dissolution of marriage, maintenance, custody and guardianship, the emancipation of minors, Islamic wills and intestate succession are governed by Greek substantive and procedural law. Under Law 4511/2018, the mufti’s jurisdiction has ceased to be obligatory and exclusive solely on the basis of the religion of the parties. Only exceptionally may such disputes be brought to the jurisdiction of the mufti, provided that both parties submit an application to him stating that they want to resolve their dispute under the Sacred Islamic Law. Succession matters, in particular, are also regulated by Greek law in principle unless the testator solemnly declares before a notary public his will to subject succession matters to the Sacred Islamic Law. Such declaration can be

14

Applying this provision, Turkey abolished religious law in 1926. See Sect. 3.1. See Sect. 2.2.1 on the judicial authority of the mufti. 16 Law 4511/2018 [On Muslim religious officers. Government Gazette A 2]. 15

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freely revoked in accordance with the relevant provisions of the Civil Code.17 Law 4511/2018 explicitly establishes a presumption of jurisdiction of Greek civil courts, clearly stating that, in any case, if any of the parties refuses to subject its case to mufti jurisdiction it can appeal to civil courts under the common substantive and procedural legislation. There is also a novelty as regards the safeguarding of procedural rights and guarantees, since the new enactment provides for the issuance of a presidential decree, which introduces for the first time the necessary procedural rules concerning mufti jurisdiction, and in particular (a) the process of the filing of the relevant application by the parties, which must contain an explicit and irrevocable declaration of each party regarding its option to subject the dispute to mufti jurisdiction, (b) the representation of the parties by lawyers, (c) the process of service to the respondent, and (d) the particular process of the hearing before the mufti and the issuance of his judgments, as well as (e) all issues concerning the organization and the functioning of the Mufti Office. Such Presidential Decree 52/201918 was issued on 11 June 2019 and has been in force since that date. Allegedly, the Greek government enacted the law in order to avoid a negative ruling in the Molla Sali v Greece case, which was still pending before the ECtHR at the time. In practice, this law introduces an opt-in regime as to the subjection of a dispute to Islamic law and to mufti jurisdiction, according to which Muslims shall have the right to appeal directly to Greek courts, whereas Islamic courts will still be available, but only upon request.19 In other words, and from a different perspective, it also introduces special conflict of law rules providing for choice-of-law and choice-of-court agreements and clauses in family and succession matters, respectively.

2.2

Judicial Background

The judicial background of the special Islamic regime has been developed at three distinctive levels. One may observe at the first level a religious judicial system based on the jurisdiction of the mufti (Sect. 2.2.1), at the second level a national judicial system based on Greek courts (Sect. 2.2.2), and at the third level an international judicial system mainly based on the European Court of Human Rights (Sect. 2.2.3).

17

Presidential Decree 456/1984 [Civil Code. Government Gazette A 164]. Presidential Decree 52/2019 [Procedural rules governing cases falling within the jurisdiction of the muftis of Thrace. Establishment, organization and functioning of the division of cases falling within the jurisdiction of the mufti in the Mufti Offices of Thrace. Government Gazette A 90]. Presidential Decree 52/2019 was upheld by judgment of the Hellenic supreme administrative court, i.e. Council of State (Plenary Session) 1822/2020. NOMOS, which rejected an application for its annulment. 19 As to the amendments regarding the judicial authority of the mufti, see Sect. 2.2.1. 18

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The Role of the Religious Judicial System

Under Law 1920/1991, the mufti judges the cases brought before him according to the Sacred Islamic Law, namely Sharia, which is based mainly on the Qur’an and the Islamic tradition. Until recently, both the process before the mufti and his judgments took place in the Turkish language, with the judgments being subsequently translated into Greek. Only since the issuance of Presidential Decree 52/2019 has it been provided that judgments shall be written in both Greek and Turkish, with Greek being the prevailing version of the text. Given that there are no appellate religious courts, the decisions of the mufti cannot be revised. They do not constitute final judgments, however, unless they are declared enforceable by the competent Court of First Instance, which shall examine (a) whether the mufti acted within the field of his competence and (b) whether the Islamic law applied contravenes the Constitution.20 The Court of First Instance is not competent to examine whether the provisions of Islamic law were properly applied to the particular case. Remarkably, Law 1920/ 1991 contained no provisions concerning the application of procedural rules, the whole process being, thus, unstructured and informal until the recent issuance of Presidential Decree 52/2019. Under Law 4511/2018, the subjection of a case to the jurisdiction of the mufti upon both parties’ application is considered final and precludes the jurisdiction of ordinary courts in the particular dispute, as mentioned above. According to the new regime, too, the mufti’s judgments still do not constitute final judgments unless they are declared enforceable by the competent Court of First Instance, which shall examine (a) whether the mufti acted within the field of his competence and, moreover, (b) whether the Islamic law applied contravenes the Constitution, and in particular Article 4 paragraph 2 thereof (stating that Greek men and women have equal rights and obligations) and the European Convention on Human Rights. In contrast with the previous legislation, the new enactment makes, thus, an explicit reference to the constitutional principle of equality and the European Convention on Human Rights, obviously underlining their importance, particularly as regards the implementation of Islamic law.

