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*PIL Case Law

Published on December 22nd, 2017 | by Olga Papadopoulou


CJEU C 372/16, Reg. 1259/2010 – Private divorce obtained before a religious court in a third country


Soha Sahyouni V. Raja Mamisch,

JUDGMENT OF THE COURT (First Chamber), 20 December 2017 (*)

(Reference for a preliminary ruling — Area of freedom, security and justice — Regulation (EU) No 1259/2010 — Enhanced cooperation in the area of the law applicable to divorce and legal separation — Recognition of a private divorce obtained before a religious court in a third country — Scope of that regulation)

In those circumstances, the Oberlandesgericht München (Higher Regional Court, Munich) decided to stay the proceedings and to refer the following questions to the Court 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?’

On those grounds, the Court (First Chamber) hereby rules:

Article 1 of 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 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.

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