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Legal Pluralism in Europa and
the Ordre public Exception:
Normative and Judicial
Perspective
International Workshop
(Trento, 16-17 April 2015)
Ordre public Exception, “Recognition
Method” and Regulation 1259/2010:
the case of Spain and other European
Countries
Gloria Esteban de la Rosa
Professor (Chair) of Private International Law
(University of Jaén)
Ordre public Exception, “Recognition
Method” and Council Regulation
1259/2010
I. Cultural Diversity in the European
Union
II. Moroccan Moudawana: general
aspects
III. Private International Law (PIL)
IV. European Private International
Law
V. European Case Law
Trento 2015 ger
Cultural Diversity and Immigration
inside the European Union:
General Aspects
 Diversity inherent to the European
Union moment of birth (different
nationalities, languages, …)
 Private international situations
linked to immigration
 New European Private
International Law
Islamic Family Law:
Personal Application
 Family Law is not
exempt from
religious influence
 I.e., the legal
period of
continence (given
by the Koran)
 Personal
application of
Islamic Law to
Muslims,
regardless of
whether or not
they hold another
nationality, whilst
residing in the
country of origin
but also overseas
Trento 2015 ger
The new Moroccan Moudawana
(2004)
The revelations of the Prophet
constituted a major change in the
understanding of social
relations, which is not, however,
considered sufficient in our time for
the defence of actual equality for
women (equal opportunities) within
the family and society
What’s new?
 The current Moroccan Family Code is made up
of 400 articles:
- Marriage (Book 1)
- The dissolution of the bonds of matrimony and
its effects (Book 2)
- Birth and its effects (Book 3)
- Legal capacity and representation (Book 4)
- Wills (Book 5)
- Inheritance (Book 6)
- Book 7 contains a collection of interim and
final provisions
The new Moroccan Family Code
 General
Presentation
 The FC should be
interpreted as a
policy aimed at
the entire family
 It serves several
purposes:
- to overcome the
inequality that
weighs upon
women,
- to protect the
rights of children
and
- to preserve the
rights of man
The new Moroccan Family Code
 It is based on the principles of Islam
as an egalitarian and tolerant religion
 It advocates ijtihad, which is the
interpretation of the Koran in the context
of modern society and its demands,
contrary to patriarchal hierarchy and
designed to validate arguments present in
sacred legal texts
The new Moroccan Moudawana
 Behind each of its articles and,
relating to the institutions contained
in the Code, there is a specific
understanding of the world and,
more specifically, family relations
Moroccan Family Code (2004):
Main modifications
 Malikí doctrine:
main
characteristics
 Dissolution of
marriage through
tatliq or talaq
 Marriage of
moroccan residents
abroad
 The concept of
head of family
 Ita has been anul
the “wilaya”
 Polligamy and its
limitations
MOROCCAN FAMILY CODE (2004)
 It clarifies the
concept of head
of family, in that
it considers the
sharing of
responsibility
between the two
spouses
 It underlines the
importance of
mutual
comprehension
and consent in
managing all
issues relating to
the family (ar.4)
Moroccan Moudawana:
Dissolution of marriage
 Regarding the
dissolution of
marriage, this can
occur through
tatliq or talaq
 Talaq consists of a
unilateral dissolution
presented by one of
the spouses, usually
the husband
 The wife may petition
for divorce tatliq if
one of the causes
stipulated in article 98
of the FC occurs
The new Moroccan Family Code
 The FC has also simplified the
procedure to be followed by
Moroccan Muslims who wish to
enter into marriage overseas
 Arts. 14 and 15 of FC
Procedure to enter into marriage
overseas
 Moroccan Muslims can celebrate the
marriage according to the local
administrative procedures of their
country of residence, provided that the
conditions of consent (offer and
acceptance), capacity and offering of the
dowry are fulfilled, and the ceremony is
held in the presence of at least two
Muslim witnesses.
 The celebration of marriage is said to be
valid if the parties are in agreement,
expressed through offer and acceptance.
Personal application of the Code
 The provisions of the Code are for
personal application, of Moroccans
(Muslims), regardless of whether or
not they hold another nationality,
whilst residing in Morocco but also
overseas
Trento 2015 ger
Application of Family Islamic Law
in European countries
(different perspectives)
 Marriage and dowry
 Dissolution of Marriage: talad and tatliq
 Revocable and irrevocable dissolution of
Marriage
 Hadana and Wilaya
 Kafala
Treatment of Cultural Diversity in
Private International Law (PIL)
 EU legislation
 Entry into force
of Treaty of
Amsterdam
 Case law of
Member States
 Spain
 Germany
 Other European
Countries
Private International Law
 It must promote the continuity of the
family relations of people who migrate in
their foreign place of origin
 And, it is to serve as a "communication
channel" between legislations: the
“Recognition Method” as a general clause
for the interpretation of European Private
International Law
 Public Policy?