2.2.2

The Role of the National Judicial System

The role of the national judicial system consists, first, in the declaration of enforceability of the judgments of the mufti, and, second and more extensively, in the interpretation of the relevant legislation.

20

This control of constitutionality was introduced for the first time by Law 1920/1991.

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The Declaration of Enforceability of the Mufti’s Judgments Even though the competent Courts of First Instance are supposed to control the constitutionality of the mufti’s judgments before ratifying them, in practice these courts have abstained from such substantive control and, in essence, limited their authority to the automatic ratification of such judgments.21

The Interpretation of the Legislation By contrast with the declaration of enforceability of mufti judgments, where case law played a limited role, the vagueness of the relevant legislation has led to its extended interpretation by Greek courts on issues such as the legal basis, the subjective scope and the material scope of the mufti’s jurisdiction. As to the legal basis of the mufti’s jurisdiction, according to the case law of the Council of State (the Supreme Administrative Court of Greece),22 the Treaty of Lausanne (1923) constitutes the only binding convention for Greece, since it was meant to repeal the Convention of Constantinople (1881) and the Treaty of Athens (1913). Given that the Treaty of Lausanne makes no reference to the jurisdiction of the mufti, Greece has no international obligation to maintain this jurisdiction, which is based solely on a national legislative instrument: the procedural provision of Article 5 of Law 1920/1991. On the contrary, Areios Pagos (the Supreme Civil Court of Greece) has regularly held that Greece is internationally bound by the Convention of Constantinople (1881) and the Treaty of Athens (1913) to maintain the jurisdiction of the mufti.23 This opinion has also been adopted by the National Committee on Human Rights.24 Under the regime in force before the enactment of Law 4511/2018 (establishing the exceptional jurisdiction of the mufti), legal scholars also argued that the competence of the mufti was not exclusive, but rather concurrent, meaning that Greek Muslims could bring their case before the Greek civil courts if they wished to do so. The exclusive jurisdiction of the mufti would be contradictory to religious freedom since the parties would always have to state their religion before 21

According to Ktistakis (2006), p. 158, from the enactment of Law 1920/1991 until 2006, the civil courts, which are supposed to examine whether the mufti’s decisions are incompatible with the Constitution, denied enforceability in only 11 cases out of 2679. 22 Council of State 1333/2001. (2001) Armenopoulos p. 1263; Council of State 466/2003. NOMOS; Council of State (Plenary Session) 1822/2020. NOMOS. See also Matthias (2007), p. 427 et seq., as well as the legal opinions of the Legal Council of the State No 390/1953 and No 112/2009, available at www.nsk.gr. 23 Areios Pagos 231/1932. (1932) Themis p. 622; Areios Pagos 105/1937. (1937) Themis p. 641; Areios Pagos 14/1938. (1938) Themis p. 328; Areios Pagos (Plenary Session) 322/1960. (1961) Nomiko Vima p. 1121; Areios Pagos (Plenary Session) 738/1967. (1968) Nomiko Vima p. 381; Areios Pagos 1723/1980. (1981) Nomiko Vima p. 1217 etc. 24 National Committee on Human Rights, Decision on marriages of minors celebrated by the Mufti in Greece (February 2005), www.nchr.gr/images/pdf/apofaseis/meionothtes/apofasi_peri_telesis_ gamwn_anilikwn_paidiwn_apo_moufti2004.pdf.

