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*PIL Case Law

Published on January 9th, 2018 | by efi kloyeri


Summary: CJEU, C- C-372/2016- Recognition of a private divorce obtained before a religious court in a third country

Key-words: 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

Case Number: C‑372/16

 Court of Justice of the European Union

 Eftihia-Angie Klogkiri

 A: The facts in the main proceedings and

 On 1999 Mr Mamisch and Ms Sahyouni married within the jurisdiction of the Islamic Court of Homs (Syria). Mr Mamisch has held Syrian nationality from birth and acquired German nationality by naturalisation. His wife also acquired the German nationality after their marriage. The two have lived in Germany, Syria, Kuwait and Lebanon throughout their marriage life. In the present, due to the fact that they live separately, Mr Mamisch declared his intention to dissolve his marriage by having his representative pronounce the divorce formula before the religious sharia court in Latakia (Syria), which indeed declared the couple divorced (20/05/2013).

On 30/10/2013, he also applied for recognition of the divorce pronounced in Syria. By decision of 5 November 2013, the President of the Oberlandesgericht München (Higher Regional Court, Munich, Germany) granted that application, finding that the statutory requirements for recognition of that divorce were satisfied based on the Regulation 1259/2010. On 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.

Under those circumstances, the Oberlandesgericht München decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling.

B: the questions referred

(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?

 C: Legal Context

Article 1 of Regulation No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation,

Paragraph 107 of the German law on proceedings in family matters and in matters of non-contentious jurisdiction (the FamFG), regarding the recognition of foreign decisions in matrimonial matters

D: Consideration of the questions referred

1: Regarding the first question

 The Court noticed that the wording of Article 1 of that regulation 1259/2010 does not provide any useful element for the purpose of defining the concept of ‘divorce’ within the meaning of that provision. It therefore tried to define the purpose of this Regulation. The Regulation establishes, as is clear from its title, enhanced cooperation between the participating Member States in the area of the law applicable to divorce and legal separation.

Additionally, at the time of the adoption of that regulation, in the legal systems of the Member States participating in such enhanced cooperation, public bodies alone were able to adopt legally valid decisions in that sphere. It is therefore necessary to find that, by adopting that regulation, the EU legislature had in mind only situations in which divorce is pronounced by a national court or by, or under the supervision of, another public authority, and that, accordingly, it was not the intention of the EU legislature that that regulation should be applicable to other types of divorce, such as those which, as in the present case, are based on a ‘private unilateral declaration of intent’ pronounced before a religious court. Such an interpretation is supported by the fact that no mention was made during the negotiations which led to the adoption of Regulation No 1259/2010 of an application of that regulation to private divorces. Therefore, in the light of the definition of the concept of ‘divorce’ in Regulation No 2201/2003, it is clear from the objectives pursued by Regulation No 1259/2010 that the latter regulation covers solely divorces pronounced either by a national court or by, or under the supervision of, a public authority.

In light of the foregoing considerations, the Court stated that, the 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.

2: Regarding the second and third questions

In the light of the answer to the first question, there is no need to answer the second and third questions.

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