Trento 2015 ger
European Private International
Law (PIL)
 Council Regulation nº
1259/2010 of 20 December 2010,
implementing enhanced cooperation
in the area of the law applicable
to divorce and legal separation
(Official Journal, L 343, 29.12.2010)
Art. 10 of Council Regulation nº
1259/2010
 “Application of the law of the
forum.
 Where the law applicable pursuant
to Article 5 or Article 8 makes no
provision for divorce or does not
grant one of the spouses equal
access to divorce or legal
separation on grounds of their sex,
the law of the forum shall apply”.
Innovation of
European PIL system??
 It does not allow
public policy to fulfil
its function through
the analysis of a
particular outcome
caused in a particular
case by the
application of foreign
Law
 It makes a
judgement in the
abstract of his
incompatibility with
public policy
Art. 10 of the Rome III
Regulation
It leads to an abstract
control on the
compatibility with the
public policy of foreign
law applicable to divorce
German doctrine says
that:
European legislature
did not want the
Islamic sharia Law
to be applied
Case Law (Germany). Before the entry into
force of Regulation 1259/2010
 OLG (Higher
Regional Court
of Appeals) of
Munich, dated
September 19,
1988
 The divorce
(unilateral
repudiation) is not
incompatible with
the ordre public
because it has
been accepted by
the wife
Case Law (Germany)
the possibility
of the woman
to forego the
dowry, in
exchange for
the dissolution
of the
marriage
Is not
contrary
to the ordre
public
Besides art. 10, arts. 5 and 8
Council Regulation 1259/2010
 Art. 5: Choice of applicable Law
by the parties (optio iuris)
 “1. The spouses may agree to
designate the law applicable to
divorce and legal separation
provided that it is one of the
following laws (…)”:
Article 8 of Council Regulation
1259/2010
Applicable Law in the absence of
a choice by the parties
“In the absence of a choice pursuant
to Article 5, divorce and legal
separation shall be subject to the
law of the State (…):”
Article 8 of Council Regulation
1259/2010
- Where the spouses
are habitually
resident or, failling
that,
- Where the spouses
were last
habitually resident
or failing that,
- Of wich both
spouses are
nationals at the
time the cout is
seized, or, failling
that
- Where the court is
seized.
Also, art. 12 of Council Regulation
1259/2010
 Public Policy:
definition
 Relationship
between Art. 12
and Art. 10?
 Application of a
provision of the
law designated by
virtue of this
Regulation may be
refused only if
such application is
manifestly
incompatible with
the public policy of
the forum
Case Law: Teleological reduction of the
rule is proposed
 OLG (Higher
Regional Court
of Appeals) of
Hamburg, dated
May 7, 2013
 in such a way
that:
 it can be
considered that
the regulation is
not inconsistent
with public order,
if the woman
accepts the
divorce
Trento 2015 ger
Application of Morocan Family Code
by European authorities
 Its application in Spain
 Its application in France
 Its application in Germany
Application of the Moroccan Family
Code (2004) in Spain
 the FC is not
exempt from
religious influence
in Morocco
 I.e., the legal
period of
continence (given
by the Koran)
 Evolution from
2000 to 2014
 Application of
national commun
Law of spouses:
Article 107 of Civil
Code (Ley
Orgánica 11/2003)
The case of the Dowry: evolution
 The lack of correspondence at present of
the dowry in Spanish legislation has led the
courts, even those inclined to its recognition,
to resolve inadequately those cases
 Her claim be dismissed simply because the
dowry constitutes an institution which
does not currently exist in Spanish
legislation (Court of Appeal of Castellón
(section 3ª), January 21st (5/2004).
Nowadays:
2012-2014
 Provincial Court of
Gerona (section 1ª)
nº 445/2012, of
November 23
 Provincial Court of
Gerona (section
1ª), of Octobre, 2
(nº 413/2014)
 They recognised the
dowry
 and also the mutca
(art. 84 FC): an
amount to be paid in
compensation to the
woman for damages
caused by the
dissolution of the
marriage
Application of the Moroccan FC
by Spanish authorities
 Dissolution of Marriage
 The question arises whether the fact
that the FC regulates the forms of
dissolution of marriage which a man
or a woman can apply for differently
is, in itself, incompatible with
Spanish (international) public policy
Evolution
 From the anticipated
impact of public policy
 Judgement of the
Provincial Court of
Murcia No 166/2003
(section 1) of May 12
suggests
 To the recognition
of different ways
for divorce
 Court of Appeal of
Logroño (section 1ª)
of november, 13 (nº
70/2014)
 Court of Appeal of
Madrid (section 22ª)
nº 793/2010, of
november, 23
 Court of Appeal of
Barcelona (section
12ª) of July, 15 (nº
304/2013)
Spanish Public Policy?
