Now, a quick background check. Divorce for a Muslim marriage can be generally categorized into 4 categories. These are: (1) Talak, (2) Khuluk, (3) Taklik and (4) Fasakh).
Talaq comes from the Arabic word, which means, “to release” or in this case, “to divorce”. In this divorce, the husband rejects his wife. Talaq allows the husband to apply for a divorce without having to prove that his wife has done wrong. The divorce is effected simply because the husband no longer wants his wife and has rejected her.
Khuluk also comes from the Arabic word, Khula, which is the right of a woman to seek divorce from her husband. In return, she is required to compensate her husband, normally through monetary means. In contrast from Talaq, the wife is also required to prove that her husband has done wrong and breached either Taklik or Fasakh. There is an exception however, if her husband permits her to file for a divorce.
Taklik is derived from Arabic, which means a conditional divorce, and can be seen as a conditional marriage stipulation, like a pre-marriage/nuptial agreement. Should a woman apply for Khuluk, she will have to prove that her husband has breached the Taklik before the divorce is valid under Shariah.
The last form of Muslim divorce is through Fasakh. This dissolution of marriage can occur under any valid reason and it means to annul the marriage. Generally there is a non-exhaustive list of grounds where a marriage can be annulled, and include failure of the husband to provide his wife with maintenance for 3 months, the husband was impotent at the time of the marriage and is still impotent to date etc.
Now, in late 2017, the EUCJ heard the following matter: Advocate General’s Opinion in Case C-372/16 Press and Information Soha Sahyouni v Raja Mamisch. Mr Raja Mamisch and Mrs Soha Sahyouni, who hold both Syrian and German citizenship, were both residents in Germany. The couple married in 1999 in the Syrian city of Homs.
In 2013, Mr Mamisch expressed his desire to get divorced, his representative pronounced the required formula before a religious court in Syria, which granted the divorce. The divorce was ‘private’ in so far as it is based not on a constitutive decision of a court or other public authority, but on a declaration of intent of the spouses (a Talak), in this case unilateral and followed by a merely declarative act of a foreign authority.
Subsequently, Mrs Sahyouni signed a declaration acknowledging that she had received all the payments which, according to religious law, were due to her under the marriage contract and on the basis of the unilateral divorce instigated by her husband and she thereby released her husband from all obligations to her.
Mr Mamisch then applied to have the Shariah divorce recognised in Germany. That application was granted by a Higher Regional Court in Munich, holding, in particular, that the ‘Rome III’ Regulation on the law applicable to divorce covers that type of application and that, under that regulation, the divorce at issue was governed by Syrian law.
The Rome III Regulation was implemented in 2010 for the enhanced cooperation in the area of the law applicable to divorce and legal separation is a regulation concerning the applicable law regarding divorce valid in 17 EU countries. The Regulation dictates which law should be used in cross-border divorces in Europe.
Mrs Sahyouni contested that recognition of the divorce, which was referred to the Court of Justice several questions relating to the interpretation of the ‘Rome III’ Regulation.
In his Opinion, the Advocate General of the EUCJ noted first of all that the ‘Rome III’ Regulation lays down the rules governing conflicts of applicable laws in matters of divorce in the participating Member States, without governing the recognition of decisions on divorce which have already been made.
While this seems a bit technical, what it means is that the Advocate General considered that the ‘Rome III’ Regulation does not cover divorces which are declared without a constitutive decision of a court or other public authority, such as a divorce resulting from the unilateral declaration of a spouse which is registered by a religious court.
In other words, the divorce pronouncement in a Sharia court in Syria cannot be a divorce validated under EU law. In short, the EUCJ said member states of the European Union must decide for themselves whether to recognise “private divorces”, such as those performed in Shariah courts, and therefore the EU law (the Rome III Regulation) is not applicable. So, a summary of this case is that a declaration of divorce before a religious court (such as that in Syria) does not fall under the scope of the regulation, and said the case must be resolved under German law.
In Australia, the courts will examine all factors before applying a judgement from another foreign jurisdiction, especially in regards to divorce. Some of the main issues to be examined would be fairness to the parties, right to adequate and capable representation, adherence to any International Charters and Conventions (such as Convention on the Elimination of all Forms of Discrimination against Women), the best interest of the children, duress and lack of free consent, judicial competence of the foreign court, as well as general consonance with Australian laws.
As an aside, it should be noted that most Islamic countries have now banned triple Talaq.
Till next time, Masalama and Ramadan Kareem/Mubarak.