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the courts in order to exercise their right to judicial protection. Moreover, only civil courts could guarantee a fair trial and efficient legal protection. Given, also, that the jurisdiction of the mufti was recognized as a form of minority protection, it could not be imposed on the members of the minority against their will.25 Second, as to the subjective scope of the mufti’s jurisdiction, as stated above, according to Laws 147/1914 and 1920/1991, the mufti has jurisdiction only over Muslims who are Greek citizens.26 Areios Pagos held that the mufti’s jurisdiction and Islamic law apply to all Greek Muslims27 except for the Muslims residing in Crete28 and in the Dodecanese,29 who are excluded from its scope of application. In analyzing the matter, legal scholars have held various opinions as to the scope of application of the mufti’s jurisdiction and Islamic law: (a) it should be applied to Greek Muslims with the exception of those residing in the Dodecanese;30 (b) it should be applied to all Greek Muslims irrespective of their place of residence on grounds of uniformity;31 or (c) it should be applied only to the Greek Muslims of Western Thrace given the local character of the legislative framework in question (applicable only to the Muslim minority of the territories annexed by the Treaty of Lausanne) and the fact that the three Mufti Offices operating today are located in this area.32 After the enactment of Law 4511/2018, this theoretical analysis is, of course, of importance only once the parties have agreed to submit their dispute to the jurisdiction of the mufti. Third, as to the material scope of the jurisdiction of the mufti, as stated above, according to Article 4 of Law 147/1914—which introduces a substantive law provision—with regard to Greek Muslims, issues pertaining to the formation and the dissolution of marriage, the personal relationships between spouses and kinship are governed by their religious law. Moreover, Article 5 of Law 1920/1991—which introduces a procedural law provision—stipulates that the mufti has jurisdiction over issues concerning marriage, divorce,33 maintenance, custody and guardianship, the emancipation of minors as well as Islamic wills and the intestate succession of Greek

25 Kotzambasi (2001), pp. 28–29; Tsitselikis (2001), p. 593; Kotzambasi (2003), pp. 70–71; Tsaoussi and Zervogianni (2008), p. 214; Sakaloglou (2015), p. 259. 26 Areios Pagos 1041/2000. (2001) Elliniki Dikaiosyni p. 429. See also the legal opinion of the Legal Council of the State No 347/2003, available at www.nsk.gr. 27 Areios Pagos 1723/1980. (1981) Nomiko Vima p. 1217. 28 Areios Pagos 105/1937. (1937) Themis p. 641. 29 Areios Pagos 738/1967. (1968) Nomiko Vima p. 381. 30 See among others Sakaloglou (2015), p. 259. 31 Ktistakis (2006), p. 35 et seq. 32 See among others Kotzambasi (2001), pp. 17–19; Kotzambasi (2003), pp. 64–66; Tsaoussi and Zervogianni (2008), p. 213; Kotzambasi (2014), pp. 806–807, with further references. See also Single-Member Court of First Instance of Thiva 405/2000. (2001) Dike p. 1097 ¼ (2001) Nomiko Vima p. 661. This view has been adopted by Council of State (Plenary Session) 1822/2020. NOMOS. 33 Single-Member Court of First Instance of Thessaloniki 19989/2014. (2015) Armenopoulos p. 989.

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Muslim citizens. After the enactment of Law 4511/2018, the prerequisite for the application of such provisions is the decision of the parties to submit their dispute to the jurisdiction of the mufti. The enumeration of the issues falling within the mufti’s jurisdiction is exclusive, and no expansion of this jurisdiction is possible by analogy.34 Case law has held that when parties abstain from entering into a religious marriage, but enter into a civil one, they automatically opt out of the mufti’s jurisdiction.35 Furthermore, the proprietary effects of marriage36 as well as adoption37 clearly fall outside the scope of the mufti’s jurisdiction. In the past, the question of whether matters concerning parental care and parent-child contact after divorce fall within the scope of his jurisdiction was disputed.38 Under more recent case law, matters concerning parental care have been excluded from it.39 Legal scholars have also argued that only matters covered by both Article 4 of Law 147/1914 and Article 5 of Law 1920/1991, that is, marriage and divorce, should fall within the mufti’s jurisdiction and are, thus, regulated by Islamic law.40

2.2.3

The Role of the International Judicial System

The ECtHR has had the occasion to deal with the compatibility of Islamic law with the European Convention on Human Rights (ECHR) both in general and with regard to the specific case of the Muslims of Western Thrace. Initially, in its judgment in the case Refah Partisi (the Welfare Party) and Others v Turkey,41 the ECtHR held that Sharia is incompatible with the fundamental principles of democracy as set forth in the Convention. In particular, it held that “. . . Sharia, which faithfully reflects the dogmas and divine rules laid down by 34