 New ways of dissolution of a
marriage have been introduced,
allowing both parties to
terminate their relationship
through the same procedure and
alleging the existence of
disagreements must also be taken
into account (art.97)
Revocable and irrevocable
dissolution of marriage
 The length of time for
which the dissolution
of the marriage is
revocable corresponds
to the idda (legal
period of continence),
which is three
menstrual months
 The General
Directorate for
Registries and Public
Notaries (Resolution
of 26th October 2006)
denied the registration
of a marriage because
it was incompatible
with public policy
 There is uncertainty
about the
circumstances of the
marital status of the
person
Revocable and irrevocable
dissolution of marriage
 The divorce was
not considered to
be an authentic
dissolution of
marriage as its
revocable nature
meant that the
ties had not been
definitively broken
 The similarities
between the
revocable nature
of the dissolution
of marriage and
the status of legal
separation
Distribution of widow’s pension in case of
Polygamy?
 In some cases:
employment of the
notion of “attenuate
public policy”
 Distribution of the
pension
 Convention on Social
Security between
Spain and Morocco
 In other cases: the
pension is denied
to the second wife,
because of the
public policy model
set out in the
Spanish
Constitution and
in the European
cultural
environment
Germany
 if the woman has
requested the
dissolution of marriage
in exchange for a
waiver of the dowry
(dissolution of
marriage in exchange
for compensation)
 OLK of Koblenz, on
September 19, 2012:
it was not considered
incompatible with the
public policy
 decision of the
BGH (German
Supreme Court)
of October 6,
2004, on the
dissolution of
marriage
requested by the
Iranian wife
France
 Court of Cassation, of October 23,
2013 (No. 12-25802 and 12-21344)
 public policy of proximity is used
 The husband, of Moroccan nationality and
resident in France: he could have
requested the dissolution of marriage
under “grounds of disagreement”
 This case is incompatible with public
policy, given that this person should
have filed for divorce under a form of
dissolution of marriage that exists in his
national legislation and which is more
compatible with those existing under
French Law.
Conclusions (I)
 Critic made: poor values of the PIL
 At present: Cultural Diversity is also
a value for the Private International Law
 The legal-family situation of
immigrants in Europe cannot be
treated mechanically; rather,
cultural aspects must also be
taken into consideration and
should be promoted the
continuity of personal and
familiar relationships
Conclusions (II)
Trento 2015 ger

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Trento 2015 ger

  • 1. Legal Pluralism in Europa and the Ordre public Exception: Normative and Judicial Perspective International Workshop (Trento, 16-17 April 2015) Ordre public Exception, “Recognition Method” and Regulation 1259/2010: the case of Spain and other European Countries Gloria Esteban de la Rosa Professor (Chair) of Private International Law (University of Jaén)
  • 2. Ordre public Exception, “Recognition Method” and Council Regulation 1259/2010 I. Cultural Diversity in the European Union II. Moroccan Moudawana: general aspects III. Private International Law (PIL) IV. European Private International Law V. European Case Law
  • 4. Cultural Diversity and Immigration inside the European Union: General Aspects  Diversity inherent to the European Union moment of birth (different nationalities, languages, …)  Private international situations linked to immigration  New European Private International Law
  • 5. Islamic Family Law: Personal Application  Family Law is not exempt from religious influence  I.e., the legal period of continence (given by the Koran)  Personal application of Islamic Law to Muslims, regardless of whether or not they hold another nationality, whilst residing in the country of origin but also overseas
  • 7. The new Moroccan Moudawana (2004) The revelations of the Prophet constituted a major change in the understanding of social relations, which is not, however, considered sufficient in our time for the defence of actual equality for women (equal opportunities) within the family and society
  • 8. What’s new?  The current Moroccan Family Code is made up of 400 articles: - Marriage (Book 1) - The dissolution of the bonds of matrimony and its effects (Book 2) - Birth and its effects (Book 3) - Legal capacity and representation (Book 4) - Wills (Book 5) - Inheritance (Book 6) - Book 7 contains a collection of interim and final provisions
  • 9. The new Moroccan Family Code  General Presentation  The FC should be interpreted as a policy aimed at the entire family  It serves several purposes: - to overcome the inequality that weighs upon women, - to protect the rights of children and - to preserve the rights of man
