Non-recognition of third-country talaq divorce: Sahyouni

The CJEU has ruled in Sahyouni v Mamisch [2017] ECJ Case C‑372/16 that a talaq divorce pronounced in a third country does not attract the provisions of Article 1 of Regulation No 1259/2010 on enhanced cooperation in the law applicable to divorce and legal separation.

Background

Mr Mamisch and Ms Sahyouni married in 1999 within the jurisdiction of the Islamic Court of Homs, in Syria. Mr Mamisch, a Syrian national from birth, acquired German nationality by naturalisation: Ms Sahyouni, also a Syrian national, acquired German nationality on marriage [17]. In May 2013, Mr Mamisch declared his intention to dissolve his marriage by having his representative pronounce the divorce formula before the sharia court in Latakia, Syria, which subsequently declared the couple divorced. On 30 October 2013, Mr Mamisch applied for recognition of the divorce pronounced in Syria and, by a decision of 5 November 2013, the President of the Munich Higher Regional Court [Oberlandesgericht München] granted that application, finding that the statutory requirements for recognition of that divorce had been satisfied [20].

On 18 February 2014, Ms Sahyouni applied to have that decision set aside and a declaration made that the requirements for recognition of the divorce were not satisfied [21], but by a decision of 8 April 2014, the President of the Oberlandesgericht München rejected her application. In that decision, it was pointed out that recognition of the divorce decision was governed by Regulation No 1259/2010, which also applies to divorces pronounced without the constitutive intervention of a court or public authority (‘private divorces’). In the absence of a valid choice of applicable law and a common habitual residence of the spouses in the year preceding the divorce, the applicable law was to be determined in accordance with the provisions of Article 8(c) of that regulation. Where both spouses have dual nationality, the decisive factor is their effective nationality within the meaning of national law. At the time of the divorce at issue, their effective nationality was Syrian. It was also noted that public policy within the meaning of Article 12 of Regulation No 1259/2010 did not prevent recognition of the divorce decision at issue [22].

The questions referred

The domestic court stayed the proceedings and referred a number of questions on the interpretation of Regulation No 1259/2010 to the Court of Justice for a preliminary ruling. By order of 12 May 2016, Sahyouni (C‑281/15, EU:C:2016:343), the Court of Justice declared that it manifestly lacked jurisdiction to answer those questions referred for a preliminary ruling on the ground, in particular, that Regulation No 1259/2010 did not apply to the recognition of a divorce decision delivered in a third country, and that the referring court had not provided any evidence capable of establishing that the provisions of that Regulation had been rendered directly and unconditionally applicable by national law to situations such as that at issue in the main proceedings. It did, however, note that the referring court could still submit a new request for a preliminary ruling when it was in a position to supply the Court with all the elements which would enable it to give a ruling [23]. The domestic court therefore referred the following questions to the Court of Justice for a preliminary ruling:

“(1) Does the scope of [Regulation No 1259/2010], as defined in Article 1 of that regulation, also include cases of private divorce, in this instance one pronounced by unilateral declaration of a spouse before a religious court in Syria on the basis of sharia?

(2) If the answer to Question 1 is in the affirmative: In applying Regulation [No 1259/2010] [when examining] Article 10 thereof in cases of private divorce,

(a) is account to be taken in the abstract of a comparison showing that, while the applicable law pursuant to Article 8 grants access to divorce to the other spouse too, that divorce is, on account of the other spouse’s sex, subject to procedural and substantive conditions different from those applicable to access for the first spouse, or

(b) does the applicability of that rule depend on whether the application of the foreign law, which is discriminatory in the abstract, also discriminates in the particular case in question?

(3) If the answer to [Question 2(b)] is in the affirmative: Does the fact that the spouse discriminated against consents to the divorce — including by duly accepting compensation — itself constitute a ground for not applying that rule?”

The judgment

The Court of Justice concluded that the answer to the first question was that Article 1 of Regulation No 1259/2010 must be interpreted as meaning that a divorce resulting from a unilateral declaration made by one of the spouses before a religious court, such as that at issue in the main proceedings, does not come within the substantive scope of that regulation [49]. In the light of the answer to the first question, there was no need to answer the second and third questions [50].

Cite this article as: Frank Cranmer, "Non-recognition of third-country talaq divorce: Sahyouni" in Law & Religion UK, 20 December 2017, http://www.lawandreligionuk.com/2017/12/20/recognition-of-third-country-talaq-divorce-sahyouni/

 

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