Tsaoussi and Zervogianni (2008), p. 214. Single-Member Court of First Instance of Xanthi 1623/2003. (2004) Armenopoulos p. 366; Single-Member Court of First Instance of Xanthi 66/2017. NOMOS. 36 Court of Appeal of Thrace 119/2006. (2006) Armenopoulos p. 1565. 37 Court of Appeal of Thrace 356/1995. (1996) Armenopoulos p. 41 ¼ (1996) Elliniki Dikaiosyni p. 1368. 38 Court of Appeal of Thrace 7/2001. (2001) Armenopoulos p. 692; Single-Member Court of First Instance of Chalkis 1057/2000. NOMOS; Single-Member Court of First Instance of Chalkis 3136/ 2007. (2008) Elliniki Dikaiosyni p. 1536. 39 Areios Pagos 2138/2013. (2014) Chronika Idiotikou Dikaiou p. 370; Court of Appeal of Thrace 489/2011 (unreported); Single-Member Court of First Instance of Xanthi 102/2012. NOMOS. See Pantelidou (2013), p. 291 et seq. 40 Kotzambasi (2003), p. 70; Ktistakis (2006), p. 87 et seq.; Pantelidou (2013), pp. 300–301. At this point, it should be noted that the direct implementation of Islamic law as analyzed above is not excluded by the provisions of the Civil Code regarding relations between spouses and divorce. In fact, according to Articles 1416 and 1446 CC, the provisions of the code on relations between spouses and divorce shall apply irrespective of the religion or dogma of the two spouses and the form of the marriage ceremony (civil or religious) unless otherwise provided. 41 ECtHR, Refah Partisi (the Welfare Party) and Others v Turkey (applications nos 41340/98, 41342/98, 41343/98 et al.) Grand Chamber (13 February 2003) HUDOC. 35

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religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. . .” According to the Court, it is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on Sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women, and its intervention in all spheres of private and public life in accordance with religious precepts. Most importantly, on 19 December 2018 the ECtHR issued its ad hoc judgment in the Molla Sali v Greece case.42 Moustafa Molla Sali, a Muslim Greek national, left his entire estate to his wife in a will which was drawn up by a notary in accordance with Greek civil law. His two sisters contested the will on the grounds that he was a member of the Muslim community in Thrace, and, thus, that Islamic law rather than Greek civil law governed inheritance in his case. Areios Pagos held that questions of inheritance in the case of Muslims fell within the jurisdiction of the mufti, not of the civil courts. Mrs. Molla Sali brought the case before the ECtHR, arguing that the Greek judgment was discriminatory.43 The ECtHR unanimously held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention, read in conjunction with Article 1 of Protocol No. 1 (protection of property) of the Convention, on the grounds of Mrs. Molla Sali’s husband’s and her religion. The Court found that the differential treatment suffered by Mrs. Molla Sali, as a beneficiary of a will drawn up in accordance with the Civil Code by a testator of the Muslim faith, as compared to a beneficiary of a will drawn up in accordance with the Civil Code by a non-Muslim testator, had no objective and reasonable justification. It also noted with satisfaction that Law 4511/2018 had come into force, holding, nonetheless, that its provisions had no impact on this case, which was decided with final effect under the former regime in place prior to the enactment of that law. Taking the ECHR and other human rights legal instruments binding Greece into account, the judgment rightly focuses on the concept of discrimination on the

42

See note 4. The two sisters’ claims were dismissed by the Greek court at first instance (Multi-Member Court of First Instance of Rodopi 50/2010, unreported) and on appeal (Court of Appeal of Thrace 392/2011. NOMOS). The Thrace Court of Appeal found that the decision by the deceased, a Greek Muslim and a member of the Thrace religious minority, to request a notary to draw up a public will, determining for himself the persons to whom he wished to leave his property and the manner in which this was done, was an expression of his statutory right to have his estate disposed of after his death under the same conditions as other Greek citizens. However, Areios Pagos quashed that judgment on the grounds that questions of inheritance within the Muslim minority should be dealt with by the mufti in accordance with the rules of Islamic law. It therefore remitted the case to a different bench of the Court of Appeal for new consideration (Areios Pagos 1862/2013. (2014) Nomiko Vima p. 887). The Court of Appeal ruled that the law applicable to the deceased’s estate was Islamic religious law and that the public will in question did not produce any legal effects (Court of Appeal of Thrace 183/2015, unreported). Following an appeal on points of law by Mrs. Molla Sali on 8 February 2016, Areios Pagos dismissed such appeal on 6 April 2017 (Areios Pagos 556/2017. (2018) Elliniki Dikaiosyni p. 441).

43

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basis of the testator’s religion,44 also holding that differential treatment cannot be justified on the grounds of protection of the Muslim minority of Western Thrace.45 The outcome would not change even if the judgment used as a basis of comparison the beneficiary’s religion, that is, whether a married Muslim female beneficiary of her Muslim husband’s will is in an analogous or relevantly similar situation to that of a married non-Muslim beneficiary of a non-Muslim husband’s will, as Judge Mits suggested in his Concurring Opinion.46 It is also worth noting that the ECtHR has only condemned the compulsory application of Islamic law and jurisdiction in the particular case, and not Islamic law itself.47 Indeed, the ECtHR did not suggest the full abolishment of the application of the Islamic regime in Western Thrace. On the contrary, it held that the ECHR is not per se against granting the members of a Muslim minority the freedom to be governed by the Sharia, when such choice is an optional one for them.48 Such is, in fact, the case under Law 4511/2018, which appears to respect legal pluralism by not fully abolishing the Islamic regime in question. The latter, when and as applied to a particular case according to the choice of the parties, shall of course be subject to control as regards its conformity with national and international human rights provisions.