  • 10. The new Moroccan Family Code  It is based on the principles of Islam as an egalitarian and tolerant religion  It advocates ijtihad, which is the interpretation of the Koran in the context of modern society and its demands, contrary to patriarchal hierarchy and designed to validate arguments present in sacred legal texts
  • 11. The new Moroccan Moudawana  Behind each of its articles and, relating to the institutions contained in the Code, there is a specific understanding of the world and, more specifically, family relations
  • 12. Moroccan Family Code (2004): Main modifications  Malikí doctrine: main characteristics  Dissolution of marriage through tatliq or talaq  Marriage of moroccan residents abroad  The concept of head of family  Ita has been anul the “wilaya”  Polligamy and its limitations
  • 13. MOROCCAN FAMILY CODE (2004)  It clarifies the concept of head of family, in that it considers the sharing of responsibility between the two spouses  It underlines the importance of mutual comprehension and consent in managing all issues relating to the family (ar.4)
  • 14. Moroccan Moudawana: Dissolution of marriage  Regarding the dissolution of marriage, this can occur through tatliq or talaq  Talaq consists of a unilateral dissolution presented by one of the spouses, usually the husband  The wife may petition for divorce tatliq if one of the causes stipulated in article 98 of the FC occurs
  • 15. The new Moroccan Family Code  The FC has also simplified the procedure to be followed by Moroccan Muslims who wish to enter into marriage overseas  Arts. 14 and 15 of FC
  • 16. Procedure to enter into marriage overseas  Moroccan Muslims can celebrate the marriage according to the local administrative procedures of their country of residence, provided that the conditions of consent (offer and acceptance), capacity and offering of the dowry are fulfilled, and the ceremony is held in the presence of at least two Muslim witnesses.  The celebration of marriage is said to be valid if the parties are in agreement, expressed through offer and acceptance.
  • 17. Personal application of the Code  The provisions of the Code are for personal application, of Moroccans (Muslims), regardless of whether or not they hold another nationality, whilst residing in Morocco but also overseas
  • 19. Application of Family Islamic Law in European countries (different perspectives)  Marriage and dowry  Dissolution of Marriage: talad and tatliq  Revocable and irrevocable dissolution of Marriage  Hadana and Wilaya  Kafala
  • 20. Treatment of Cultural Diversity in Private International Law (PIL)  EU legislation  Entry into force of Treaty of Amsterdam  Case law of Member States  Spain  Germany  Other European Countries
  • 21. Private International Law  It must promote the continuity of the family relations of people who migrate in their foreign place of origin  And, it is to serve as a "communication channel" between legislations: the “Recognition Method” as a general clause for the interpretation of European Private International Law  Public Policy?
  • 23. European Private International Law (PIL)  Council Regulation nº 1259/2010 of 20 December 2010, implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (Official Journal, L 343, 29.12.2010)
  • 24. Art. 10 of Council Regulation nº 1259/2010  “Application of the law of the forum.  Where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply”.
  • 25. Innovation of European PIL system??  It does not allow public policy to fulfil its function through the analysis of a particular outcome caused in a particular case by the application of foreign Law  It makes a judgement in the abstract of his incompatibility with public policy
  • 26. Art. 10 of the Rome III Regulation It leads to an abstract control on the compatibility with the public policy of foreign law applicable to divorce
  • 27. German doctrine says that: European legislature did not want the Islamic sharia Law to be applied
  • 28. Case Law (Germany). Before the entry into force of Regulation 1259/2010  OLG (Higher Regional Court of Appeals) of Munich, dated September 19, 1988  The divorce (unilateral repudiation) is not incompatible with the ordre public because it has been accepted by the wife
  • 29. Case Law (Germany) the possibility of the woman to forego the dowry, in exchange for the dissolution of the marriage Is not contrary to the ordre public
  • 30. Besides art. 10, arts. 5 and 8 Council Regulation 1259/2010  Art. 5: Choice of applicable Law by the parties (optio iuris)  “1. The spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws (…)”:
  • 31. Article 8 of Council Regulation 1259/2010 Applicable Law in the absence of a choice by the parties “In the absence of a choice pursuant to Article 5, divorce and legal separation shall be subject to the law of the State (…):”
  • 32. Article 8 of Council Regulation 1259/2010 - Where the spouses are habitually resident or, failling that, - Where the spouses were last habitually resident or failing that, - Of wich both spouses are nationals at the time the cout is seized, or, failling that - Where the court is seized.