3 The Impact of Direct Application of Islamic Law and Jurisdiction Before its recent revision, the special religious regime examined above had a significant impact on the legal order, at both national and international level, given its uniqueness (Sect. 3.1) and the implications it entailed (Sect. 3.2).

3.1

The Uniqueness of the Special Religious Regime

It can be argued that the Greek regime of direct application of Islamic law and jurisdiction to the Muslims of Western Thrace was—and in some aspects still is— unique in a number of respects:

44

ECtHR, Molla Sali v Greece, para 141, see note 4. ECtHR, Molla Sali v Greece, paras 142 et seq., see note 4. 46 See, however, among others, comments by Jayme and Nordmeier (2019), as regards minority protection concerns, and Koumoutzis and Papastylianos (2019) and Rokas (2019), pp. 455–457, proposing the application of Article 8 ECHR. 47 By contrast with ECtHR, Refah Partisi (the Welfare Party) and Others v Turkey, see note 41. 48 See also Koumoutzis and Papastylianos (2019). 45

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First, Greece was a stronghold of interreligious law among modern Western jurisdictions.49 While interreligious law is mainly applicable in certain parts of the world today, in particular in Asian and African counties, it is substantially unknown in Europe. It usually pertains to personal status issues, given that family relationships strongly reflect the values and ethics of a given culture, but, at the same time, they cannot hinder the functioning of the state since they represent a private space.50 This model, however, appears to be incompatible with Western territorial law systems, under which citizens are subjected to uniform law which is centrally enacted and applies to all of them regardless of their religious affiliation.51 Second, in addition to the abovementioned consideration, Greece was the only EU Member State where an Islamic jurisdiction was recognized and the Sacred Islamic Law was directly applied as part of the national legal order, rather than by reference by common private international law.52 Third, the law applied by the muftis is based on Sharia as it derives from its primary sources and is not codified. This is in contrast with modern Islamic jurisdictions that—with the exception of Saudi Arabia—do not apply Sharia per se, but have rather codified and reformed substantive Islamic personal status law, even though they still assign a particular status to religion (e.g. Jordan, Syria, Egypt, Tunisia, Morocco etc.).53 It should also be borne in mind that where interreligious law applies in such states, this is mostly due to the presence of populations of different religions in the state, and not simply of one minority. What is more, Turkey abolished religious law altogether in 1926, taking advantage of the relevant provisions of the Treaty of Lausanne.54 The minorities consented to the repeal of their special status, and family and succession law of the Turkish Civil Code—inspired by the Swiss Civil Code—entered into force for the Turkish population in its entirety.55 Fourth, one may notice that the examined religious regime constitutes a peculiar case of survival of legal pluralism. In fact, this Islamic regime is restricted only to the Muslims of Western Thrace (some 140,000 Greek citizens), while all other Greek Muslims or Muslims residing in Greece are subject exclusively to Greek law. The jurisdiction of Greek courts over foreign Muslims residing in Greece as well as the law governing their personal status matters is regulated by the common procedural

49

Gallala-Arndt (2017), pp. 1020, 1023. Ibid. 51 Ibid. 52 Only France applied some Sharia provisions to citizens of Mayotte, one of its overseas territories, until 2011. 53 Gallala-Arndt (2017), p. 1024. As to such legislation, see in detail Sabuni and Wiedensohler (1994) (for Syria); Ebert and Hefny (2008) (for Egypt); Nelle (2013) (for Morocco); Salama (2012) (for Jordan); Schönberger (2012) (for Tunisia). 54 See Sect. 2.1.5. 55 See Bedermacher-Gerousis (1977), p. 639; Ktistakis (2006), p. 104; Tsaoussi and Zervogianni (2008), pp. 211–212. 50

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law and conflict of law rules, as in the case of all other foreign citizens and residents on Greek territory.56 Fifth, it is notable that Greek courts regularly deny the application of Islamic law when common private international law refers to it as well as the recognition of court rulings based on Islamic law as being incompatible with Greek public policy – undisputable elements of which are, of course, non-discrimination on the basis of gender, the pursuit of the best interests of the child and the principle of a fair trial.57 Nonetheless, as already mentioned, they declare mufti judgments to be enforceable automatically, without examining their merits.58

3.2

The Implications of the Special Religious Regime

The institutionalization of interreligious law in Greece—particularly before its revision—has had severe pitfalls in terms of preservation of legal certainty and respect for human rights.59 The application of the particular religious regime was, thus, not without implications: First, until the final legislative revision, the framework for the operation of interreligious law lacked clarity and the relevant legal provisions allowed for different interpretations as to the scope of the mufti’s jurisdiction and the scope of 56

Family and succession are regulated by the Civil Code. In addition, Law 3719/2008 [Reforms concerning family, children, the society and other provisions. Government Gazette A 241] introduced civil partnership between opposite-sex couples. After the ECHR issued its judgment in Vallianatos and Others v Greece [(applications nos 29381/09 and 32684/09) Grand Chamber (7 November 2013) HUDOC], such law was amended by Law 4356/2015 [Civil partnership, exercise of rights, criminal and other provisions. Government Gazette A 181] in order to also include same-sex couples. Foreign family and succession law can be applied in Greece in accordance with the provisions of private international law—which are included in the Civil Code and the relevant EU legislation—subject, however, to potential public policy reservations. In the same spirit, foreign judgments concerning family law matters can be recognized and enforced in Greece in accordance with the provisions of procedural law—which are included in the Code of Civil Procedure [Presidential Decree 503/1985. Government Gazette A 182] and the relevant EU legislation—also subject to public policy reservations. Such conflict rules may, of course, lead to the application of a foreign law governing family relations that may be purely religious, i.e. non-state law, while foreign judgments seeking recognition and enforcement may have religious law applied, too. 57 Tsaoussi and Zervogianni (2008), p. 220. See Court of Appeal of Athens 10719/1995. (1997) Elliniki Dikaiosyni p. 638; Single-Member Court of First Instance of Athens 3020/1997. (1997) Armenopoulos p. 206, both rejecting the recognition of a divorce by repudiation issued by a Jordanian religious court. The judicial control of whether the mufti’s judgment contravenes the Constitution is different from the control of whether such judgment contravenes public policy. It has been argued that in the latter case private international law mechanisms enable the concrete examination of the particular dispute as well as the pragmatic balancing of interests by the judge. See in this respect Deliyanni-Dimitrakou (2009), p. 865 et seq. 58 See Sect. The Declaration of Enforceability of the Mufti’s Judgments. 59 Gallala-Arndt (2017), p. 1023.

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application of the Sacred Islamic Law, which resulted in serious legal uncertainty and was incompatible with the rule of law.60 Second, given that the Islamic law applied by muftis in Thrace is not codified, judgments in many cases appear to depend on the personality of the particular mufti. This has also significantly contributed to legal uncertainty and, moreover, has prevented the development of such law alongside the social evolution that has taken place in the last century.61 Third, it is to be noted from the point of view of conflict of laws that most of the Sharia rules on divorce cannot be applied according to Regulation (EU) No 1259/ 2010 (Rome III).62 Article 10 of such Regulation defining the law applicable to divorce and legal separation stipulates that where the law applicable according to its provisions does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, then such law is excluded and the law of the forum shall apply.63 Moreover, neither mufti judgments64 nor the judgments of the Court of First Instance ratifying them65 can be recognized in another Member State of the European Union on the basis of Regulation (EC) No 2201/2003 (Brussels IIbis) on the recognition and enforcement of matrimonial and parental judgments.66 The same conclusion applies even after the enactment of Law 4511/2018 in cases where the parties opt for Islamic law and the mufti’s jurisdiction.67 This situation illustrates how problematic the situation can be in a legal environment characterized by unavoidable interconnectedness. Fourth and foremost, along with maintaining the implementation of the special Islamic regime, Greece has signed and ratified a series of major international human

60

See Sect. The Interpretation of the Legislation. Papadopoulou (2012), p. 718. 62 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ 29.12.2010 L 343/10. 63 It is argued that the court should examine whether there is in concreto discrimination in the particular case, Marazopoulou (2016), para 34 in particular. 64 Vassilakakis (2016), p. 31. Cf. also CJEU, Judgment of 20 December 2017, Soha Sahyouni v Raja Mamisch, C-372/16, ECLI:EU:C:2017:988. Cf. Andrae (2018), p. 243: according to Articles 109 et seq. of the German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit—or Familienverfahrensgesetz—FamFG), religious courts are considered similar to state courts only insofar as they are equipped with state authority and enforcement power, and not when their authority is limited to merely pronouncing the legality of a divorce petition when divorce itself takes place privately, initiated by one or both spouses. 65 Vassilakakis (2016), p. 31. See also OLG Frankfurt, 16.1.2006, FamRBInt 2006, p. 77 ¼ IPRax 2008, p. 352. 66 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, OJ 23.12.2003 L 338/01. 67 See also Jayme and Nordmeier (2008), p. 369, and Jayme and Nordmeier (2018), pp. 277–278, with further analysis of private international law implications. 61