  • 33. Also, art. 12 of Council Regulation 1259/2010  Public Policy: definition  Relationship between Art. 12 and Art. 10?  Application of a provision of the law designated by virtue of this Regulation may be refused only if such application is manifestly incompatible with the public policy of the forum
  • 34. Case Law: Teleological reduction of the rule is proposed  OLG (Higher Regional Court of Appeals) of Hamburg, dated May 7, 2013  in such a way that:  it can be considered that the regulation is not inconsistent with public order, if the woman accepts the divorce
  • 36. Application of Morocan Family Code by European authorities  Its application in Spain  Its application in France  Its application in Germany
  • 37. Application of the Moroccan Family Code (2004) in Spain  the FC is not exempt from religious influence in Morocco  I.e., the legal period of continence (given by the Koran)  Evolution from 2000 to 2014  Application of national commun Law of spouses: Article 107 of Civil Code (Ley Orgánica 11/2003)
  • 38. The case of the Dowry: evolution  The lack of correspondence at present of the dowry in Spanish legislation has led the courts, even those inclined to its recognition, to resolve inadequately those cases  Her claim be dismissed simply because the dowry constitutes an institution which does not currently exist in Spanish legislation (Court of Appeal of Castellón (section 3ª), January 21st (5/2004).
  • 39. Nowadays: 2012-2014  Provincial Court of Gerona (section 1ª) nº 445/2012, of November 23  Provincial Court of Gerona (section 1ª), of Octobre, 2 (nº 413/2014)  They recognised the dowry  and also the mutca (art. 84 FC): an amount to be paid in compensation to the woman for damages caused by the dissolution of the marriage
  • 40. Application of the Moroccan FC by Spanish authorities  Dissolution of Marriage  The question arises whether the fact that the FC regulates the forms of dissolution of marriage which a man or a woman can apply for differently is, in itself, incompatible with Spanish (international) public policy
  • 41. Evolution  From the anticipated impact of public policy  Judgement of the Provincial Court of Murcia No 166/2003 (section 1) of May 12 suggests  To the recognition of different ways for divorce  Court of Appeal of Logroño (section 1ª) of november, 13 (nº 70/2014)  Court of Appeal of Madrid (section 22ª) nº 793/2010, of november, 23  Court of Appeal of Barcelona (section 12ª) of July, 15 (nº 304/2013)
  • 42. Spanish Public Policy?  New ways of dissolution of a marriage have been introduced, allowing both parties to terminate their relationship through the same procedure and alleging the existence of disagreements must also be taken into account (art.97)
  • 43. Revocable and irrevocable dissolution of marriage  The length of time for which the dissolution of the marriage is revocable corresponds to the idda (legal period of continence), which is three menstrual months  The General Directorate for Registries and Public Notaries (Resolution of 26th October 2006) denied the registration of a marriage because it was incompatible with public policy  There is uncertainty about the circumstances of the marital status of the person
  • 44. Revocable and irrevocable dissolution of marriage  The divorce was not considered to be an authentic dissolution of marriage as its revocable nature meant that the ties had not been definitively broken  The similarities between the revocable nature of the dissolution of marriage and the status of legal separation
  • 45. Distribution of widow’s pension in case of Polygamy?  In some cases: employment of the notion of “attenuate public policy”  Distribution of the pension  Convention on Social Security between Spain and Morocco  In other cases: the pension is denied to the second wife, because of the public policy model set out in the Spanish Constitution and in the European cultural environment
  • 46. Germany  if the woman has requested the dissolution of marriage in exchange for a waiver of the dowry (dissolution of marriage in exchange for compensation)  OLK of Koblenz, on September 19, 2012: it was not considered incompatible with the public policy  decision of the BGH (German Supreme Court) of October 6, 2004, on the dissolution of marriage requested by the Iranian wife
  • 47. France  Court of Cassation, of October 23, 2013 (No. 12-25802 and 12-21344)  public policy of proximity is used  The husband, of Moroccan nationality and resident in France: he could have requested the dissolution of marriage under “grounds of disagreement”  This case is incompatible with public policy, given that this person should have filed for divorce under a form of dissolution of marriage that exists in his national legislation and which is more compatible with those existing under French Law.
  • 48. Conclusions (I)  Critic made: poor values of the PIL  At present: Cultural Diversity is also a value for the Private International Law
  • 49.  The legal-family situation of immigrants in Europe cannot be treated mechanically; rather, cultural aspects must also be taken into consideration and should be promoted the continuity of personal and familiar relationships Conclusions (II)