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rights instruments, such as the ECHR,68 the Convention on the Elimination of All Forms of Discrimination against Women,69 and the International Covenant on Civil and Political Rights,70 which, together with the Charter of Fundamental Rights of the European Union71 and the Greek Constitution72 (which ranks above international treaties73), establish a coherent framework in terms of freedom of religion, equality, the protection of the best interests of the child and the guarantee of a fair trial, among other things. An interreligious system of law such as the Greek regime before its revision, which subjected the members of a religious community to their religious laws without giving them any possibility of opting out, was considered a violation of their freedom of religion. In addition, refusing the members of a religious minority the right to voluntarily opt for and benefit from ordinary state law amounted both to discriminatory treatment and to a breach of the right to free self-identification.74 In this context, the ECtHR has already held that Sharia appears to be incompatible with the democratic principles set forth in the ECHR, as described above.75 At EU level, the European Commission considers Sharia to embrace various legal meanings and to be subject to varying interpretations both in the countries where it is applied and among specialists.76 Those parts of Sharia which are not compatible with EU

68

Ratified by Legislative Decree 53/1974 [Rome Convention on Human Rights. Government Gazette A 256]. 69 Ratified by Law 1342/1983 [On the ratification of the Convention on the Elimination of All Forms of Discrimination against Women. Government Gazette A 39]. 70 Ratified by Law 2462/1997 [Ratification of the International Covenant on Civil and Political Rights. Government Gazette A 25]. 71 Charter of Fundamental Rights of the European Union, OJ 08.02.2000 200/C 364/01. 72 Of particular importance is Article 4(2) of the Constitution, stating that Greek men and women have equal rights and equal obligations. Article 13(1) states that freedom of religious conscience is inviolable, and that the enjoyment of civil rights and liberties does not depend on the individual’s religion. Article 21(1) and (3) of the Constitution, furthermore, stipulates that the family, as the foundation of the preservation and advancement of the Nation, as well as marriage, motherhood and childhood, shall be under the protection of the State, and the State shall care for the health of its citizens and shall adopt special measures for the protection of its youth. Under Article 8 of the Constitution, no person shall be deprived of the judge assigned to him by law against his will, whereas judicial committees or extraordinary courts, under any name whatsoever, shall not be constituted. Finally, Article 20 of the Constitution introduces the guarantee of a fair trial, providing that every person shall be entitled to receive legal protection by the courts and may plead before them his views concerning his rights or interests, as specified by law. 73 It should also be noted, that in accordance with Article 30 of the Vienna Convention on the Law of Treaties of 1969, in the case of successive treaties the provisions of an earlier treaty only apply to the extent that they are compatible with the new, special one. Therefore, the conventions signed between Greece and Turkey shall apply only as long as they do not contravene these conventions on the protection of human rights. See Tsaoussi and Zervogianni (2008), p. 222. 74 ECtHR, Molla Sali v Greece, see Sect. 2.2.3 and note 4. 75 ECtHR, Refah Partisi (the Welfare Party) and Others v Turkey, see Sect. 2.2.3 and note 41. 76 Answer given by Ms. Reding on behalf of the Commission (7 April 2011) to the written question of Mr. Mözler (23 February 2011), available at www.europarl.europa.eu.

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fundamental rights standards are not to be applied, and those foreign judicial decisions which are based on Sharia provisions that are incompatible with these standards are not to be recognized and enforced in the EU.77 In particular with regard to the Muslims of Western Thrace, the European Commission—even though it does not have general competence to interfere on fundamental rights, but only when a question relating to EU law is concerned—has affirmed that equality between women and men is one of the values of the European Union and that, in all its actions, the EU seeks to eliminate inequalities and to promote equality between men and women, a principle also reflected in the Charter of Fundamental Rights of the European Union.78 In light of these considerations, certain procedural and substantive aspects of the religious regime under examination appeared to be particularly problematic. From a procedural point of view, before the issuance of Presidential Decree 52/2019, the total absence of procedural rights and guarantees in mufti jurisdiction allowed for infringement of the principle of fair trial in many cases. For example, there were noted cases of multiple hearings about the same dispute as well as cases in which the respondent did not receive adequate notification of a filed action against him. And since representation by a lawyer was not obligatory, parties may have not been able to properly defend themselves. The mufti’s independence was not guaranteed and, therefore, he could hardly be considered a “judge” under the Greek Constitution. Besides, his judgments—which have in many cases been characterized by lack of reasoning—could not be appealed.79 From a substantive point of view, many Sharia rules regarding marriage (e.g. marriages of minors, marriages by proxy), divorce (e.g. divorce by repudiation), parental care and succession80 as implemented in particular cases81 seemed to 77

Answer given by Ms. Reding on behalf of the Commission (16 March 2012) to the written question of Mr. Obermayr (7 February 2012), available at www.europarl.europa.eu. 78 Answer given by Ms. Reding on behalf of the Commission (11 March 2010) to the written question of Mr. Tremopoulos (18 January 2010), available at www.europarl.europa.eu. According to the answer, as regards the particular situation, the Commission does not have any information showing that there is a link between this situation and EU law. It is, therefore, not in a position to pronounce on the existence of any incompatibility with EU law. Beyond the competences of the European Union, if a person considers his fundamental rights to have been violated, he can appeal to the European Court of Human Rights. 79 See Ktistakis (2007), pp. 229, 230; Papadopoulou (2012), pp. 706, 707; Tsavousoglou (2015), p. 248. 80 See in general, among others, Mallat and Connors (1990), Pearl and Menski (1998), Nasir (2002), Khan 2007a, b, 2011a, b). 81 Given that the analysis of the rules of the Sacred Islamic Law as applied in the particular case fall outside the scope of this report, for further relevant information one may refer to, among other sources, the Council of the Court of Appeal of Thrace 89/1995. (1998) Yperaspisi p, 78; Legal opinion of the Legal Council of the State No 686/1993, available at www.nsk.gr; Circular No 96080/19182/20.09.2002 of the Ministry of Interior Affairs, Public Administration and Decentralization; National Committee on Human Rights, Decision on Islamic marriages by proxy in Greece (May 2003), www.nchr.gr/images/pdf/apofaseis/meionothtes/mousoulmanikos_gamos_dia_ antiproswpou2003.pdf; Demetriou and Gottwald (1995), Tsoukalas (1988), p. 1655; Tsoukalas

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be in direct conflict with the basic principles of the legal order as unanimously recognized by present-day liberal Western civilization, particularly the principle of equal treatment and the protection of the best interests of the child.

4 Concluding Remarks All things considered, the unique religious regime applied to the Muslims of Western Thrace offers a useful example of how challenging the co-existence of secular law with religious law—in particular, the Sacred Islamic Law—can be. Multiculturalism and freedom of religion constitute concepts of major importance that are to be respected in modern societies, and they will continue to do so; at the same time, it is nevertheless equally important that such core concepts and principles be aligned with the international legal order in general and the protection of human rights in particular, and do not turn into excuses legitimating the infringement of human rights, and in particular the rights of weaker parties in society, such as women and children. The examined case also highlights how important personal status law is in diverse environments, given that family and succession law is still considered a strong reflection of the identity of a given society. The new regime introduced by Law 4511/2018 has been criticized as a halfmeasure by some legal scholars, who have suggested the full abolition of mufti jurisdiction and Sharia. On the contrary, individual Muslims of Western Thrace— with no coherent and organized representation on the matter—appear to welcome it, including Muslim members of the Hellenic Parliament. Given the absence of official data and the availability of the relevant information mainly through press coverage, it could be argued, however, that the members of the Muslim minority of Western Thrace have a circumstantial and fragmented approach to the matter. As clearly shown in Molla Sali v Greece and the case law of Greek courts, which may be the most reliable sources regarding the trends in the matter, different individuals belonging to the same minority can argue in favor of or against the Islamic regime according to their personal interests in a particular case. It is clear that full abolition of Sharia and the mufti’s jurisdiction was considered a politically premature step at the moment. In this respect, one should take into account how delicate and complex the matter is as, apart from its legal aspects, it significantly relates to the country’s international relations. In fact, it heavily depends on political considerations and the balancing of interests between Greece and Turkey, an issue that obviously lies beyond the scope of this paper. Bearing this in mind, one could allege that the approach adopted over time has been the result of such balancing of interests and not a conscious choice of a certain interreligious law

(2002), pp. 1305–1306; Ktistakis (2007), p. 53; Tsaoussi and Zervogianni (2008), Pantelidou (2013), Sakaloglou (2015), Plagakos (2016), with further references.

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technique. It remains to be seen whether and to what extent the respect of human rights will eventually be combined with efforts toward political stability.

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της Θράκης πoυ τελoύνται απó νóμιμoυς και μη νóμιμoυς Iμάμηδες, η δικαστική αρμoδιóτητα τoυ Moυφτή και η εφαρμoγή της σαρία. Εφαρμoγες Αστικoύ Δικαίoυ 7 (10–11):802–808] Koumoutzis N, Papastylianos Chr (2019) Human rights issues arising from the implementation of Sharia law on the minority of Western Thrace—ECtHR Molla Sali v. Greece, Application No. 20452/14, 19 December 2018. Religions 10(300)